TITLE ONE

CRIMES AGAINST NATIONAL SECURITY

Crimes against national security
1.
Treason (Art. 114);
2.
Conspiracy and proposal to commit
treason (Art. 115);
3.
Misprision of treason (Art. 116); and
4.
Espionage (Art. 117).
Crimes against the law of nations
1.
Inciting to war or giving motives for
reprisals (Art. 118);
2.
Violation of neutrality (Art. 119);
3.
Corresponding with hostile country (Art.
120);
4.
Flight to enemy's country (Art. 121); and
5.
Piracy in general and mutiny on the high
seas (Art. 122).
The crimes under this title can be prosecuted
even if the criminal act or acts were committed
outside the Philippine territorial jurisdiction.
However, prosecution can proceed only if the
offender is within Philippine territory or brought
to the Philippines pursuant to an extradition
treaty. This is one of the instances where the
Revised Penal Code may be given extra-territorial
application under Article 2 (5) thereof. In the
case of crimes against the law of nations, the
offender can be prosecuted whenever he may be
found because the crimes are regarded as
committed against humanity in general.

3.

Requirements of levying war

1) Actual assembling of men;
2) To execute a treasonable design by force;
3) Intent is to deliver the country in whole or in
part to the enemy; and
4) Collaboration with foreign enemy or some
foreign sovereign
* Success is not important. What matters is the
actual assembly of men and the execution of
treasonable design by force.

> The testimonies must refer to the same act,

place and moment of time. Treason cannot be
proved by circumstantial evidence or by
extrajudicial confession.
Example: X saw arms landed in La Union
and loaded into a motor vehicle. At this
stage, not sufficient to convict yet. Y later
saw the arms unloaded in a warehouse.
Will X + Y be sufficient witnesses to
convict? Answer: NO. Because the law
requires that 2 witnesses see the SAME
OVERT ACT.
b.

ELEMENTS:
a. That the offender owes allegiance to
the Government of the Philippines
That there is a war in which the
Philippines is involved

c.

That the offender either

Confession of the accused in open

court.
Arraignment, pre-trial, trial OK.
> If he has pleaded NOT guilty already
during arraignment, he can still confess
in open court by stating the particular
acts constituting treason.
> During trial, simply saying Im guilty
is not enough.
> Withdrawing plea of not guilty during
arraignment not necessary

1) Levies war against the government,

1. breech of allegiance
2. actual assembling of men
3. for the purpose of executing a
treasonable design
2) Adheres to the enemies, giving them
aid and comfort
1. breech of allegiance
2. adherence

Ways of proving treason:

a. 2 witnesses testifying to same overt
act

Article 114
TREASON

b.

giving aid or comfort to the enemy

> If during arraignment he pleads guilty,

court will ask if the accused understands
is plea. Submission of affidavit during
trial, even if assisted by counsel is not
enough.

TREASON: breach of allegiance to the

government, committed by a person who
owes allegiance to it. Allegiance: obligation of

fidelity and obedience. It is permanent or

temporary depending on whether the person
is a citizen or an alien.
Evident premeditation, superior strength and
treachery are circumstances inherent in
treason, and are, therefore, not aggravating.

Treason cannot be committed in times of

peace, only in times of war actual
hostilities. But no need for declaration of war

Not Treasonous:
a.
Acceptance of public
discharge of official duties
enemy does not constitute per
of treason (exception: when
determining)

office and
under the
se the felony
it is policy

b.

Serving in a puppet government

(ministerial functions) and in order to serve
the populace is NOT treasonous. But it is
treason if: a) there is discretion involved; b)
inflicts harm on Filipinos; c) it is
disadvantageous to them.

c.

Purpose of offender: to deliver the

Philippines to enemy country; if merely to
change officials not treason
On Citizenship
> Filipino citizens can commit treason
outside the Philippines. But that of an
alien must be committed in the
Philippines.
> Only Filipino citizens or permanent
resident aliens can be held liable
> ALIEN: with permanent resident status
from the BID it is neither the length of
stay in the Philippines nor the marriage
with a Filipino that matters.

Actual hostilities may determine the date of the

commencement of war

No such thing as attempted treason; mere

attempt consummates the crime

GIVING AID OR COMFORT material element,

enhances forces of the enemy country.
> Acts which strengthen or tend to strengthen
the enemy in the conduct of war against the
traitors country or that which weaken and tend
to weaken the power of the same.

Example: Financing arms procurement of

enemy country. But giving of shelter is not
necessarily giving aid and comfort.

Adherence and giving aid or comfort must

concur together.

ADHERENCE: when a citizen intellectually

or emotionally favors the enemy and harbors
convictions disloyal to his countrys policy.
But membership in the police force during
the occupation is NOT treason.
Example:
Giving
information
to,
or
commandeering foodstuffs for the enemy.

Adherence may be proved by: (1) one

witness; (2) from the nature of the act itself;
(3) from the circumstances surrounding the
act.
*
When this adherence or sympathies are
converted into aid and comfort, only then they take
material form. This material form is now what is
made punishable. It is usually manifested by the
offender in giving information, commandeering
foodstuffs, serving as spy and supplying the
enemy with war materials.

Treason is a CONTINUING CRIME. Even after

the war, offender can be prosecuted.

* Treason is a continuing offense. It can be

committed by a single act or by a series of acts. It
can be committed in one single time or at
different times and only one criminal intent. In
construing the provisions relating to the
commission of several acts, the same must be
done in pursuance or furtherance of the act of
treason.
* No matter how many acts of treason are
committed by the offender, he will be liable for
only one crime of treason.

If you convict a person for treason by reason

of irresistible force or uncontrollable fear, you
may use Art.12. No treason through
negligence

* In the imposition of the penalty for the crime of

treason, the court may disregard the presence of
mitigating and aggravating circumstances. It may
consider only the number, nature and gravity of
the acts established during the trial. The
imposition of the penalty rests largely on the
exercise of judicial discretion.

Defenses that may be availed of by the

accused.
1.

2. adhere to the enemies and to give them aid

or comfort,
c.

Duress or uncontrollable fear of immediate

death; and

2. Lawful obedience to a de facto government.

When killings and other common crimes are

charged as overt act of treason, they cannot
be regarded as (1) separate crimes or (2) as
complex with treason.

* In the act of levying war or giving aid or

comfort to the enemy, murder, robbery, arson or
falsification may be committed by the offender.
BUT the offender does not commit the crime of
treason complexed with common crimes because
such crimes are inherent to treason, being an
indispensable element of the same.

Treason distinguished from Sedition.

Mere agreement and decisions to commit

treason is punishable

Mere proposal even without acceptance is

punishable too. If the other accepts, it is
already conspiracy.

* While Treason as a crime should be established

by the two-witness rule, the same is not observed
when the crime committed conspiracy to commit
treason or when it is only a proposal to commit
treason.
Article 116
MISPRISION OF TREASON

In sedition, the offender disagrees with certain

policies of the State and seeks to disturb public
peace by raising a commotion or public uprising.

Article 115
CONSPIRACY TO COMMIT TREASON
ELEMENTS:
a. In time of war
b.

2 or more persons come to an agreement

to
1. levy war against the government, or

A person who has decided to levy war

against the government, or to adhere to
the enemies and to give them aid or
comfort, proposes its execution to some
other person/s.

In treason, the offender repudiates his allegiance

to the government by means of force or
intimidation. He does not recognize the supreme
authority of the State. He violates his allegiance
by fighting the forces of the duly constituted
authorities.

ELEMENTS OF PROPOSAL TO COMMIT

TREASON
a. In time of war
b.

Treason distinguished from Rebellion.

The manner in which both crimes are committed in
the same. In treason however, the purpose of the
offender is to deliver the government to the
enemy country or to a foreign power. In
rebellion, the purpose of the rebels is to
substitute the government with their own form of
government. No foreign power is involved.

They decide to commit it

ELEMENTS:
a. That the offender must be owing
allegiance to the government, and
not a foreigner
b.

That he has knowledge of any

conspiracy (to commit treason)
against the government

c.

That he conceals or does not

disclose and make known the same
as soon as possible to the governor
or fiscal of the province or the
mayor or fiscal of the city in which
he resides

* While in treason, even aliens can commit said

crime because of the amendment to the article, no
such amendment was made in misprision of
treason. Misprision of treason is a crime that may
be committed only by citizens of the Philippines.

Offender is punished as an accessory to the

crime of treason

* Take note that the offender is a principal to the

crime of misprision of treason, yet he is penalized
only as an accessory. In the imposition of the
penalty, the court is not bound by the provisions
of Article 63 and 64, referring to indivisible
penalties. In the presence of mitigating and
aggravating circumstances, the offender is
punished two degrees lower than the penalty for
the crime of treason.
* The criminal liability arises if the treasonous
activity was still at the conspiratorial stage

This crime does not apply if the crime of

treason is already committed

Crime of omission

* This is a felony by omission although committed

with dolo, not with culpa.

To report within a reasonable time depends

on time, place and circumstance the RPC
did not fix time.

RPC states 4 individuals, what if you report

to some other high-ranking government
official? Ex. PNP Director? Judge Pimentel
says any govt official of the DILG is OK.

* Whether the conspirators are parents or children,

and the ones who learn the conspiracy is a parent
or child, they are required to report the same. The
reason is that although blood is thicker than
water so to speak, when it comes to security of
the
state,
blood
relationship
is
always
subservient to national security. Article 20 does
not apply here because the persons found liable
for this crime are not considered accessories; they
are treated as principals.
Article 117
Espionage by entering, without authority
therefor, warship, fort, or naval or military
establishments or reservation to obtain any
information, plans, photographs or other data
of a confidential nature relative to the defense
of the Philippines.

ELEMENTS:
a. 1. That the offender enters any of the
places mentioned therein
2
3
2. That he has no authority
therefore;

b.

That his purpose is to obtain

information, plans, photographs or
other data of a confidential nature
relative to the defense of the
Philippines

* Under the first mode of committing espionage,

the offender must have the intention to obtain
information relative to the defense of the PHIL. It
is sufficient that he entered the prohibited
premises. Here, the offender is any private
individual, whether an alien or a citizen of the
Philippines, or a public officer.
Espionage by disclosing to the representative
of a foreign nation the contents of the
articles, data, or information referred to in
paragraph 1 of Article 117, which he had in
his possession by reason of the public office
holds
ELEMENTS:
a. That the offender is a public officer
b. That he has in his possession the
articles, data or information referred
to in par 1 of art 117, by reason of the
public office he holds
c. That he discloses their contents to a
representative of a foreign nation

Purpose: to gather data

* Under the second mode, the offender must be a

public officer who has in possession the articles,
data or information by reason of the office he
holds. Taking advantage of his official position,
he reveals or discloses the information which are
confidential and are relevant to the defense of the
Philippines.

ESPIONAGE: the offense of gathering,

transmitting, or losing information respecting
the national defense with the intent or reason
to believe that the information is to be used
to the injury of the Philippines or the
advantage of any foreign nation. It is not
conditioned on citizenship.

Not necessary that Philippines is at war with

the country to which the information was
revealed. What is important is that the
information related is connected with the
defense system of the Philippines.

Wiretapping is NOT espionage if the purpose

is not something connected with the defense

Reprisals is not limited to military action, it

could be economic reprisals, or denial of
entry into their country.

Commonwealth Act No. 616 An Act to

Punish Espionage and Other Offenses against
National Security

EXAMPLE. X burns Chinese flag. If China bans

the entry of Filipinos into China, that is already
reprisal.

Acts punished
1.
Unlawfully obtaining or permitting to be
obtained information affecting national
defense;
2.
Unlawful
disclosing
of
information
affecting national defense;
3.
Disloyal acts or words in times of peace;
4.
Disloyal acts or words in times of war;
5.
Conspiracy to violate preceding sections;
6.
Harboring or concealing violators of law.
and
7.
Photographing vital military information

Article 119
VIOLATION OF NEUTRALITY

CRIMES AGAINST LAWS OF NATIONS

* In crimes against the law of nations, the
offenders can be prosecuted anywhere in the
world because these crimes are considered as
against humanity in general, like piracy and
mutiny. Crimes against national security can be
tried only in the Philippines, as there is a need to
bring the offender here before he can be made to
suffer the consequences of the law. The acts
against national security may be committed
abroad and still be punishable under our law, but
it can not be tried under foreign law.

Article 118
INCITING TO WAR OR GIVING MOTIVES FOR
REPRISALS
ELEMENTS:
a. That the offender performs unlawful
or unauthorized acts
b.

That such acts provoke or give

occasion for a war involving or liable
to involve the Philippines or expose
Filipino citizens to reprisals on their
persons or property

Crime is committed in time of peace, intent is

immaterial

Inciting to war offender is any person

ELEMENTS:
a. That there is war in which the Philippines
is not involved
b. That there is a regulation issued by
competent authority for the purpose of
enforcing neutrality
c. That
the
regulation

offender

violates

such

Govt must have declared the neutrality of the

Phil in a war between 2 other countries

* The regulation must be issued by a competent

authority like the President of the Philippines or
the Chief of Staff of the Armed Forces of the
Philippines, during a war between different
countries in which the Philippines is not taking
sides.

It is neutrality of the Phil that is violated

Congress has the right to declare neutrality

* The violations can be done either by means of

dolo or by means of culpa. So violation of
neutrality can be committed through reckless
imprudence.
Article 120
CORRESPONDENCE WITH HOSTILE COUNTRY
ELEMENTS:
a. That it is in time of war in which the
Philippines is involved
b.

That
the
offender
makes
correspondence
with
an
enemy
country or territory occupied by
enemy troops

c.

That the correspondence is either

1. prohibited by the government, or

2. carried on in ciphers or conventional signs, or

Article 122
PIRACY

3. containing notice or information which might

be useful to the enemy

Circumstances qualifying the offense:

1 a. notice or information might be useful to the
enemy
2
3 b. offender intended to aid the enemy

It is not correspondence with private individual

in enemy country
If ciphers were used, no need for prohibition
If ciphers were not used, there is a need for
prohibition
In any case, it must be correspondence with the
enemy country

ELEMENTS
a. That there is a war
Philippines is involved

in

b. That the offender (Filipino or resident

alien) must be owing allegiance to the
government

is

Mere attempt consummates the crime

There must be a prohibition. If none, even if

went to enemy country no violation

high

2. seize the whole or part of the cargo of

said vessel, its equipment or personal
belongings of its complement or
passengers

d. That
going
to enemy
country
prohibited by competent authority

the

c. That the offenders

1. attack or seize that vessel or (hence, if
committed by crew or passengers, the
crime is not piracy but robbery in the high
seas)

the

c. That the offender attempts to flee or go

to enemy country

on

b. That the offenders are not members of its

complement or passengers of the vessel

which

By seizing the whole or part of the cargo

of said vehicles, its equipment or
personal belongings of its complement or
passengers

Elements:
a. That
a
vessel
is
seas/Philippine waters

Doesnt matter if correspondence contains

innocent matters if prohibited, punishable
Article 121
FLIGHT TO ENEMYS COUNTRY

2 Ways of Committing Piracy

a. By attacking or seizing a vessel on the
high seas or in the Philippine waters (PD
532)
b.

Hostile country exist only during hostilities or

after the declaration of war
Correspondence
to
enemy
country

correspondence to officials of enemy country

even if related to you.

Alien resident may be guilty here.

High seas: any waters on the sea coast which

are without the boundaries of the low water
mark although such waters may be in the
jurisdictional limits of a foreign govt
PIRACY IN HIGH SEAS jurisdiction is with
any court where offenders are found or
arrested
PIRACY
IN
INTERNAL
WATERS

jurisdiction is only with Philippine courts

For purpose of Anti-Fencing Law, piracy is
part of robbery and theft

PIRACY
Robbery
or
forcible
degradation on the high
seas,
without
lawful
authority and done with
animo lucrandi and in the
spirit and intention of
universal hostility.
Intent to gain is an
element.

MUTINY
Unlawful resistance to a
superior officer, or the
raising of commotion and
disturbances on board a
ship against the authority
of its commander
No criminal intent

Attack
from
outside.
Offenders are strangers to
the vessel.

Attack from the inside.

under the amended article, piracy can only

be committed by a person who is not a
passenger nor member of the complement of
the vessel irrespective of venue. So if a
passenger or complement of the vessel
commits acts of robbery in the high seas,
the crime is robbery, not piracy.
If in the Phil. waters still piracy

* However, despite the amendment, P.D. No. 532

may still apply where the offender is not stranger
to the vessel since it provides: Any attack upon
or seize of any vessel, or the taking away of the
whole of part thereof or its cargo, equipment or the
personal belongings of its complement or
passengers, irrespective of the value hereof, by
means of violence against or intimidation of
persons or force upon things, committed by any
person, including a passenger or member of the
complement of said vessel, in Philippine waters,
shall be considered as piracy. The offenders shall
be considered as pirates and punished as
hereinafter provided. After all, under the Revised
Penal Code, for one to be called a pirate, the
offender must be a stranger to the vessel.

While the Article 122 limits the offenders to

non-passengers or non-members of the crew,
P.D. 532 states that the attack upon or
seizure of any vessel, or taking away the
whole or part thereof or its cargo, equipment
or personal belongings of its complement or
passengers committed by any person
including a passenger or member of the
complement of said vessel shall be
considered Piracy.

* Note, however, that in Section 4 of Presidential

Decree No. 532, the act of aiding pirates or
abetting piracy is penalized as a crime distinct
from piracy. Said section penalizes any person
who knowingly and in any manner aids or
protects pirates, such as giving them information
about the movement of the police or other peace
officers of the government, or acquires or receives
property taken by such pirates, or in any manner
derives any benefit therefrom; or who directly or
indirectly abets the commission of piracy. Also, it
is expressly provided in the same section that the
offender shall be considered as an accomplice of
the principal offenders and punished in
accordance with the Revised Penal Code. This
provision of Presidential Decree No. 532 with

respect to piracy in Philippine water has not been

incorporated in the Revised Penal Code. Neither
may it be considered repealed by Republic Act No.
7659 since there is nothing in the amendatory
law is inconsistent with said section. Apparently,
there is still the crime of abetting piracy in
Philippine waters under Presidential Decree No.
532.
* Considering that the essence of piracy is one of
robbery, any taking in a vessel with force upon
things or with violence or intimidation against
person is employed will always be piracy. It
cannot co-exist with the crime of robbery.
Robbery, therefore, cannot be committed on
board a vessel. But if the taking is without
violence or intimidation on persons or force upon
things, the crime of piracy cannot be committed,
but only theft.

ELEMENTS OF MUTINY
1)

The vessel is on the high seas or

Philippine waters;

2)

Offenders are either members of its

complement, or passengers of the
vessel;

3) Offenders either
a.

attack or seize the vessel; or

b.

seize the whole or part of the cargo,

its equipment, or personal belongings
of the crew or passengers.

MUTINY is the unlawful resistance to a superior

officer, or the raising of commotions and
disturbances aboard a ship against the authority
of its commander.

Article 123
QUALIFIED PIRACY

QUALIFYING CIRCUMSTANCES:
a. Whenever they have seized a vessel by
boarding or firing upon the same
b.

Whenever the pirates have abandoned

their victims without means of saving
themselves

c.

Whenever the crime is accompanied

by
murder,
homicide,
physical
injuries, or rape. (the above may
result to qualified mutiny)

* Murder, rape, homicide, physical injuries are

mere circumstances qualifying piracy and cannot
be punished as separate crimes, nor can they be
complexed with piracy.

Parricide/infanticide
(Judge Pimentel)

should

be

Murder/rape/homicide/physical
injuries
must have been committed on the passengers
or complement

Four situations governed by anti hi-jacking

law:
(1)

usurping or seizing control of an aircraft of

Philippine registry while it is in flight,
compelling the pilots thereof to change the
course or destination of the aircraft;

(2)

usurping or seizing control of an aircraft of

foreign registry while within Philippine
territory, compelling the pilots thereof to
land in any part of Philippine territory;

(3)

carrying or loading on board an aircraft

operating as a public utility passenger
aircraft in the Philippines, any flammable,
corrosive,
explosive,
or
poisonous
substance; and

(4)

loading, shipping, or transporting on

board a cargo aircraft operating as a
public utility in the Philippines, any
flammable,
corrosive,
explosive,
or
poisonous substance if this was done not
in accordance with the rules and
regulations set and promulgated by the
Air Transportation Office on this matter.

included

* In piracy, where rape, murder or homicide is

committed, the mandatory penalty of death is
imposable. This means that even if the accused
enters a plea of guilty, the penalty of death will
still be imposed because death is a single and
indispensable penalty. (People vs. Rodriguez,
135 SCRA 485)
* The penalty for qualified piracy is reclusion
perpetua to death. If any of the circumstances
enumerated under the law is proven or
established, the mandatory penalty of death
should be imposed. The presence of mitigating or
aggravating circumstances will be ignored by the
court.
Although in Article 123 merely refers to qualified
piracy, there is also the crime of qualified mutiny.
Mutiny is qualified under the following
circumstances:
(1)

When the offenders abandoned the

victims
without
means
of
saving
themselves; or

(2)

When the mutiny is accompanied by rape,

murder, homicide, or physical injuries.

Note that the first circumstance which qualifies

piracy does not apply to mutiny.

Republic Act No. 6235 (The Anti Hi-Jacking

Law)
Anti hi-jacking is another kind of piracy which is
committed in an aircraft. In other countries, this
crime is known as aircraft piracy.

Between numbers 1 and 2, the point of

distinction is whether the aircraft is of Philippine
registry or foreign registry. The common bar
question on this law usually involves number 1.
The important thing is that before the anti hijacking law can apply, the aircraft must be in
flight. If not in flight, whatever crimes committed
shall be governed by the Revised Penal Code. The
law makes a distinction between aircraft of a
foreign registry and of Philippine registry. If the
aircraft subject of the hi-jack is of Philippine
registry, it should be in flight at the time of the hijacking. Otherwise, the anti hi-jacking law will not
apply and the crime is still punished under the
Revised Penal Code. The correlative crime may be
one of grave coercion or grave threat.
If
somebody is killed, the crime is homicide or
murder, as the case may be. If there are some
explosives carried there, the crime is destructive
arson. Explosives are by nature pyro-techniques.
Destruction of property with the use of pyrotechnique is destructive arson. If there is illegally
possessed or carried firearm, other special laws
will apply.
On the other hand, if the aircraft is of foreign
registry, the law does not require that it be in
flight before the anti hi-jacking law can apply.

This is because aircrafts of foreign registry are

considered in transit while they are in foreign
countries. Although they may have been in a
foreign country, technically they are still in flight,
because they have to move out of that foreign
country. So even if any of the acts mentioned
were committed while the exterior doors of the
foreign aircraft were still open, the anti hi-jacking
law will already govern.

aircraft.
As soon as the pilots entered the
cockpit, they pulled out their firearms and gave
instructions where to fly the aircraft. Does the
anti hi-jacking law apply?
No. The passengers have yet to board the
aircraft.
If at that time, the offenders are
apprehended, the law will not apply because the
aircraft is not yet in flight. Note that the aircraft is
of Philippine registry.

Note that under this law, an aircraft is

considered in flight from the moment all exterior
doors are closed following embarkation until such
time when the same doors are again opened for
disembarkation.
This means that there are
passengers that boarded. So if the doors are
closed to bring the aircraft to the hangar, the
aircraft is not considered as in flight. The aircraft
shall be deemed to be already in flight even if its
engine has not yet been started

3.
While the stewardess of a
Philippine Air Lines plane bound for Cebu was
waiting for the passenger manifest, two of its
passengers seated near the pilot surreptitiously
entered the pilot cockpit. At gunpoint, they
directed the pilot to fly the aircraft to the Middle
East. However, before the pilot could fly the
aircraft towards the Middle East, the offenders
were subdued and the aircraft landed. What
crime was committed?

Questions & Answers

1.
The pilots of the Pan Am aircraft
were accosted by some armed men and were told
to proceed to the aircraft to fly it to a foreign
destination. The armed men walked with the
pilots and went on board the aircraft. But before
they could do anything on the aircraft, alert
marshals arrested them.
What crime was
committed?
The criminal intent definitely is to take
control of the aircraft, which is hi-jacking. It is a
question now of whether the anti-hi-jacking law
shall govern.
The anti hi-jacking law is applicable in
this case. Even if the aircraft is not yet about to
fly, the requirement that it be in flight does not
hold true when in comes to aircraft of foreign
registry. Even if the problem does not say that all
exterior doors are closed, the crime is hi-jacking.
Since the aircraft is of foreign registry, under the
law, simply usurping or seizing control is enough
as long as the aircraft is within Philippine territory,
without the requirement that it be in flight.
Note, however, that there is no hi-jacking
in the attempted stage. This is a special law
where the attempted stage is not punishable.
2.
A Philippine Air Lines aircraft is
bound for Davao. While the pilot and co-pilot are
taking their snacks at the airport lounge, some of
the armed men were also there. The pilots were
followed by these men on their way to the

The aircraft was not yet in flight.

Considering that the stewardess was still waiting
for the passenger manifest, the doors were still
open.
Hence, the anti hi-jacking law is not
applicable. Instead, the Revised Penal Code shall
govern. The crime committed was grave coercion
or grave threat, depending upon whether or not
any serious offense violence was inflicted upon
the pilot.
However, if the aircraft were of foreign
registry, the act would already be subject to the
anti hi-jacking law because there is no
requirement for foreign aircraft to be in flight before
such law would apply.
The reason for the
distinction is that as long as such aircraft has not
returned to its home base, technically, it is still
considered in transit or in flight.
As to numbers 3 and 4 of Republic Act No. 6235,
the distinction is whether the aircraft is a
passenger aircraft or a cargo aircraft. In both
cases, however, the law applies only to public
utility aircraft in the Philippines. Private
aircrafts are not subject to the anti hi-jacking law,
in so far as transporting prohibited substances are
concerned.
If the aircraft is a passenger aircraft, the
prohibition is absolute.
Carrying of any
prohibited, flammable, corrosive, or explosive
substance is a crime under Republic Act No.
6235. But if the aircraft is only a cargo aircraft,
the law is violated only when the transporting of
the prohibited substance was not done in
accordance with the rules and regulations

prescribed by the Air Transportation Office in the

matter of shipment of such things. The Board of
Transportation provides the manner of packing of
such kind of articles, the quantity in which they
may be loaded at any time, etc. Otherwise, the
anti hi-jacking law does not apply.
However, under Section 7, any physical injury or
damage to property which would result from the
carrying or loading of the flammable, corrosive,
explosive, or poisonous substance in an aircraft,
the offender shall be prosecuted not only for
violation of Republic Act No. 6235, but also for the
crime of physical injuries or damage to property,
as the case may be, under the Revised Penal
Code. There will be two prosecutions here. Other
than this situation, the crime of physical injuries
will be absorbed. If the explosives were planted
in the aircraft to blow up the aircraft, the
circumstance will qualify the penalty and that is
not punishable as a separate crime for murder.
The penalty is increased under the anti hijacking law.
All other acts outside of the four are merely
qualifying circumstances and would bring about
higher penalty. Such acts would not constitute
another crime. So the killing or explosion will
only qualify the penalty to a higher one.
Questions & Answers
1.
In the course of the hi-jack, a
passenger or complement was shot and killed.
What crime or crimes were committed?
The crime remains to be a violation of the
anti hi-jacking law, but the penalty thereof shall
be higher because a passenger or complement of
the aircraft had been killed.
The
crime
of
homicide or murder is not committed.
2.
The hi-jackers threatened to
detonate a bomb in the course of the hi-jack.
What crime or crimes were committed?
Again, the crime is violation of the anti hijacking law. The separate crime of grave threat is
not committed. This is considered as a qualifying
circumstance that shall serve to increase the
penalty.

TITLE TWO
CRIMES AGAINST THE FUNDAMENTAL LAWS
OF THE STATE

Crimes against the fundamental laws of the

State
1.
Arbitrary detention (Art. 124);
2.
Delay in the delivery of detained persons
to the proper judicial authorities (Art.
125);
3.
Delaying release (Art. 126);
4.
Expulsion (Art. 127);
5.
Violation of domicile (Art. 128);
6.
Search warrants maliciously obtained
and abuse in the service of those legally
obtained (Art. 129);
7.
Searching domicile without witnesses
(Art. 130);
8.
Prohibition, interruption, and dissolution
of peaceful meetings (Art. 131);
9.
Interruption of religious worship (Art.
132); and
10.
Offending the religious feelings (Art.
133);
* Under this title, the offenders are public officers,
except as to the last crime offending the religious
feelings under Article 133, which refers to any
person. The public officers who may be held liable
are only those acting under supposed exercise of
official functions, albeit illegally. But private
persons may also be liable under this title as
when a private person conspires with a public
officer. What is required is that the principal
offender must be a public officer. Thus, if a
private person conspires with a public officer, or
becomes an accessory or accomplice, the private
person also becomes liable for the same crime. But
a private person acting alone cannot commit the
crimes under Article 124 to 132 of this title.
CLASSES OF ARBITRARY DETENTION:
a. By detaining a person without legal
ground
b. Delay in the delivery of detained persons
to the proper judicial authorities
c. Delaying release

Article 124
ARBITRARY DETENTION

ELEMENTS:
a. That the offender is a public officer
or employee (whose official duties
include the authority to make an arrest
and detain persons; jurisdiction to
maintain peace and order).

b.

That he
restraint).

detains

person

c.

That the detention was without legal

grounds (cannot be committed if with
warrant).

(actual

DETENTION: when a person is placed in

confinement or there is a restraint on his
person.

* Only those public officers whose official duties

carry with it the authority to make an arrest and
detain persons can be guilty of this crime. So, if
the offender does not possess such authority, the
crime committed by him is illegal detention.

Though the elements specify that the

offender be a public officer or employee,
private individuals who conspire with public
officers can also be liable.

* In a case decided by the Supreme Court a

Barangay Chairman who unlawfully detains
another was held to be guilty of the crime of
arbitrary detention. This is because he is a
person in authority vested with the jurisdiction to
maintain peace and order within his barangay.
In the maintenance of such peace and order, he
may cause the arrest and detention of
troublemakers or those who disturb the peace
and order within his barangay. But if the legal
basis for the apprehension and detention does
not exist, then the detention becomes arbitrary.

Grounds for warrantless arrest:

a. Crime is about to be, is being, has been
committed in his presence
b.

Officer must have probable cause to

believe based on personal knowledge of
facts and circumstances that the person
probably committed the crime

For escaped prisoner no need for warrant

Example: Y was killed by unknown assailant.

Officers got a tip and arrested X. X
voluntarily admitted to the officers that he
did it although he was not asked. X was
detained immediately. According to the SC,
there was NO arbitrary detention.
Why?
Because once X made a confession, the
officers had a right to arrest him.

* Arbitrary detention can be committed thru

simple imprudence or negligence. (People vs.
Misa)
Periods of Detention penalized:
1. Detention not exceeding three days;
2.

Detention for more than three days but not

more than 15 days;

3. Detention for more than 15 days but not more

than 6 months; and
4. Detention for more than 6 months.

Legal grounds for the detention of any

person:
a. commission of a crime

Continuing crime
continuous crime

b.

Ramos v. Enrile: Rebels later on retire.

According to the SC, once you have
committed rebellion and have not been
punished or amnestied, then the rebels
continue to engage in rebellion, unless the
rebels renounce his affiliation. Arrest can be
made without a warrant because this is a
continuing crime.

violent insanity
or
other
ailment
requiring compulsory confinement of the
patient in a hospital

c. escaped prisoner
* When the peace officers acted in good faith even
if the three (3) grounds mentioned above are not
obtaining, there is no Arbitrary Detention.

Without legal grounds:

a. he has not committed any crime or no
reasonable ground of suspicion that he
has committed a crime
b.

not suffering from violent insanity or any

other ailment requiring compulsory
confinement in a hospital

is

different

from

Distinction between arbitrary detention and

illegal detention
1. In arbitrary detention -The principal offender must be a public
officer. Civilians cannot commit the crime
of arbitrary detention except when they

conspire with a public officer committing

this crime, or become an accomplice or
accessory to the crime committed by the
public officer; and
The offender who is a public officer has a
duty which carries with it the authority to
detain a person.
2. In illegal detention -The principal offender is a private person.
But a public officer can commit the crime
of illegal detention when he is acting in a
private capacity or beyond the scope of
his official duty, or when he becomes an
accomplice or accessory to the crime
committed by a private person.

In unlawful arrest, the purpose is 1) to

accuse the offended party of a crime he
did not commit; 2) to deliver the person
to the proper authority; and 3) to file the
necessary charges in a way trying to
incriminate him.
* When a person is unlawfully arrested, his
subsequent detention is without legal grounds.
Article 125
DELAY IN THE
PERSONS

The offender, even if he is a public officer,

does not include as his function the power
to arrest and detain a person, unless he
conspires with a public officer committing
arbitrary detention.
* Whether the crime is arbitrary detention or illegal
detention, it is necessary that there must be an
actual restraint of liberty of the offended party. If
there is no actual restraint, as the offended party
may still go to the place where he wants to go,
even though there have been warnings, the crime
of arbitrary detention or illegal detention is not
committed. There is either grave or light threat.
However, if the victim is under guard in his
movement such that there is still restraint of
liberty, then the crime of either arbitrary or illegal
detention is still committed.
Distinction between arbitrary detention and
unlawful arrest
(1)

As to offender
In arbitrary detention, the offender is a
public officer possessed with authority to
make arrests.
In unlawful arrest, the offender may be
any person.

(2)

As to criminal intent
In arbitrary detention, the main reason
for detaining the offended party is to
deny him of his liberty.

DELIVERY OF DETAINED

ELEMENTS:
a. That the offender is a public officer
or employee
b.

That he has detained a person for

some legal grounds

c.

That he fails to deliver such person to

the proper judicial authority within:
1. 12
hours,
if
detained
for
crimes/offenses punishable by light
penalties, or their equivalent
2. 18
hours,
for
crimes/offenses
punishable
by
correctional
penalties, or their equivalent or
3. 36
hours,
for
crimes/offenses
punishable by capital punishment
or afflictive penalties, or their
equivalent

* Article 125 covers situations wherein the

person detained has been arrested without a
warrant but his arrest is nonetheless lawful. It is
a felony committed by omission because of the
failure of the offender to deliver the detained
person to the proper judicial authority within 12
hours, 18 hours and 36 hours as the case may
be.
* At the beginning, the detention is legal since it
is in the pursuance of a lawful arrest. However,
the detention becomes arbitrary when the period
thereof exceeds 12, 18 or 36 hours, as the case
may be, depending on whether the crime is
punished by light, correctional or afflictive
penalty or their equivalent.

Really means delay in filing necessary

information or charging of person detained in
court.

May be waived if a preliminary investigation

is asked for.

warrant of arrest turn over the arrested person to

the judicial authority?

* Under the Revised Rules of Court, when the

person arrested is arrested for a crime which
gives him the right to preliminary investigation
and he wants to avail his right to a preliminary
investigation, he would have to waive in writing
his rights under Article 125 so that the arresting
officer will not immediately file the case with the
court that will exercise jurisdiction over the case.
If he does not want to waive this in writing, the
arresting officer will have to comply with Article
125 and file the case immediately in court
without preliminary investigation. In such case,
the arrested person, within five days after
learning that the case has been filed in court
without preliminary investigation, may ask for
preliminary investigation. In this case, the public
officer who made the arrest will no longer be
liable for violation of Article 125.

A. There is no time limit specified except

that the return must be made within a reasonable
time. The period fixed by law under Article 125
does not apply because the arrest was made by
virtue of a warrant of arrest.

Does not contemplate actual physical delivery

but at least there must be a complaint filed.
Duty complied with upon the filing of the
complaint with the judicial authority (courts,
prosecutors though technically not a
judicial authority, for purposes of this article,
hes considered as one.)

* Delivery of detained person consists in making

charge of filing a compliant against the prisoner
with the proper judicial authority. It does not
involve the physical delivery of the prisoner
before the judge (Sayo vs. Chief of Police).

The filing of the information in court does not

cure illegality of detention. Neither does it
affect the legality of the confinement under
process issued by the court.

To escape from this, officers usually ask

accused to execute a waiver which should be
under oath and with assistance of counsel.
Such waiver is not violative of the accused
constitutional right.

What is length of waiver? Light offense 5

days. Serious and less serious offenses 7 to
10 days. (Judge Pimentel)
Article does not apply when arrest is via a
warrant of arrest

Q. Within what period should a police

officer who has arrested a person under a

If offender is a private person, crime is illegal

detention

Before Article 125 may be applied, it is

necessary that initially, the detention of the
arrested person must be lawful because the
arrest is based on legal grounds. If the arrest
is made without a warrant, this constitutes
an unlawful arrest.
Article 269(unlawful
arrest), not Article 125, will apply. If the
arrest is not based on legal grounds, the
arrest is pure and simple arbitrary detention.
Article 125 contemplates a situation where
the arrest was made without warrant but
based on legal grounds. This is known as
citizens arrest.
A police officer has no authority to arrest and
detain a person on the basis merely of the
complaint of the offended party, even if after
investigation he becomes convinced that the
accused is guilty of the offense charged.
What the complainant may do is to file a
complaint with the court and ask for the
issuance of a warrant of arrest.

Arbitrary Detention
(124)
Detention is illegal
from the beginning.

Delay in Delivery of
Detained (125)
Detention is legal in the
beginning, but illegality
starts from the expiration of
the
specified
periods
without
the
persons
detained
having
been
delivered to the proper
judicial authority.

Article 126
DELAYING RELEASE
ELEMENTS:
a. That the offender is a public officer
or employee
b.

That there is a judicial or executive

order for the release of a prisoner or
detention prisoner, or that there is a

c.

proceeding upon a petition for the

liberation of such person

a public officer. If committed by a private person,

the crime is grave coercion.

That the offender

reason delays:

* In the Philippines, only the President of the

Republic has the power to deport aliens whose
continued stay in the country constitutes a
menace to the peace and safety of the
community.

good

1.

the service of the notice of such order

to the prisoner, or

2.

the performance of such judicial or

executive order for the release of the
prisoner, or
the proceedings upon a petition for the
release of such person

3.

without

Three acts are punishable:

a. delaying the performance of a judicial or
executive order for the release of a
prisoner

In Villavicencio v. Lukban, 39 Phil 778, the

mayor of the City of Manila wanted to make the
city free from prostitution. He ordered certain
prostitutes to be transferred to Davao, without
observing due processes since they have not been
charged with any crime at all. It was held that
the crime committed was expulsion.

b.

delaying the service of notice of such

order to said prisoner

c.

delaying the proceedings upon any

petition for the liberation of such person

Wardens and jailers are the persons most

likely to violate this provision

Provision does not include legislation

Article 127
EXPULSION

b.

c.

That he expels any person from the

Philippines, or compels a person to
change his residence

b.

aliens;

Questions & Answers

1.
Certain aliens were arrested and
they were just put on the first aircraft which
brought them to the country so that they may be
out without due process of law. Was there a
crime committed?

2.
If a Filipino citizen is sent out of
the country, what crime is committed?
Grave coercion, not expulsion, because a
Filipino cannot be deported. This crime refers only
to aliens.

If X (Filipino) after he voluntarily left, is

refused re-entry is considered forcing him
to change his address here

Threat to national security is not a ground to

expel or change his address.

That the offender is not authorized to

do so by law

2 acts punishable:
a. by expelling a
Philippines

Does not include undesirable

destierro; or when sent to prison

Yes. Expulsion.

ELEMENTS:
a. That the offender is a public officer
or employee

* In the case of Filipino citizens, only the court,

by final judgment, can order a person to change
his residence.

person

from

the

by compelling a person to change his

residence

* The essence of this crime is coercion but the

specific crime is expulsion when committed by

Article 128
VIOLATION OF DOMICILE
ELEMENTS:
a. That the offender is a public officer
or employee

b.

That he is not authorized by judicial

order to enter the dwelling and/or to
make a search therein for papers or
other effects

c.

That he commits any of the following

acts:
1.

entering any dwelling against the will

of the owner thereof

2.

searching papers or other effects

found therein without the previous
consent of such owner

3.

refusing to leave the premises, after

having surreptitiously entered said
dwelling and after having been
required to leave the same

Aggravating Circumstance (medium and

maximum of penalty imposed):
a. Offense committed at nighttime
b.

Papers or effects not constituting

evidence of a crime be not returned
immediately

* In order to commit this crime, the entry must

be against the will of the owner. If the entry is
only without the consent of the owner, the crime
of violation of domicile is not committed.
The prohibition may be expressed or implied. If
the signs Do not enter and Strangers keep out
are posted in front of the house or dwelling, then
the prohibition is express. If the door is locked, or
even if it is open but these are barriers to
indicate the manifest intention of the owner to
bar strangers from entering, there is implied
prohibition.
* The primary object of the law is to preserve the
privacy of abode of the offended party. Hence, if
the privacy is already lost, as when the offender
has been allowed by the owner to enter the
dwelling together with other persons, any
subsequent change of attitude will not restore the
privacy which was already lost. When privacy is
waived, trespass to dwelling or violation of
domicile cannot be committed.

If the offender who enters the dwelling

against the will of the owner thereof is a
private individual, the crime committed is
trespass to dwelling (Art 280)

When a public officer searched a person

outside his dwelling without a search
warrant and such person is not legally
arrested for an offense, the crime committed
by the public officer is grave coercion, if
violence or intimidation is used (Art 286), or
unjust vexation, if there is no violence or
intimidation (Art 287)

A public officer without a search warrant

cannot lawfully enter the dwelling against the
will of the owner, even if he knew that
someone in that dwelling is having unlawful
possession of opium

Under Rule 113(sec. 11) of the Revised Rules

of Court, when a person to be arrested enters
a premise and closes it thereafter, the public
officer, after giving notice of an arrest, can
break into the premise. He shall not be liable
for violation of domicile.

3 acts punishable:
a. person enters dwelling w/o consent or
against the will
In the plain view doctrine, public officer
should be legally entitled to be in the
place where the effects were found. If he
entered the place illegally and he saw the
effects, doctrine inapplicable; thus, he is
liable for violation of domicile.
b.

person enters and searches for papers

and effects
Public officer who enters with consent
searches for paper and effects without
the consent of the owner. Even if he is
welcome in the dwelling, it does not
mean he has permission to search.

c.

person entered secretly and refuses to

leave after being asked to
The act punished is not the entry but
the refusal to leave. If the offender upon
being directed to leave, followed and left,
there is no crime of violation of domicile.
Entry must be done surreptitiously;
without this, crime may be unjust
vexation.
But if entering was done
against the will of the occupant of the
house, meaning there was express or
implied prohibition from entering the
same, even if the occupant does not
direct him to leave, the crime of violation

of domicile is already committed because

it would fall in number 1.

perjury, because for him to succeed in

obtaining a search warrant without a
probable cause, he must have perjured
himself or induced someone to commit
perjury to convince the court.

BEING AUTHORIZED BY LAW means

with search warrant, to save himself or do
some things good for humanity

There are only three recognized instances when

search without a warrant is considered valid, and,
therefore, the seizure of any evidence done is also
valid. Outside of these, search would be invalid
and the objects seized would not be admissible in
evidence.

* The true test of lack of just cause is whether the

sworn statement filed in support of the
application for search warrant has been done in
such a manner that perjury could be charged
and the affiant can be held liable for making
such false statement. The oath required refers to
the truth of the facts within the personal
knowledge of the applicant and his witnesses.

(1)

Search made incidental to a valid arrest;

(2)

Where the search was made on a moving

vehicle or vessel such that the exigency of
he situation prevents the searching officer
from securing a search warrant;

ABUSE IN THE SERVICE OF WARRANT OR

EXCEEDING
AUTHORITY
OR
USING
UNNECESSARY SEVERITY IN EXECUTING A
SEARCH WARRANT LEGALLY PROCURED

(3)

When the article seized is within plain

view of the officer making the seizure
without making a search therefore.

ELEMENTS:
a. That the offender is a public officer
or employee
b. That he has legally procured a search
warrant
c. That he exceeds his authority or uses
unnecessary severity in executing the
same

Papers and effects need not be part of a

crime.

Article 129
SEARCH WARRANTS MALICIOUSLY OBTAINED
ELEMENTS:
a. That the offender is a public officer
or employee

b.

That he procures a search warrant

c.

That there is no just cause

In order that a search warrant may be issued,

it must be based on probable cause in
connection with one offense, to be
determined by a judge after examination
under oath of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized.

* This means there was no probable cause

determined in obtaining the search warrant.

Although void, the search warrant is entitled

to respect because of presumption of
regularity. One remedy is a motion to quash
the search warrant, not refusal to abide by it.
The public officer may also be prosecuted for

Search warrant is valid for 10 days from its

date

Search warrant is an order in writing

issued in the name of the People, signed by
the judge and directed to a public officer,
commanding him to search for personal
property described therein and bring it before
the court

No just cause warrant is unjustified

Search limited to what is described in the

warrant,
all
details
must
be
with
particularity

The officer exceeded his authority under the

warrant To illustrate, let us say that there was a
pusher in a condo unit. The PNP Narcotics
Group obtained a search warrant but the name
of person in the search warrant did not tally with
the address stated. Eventually, the person with
the same name was found but in a different
address. The occupant resisted but the public
officer insisted on the search. Drugs were found
and seized and occupant was prosecuted and

convicted by the trial court. The Supreme Court

acquitted him because the public officers are
required to follow the search warrant to the letter.
They have no discretion on the matter. Plain view
doctrine is inapplicable since it presupposes that
the officer was legally entitled to be in the place
where the effects where found. Since the entry
was illegal, plain view doctrine does not apply.

Malicious warrant. Example. X was a

respondent of a search warrant for illegal
possession of firearms. A return was made.
The gun did not belong to X and the witness
had no personal knowledge that there is a
gun in that place.

Abuse examples:
a. X owner was handcuffed while search
was going-on.
b.

Tank was used to ram gate prior to

announcement that a search will be
made
The search warrant is not a license to
commit destruction.

c.

Persons who were not respondents were

searched

Article 130
SEARCHING DOMICILE WITHOUT WITNESSES

ELEMENTS :
a. That the offender is a public officer
or employee
b.

c.

c.

Responsible members of the community

(cant be influenced by the searching
party)

Validity of the search warrant can be

questioned only in 2 courts: 1) where issued
or 2) where the case is pending. Latter is
preferred for objective determination.

* Article 130 has no application to search and

seizure made on moving vehicles because the
application of this law is limited to dwelling and
personal properties such as papers and effects
found therein.
* There are searches and seizures which are
authorized by law and which can be done without
the attendance of witnesses. For instance, the
Tariff and Customs Code authorizes persons with
police authority under Sec. 2203, to enter; pass
through or search any land, enclosure,
warehouse, store or building, not being used as a
dwelling house; and to inspect, search and
examine any vessel or aircraft, and any trunk,
package, box or envelope, or any person on
board, or to stop and search and examine any
vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article
introduced into the Philippines contrary to law.

Article 131
PROHIBITION, INTERRUPTION, AND
DISSOLUTION OF PEACEFUL MEETINGS

That he is armed with a search

warrant legally procured

ELEMENTS:
a. Offender
employee
b.

That he searches the domicile, papers

or other belongings of any person

is

public

officer

or

He performs any of the ff. acts:

d. That the owner, or any member of his

family, or two witnesses residing in
the same locality are not present

1. prohibiting
or
interrupting,
without legal ground the holding
of
a
peaceful
meeting,
or
dissolving the same (e.g. denial of
permit in arbitrary manner).

Order of those who must witness the

search:
a. Homeowner

2. hindering any person from joining

any lawful association or from
attending any of its meetings.

b.

Members of the family of sufficient age

and discretion

prohibiting or hindering any person from

addressing, either alone or together with
others, any petition to the authorities for the
correction of abuses or redress of grievances

Two criteria to determine whether Article

131 would be violated:
(1)

Dangerous tendency rule applicable in

times of national unrest such as to
prevent coup detat.

(2)

Clear and present danger rule applied in

times of peace. Stricter rule.

If the offender is a private individual, the

crime is disturbance of public order (Art 153)

public places. But if police stops a meeting in

a private place because theres no permit,
officer is liable for stopping the meeting.

Distinctions
between
prohibition,
interruption, or dissolution of peaceful
meetings under Article 131, and tumults and
other disturbances, under Article 153
As to the participation of the public
officer

(1)

Meeting must be peaceful and there is no

legal ground for prohibiting, dissolving or
interrupting that meeting

In Article 131, the public officer is not a

participant. As far as the gathering is
concerned, the public officer is a third
party.

If in the course of the assembly the

participants commit illegal acts like oral
defamation or inciting to sedition, a public
officer or law enforcer can stop or dissolve
the meeting. The permit given is not a license
to commit a crime.
Meeting is subject to regulation

If the public officer is a participant of the

assembly and he prohibits, interrupts, or
dissolves the same, Article 153 is violated
if the same is conducted in a public place.
As to the essence of the crime

(2)

* If the permit is denied arbitrarily, Article 131 is

violated. If the officer would not give the permit
unless the meeting is held in a particular place
which he dictates, such defeats the exercise of
the right to peaceably assemble, Article 131 is
violated.

In Article 131, the offender must be a

public officer and, without any legal
ground, he prohibits, interrupts, or
dissolves a peaceful meeting or assembly
to prevent the offended party from
exercising his freedom of speech and that
of the assembly to petition a grievance
against the government.

Offender must be a stranger, not a

participant, in the peaceful meeting;
otherwise, its unjust vexation

Interrupting and dissolving a meeting of the

municipal council by a public officer is a
crime against the legislative body, not
punishable under this article

The person talking on a prohibited subject at

a public meeting contrary to agreement that
no speaker should touch on politics may be
stopped

But stopping the speaker who was attacking

certain churches in public meeting is a
violation of this article

Prohibition must be without lawful cause or

without lawful authority

Those holding peaceful meetings must

comply with local ordinances. Example:
Ordinance requires permits for meetings in

In Article 153, the offender need not be a

public officer. The essence of the crime
is that of creating a serious disturbance
of any sort in a public office, public
building or even a private place where a
public function is being held.
Article 132
INTERRUPTION OF RELIGIOUS WORSHIP

ELEMENTS:
a. That the officer is a public officer or
employee
b.

That
religious
ceremonies
or
manifestations of any religion are
about to take place or are going on

c.

That the offender prevents or disturbs

the same

Circumstance qualifying the offense: if

committed with violence or threats

Reading of Bible and then attacking certain

churches in a public plaza is not a ceremony
or manifestation of religion, but only a
meeting of a religious sect. But if done in a
private home, its a religious service

Religious Worship: people in the act of

performing religious rites for a religious
ceremony; a manifestation of religion. Ex.
Mass, baptism, marriage
X, a private person, boxed a priest while the
priest was giving homily and while the latter
was maligning a relative of X. Is X liable? X
may be liable under Art 133 because X is a
private person.
When priest is solemnizing marriage, he is a
person in authority, although in other cases,
hes not.

Article 133
OFFENDING RELIGIOUS FEELINGS

ELEMENTS:
a. That the acts complained of were
performed
1. in a place devoted to religious
worship, or (for this element, no
need of religious ceremony, only the
place is material)
2. during the celebration of any
religious ceremony
b.

c.

That the acts must be notoriously

offensive to the feelings of the faithful
(deliberate intent to hurt the feelings)
The offender is any person

d. There is a deliberate intent to hurt

the feelings of the faithful, directed
against religious tenet
If in a place devoted to religious purpose,
there is no need for an ongoing religious
ceremony
Example of religious ceremony (acts
performed outside the church). Processions

and special prayers for burying dead persons

but NOT prayer rallies

Acts must be directed against religious

practice or dogma or ritual for the purpose of
ridicule, as mocking or scoffing or attempting
to damage an object of religious veneration

There must be deliberate intent to hurt the

feelings of the faithful, mere arrogance or
rudeness is not enough

* In determining whether an act is offensive to

the feelings of the faithful, the same must be
viewed or judged from the standpoint of the
offended religion and not from the point of view of
the offender (People vs. Baes, 68 Phil. 203).
CRIME

Prohibit
ion,
Interrup
tion and
Dissolut
ion
of
Peaceful
Meeting
(131)

Nature
of
Crime
Crime
against
the
fundam
ental
law
of
the state

Who are
Liable

If Element
Missing

Public
officers,
Outsiders

If
not
by
public officer
= tumults

If by insider =
unjust
vexation
If
not
religious
=
tumult
or
alarms
If
not
notoriously
offensive
=
unjust
vexation
If
not
tumults
=
alarms and
scandal
If
meeting
illegal
at
onset
=
inciting
to
sedition
or
rebellion

Interrup
tion
of
Religiou
s
Worship
(132)

Crime
against
the
fundam
ental
law
of
the state

Public
officers,
Outsiders

Offendin
g
the
Religiou
s Feeling
(133)

Crime
against
public
order

Public
officers,
private
persons,
outsiders

TITLE THREE
CRIMES AGAINST PUBLIC ORDER

Crimes against public order

1.
Rebellion or insurrection (Art. 134);
1.a
Coup d etat (Art. 134-A)
2.
Conspiracy and proposal to commit
rebellion (Art. 136);
3.
Disloyalty to public officers or employees
(Art. 137);
4.
Inciting to rebellion (Art. 138);
5.
Sedition (Art. 139);
6.
Conspiracy to commit sedition (Art. 141);
7.
Inciting to sedition (Art. 142);
8.
Acts tending to prevent the meeting of
Congress and similar bodies (Art. 143);
9.
Disturbance of proceedings of Congress
or similar bodies (Art. 144);
10.
Violation of parliamentary immunity (Art.
145);
11.
Illegal assemblies (Art. 146);
12.
Illegal associations (Art. 147);
13.
Direct assaults (Art. 148);
14.
Indirect assaults (Art. 149);
15.
Disobedience to summons issued by
Congress, its committees, etc., by the
constitutional
commissions,
its
committees, etc. (Art. 150);
16.
Resistance and disobedience to a person
in authority or the agents of such person
(Art. 151);
17.
Tumults and other disturbances of public
order (Art. 153);
18.
Unlawful use of means of publication and
unlawful utterances (Art. 154);
19.
Alarms and scandals (Art. 155);
20.
Delivering prisoners from jails (Art. 156);
21.
Evasion of service of sentence (Art. 157);
22.
Evasion on occasion of disorders (Art.
158);
23.
Violation of conditional pardon (Art. 159);
and
24.
Commission of another crime during
service of penalty imposed for another
previous offense (Art. 160).
Article 134
REBELLION OR INSURRECTION

ELEMENTS:
a. That there be
1. public uprising and
2. taking
arms
against
government (force/violence)
b.

the

That the purpose of the uprising or

movement is either

1. to remove from the allegiance to

said government or its laws
4
5 i. the territory of the Philippines or
any part thereof, or
6
7 ii. any body of land, naval or other
armed forces, or
2

To deprive the chief executive or

congress, wholly or partially, of
any
of
their
powers
or
prerogatives

Persons liable for rebellion

a. Any person who:
1. promotes
2. maintains, or
3. heads a rebellion or insurrection; or
b.

Any person who, while holding any public

office or employment, takes part therein
by:
1. engaging in war against the forces of
the government
2.
3.

4.

destroying property or committing

serious violence
exacting contributions or diverting
public funds from the lawful purpose
for
which
they
have
been
appropriated (Note: diverting public
funds is malversation absorbed in
rebellion);
Any person merely participating or
executing the command of others in
rebellion

* The essence of this crime is a public uprising

with the taking up of arms.
It requires a
multitude of people. It aims to overthrow the
duly constituted government. It does not require
the participation of any member of the military or
national police organization or public officers and
generally carried out by civilians. Lastly, the
crime can only be committed through force and
violence.
* The crime of rebellion cannot be committed by a
single individual. Invariably, it is committed by
several persons for the purpose of overthrowing
the duly constituted or organized government. In
the Philippines, what is known to the ordinary
citizen as a symbol of Government would be the
barangay, represented by its officials; the local

government represented by the provincial and

municipal officials; and the national government
represented by the President, the Chief Justice
and the Senate President and the Speaker of the
House of Representatives.

A change of
participation

RISING PUBLICLY and TAKING ARMS

AGAINST
GOVERNMENT

actual
participation. If there is no public uprising,
the crime is of direct assault.

Success is immaterial, purpose is always

political

* The crime of rebellion is essentially a political

crime. The intention of the rebel is to substitute
himself in place of those who are in power. His
method of placing himself in authority with the
use of violence, duress or intimidation,
assassination or the commission of common
crimes like murder, kidnapping, arson, robbery
and other heinous crimes in what we call
rebellion.

REBELLION used where the object of the

movement is completely to overthrow and
supersede the existing government

INSURRECTION refers to a movement which

seeks merely to effect some change of minor
importance to prevent the exercise of govt
authority w/ respect to particular matters or
subjects

The phrase to remove allegiance from the

government is used to emphasize that the
object of the uprising could be limited to
certain areas, like isolating a barangay or
municipality or a province in its loyalty to the
duly constituted government or the national
government.

* Allegiance is a generic term which includes

loyalty, civil obedience and civil service.
* The law on rebellion however, does not speak
only of allegiance or loss of territory. It also
includes the efforts of the rebel to deprive the
President of the Philippines of the exercise of his
power to enforce the law, to exact obedience of
laws and regulations duly enacted and
promulgated by the duly constituted authorities.

Actual clash of arms w/ the forces of the

govt, not necessary to convict the accused
who is in conspiracy w/ others actually
taking arms against the govt

Purpose of the uprising must be shown but it

is not necessary that it be accomplished

government

w/o

external

* When any of the objectives of rebellion is

pursued but there is no public uprising in the
legal sense, the crime is direct assault of the first
form.
But if there is rebellion, with public
uprising, direct assault cannot be committed.

Mere giving of aid or comfort is not criminal

in the case of rebellion. Merely sympathizing
is not participation, there must be ACTUAL
participation

* There must be a public apprising and taking up

of arms for the specified purpose or purposes
mentioned in Article 134.
The acts of the
accused who is not a member of the Hukbalahap
organization of sending cigarettes and food
supplies to a Huk leader; the changing of dollars
into pesos for a top level communist; and the
helping of Huks in opening accounts with the
bank of which he was an official, do not
constitute Rebellion. (Carino vs. People, et al.,
7 SCRA 900).

Not necessary that there is killing, mere

threat of removing Phil is sufficient

* Rebellion may be committed even without a

single shot being fired. No encounter needed.
Mere public uprising with arms enough.

Rebellion cannot be complexed with any

other crime.

> Common crimes perpetrated in furtherance of a

political offense are divested of their character as
common offenses and assume the political
complexion of the main crime which they are mere
ingredients, and consequently, cannot be
punished separately from the principal offense,
or complexed with the same.

ORTEGA OPINION:
Rebellion can now be complexed with
common crimes.
Not long ago, the
Supreme Court, in Enrile v. Salazar, 186
SCRA 217, reiterated and affirmed the
rule laid down in People v. Hernandez, 99
Phil 515, that rebellion may not be
complexed with common crimes which are
committed in furtherance thereof because
they are absorbed in rebellion. In view of
said reaffirmation, some believe that it has
been a settled doctrine that rebellion
cannot be complexed with common crimes,
such as killing and destruction of property,
committed on the occasion and in
furtherance thereof.
This thinking is no longer correct; there is no legal
basis for such rule now.
The statement in People v. Hernandez that
common crimes committed in furtherance of
rebellion are absorbed by the crime of rebellion,
was dictated by the provision of Article 135 of the
Revised Penal Code prior to its amendment by
the Republic Act No. 6968 (An Act Punishing the
Crime of Coup Detat), which became effective on
October 1990.
Prior to its amendment by
Republic Act No. 6968, Article 135 punished
those who while holding any public office or
employment, take part therein by any of these
acts: engaging in war against the forces of
Government; destroying property; committing
serious violence; exacting contributions, diverting
funds for the lawful purpose for which they have
been appropriated.
Since a higher penalty is prescribed for the crime
of rebellion when any of the specified acts are
committed in furtherance thereof, said acts are
punished as components of rebellion and,
therefore, are not to be treated as distinct crimes.
The same acts constitute distinct crimes when
committed on a different occasion and not in
furtherance of rebellion. In short, it was because
Article 135 then punished said acts as
components of the crime of rebellion that
precludes the application of Article 48 of the
Revised Penal Code thereto. In the eyes of the
law then, said acts constitute only one crime and
that is rebellion. The Hernandez doctrine was
reaffirmed in Enrile v. Salazar because the text of
Article 135 has remained the same as it was
when the Supreme Court resolved the same issue
in the People v. Hernandez. So the Supreme

Court invited attention to this fact and thus

stated:
There is a an apparent need to restructure the
law on rebellion, either to raise the penalty
therefore or to clearly define and delimit the other
offenses to be considered absorbed thereby, so
that it cannot be conveniently utilized as the
umbrella for every sort of illegal activity
undertaken in its name. The court has no power
to effect such change, for it can only interpret the
law as it stands at any given time, and what is
needed lies beyond interpretation.
Hopefully,
Congress will perceive the need for promptly
seizing the initiative in this matter, which is purely
within its province.
Obviously, Congress took notice of this
pronouncement and, thus, in enacting Republic
Act No. 6968, it did not only provide for the
crime of coup detat in the Revised Penal Code
but moreover, deleted from the provision of Article
135 that portion referring to those
who, while holding any public office or
employment takes part therein [rebellion or
insurrection], engaging in war against the forces of
government, destroying property or committing
serious violence, exacting contributions or
diverting public funds from the lawful purpose for
which they have been appropriated
Hence, overt acts which used to be punished as
components of the crime of rebellion have been
severed therefrom by Republic Act No. 6968. The
legal impediment to the application of Article 48 to
rebellion has been removed.
After the
amendment, common crimes involving killings,
and/or destructions of property, even though
committed by rebels in furtherance of rebellion,
shall bring about complex crimes of rebellion with
murder/homicide, or rebellion with robbery, or
rebellion with arson as the case may be.
To reiterate, before Article 135 was amended, a
higher penalty is imposed when the offender
engages in war against the government. "War"
connotes anything which may be carried out in
pursuance of war. This implies that all acts of
war or hostilities like serious violence and
destruction of property committed on occasion
and in pursuance of rebellion are component
crimes of rebellion which is why Article 48 on
complex crimes is inapplicable. In amending
Article135, the acts which used to be component
crimes of rebellion, like serious acts of violence,
have been deleted. These are now distinct crimes.

The legal obstacle for the application of Article 48,

therefore, has been removed.
Ortega says
legislators want to punish these common crimes
independently of rebellion. Ortega cites no case
overturning Enrile v. Salazar.
However, illegal possession of firearms in
furtherance of rebellion is distinct from the
crime of rebellion.

* The offense of illegal possession of firearm is a

malum prohibitum, in which case, good
faith and absence of criminal intent are
not valid defenses.

Article 134-A
COUP D ETAT

c.

2. any military camp or installation

3. communication
utilities

If killing, robbing were done for private

purposes or for profit, without any political
motivation, the crime would be separately be
punished and would not be embraced by
rebellion (People v. Fernando)

(2)

As to purpose
In rebellion,
political.

g. Purpose of seizing or diminishing

state power
* The essence of the crime is a swift attack upon
the facilities of the Philippine government,
military camps and installations, communication
networks, public utilities and facilities essential
to the continued possession of governmental
powers. It may be committed singly or collectively
and does not require a multitude of people.

the

purpose

is

always

public

f. With or without civilian support or

participation

As to nature

In sedition, it is sufficient that the public

uprising be tumultuous.

or

d. Singly or simultaneously carried out

anywhere in the Philippines
e. Committed by any person or persons
belonging to the military or police or
holding
any
public
office
or
employment; with or without civilian
support or participation

Distinctions between rebellion and sedition

In rebellion, there must be taking up or

arms against the government.

networks

4. other facilities needed for the exercise

and continued possession of power

Person deemed leader of rebellion in case he

is unknown:
Any person who in fact:
a. directed the others
b. spoke for them
c. signed receipts and other documents
issued in their name
d. performed similar acts on behalf of the
rebels

(1)

Directed against:
1. duly constituted authorities

A private crime may be committed during

rebellion. Examples: killing, possessions of
firearms, illegal association are absorbed.
Rape, even if not in furtherance of rebellion
cannot be complexed

ELEMENTS:
a. Swift attack
b. Accompanied
by
violence,
intimidation, threat, strategy or stealth

Furthermore, it is a continuing crime such

along with the crime of conspiracy or
proposal to commit such

* In sedition, the purpose may be political or

social.
Example:
the uprising of squatters
against Forbes park residents. The purpose in
sedition is to go against established government,
not to overthrow it.

The objective may not be to overthrow the

government but only to destabilize or paralyze
the government through the seizure of facilities
and utilities essential to the continued
possession and exercise of governmental

powers. It requires as principal offender a

member of the AFP or of the PNP organization
or a public officer with or without civilian
support. Finally, it may be carried out not
only by force or violence but also through
stealth, threat or strategy.

Who are liable?

a. Any person who:
1. Promotes
2. Maintains
3. heads a rebellion or insurrection
b.

How do you distinguish between coup detat

and rebellion?
Rebellion is committed by any person whether a
private individual or a public officer whereas in
coup detat, the offender is a member of the
military or police force or holding a public office
or employment.
In rebellion, the object is to alienate the allegiance
of a people in a territory, whether wholly or
partially, from the duly constituted government;
in coup detat, the object or purpose is to seize or
diminish state power.
In both instances, the offenders intend to
substitute themselves in place of those who are
in power.
Treason
(114)

Rebelli
on
(134)

Natur

Crime
against
National
Security

Crime
against
Public
Order

Overt

levying
war
against
the govt;
OR
Adherence
and
giving
aid or
comfort
to
enemie
s
Deliver
the govt
to enemy
during
war

Public
uprisin
g
A
ND
Taking
up
arms
against
the
govt

Purpo
se of
object
ive

Article 135
PENALTIES

See
article.

Coup
detat
(134A)
Crime
agains
t
Public
Order
See
article.

Seizing
or
dimini
shing
state
power.

Sedition
(139)

Crime
against
Public
Order

c.

Any person who, while holding any public

office or employment, takes part therein
1. engaging in war against the forces of
the govt
2. destroying property or committing
serious violence
3. exacting contributions or diverting
public funds from the lawful purpose
for
which
they
have
been
appropriated
Any person merely participating or
executing the command of other in a
rebellion

* When conspiracy is present in the commission

of the crime, the act of one is the act of all. In
committing rebellion and coup detat, even if
conspiracy as a means to commit the crime is
established, the principal of criminal liability
under Article 17 of the Revised Penal Code is not
followed.
In Government
Service
Anyone who leads,
directs,
commands
others to undertake a
coup.

Not in Government
Service
Anyone who participates
or
in
an
manner,
supports,
finances,
abets, aids in a coup.

Rising
publicly or
tumultuo
usly
(caused by
more than
3
armed
men
or
provided
with
means of
violence)

Serious violence is that inflicted upon

civilians, which may result in homicide. It is
not limited to hostilities against the armed
force.

Diverting public funds

absorbed in rebellion

See
enumerati
on
in
article.

> It is not a defense in rebellion that the accused

never took the oath of allegiance to, or that they
never recognized the government

is

malversation

NOTES:
> Public officer must take active part because
mere silence or omission not punishable in
rebellion

> Rebellion cannot be complexed with murder

and other common crimes committed in
pursuance of the movement to overthrow the
government

* Subversion, just like the crimes of rebellion,

conspiracy or proposal to commit the crimes of
rebellion or subversion and crimes or offenses
committed in furtherance thereof constitute
direct assaults against the State and are in the
nature of continuing crimes ( Umil vs. Ramos).

> Killing, robbing etc for private persons or for

profit, without any political motivation, would be
separately punished and would not be absorbed
in the rebellion.

Article 137
DISLOYALTY

Article 136
CONSPIRACY TO COMMIT COUP D ETAT,
REBELLION OR INSURRECTION

ELEMENTS:
a. 2 more persons come to an agreement
to rise publicly and take arms
against the government
b.

For any of the purposes of rebellion

c.

They decide to commit it

PROPOSAL TO COMMIT COUP D

REBELLION OR INSURRECTION (136)

ETAT,

ELEMENTS:
a. A person who has decided to rise
publicly
and
take
arms
the
government
b.

For any of the purposes of rebellion

c.

Proposes its execution to some other

person/s

Organizing a group of soldiers, soliciting

membership in, and soliciting funds for the
organization show conspiracy to overthrow
the govt

The mere fact of giving

and rendering
speeches favoring Communism would not
make the accused guilty of conspiracy if
theres no evidence that the hearers then and
there agreed to rise up in arms against the
govt

Conspiracy must be immediately prior to

rebellion

If it is during the rebellion, then it is already

taking part in it.

OF PUBLIC
EMPLOYEES

OFFICERS

AND

ACTS PUNISHED:
a. Failing to resist rebellion by all the
means in their power
b.

Continuing to discharge the duties of

their offices under the control of
rebels

c.

Accepting appointment
under rebels

to

office

Presupposes existence of rebellion

Must not be in conspiracy with rebels or

coup plotters

If there are means to prevent the rebellion

but did not resist it, then theres disloyalty. If
there are no means, no fault

If position is accepted in order to protect the

people, not covered by this

The collaborator must not have tried to

impose the wishes of the rebels on the
people.

* Disloyalty as a crime is not limited to rebellion

alone but should now include the crime of coup
detat. Rebellion is essentially a crime committed
by private individuals while coup detat is a crime
that should be classified as a crime committed by
public officers like malversation, bribery,
dereliction of duty and violations of the anti-Graft
and Corrupt Practices Act.
* If the public officer or employee, aside from
being disloyal, does or commits acts constituting
the crime of rebellion or coup detat, he will no
longer be charged for the simple crime of
disloyalty but he shall be proceeded against for
the grave offense of rebellion or coup detat.

Article 138
INCITING TO REBELLION OR INSURRECTION

ELEMENTS:

a. That the offender does not take arms

or is not in open hostility against the
government
b.

c.

That he incites
execution of any
rebellion

others
of the

to the
acts of

That the inciting is done by means of

speeches, proclamations, writings,
emblems,
banners
or
other
representations tending to the same
end

Intentionally calculated to seduce others to

rebellion

There must be uprising to take up arms and

rise publicly for the purposes indicated in Art
134

1. Publicly (if no public uprising =

tumult and other disturbance of public
order)
2. Tumultuously (vis--vis rebellion
where there must be a taking of arms)

That the offenders employ any of

those means to attain any of the
following objects:

3. to inflict any act or hate or

revenge upon the person or
property of any public officer or
employee
4. to commit for any political or
social end, any act of hate or
revenge against private persons or
any social class (hence, even private
persons may be offended parties)

Inciting to
Rebellion (138)
Not required that the
offender has decided
to commit rebellion.
The inciting is done
publicly.

ELEMENTS:
a. That the offenders rise

c.

2. to
prevent
the
national
government, or any provincial or
municipal government, or any
public
thereof
from
freely
exercising its or his functions, or
prevent the execution of any
administrative order

5. 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

Sedition:
raising
of
commotion
or
disturbances in the State. Its ultimate object
is a violation of the public peace or at least
such measures that evidently engenders it.

The crime of sedition is committed by rising

publicly and tumultuously. The two elements
must concur.

The crime of sedition does not contemplate the

taking up of arms against the government
because the purpose of this crime is not the
overthrow of the government. Notice from the
purpose of the crime of sedition that the
offenders rise publicly and create commotion
and disturbance by way of protest to express

Article 139
SEDITION

That they employ force, intimidation,

or other means outside of legal
methods

1. to prevent the promulgation or

execution of any law or the
holding of any popular election

* One who promotes, maintains or heads a

rebellion and who act at the same time incites or
influences others to join him in his war efforts
against the duly constituted government cannot
be held criminally liable for the crime of inciting
to rebellion because, as the principal to the crime
of rebellion, the act of inciting to commit a
rebellion is inherent to the graver crime of
rebellion.

Proposal to Commit
Rebellion (136)
The
person
who
proposes has decided to
commit rebellion.
The
person
who
proposes the execution
of the crime uses secret
means.

b.

their dissent and obedience to the

government or to the authorities concerned.
This is like the so-called civil disobedience
except that the means employed, which is
violence, is illegal.

Difference from rebellion

purpose of the uprising.

object

their objective of overcoming the will of the

government, resort to force or violence, the
mantle of protection guaranteed under the
Constitution to express their dissent
peacefully, shall cease to exist, as in the
meantime, the participants have encroached
or stayed in the domain or realm of criminal
law.

or

For sedition sufficient that uprising is

tumultuous. In rebellion there must be taking
up of arms against the government.
Sedition purpose may be either political or
social. In rebellion always political
TUMULTUOUS is a situation wherein the
disturbance or confusion is caused by at least
four persons. There is no requirement that the
offenders should be armed.

Article 141.
Conspiracy to Commit Sedition
* In this crime, there must be an agreement and
a decision to rise publicly and tumultuously to
attain any of the objects of sedition.
* There is no proposal to commit sedition.

Preventing public officers

exercising their functions

In sedition offender may be a private or

public person (Ex. Soldier)

* The conspiracy must be to prevent the

promulgation or execution of any law or the
holding of any popular election. It may also be a
conspiracy to prevent national and local public
officials from freely exercising their duties and
functions, or to prevent the execution of an
administrative order.

Public uprising and the object of sedition

must concur

Article 142
INCITING TO SEDITION

Q: Are common crimes absorbed in sedition?

from

freely

In P v. Umali, SC held that NO. Crimes committed

in that case were independent of each other.

Preventing election through legal means

NOT sedition

But when sugar farmers demonstrated and

destroyed the properties of sugar barons
sedition

Persons liable for sedition:

a. leader of the sedition, and
b. other persons participating
sedition

in

b.

That he incites others to the

accomplishment of any of the acts
which constitute sedition (134)

c.

That the inciting is done by means of

speeches,
proclamations,
writing,
emblems, cartoons, banners, or other
representations tending to the same
end (purpose: cause commotion not
exactly against the government; actual
disturbance not necessary)

the

* The objective of the law in criminalizing sedition

is to put a limit to the freedom of expression or
the right of the people to assemble and petition
the government for redress of grievance.

ELEMENTS:
a. That the offender does not take a
direct part in the crime of sedition

The demonstrations conducted or held by the

citizenry to protest certain policies of the
government is not a crime. But when the
protest in manifested in the form of rallies
where the participants, in order to attain

Different acts of inciting to sedition:

a.

Inciting others to the accomplishment of

any of the acts which constitute sedition
by means of speeches, proclamations,
writings, emblems etc.

b.

Uttering seditious words or speeches

which tend to disturb the public peace or

writing,
publishing,
or
circulating
scurrilous [vulgar, mean, libelous] libels
against the government or any of the
duly constituted authorities thereof,
which tend to disturb the public peace
c.

Knowingly concealing such evil practices

When punishable:
a. when they tend to disturb or obstruct
any lawful officer in executing the
functions of his office; or
b.

c.
d.

when they tend to instigate others to

cabal and meet together for unlawful
purposes; or
when they suggest or incite rebellious
conspiracies or riots; or
when they lead or tend to stir up the
people against the lawful authorities or to
disturb the peace of the community, the
safety and order of the government

* Only non-participant in sedition may be liable.

* Inciting to sedition is an element of sedition. It
cannot be treated as a separate offense against
one who is a part of a group that rose up publicly
and tumultuously and fought the forces of
government.
* Considering that the objective of sedition is to
express protest against the government and in
the process creating hate against public officers,
any act that will generate hatred against the
government or a public officer concerned or a
social class may amount to Inciting to sedition.
Article 142 is, therefore, quite broad.
* The mere meeting for the purpose of discussing
hatred against the government is inciting to
sedition.
Lambasting government officials to
discredit the government is Inciting to sedition.
But if the objective of such preparatory actions is
the overthrow of the government, the crime is
inciting to rebellion.

CRIMES AGAINST POPULAR

REPRESENTATION
Article 143
ACTS TENDING TO PREVENT THE MEETING
OF CONGRESS AND SIMILAR BODIES

ELEMENTS:
a. That there be a projected or actual
meeting of Congress or any of its
committees
or
subcommittees,
constitutional
commissions
or
committees or division thereof, or of
any provincial board or city or
municipal council or board
b.

That the offender who may be any

persons prevents such meeting by
force or fraud

* The crime is against popular representation

because it is directed against officers whose
primary function is to meet and enact laws.
When these legislative bodies are prevented from
meeting and performing their duties, the system
of government is disturbed. The three branches of
government must continue to exist and perform
their duties.

Chief of Police and mayor who prevented the

meeting of the municipal council are liable
under Art 143, when the defect of the
meeting is not manifest and requires an
investigation before its existence can be
determined.

Article 144
DISTURBANCE OF PROCEEDINGS

ELEMENTS:
a. That there be a meeting of Congress
or
any
of
its
committees,
constitutional
commissions
or
committees or divisions thereof, or of
any provincial board or city or
municipal council or board
b.

That the offender does any of the

following acts
1.

He disturbs any of such meetings

2.

He behaves while in the presence of

any such bodies in such a manner as
to interrupt its proceedings or to
impair the respect due it

* The disturbance can be in the form of

utterances, speeches or any form of expressing
dissent which is not done peacefully but
implemented in such a way that it substantially
interrupts the meeting of the assembly or

adversely affects the respect due to the assembly

of its members.

by prision mayor (six years and one day, to 12

years) is not liable Article 145.

Complaint must be filed by member of the

Legislative body. Accused may also be
punished for contempt.

* According to Reyes, to be consistent with the

Constitution, the phrase "by a penalty higher
than prision mayor" in Article 145 should be
amended to read: "by the penalty of prision
mayor or higher."

Article 145
VIOLATION OF PARLIAMENTARY IMMUNITY

Acts punishable:
a. By using force, intimidation, threats,
or frauds to prevent any member of
Congress from
1.

b.

attending the meeting of the assembly

or
any
of
its
committees,
constitutional
commissions
or
committees or divisions thereof, or
from

2.

expressing his opinions or

3.

casting his vote

* The offender is any person and the offended

party who is a member of Congress, has not
committed any crime to justify the use of force,
threat, intimidation or fraud to prevent him from
attending the meeting of Congress.

ILLEGAL ASSEMBLIES AND ASSOCIATIONS

Article 146
ILLEGAL ASSEMBLIES

Two (2) Types of illegal assemblies:

a. Meeting of the first form

By arresting or searching any member

thereof while Congress is in a regular
or special session, except in case
such member has committed a crime
punishable under the code by a
penalty higher than prision mayor ( 6
years up )

That he arrests or searches any

member of Congress

3.

That Congress, at the time of arrest or

search, is in a regular or special
session

4.

That the member searched has not

committed a crime punishable under
the code by a penalty higher than
prision mayor (1987 constitution:
privilege from arrest while congress in
session in all offenses punishable by
not more than 6 years imprisonment).

* Under Section 11, Article VI of the Constitution,

a public officer who arrests a member of
Congress who has committed a crime punishable

Meeting, gathering or group of

persons whether in a fixed place or
moving

2.

purpose : to commit any of crimes

punishable under the code

3.

meeting attended by armed persons

b. Meeting of the second form

Elements:
1. That the offender is a public officer or
employee
2.

1.

1.

Meeting, gathering or group of

persons whether in a fixed place or
moving

2.

Audience whether armed or not, is

incited to the commission of the
crime of treason, rebellion or
insurrection,
sedition or direct
assault.

Not all the persons present at the meeting of

the first form of illegal assembly must be
armed

Persons liable for illegal assembly

a. the organizers or leaders of the meeting
b.

persons merely present at the meeting

(except when presence is out of curiosity
not liable)

Responsibility of persons merely present

at the meeting
a.

if they are not armed, penalty is arresto

mayor

b.

if they carry arms, like bolos or knives,

or licensed firearms, penalty is prision
correccional

Presumptions if person present at the

meeting carries an unlicensed firearm:
a.

purpose of the meeting is to commit acts

punishable under the RPC

b.

considered as leader or organizer of the

meeting

* Those who incite the audience, by means of

speeches,
printed
matters,
and
other
representation, to commit treason, rebellion or
insurrection, sedition or assault a person in
authority, shall be deemed leaders or organizers
of said meeting.

The gravamen of the offense is mere assembly

of or gathering of people for illegal purpose
punishable by the Revised Penal Code.
Without gathering, there is no illegal
assembly. If unlawful purpose is a crime
under a special law, there is no illegal
assembly. For example, the gathering of drug
pushers to facilitate drug trafficking is not
illegal assembly because the purpose is not
violative of the Revised Penal Code but of The
Dangerous Drugs Act of 1972, as amended,
which is a special law.

Two forms of illegal assembly

(1) No attendance of armed men, but persons in
the meeting are incited to commit treason,
rebellion or insurrection, sedition or assault
upon a person in authority. When the illegal
purpose of the gathering is to incite people to
commit the crimes mentioned above, the
presence of armed men is unnecessary. The
mere gathering for the purpose is sufficient to
bring about the crime already.
(2) Armed men attending the gathering If the
illegal purpose is other than those mentioned
above, the presence of armed men during the
gathering brings about the crime of illegal
assembly.

Example: Persons conspiring to rob a bank were

arrested. Some were with firearms. Liable for
illegal assembly, not for conspiracy, but for
gathering with armed men.
Distinction between illegal assembly and
illegal association
In illegal assembly, the basis of liability is the
gathering for an illegal purpose which constitutes
a crime under the Revised Penal Code.
In illegal association, the basis is the formation of
or organization of an association to engage in an
unlawful purpose which is not limited to a
violation of the Revised Penal Code. It includes a
violation of a special law or those against public
morals. Meaning of public morals: inimical to
public welfare; it has nothing to do with decency.,
not acts of obscenity.
Article 147
ILLEGAL ASSOCIATIONS

ELEMENTS:
a. Organized totally or partially for the
purpose of committing any of the
crimes in RPC
Or
b. For some purpose contrary to public
morals

Persons liable:
a. founders, directors and president of the
association
b. mere members of the association
ILLEGAL ASSEMBLY
ILLEGAL
(146)
ASSOCIATION
(147)
Must
be
an
actual No need for such
meeting of armed persons
to commit any of the
crimes punishable under
the RPC, or of individuals
who, although not armed,
are
incited
to
the
commission of treason,
rebellion,
sedition
or
assault upon a person in
authority of his agent.
It is the meeting and the Act of forming or
attendance at such that organizing
and
are punished
membership
in
the association
Persons liable: leaders Founders,
and those present
directors,

president
members

c.

and

Public morals refers to crimes punished under

Title Six of the Revised Penal Code, namely,
gambling, grave scandal, prostitution and
vagrancy.

d. That the offender knows that the one

he is assaulting is a person in
authority or his agent in the exercise
of his duties (with intention to offend,
injure or assault).

ASSAULT, RESISTANCE AND DISOBEDIENCE

Article 148
DIRECT ASSAULT

ELEMENTS OF THE 1ST FORM OF DIRECT

ASSAULT
a. That the offender employs force or
intimidation.
b.

c.

That the aim of the offender is to

attain any of the purposes of the
crime of rebellion or any of the
objects of the crimes of sedition.
(victim need not be person in authority)
That there is no public uprising.

Example of the first form of direct assault:

Three men broke into a National Food Authority
warehouse and lamented sufferings of the people.
They called on people to help themselves to all
the rice. They did not even help themselves to a
single grain.
The crime committed was direct assault. There
was no robbery for there was no intent to gain.
The crime is direct assault by committing acts of
sedition under Article 139 (5), that is, spoiling of
the property, for any political or social end, of any
person municipality or province or the national
government of all or any its property, but there is
no public uprising.

ELEMENTS OF THE 2ND FORM OF DIRECT

ASSAULT:
a. That the offender (a) makes an
attack, (b) employs force, (c) makes a
serious intimidation, or (d) makes a
serious resistance.
b.

That the person assaulted is a person

in authority or his agent.

That at the time of the assault the

person in authority or his agent (a) is
engaged in the actual performance of
official duties (motive is not essential),
or that he is assaulted (b) by reason of
the past performance of official
duties (motive is essential).

e.

That there is no public uprising.

* Crime of direct assault can only be committed

by means of dolo. It cannot be committed by
culpa.

Always
complexed
with
the
material
consequence of the act (e.g. direct assault
with murder) except if resulting in a light
felony, in which case, the consequence is
absorbed

* The crime is not based on the material

consequence of the unlawful act. The crime of
direct assault punishes the spirit of lawlessness
and the contempt or hatred for the authority or the
rule of law.
* To be specific, if a judge was killed while he was
holding a session, the killing is not the direct
assault, but murder.
There could be direct
assault if the offender killed the judge simply
because the judge is so strict in the fulfillment of
his duty. It is the spirit of hate which is the
essence of direct assault.
* So, where the spirit is present, it is always
complexed with the material consequence of the
unlawful act. If the unlawful act was murder or
homicide committed under circumstance of
lawlessness or contempt of authority, the crime
would be direct assault with murder or homicide,
as the case may be. In the example of the judge
who was killed, the crime is direct assault with
murder or homicide.
* The only time when it is not complexed is when
material consequence is a light felony, that is,
slight physical injury. Direct assault absorbs the
lighter felony; the crime of direct assault can not
be separated from the material result of the act.
So, if an offender who is charged with direct
assault and in another court for the slight physical

Injury which is part of the act, acquittal or

conviction in one is a bar to the prosecution in the
other.

Hitting the policeman on the chest with fist is

not direct assault because if done against an
agent of a person in authority, the force
employed must be of serious character

The force employed need not be serious when

the offended party is a person in authority
(ex. Laying of hands)

The intimidation or resistance must be

serious whether the offended party is an
agent only or a person in authority (ex.
Pointing a gun)
Force Employed

Person in
Authority
Agent

Need not be
serious
Must be of serious
character

Intimidation
/Resistance
Serious
Serious

PERSON IN AUTHORITY: any person

directly vested with jurisdiction (power or
authority to govern and execute the laws)
whether as an individual or as a member of
some court or governmental corporation,
board or commission
A barangay captain is a person in authority,
so is a Division Superintendent of schools,
President of Sanitary Division and a teacher

* In applying the provisions of Articles 148 and

151, teachers, professors, and persons charged
with the supervision of public or duly recognized
private schools, colleges and universities and
lawyers in the actual performance of their duties
or on the occasion of such performance, shall be
deemed a person in authority.

AGENT: is one who, by direct provision of law

or by election or by appointment by
competent authority, is charged with the
maintenance of public order and the
protection and security of life and property.
(Example. Barrio councilman and any person
who comes to the aid of the person in
authority, policeman, municipal treasurer,
postmaster, sheriff, agents of the BIR,
Malacaang confidential agent)

Even when the person in authority or the

agent agrees to fight, still direct assault.

When the person in authority or the agent

provoked/attacked first, innocent party is
entitled to defend himself and cannot be held
liable for assault or resistance nor for
physical injuries, because he acts in
legitimate self-defense

* The offended party in assault must not be the

aggressor. If there is unlawful aggression
employed by the public officer, any form of
resistance which may be in the nature of force
against him will be considered as an act of
legitimate defense. (People vs. Hernandez, 59
Phil. 343)

There can be no assault upon or

disobedience to one authority by another
when they both contend that they were in the
exercise of their respective duties.

* The offender and the offended party are both

public officers. The Supreme Court said that
assault may still be committed, as in fact the
offender is even subjected to a greater penalty
(U.S. vs. Vallejo, 11 Phil. 193).
When assault is made by reason of the
performance of his duty there is no need for
actual performance of his official duty when
attacked
In direct assault of the first form, the stature of the
offended person is immaterial. The crime is
manifested by the spirit of lawlessness.

In the second form, you have to distinguish a

situation where a person in authority or his
agent was attacked while performing official
functions, from a situation when he is not
performing such functions.

If attack was done during the exercise of

official functions, the crime is always direct
assault. It is enough that the offender knew
that the person in authority was performing
an official function whatever may be the
reason for the attack, although what may
have happened was a purely private affair.

* On the other hand, if the person in authority or

the agent was killed when no longer performing
official functions, the crime may simply be the
material consequence of he unlawful act: murder
or homicide. For the crime to be direct assault,
the attack must be by reason of his official

function in the past. Motive becomes important

in this respect. Example, if a judge was killed
while resisting the taking of his watch, there is no
direct assault.

In the second form of direct assault, it is also

important that the offended knew that the person
he is attacking is a person in authority or an agent
of a person in authority, performing his official
functions.
No knowledge, no lawlessness or
contempt.

Article 149
INDIRECT ASSAULT

For example, if two persons were quarreling and a

policeman in civilian clothes comes and stops
them, but one of the protagonists stabs the
policeman, there would be no direct assault
unless the offender knew that he is a policeman.
In this respect it is enough that the offender
should know that the offended party was
exercising some form of authority.
It is not
necessary that the offender knows what is meant
by person in authority or an agent of one because
ignorantia legis non excusat.

Circumstances qualifying the offense

(Qualified Assault):
a. when the assault is committed with a
weapon
b.

when the offender is a public officer or

employee

c.

when the offender lays hand upon a

person in authority

Complex crime of direct assault with

homicide or murder, or with serious physical
injuries.

* If the crime of direct assault is committed with

the use of force and it resulted in the infliction of
slight physical injuries, the latter shall not be
considered as a separate offense. It shall be
absorbed by the greater crime of direct assault.
(People vs. Acierto, 57 Phil. 614)

Direct assault cannot be committed during

rebellion.

May direct assault be committed upon a

private individual? Yes. When a private person
comes to the aid of a person in authority, and he
is likewise assaulted. Under Republic Act No.
1978,

a private person who comes to the aid of a

person in authority is by fiction of law
deemed or is considered an agent of a person
in authority.

ELEMENTS:
a. That a person in authority or his
agent is the victim of any of the forms
of direct assault defined in ART. 148.
b.

That a person comes to the aid of

such authority or his agent.

c.

That the offender makes use of force

or intimidation upon such person
coming to the aid of the authority or
his agent.

Indirect assault can be committed only

when a direct assault is also committed

To be indirect assault, the person who

should be aided is the agent (not the
person in authority because it is already
direct assault, the person coming to the aid
of the person in authority being considered
as an agent and an attack on the latter is
already direct assault). Example. Aiding a
policeman under attack.

* The victim in indirect assault should be a private

person who comes in aid of an agent of a person
in authority. The assault is upon a person who
comes in aid of the agent of a person in authority.
The victim cannot be the person in authority or
his agent.
* Take note that under Article 152, as amended,
when any person comes in aid of a person in
authority, said person at that moment is no longer
a civilian he is constituted as an agent of the
person in authority. If such person were the one
attacked, the crime would be direct assault

Article 150
DISOBEDIENCE TO SUMMONS

Acts punishable:
a. refusing without legal excuse to obey
summons

b. refusing to be sworn or placed under

affirmation
c. refusing to answer any legal inquiry
to produce books, records etc.
d. restraining another from attending as
witness in such body

a. That an agent of a person in

authority
is
engaged
in
the
performance of official duty gives a
lawful order to the offender.
b.

That the offender disobeys such agent

of a person in authority.

That such disobedience is not of a

serious nature.
US vs. Ramayrat, 22 Phil. 183
The Supreme Court held that: the violation does
not refer to resistance or disobedience to the legal
provisions of the law, nor to judicial decisions
defining or declaring the rights and obligations of
the parties for the same give reliefs only in the
form of civil actions. Rather, the disobedience or
resistance is to the orders directly issued by the
authorities in the exercise of their official duties.
c.

e. inducing disobedience to a summons

or refusal to be sworn
* The act punished is refusal, without legal
excuse, to obey summons issued by the House of
Representatives or the Senate. If a Constitutional
Commission is created, it shall enjoy the same
privilege.
* The exercise by the legislature of its contempt
power
is
a matter
of
self-preservation,
independent of the judicial branch. The contempt
power of the legislature is inherent and sui
generis.
* The power to punish is not extended to the local
executive bodies. The reason given is that local
legislative bodies are but a creation of law and
therefore, for them to exercise the power of
contempt, there must be an express grant of the
same.
Article 151
RESISTANCE/DISOBEDIENCE TO A PERSON
IN AUTHORITY OR THE AGENT OF SUCH
PERSON (par. 1)

ELEMENTS:
a. That a person in authority or his
agent is engaged in the performance
of official duty or gives a lawful
order to the offender.
b.

That the offender resists or seriously

disobeys such person in authority or
his agent.

c.

That the act of the offender is not

included in the provisions of arts.
148, 149 and 150.

SIMPLE DISOBEDIENCE (par. 2)

ELEMENTS:

Direct Assault (148)

PIA or his agent must be

engaged
in
the
performance of official
duties or that he is
assaulted
Direct
assault
is
committed in 4 ways
by attacking, employing
force,
and
seriously
resisting a PIA or his
agent.
Use of force against an
agent of PIA must be
serious and deliberate.

Resistant and
Disobedience to a
Person in Authority
or Agents of such
Person (151)
PIA or his agent must
be
in
the
actual
performance of his
duties.
Committed by resisting
or seriously disobeying
a PIA or his agent.

Use of force against an

agent of a PIA is not so
serious; no manifest
intention to defy the
law and the officers
enforcing it.

* In both resistance against an agent of a person

in authority and direct assault by resisting an
agent of a person in authority, there is force
employed, but the use of force in resistance is not
so serious, as there is no manifest intention to
defy the law and the officers enforcing it.
* The attack or employment of force which gives
rise to the crime of direct assault must be serious
and deliberate; otherwise, even a case of simple
resistance to an arrest, which always requires the
use of force of some kind, would constitute direct
assault and the lesser offense of resistance or

disobedience
disappear.

in

Article

151

would

entirely

barangay officials and members who may be

designated by law or ordinance and charged
with the maintenance of public order,
protection and the security of life, property,
or the maintenance of a desirable and
balanced environment, and any barangay
member who comes to the aid of persons in
authority shall be deemed AGENT of persons
in authority.

But when the one resisted is a person in authority,

the use of any kind or degree of force will give rise
to direct assault.
If no force is employed by the offender in resisting
or disobeying a person in authority, the crime
committed is resistance or serious disobedience
under the first paragraph of Article 151.
Article 152
PERSONS
IN
AUTHORITY/AGENTS
PERSONS IN AUTHORITY:

OF

PERSONS IN AUTHORITY any person

directly vested with jurisdiction, whether as
an individual or as a member of some court
or governmental corporation, board or
commission.

Examples of Persons in Authority :

a. Barangay captain
b. Barangay chairman
c. Municipal mayor
d. Provincial fiscal
e. Justice of the peace
f. Municipal councilor
g. Teachers
h. Professors
i. Persons charged with the supervision of
public or duly recognized private schools,
colleges and universities
j. Lawyers in the actual performance of
their professional duties or on the
occasion of such performance

CRIMES AGAINST PUBLIC DISORDERS

Article 153
TUMULTS AND OTHER DISTURBANCES OF
PUBLIC ORDER

AGENT OF PERSON IN AUTHORITY any

person who, by direct provision of law or by
election or by appointment by competent
authority, is charged with the maintenance of
public order and the protection and security
of life and property.
Examples of agents of PIA :
a. Barrio councilman
b. Barrio policeman
c. Barangay leader
d. Any person who comes to the aid of
persons in authority
Section 388 of the Local Govt Code provides
that for purposes of the RPC, the punong
barangay, sangguniang barangay members
and members of the lupong tagapamayapa in
each barangay shall be deemed as persons in
authority in their jurisdictions, while other

When the offended party is a person in

authority and while being assaulted, a
private individual comes to his rescue, such
private individual, by operation of law,
mutates mutandis becomes an agent of a
person in authority. Any assault committed
against such person is direct assault, and not
indirect assault. But if the person assaulted
is an agent of a person in authority, and a
private individual comes to his rescue and is
himself assaulted while giving the assistance,
as earlier discussed, the crime committed is
indirect assault.

TYPES:
a. Causing any serious disturbance in a
public place, office or establishment
b.

Interrupting or disturbing public

performances, functions, gatherings
or peaceful meetings, if the act is not
included in Art 131 and 132 (Public
Officers interrupting peaceful meetings or
religious worship).

c.

Making any outcry tending to incite

rebellion or sedition in any meeting,
association or public place

d. Displaying placards or emblems

which provoke a disturbance of public
order in such place
e.

Burying with pomp the body of a

person who has been legally executed.

If the act of disturbing or interrupting a

meeting or religious ceremony is NOT

committed by public officers, or if committed

by public officers who are not participants
therein, this article applies. Art 131 and 132
punishes the same acts if committed by public
officers who areNOT participants in the
meeting

The outcry is merely a public disorder if it is

an unconscious outburst which, although
rebellious or seditious in nature, is not
intentionally calculated to induce others to
commit rebellion or sedition, otherwise, its
inciting to rebellion or sedition.
This article should be distinguished from
inciting to rebellion or sedition as discussed
under Article 138 and 142. In the former, the
meeting is legal and peaceful. It becomes
unlawful only because of the outcry made,
which tends to incite rebellion or sedition in
the meeting. In the latter case, the meeting is
unlawful from the beginning and the
utterances made are deliberately articulated
to incite others to rise publicly and rebel
against the government. What makes it
inciting to rebellion or sedition is the act of
inciting the audience to commit rebellion or
sedition.
TUMULTUOUS if caused by more than 3
persons who are armed or provided with
means of violence (circumstance qualifying
the disturbance/interruption) tumultuous
in character

* The essence is creating public disorder. This

crime is brought about by creating serious
disturbances in public places, public buildings,
and even in private places where public functions
or performances are being held.

For a crime to be under this article, it must not

fall
under
Articles
131
(prohibition,
interruption, and dissolution of peaceful
meetings) and 132 (interruption of religious
worship).

If the speaker, even before he delivered his

speech, already had the criminal intent to
incite the listeners to rise to sedition, the crime
would be inciting to sedition. However, if the
offender had no such criminal intent, but in
the course of his speech, tempers went high
and so the speaker started inciting the
audience to rise in sedition against the
government, the crime is disturbance of the
public order.

* The disturbance of the pubic order is tumultuous

and the penalty is increased if it is brought about
by armed men. The term armed does not refer
to firearms but includes even big stones capable
of causing grave injury.

It is also disturbance of the public order if a

convict legally put to death is buried with
pomp. He should not be made out as a
martyr; it might incite others to hatred.

The crime of disturbance of public order may

be committed in a public or private place. If
committed in a private place, the law is
violated only where the disturbance is made
while a public function or performance is
going on. Without a public gathering in a
private place, the crime cannot be
committed.

Article 154
UNLAWFUL USE OF MEANS OF PUBLICATION
AND UNLAWFUL UTTERANCES

TYPES:
a.
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.
b.

Encouraging disobedience to the

law or to the constituted authorities
or by praising, justifying or extolling
any act punished by law, by the same
means or by words, utterances or
speeches

c.

Maliciously publishing or causing

to be published any official resolution
or
document
without
proper

* In the act of making outcry during speech

tending to incite rebellion or sedition,
the situation must be distinguished
from inciting to sedition or rebellion.

authority, or before they have been

published officially
d.

Printing,
publishing
or
distributing or (causing the same)
books, pamphlets, periodicals or
leaflets which do not bear the real
printers name or which are classified
as anonymous.

* The purpose of the law is to punish the

spreading of false information which tends to
cause panic, confusion, distrust and divide
people in their loyalty to the duly constituted
authorities.
* Actual public disorder or actual damage to the
credit of the State is not necessary.
Republic Act No. 248 prohibits the reprinting,
reproduction or republication of government
publications and official documents without
previous authority
The article also punishes any person who
knowingly publishes official acts or documents
which are not officially promulgated.

Article 155
ALARMS AND SCANDALS

TYPES:
a. Discharging any firearm, rocket,
firecracker, or other explosive within
any town or public place, calculated
to cause alarm or danger
b.

c.

Instigating or taking active part in

any charivari or other disorderly
meeting offensive to another or
prejudicial to public tranquility
Disturbing the public peace while
wandering about at night or while
engaged in any other nocturnal
amusement

d. Causing any disturbance or scandal

in public places while intoxicated or
otherwise, provided the act is not
covered by Art 153 (tumult).

Understand the nature of the crime of alarms

and scandals as one that disturbs public
tranquility or public peace. If the annoyance
is intended for a particular person, the crime
is unjust vexation.

Charivari mock serenade or discordant

noises made with kettles, tin horns etc,
designed to deride, insult or annoy

WHEN A PERSON DISCHARGES A FIREARM IN

PUBLIC, the act may constitute any of the
possible crimes under the Revised Penal Code:
(1)

Alarms and scandals if the firearm when

discharged was not directed to any
particular person;

(2)

Illegal discharge of firearm under Article

254 if the firearm is directed or pointed
to a particular person when discharged
but intent to kill is absent;

(3)

Attempted
homicide,
murder,
or
parricide if the firearm when discharged
is directed against a person and intent to
kill is present.

In this connection, understand that it is not

necessary that the offended party be wounded or
hit. Mere discharge of firearm towards another
with intent to kill already amounts to attempted
homicide or attempted murder or attempted
parricide. It can not be frustrated because the
offended party is not mortally wounded.
In Araneta v. Court of Appeals, it was held that
if a person is shot at and is wounded, the
crime is automatically attempted
homicide. Intent to kill is inherent in the
use of the deadly weapon.
(4)
Grave Threats If the
weapon is not discharged but
merely pointed to another
(5)
Other Light Threats If drawn in a
quarrel but not in self defense

What governs is the result, not the intent

CRIME
Tumults

and

Nature of
Crime
Crime
against

Who are
Liable
Private

other
Disturbances
(153)
Alarms
and
Scandals (155)

Public Order

persons,
outsider

Crime
against
Public Order

Private
persons,
outsider

Article 156
DELIVERING PRISONERS FROM JAILS

c.

That the offender removes therefor

such person, or helps the escape of
such person (if the escapee is serving
final judgement, he is guilty of evasion of
sentence).
Offender is a private individual

Prisoner may be detention prisoner or one

sentenced by virtue of a final judgment

* Even if the prisoner is in the hospital or asylum

or any place for detention of prisoner, as long as
he is classified as a prisoner, that is, a formal
complaint or information has been filed in court,
and he has been officially categorized as a
prisoner, this article applies, as such place is
considered extension of the penal institution.

A policeman assigned to the city jail as guard

who while off-duty released a prisoner is
liable here

* Even if the prisoner returned to the jail after

several hours, the one who removed him from jail
is liable.

It may be committed through negligence

Circumstances qualifying the offense is

committed by means of violence, intimidation
or bribery.
Mitigating circumstance if it takes place
outside the penal establishment by taking
the guards by surprise

ELEMENTS :
a. That there is a person confined in a
jail or penal establishment.
b.

* correlate the crime of delivering person from jail

with infidelity in the custody of
prisoners punished under Articles
223, 224 and 225 of the Revised
Penal Code. In both acts, the offender
may be a public officer or a private
citizen.
Do not think that infidelity in the custody of
prisoners can only be committed by a public
officer and delivering persons from jail can
only be committed by private person. Both
crimes may be committed by public officers
as well as private persons.

> In both crimes, the person involved may be a

convict or a mere detention prisoner.
* The only point of distinction between the two
crimes lies on whether the offender is the
custodian of the prisoner or not at the time the
prisoner was made to escape.

If the offender is the custodian at that time,

the crime is infidelity in the custody of
prisoners. But if the offender is not the
custodian of the prisoner at that time, even
though he is a public officer, the crime he
committed is delivering prisoners from jail.

LIABILITY OF THE PRISONER OR DETAINEE

WHO ESCAPED When these crimes
are committed, whether infidelity in the
custody of prisoners or delivering
prisoners from jail, the prisoner so
escaping may also have criminal
liability and this is so if the prisoner is
a convict serving sentence by final
judgment.
The crime of evasion of
service of sentence is committed by the
prisoner who escapes if such prisoner is
a convict serving sentence by final
judgment.
If the prisoner who escapes is only a detention
prisoner, he does not incur liability from escaping
if he does not know of the plan to remove him
from jail. But if such prisoner knows of the plot to
remove him from jail and cooperates therein by
escaping, he himself becomes liable for delivering
prisoners from jail as a principal by
indispensable cooperation.
* If three persons are involved a stranger, the
custodian and the prisoner three crimes are
committed:

(1)
(2)
(3)

Infidelity in the custody of prisoners;

Delivery of the prisoner from jail; and
Evasion of service of sentence.

It is possible that several crimes may be

committed in one set of facts. For instance,
assuming that Pedro, the jail warden, agreed with
Juan to allow Maria to escape by not locking the
gate of the city jail. Provided that Juan comes
across with P5,000.00 pesos as bribe money. The
arrangement was not known to Maria but when
she noticed the unlocked gate of the city jail she
took advantage of the situation and escaped.
From the facts given, there is no question that
Pedro, as the jail warden, is liable for the crime of
infidelity in the custody of the prisoner. He will
also be able for the crime of bribery. Juan will be
liable for the crime of delivering a prisoner from
jail and for corruption of public official under Art.
212. If Maria is a sentenced prisoner, she will be
liable for evasion of service of sentence under
Article 157. if she is a detention prisoner, she
commits no crime.

EVASION OF SENTENCE OR SERVICE

EVASION OF SERVICE OF SENTENCE HAS
THREE FORMS:
(1)
By simply leaving or escaping from the
penal establishment under Article 157;
(2)
Failure to return within 48 hours after
having left the penal establishment
because of a calamity, conflagration or
mutiny and such calamity, conflagration
or mutiny has been announced as
already passed under Article 158;
(3)
Violating the condition of conditional
pardon under Article 159.
Article 157
EVASION OF SERVICE OF SENTENCE

ELEMENTS :
a. That the offender is a convict by
final judgment.
b.

c.

That he is serving his sentence

which consists in deprivation of
liberty (destierro included)
That he evades the service of his
sentence by escaping during the
term if his sentence. (fact of return
immaterial).

By the very nature of the crime, it cannot be

committed when the prisoner involved is
merely a detention prisoner. But it applies to
persons convicted by final judgment with a
penalty of destierro.

* A detention prisoner even if he escapes from

confinement has no criminal liability.
Thus,
escaping from his prison cell when his case is
still on appeal does not make said prisoner liable
for Evasion of Service of Sentence.

In leaving or escaping from jail or prison, that

the prisoner immediately returned is
immaterial. It is enough that he left the
penal establishment by escaping therefrom.
His voluntary return may only be mitigating,
being analogous to voluntary surrender. But
the same will not absolve his criminal liability.

A continuing offense.

Offenders not minor delinquents

detention prisoners

If escaped within the 15 day appeal period

no evasion

No applicable to deportation as the sentence

The crime of evasion of service of sentence
may be committed even if the sentence is
destierro, and this is committed if the convict
sentenced to destierro will enter the
prohibited places or come within the
prohibited radius of 25 kilometers to such
places as stated in the judgment.

nor

* If the sentence violated is destierro, the penalty

upon the convict is to be served by way of
destierro also, not imprisonment.
This is so
because the penalty for the evasion can not be
more severe than the penalty evaded.

Circumstances qualifying the

(done thru):
a. unlawful entry (by scaling)

offense

b.

breaking doors, windows, gates, walls,

roofs or floors

c.

using picklocks, false keys, disguise,

deceit, violence or intimidation

d.

connivance with other convicts

employees of the penal institution

or

Offender must escape to be entitled to

allowance

* A, a foreigner, was found guilty of violation of

the law, and was ordered by the court to be
deported.
Later on, he returned to the
Philippines in violation of the sentence. Held: He
is not guilty of Evasion of Service of Sentence as
the law is not applicable to offenses executed by
deportation. (U.S. vs. Loo Hoe, 36 Phil. 867).

Article 158
EVASION OF SERVICE OF SENTENCE ON THE
OCCASION
OF
DISORDERS,
CONFLAGRATIONS,
EARTHQUAKES
OR
OTHER CALAMITIES

For such event to be considered as a

calamity, the President must declared it to be
so. He must issue a proclamation to the
effect that the calamity is over. Even if the
events herein mentioned may be considered
as calamity, there is a need for the Chief
Executive to make such announcement.
Absent such declaration. Even if the prisoner
will return to the penal institution where he
was confined, the same is of no moment as in
the meantime he has committed a violation of
the law, not under the present article but for
pure evasion of service of sentence under
Article 157.

Mutiny organized unlawful resistance to a

superior officer, a sedition, a revolt

The mutiny referred to in the second form of

evasion of service of sentence does not
include riot. The mutiny referred to here
involves subordinate personnel rising against
the
supervisor
within
the
penal
establishment. One who escapes during a
riot will be subject to Article 157, that is,
simply leaving or escaping the penal
establishment.

Disarming the guards is not mutiny

ELEMENTS :
a. That the offender is a convict by final
judgement who is confined in a penal
institution.
b.

That there is disorder, resulting from1. conflagration, 2. earthquake, or

explosion, or 4. similar catastrophe, or
5. mutiny , not
participated.

c.

3.

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.

d. 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.

> Those who did not leave the penal

establishment are not entitled to the 1/5 credit.
Only those who left and returned within the 48hour period.

The leaving from the penal establishment is

not the basis of criminal liability. It is the
failure to return within 48 hours after the
passing of the calamity, conflagration or
mutiny had been announced. Under Article
158, those who return within 48 hours are
given credit or deduction from the remaining
period of their sentence equivalent to 1/5 of
the original term of the sentence. But if the
prisoner fails to return within said 48 hours,
an added penalty, also 1/5, shall be imposed
but the 1/5 penalty is based on the remaining
period of the sentence, not on the original
sentence.
In no case shall that penalty
exceed six months.

* Violation attributed to the accused is no longer

referred to the court for judicial inquiry or
resolution. The law has provided sufficient
guidelines for the jail warden to follow.
* This disquisition will not apply if the offender
who escapes taking advantage of the calamities
enumerated herein is apprehended by the
authorities after 48 hours from the declaration
that the calamity is over. It is only extended to
one who returns but made inside the 48 hours
delimited by the proclamation. At this stage, the
violation is not substantive but administrative in
nature.

Article 159
VIOLATION OF CONDITIONAL PARDON

ELEMENTS:
a. That the offender was a convict.
b.

That he was granted a conditional

pardon by the chief executive.

c.

That he violated any of the conditions

of such pardon.

Condition extends to special laws violation

of illegal voting
The condition imposed upon the prisoner not to
be guilty of another crime is not limited to those
punishable under the Revised Penal Code. It
includes those punished under Special Law.
(People vs. Corral, 74 Phil. 357).

* Article 159 is a distinct felony. It is a substantive

crime. For one to suffer the consequence of its
violation, the prisoner must be formally charged
in court. He will be entitled to a full blown
hearing, in full enjoyment of his right to due
process. Only after a final judgment has been
rendered against him may he suffer the penalty
prescribed under Article 159 (Torres vs.
Gonzales, et al., 152 SCRA 292)
VIOLATION OF PARDON
Infringement
of
conditions/terms
of
President

* In violation of conditional pardon, as a rule, the

violation will amount to this crime only if the
condition is violated during the remaining period
of the sentence.
* If the condition of the pardon is violated, the
remedy against the accused may be in the form of
prosecution under Article 159. it may also be an
administrative action by referring the violation to
the court of origin and praying for the issuance of
a warrant of arrest justified under Section 64 of
the Revised Administrative Code.
The administrative liability of the convict under
the conditional pardon is different and has
nothing to do with his criminal liability for the
evasion of service of sentence in the event that
the condition of the pardon has been violated.
Exception: where the violation of the condition
of the pardon will constitute evasion of service
of sentence, even though committed beyond the
remaining period of the sentence. This is when
the conditional pardon expressly so provides or
the language of the conditional pardon clearly
shows the intention to make the condition
perpetual even beyond the unserved portion of
the sentence. In such case, the convict may be
required to serve the unserved portion of the
sentence even though the violation has taken
place when the sentence has already lapsed.
Offender must have been found guilty of the
subsequent offense before he can be prosecuted
under this Article. But if under Revised Admin
Code, no conviction necessary. President has
power to arrest, reincarnate offender without
trial

ORDINARY EVASION
To evade the penalty
given by the courts
disturbs the public
order

Two penalties provided:

a. prision correccional in its minimum period
if the penalty remitted does not exceed
6 years
b.

the unexpired portion of his original

sentence if the penalty remitted is
higher than 6 years

COMMISSION OF ANOTHER CRIME

Article 160
COMMISSION OF ANOTHER CRIME DURING
SERVICE OF PENALTY IMPOSED FOR
ANOTHER PREVIOUS OFFENSE-PENALTY:
(quasi-recidivism)

ELEMENTS
a.
That the offender was already
convicted by final judgement of one
offense.
b.

That he committed a new felony

before beginning to serve such
sentence or while serving the same.

Quasi-recidivism : a person after having

been convicted by final judgement shall
commit a new felony before beginning to
serve such sentence, or while serving the
same.

Second crimes must belong to the RPC, not

special laws. First crime may be either from
the RPC or special laws

Reiteracion: offender shall have served out

his sentence for the prior offense

A quasi-recidivist may be pardoned at age 70.

Except: Unworthy or Habitual Delinquent

If new felony is evasion of sentence offender

is not a quasi-recidivist

Penalty: maximum period of the penalty for

the new felony should be imposed

12.

* Quasi-recidivism is a special aggravating

circumstance which directs the court to impose
the maximum period of the penalty prescribed by
law for the new felony. The court will do away or
will
ignore
mitigating
and
aggravating
circumstances in considering the penalty to be
imposed. There will be no occasion for the court
to consider imposing the minimum, medium or
maximum period of the penalty. The mandate is
absolute and is justified by the finding that the
accused is suffering from some degree of moral
perversity if not total incorrigibility. (People vs.
Alicia, et al., 95 SCRA 227)
*
Quasi-recidivism
is
an
aggravating
circumstance which cannot be offset by any
mitigating circumstance. To be appreciated as a
special aggravating circumstance, it must be
alleged in the information. (People vs. Bautista,
65 SCRA 460)

13.

Quasi-Recidivism may be offset by a special

privileged
mitigating
circumstance
(ex.
Minority)
TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST

Crimes against public interest

1.
Counterfeiting the great seal of the
Government of the Philippines (Art. 161);
2.
Using forged signature or counterfeiting
seal or stamp (Art. 162);
3.
Making and importing and uttering false
coins (Art. 163);
4.
Mutilation of coins, importation and
uttering of mutilated coins (Art. 164);
5.
Selling of false or mutilated coins,
without connivance (Art. 165);
6.
Forging treasury or bank notes or other
documents payable to bearer, importing
and uttering of such false or forged notes
and documents (Art. 166);
7.
Counterfeiting, importing and uttering
instruments not payable to bearer (Art.
167);
8.
Illegal possession and use of forged
treasury or bank notes and other
instruments of credit (Art. 168);

9.
10.
11.

14.
15.

16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.

27.

28.

Falsification of legislative documents (Art.

170);
Falsification by public officer, employee
or notary (Art. 171);
Falsification by private individuals and
use of falsified documents (Art. 172);
Falsification of wireless, cable, telegraph
and telephone messages and use of said
falsified messages (Art. 173);
False
medical
certificates,
false
certificates of merit or service (Art. 174);
Using false certificates (Art. 175);
Manufacturing
and
possession
of
instruments
or
implements
for
falsification (Art. 176);
Usurpation of authority or official
functions (Art. 177);
Using fictitious name and concealing
true name (Art. 178);
Illegal use of uniforms or insignia (Art.
179);
False testimony against a defendant (Art.
180);
False
testimony
favorable
to
the
defendant (Art. 181);
False testimony in civil cases (Art. 182);
False testimony in other cases and
perjury (Art. 183);
Offering false testimony in evidence (Art.
184);
Machinations in public auction (Art.
185);
Monopolies
and
combinations
in
restraint of trade (Art. 186);
Importation and disposition of falsely
marked articles or merchandise made of
gold, silver, or other precious metals or
their alloys (Art. 187);
Substituting and altering trade marks
and trade names or service marks (Art.
188);
Unfair
competition
and
fraudulent
registration of trade mark or trade name,
or service mark; fraudulent designation
of origin, and false description (Art. 189).

* The crimes in this title are in the nature of

fraud or falsity to the public. The essence of the
crime under this title is that which defraud the
public in general. There is deceit perpetrated
upon the public. This is the act that is being
punished under this title.

Article 161
COUNTERFEITING
GOVERNMENT

GREAT

SEAL

OF

TYPES:
a. Forging the great seal of the
Government
b.

c.

Forging the
President

signature

of

the

Article 162
USING
FORGED
SIGNATURE
COUNTERFEIT SEAL OR STAMP

c.

That the offender knew of the

counterfeiting or forgery.
That he used the counterfeit seal
or forged signature or stamp.

Offender is NOT the forger/not the cause of

the counterfeiting

Article 163
MAKING AND IMPORTING AND UTTERING
FALSE COINS

1. Silver coins of the Philippines or coins of the

Central Bank of the Philippines;
2. Coins of the minor coinage of the Philippines
or of the Central Bank of the Philippines;
3. Coin of the currency of a foreign country.

Counterfeiting imitation of legal or genuine

coin (may contain more silver, different
design) such as to deceive an ordinary person
in believing it to be genuine

Utter to pass counterfeited coins, deliver or

give away

Import to bring to port the same

Both Philippine and foreign state coins

Applies also
circulation

Essence of article: making of coins without

authority

OR

ELEMENTS:
a. That the great seal of the republic
was counterfeited or the signature
or stamp of the chief executive
was forged by another person.
b.

Kinds of coins the counterfeiting of which is

punished

Forging the stamp of the President

When the signature of the President is forged,

it is not falsification but forging of signature
under this article
Signature must be forged, others signed it
not the President.

Coin is counterfeit if it is forged, or if it is

not an article of the government as legal
tender, regardless if it is of no value

ELEMENTS :
a. That there be false or counterfeited
coins (need not be legal tender).
b.

That
the
offender
either
imported or uttered such coins.

made,

c.

That in case of uttering such false or

counterfeited coins, he connives with
counterfeiters or importers.

to

coins

withdrawn

from

Acts punished
1.

Mutilating coins of the legal currency, with

the further requirements that there be
intent to damage or to defraud another;

2.

Importing or uttering such mutilated coins,

with the further requirement that there
must be connivances with the mutilator or
importer in case of uttering.

The first acts of falsification or falsity are

(1) Counterfeiting refers to money or currency;
(2) Forgery refers to instruments of credit and
obligations and securities issued by the
Philippine government or any banking
institution authorized by the Philippine
government to issue the same;
(3) Falsification can only be committed in
respect of documents.

In so far as coins in circulation are concerned,

there are two crimes that may be committed:
(1)

Counterfeiting coins -- This is the crime

of remaking or manufacturing without any
authority to do so.

* In the crime of counterfeiting, the law is not

concerned with the fraud upon the public such
that even though the coin is no longer legal tender,
the act of imitating or manufacturing the coin of
the government is penalized. In punishing the
crime of counterfeiting, the law wants to prevent
people from trying their ingenuity in their
imitation of the manufacture of money.
(2)

Mutilation of coins -- This refers to the

deliberate act of diminishing the proper
metal contents of the coin either by
scraping, scratching or filling the edges of
the coin and the offender gathers the
metal dust that has been scraped from the
coin.

Article 164

MULTILATION OF COINS IMPORTATION

AND UTTERANCE:
This has been repealed by PD 247.
(Defacement, Mutilation, Tearing, Burning or
Destroying Central Bank Notes and Coins)
Under this PD, the acts punishable are:
a.
willful defacement
b.
mutilation
c.
tearing
d.
burning
e.
destruction of Central Bank notes and
coins

Mutilation to take off part of the metal

either by filling it or substituting it for
another metal of inferior quality, to diminish
by inferior means (to diminish metal
contents).

Foreign notes and coins not included. Must

be legal tender.

Must be intention to mutilate.

Requisites of mutilation under the Revised

Penal Code
(1)

Coin mutilated is of legal tender;

(2)

Offender gains from the precious metal

dust abstracted from the coin; and

(3)

It has to be a coin.

There is no expertise involved here.

In
mutilation of coins under the Revised Penal
Code, the offender does nothing but to scrape,
pile or cut the coin and collect the dust and,
thus, diminishing the intrinsic value of the
coin.

* Mutilation of coins is a crime only if the coin

mutilated is legal tender. If it is not legal tender
anymore, no one will accept it, so nobody will be
defrauded. But if the coin is of legal tender, and
the offender minimizes or decreases the precious
metal dust content of the coin, the crime of
mutilation is committed.
* The offender must deliberately reduce the
precious metal in the coin. Deliberate intent
arises only when the offender collects the
precious metal dust from the mutilated coin. If
the offender does not collect such dust, intent to
mutilate is absent, but Presidential Decree No.
247 will apply.

Mutilation under the Revised Penal Code is true

only to coins. It cannot be a crime under the
Revised Penal Code to mutilate paper bills
because the idea of mutilation under the code is
collecting the precious metal dust. However,
under Presidential Decree No. 247, mutilation is
not limited to coins.
Questions & Answers
1.
The people playing cara y cruz,
before they throw the coin in the air would rub
the money to the sidewalk thereby diminishing
the intrinsic value of the coin. Is the crime of
mutilation committed?
Mutilation, under the Revised Penal Code,
is not committed because they do not collect the
precious metal content that is being scraped from
the coin. However, this will amount to violation of
Presidential Decree No. 247.

2.
When the image of Jose Rizal on
a five-peso bill is transformed into that of Randy
Santiago, is there a violation of Presidential
Decree No. 247?
Yes.
Presidential Decree No. 247 is
violated by such act.
4.
An old woman who was a
cigarette vendor in Quiapo refused to accept onecentavo coins for payment of the vendee of
cigarettes he purchased. Then came the police
who advised her that she has no right to refuse
since the coins are of legal tender. On this, the
old woman accepted in her hands the onecentavo coins and then threw it to the face of the
vendee and the police. Was the old woman guilty
of violating Presidential Decree No. 247?
She was guilty of violating Presidential
Decree No. 247 because if no one ever picks up the
coins, her act would result in the diminution of the
coin in circulation.
5.
A
certain
customer
in
a
restaurant wanted to show off and used a P
20.00 bill to light his cigarette. Was he guilty of
violating Presidential Decree No. 247?
He was guilty of arrested for violating of
Presidential Decree No. 247. Anyone who is in
possession of defaced money is the one who is the
violator of Presidential Decree No. 247.
The
intention of Presidential Decree No. 247 is not to
punish the act of defrauding the public but what is
being punished is the act of destruction of money
issued by the Central Bank of the Philippines.
Note that persons making bracelets out of some
coins violate Presidential Decree No. 247.

SELLING OF FALSE OR MUTILATED COIN,

WITHOUT CONNIVANCE
2 Types
a. Possession of coin, counterfeited or
mutilated by another person, with intent to
utter the same, knowing that it is false or
mutilated.
ELEMENTS:
1. possession
2. with intent to utter, and
3. knowledge

b.

Actually uttering such false or mutilated

coin, knowing the same to be false or
mutilated.
ELEMENTS:
1. actually uttering, and
2. knowledge.

* On counterfeiting coins, it is immaterial

whether the coin is legal tender or not because
the intention of the law is to put an end to the
practice of imitating money and to discourage
anyone who might entertain the idea of imitating
money (People vs. Kong Leon).
Article 166
FORGING TREASURY OR BANK NOTES
IMPORTING AND UTTERING

Acts punishable:
a. Forging or falsity of treasury/bank
notes or documents payable to bearer

The primary purpose of Presidential Decree No.

247 at the time it was ordained was to stop the
practice of people writing at the back or on the
edges of the paper bills, such as "wanted: pen
pal".
So, if the act of mutilating coins does not involve
gathering dust like playing cara y cruz, that is not
mutilation under the Revised Penal Code because
the offender does not collect the metal dust. But
by rubbing the coins on the sidewalk, he also
defaces and destroys the coin and that is
punishable under Presidential Decree No. 247.

Article 165

Possession does not require legal tender in

foreign coins
Includes constructive possession

b.

Importing of such notes

c.

Uttering of such false or forged

obligations and notes in connivance
with forgers and importers

FORGING by giving a treasury or bank note

or document payable to bearer/order an
appearance of a true and genuine document
FALSIFICATION by erasing, substituting,
counterfeiting or altering by any means the
figures and letters, words, signs contained
therein
E.g. falsifying lotto or sweepstakes ticket.
Attempted estafa through falsification of an
obligation or security of the Phil

PNB checks not included here its

falsification of commercial document under
Article 172
Obligation or security includes: bonds,
certificate of indebtedness, bills, national
bank notes, coupons, treasury notes,
certificate of deposits, checks, drafts for
money, sweepstakes money

Article 169
FORGERY

* If the falsification is done on a document that is

classified as a government security, then the
crime is punished under Article 166. On the
other hand, if it is not a government security,
then the offender may either have violated Article
171 or 172.
Article 167
COUNTERFEITING,
IMPORTING,
AND
UTTERING INSTRUMENTS NOT PAYABLE TO
BEARER

ELEMENTS :
a. That there be an instrument payable to
order or other document of credit not
payable to bearer.
b.

That the offender either forged, imported

or uttered such instruments.

c.

That in case of uttering, he connived

with the forger or importer.
Article 168
ILLEGAL POSSESSION AND USE OF FALSE
TREASURY OR BANK NOTES AND OTHER
INSTRUMENT OF CREDIT

ELEMENTS:
a. 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.
b.

That the offender knows that any of

those instruments is forged or falsified.

c.

That he performs any of these acts

1. using any of such forged or falsified
instrument, or
2. possessing with intent to use any of
such forged or falsified instrument.

Act sought to be punished: Knowingly

possessing with intent to use any of such
forged treasury or bank notes

How forgery is committed:

a. by giving to a treasury or bank note
or any instrument payable to bearer
or to order, the appearance of a true
and genuine document
b.

by
erasing,
substituting,
counterfeiting, altering by any means
the figures, letters or words, or signs
contained therein.

if all acts done but genuine appearance is not

given, the crime is frustrated

* Forgery under the Revised Penal Code applies to

papers, which are in the form of obligations and
securities issued by the Philippine government as
its own obligations, which is given the same status
as legal tender.
Generally, the word
counterfeiting is not used when it comes to
notes; what is used is forgery. Counterfeiting
refers to money, whether coins or bills.
* Notice that mere change on a document does
not amount to this crime. The essence of forgery
is giving a document the appearance of a true and
genuine document. Not any alteration of a letter,
number, figure or design would amount to
forgery. At most, it would only be frustrated
forgery.
* When what is being counterfeited is obligation or
securities, which under the Revised Penal Code is
given a status of money or legal tender, the crime
committed is forgery.
Questions & Answers
1.
Instead of the peso sign (P),
somebody replaced it with a dollar sign ($). Was
the crime of forgery committed?
No. Forgery was not committed. The
forged instrument and currency note must be given
the appearance of a true and genuine document.
The crime committed is a violation of Presidential
Decree No. 247.
Where the currency note,
obligation or security has been changed to make it

appear as one which it purports to be as genuine,

the crime is forgery. In checks or commercial
documents, this crime is committed when the
figures or words are changed which materially
alters the document.
2.
An old man, in his desire to earn
something, scraped a digit in a losing
sweepstakes ticket, cut out a digit from another
ticket and pasted it there to match the series of
digits corresponding to the winning sweepstakes
ticket. He presented this ticket to the Philippine
Charity Sweepstakes Office. But the alteration is
so crude that even a child can notice that the
supposed digit is merely superimposed on the
digit that was scraped. Was the old man guilty of
forgery?
NO Because of the impossibility of
deceiving whoever would be the person to whom
that ticket is presented, the Supreme Court ruled
that what was committed was an impossible
crime. Note, however, that the decision has been
criticized. In a case like this, the Supreme Court of
Spain ruled that the crime is frustrated. Where
the alteration is such that nobody would be
deceived, one could easily see that it is a forgery,
the crime is frustrated because he has done all the
acts of execution which would bring about the
felonious consequence but nevertheless did not
result in a consummation for reasons independent
of his will.
3.
A person has a twenty-peso bill.
He applied toothache drops on one side of the
bill. He has a mimeograph paper similar in
texture to that of the currency note and placed it
on top of the twenty-peso bill and put some
weight on top of the paper. After sometime, he
removed it and the printing on the twenty-peso
bill was reproduced on the mimeo paper. He took
the reverse side of the P20 bill, applied toothache
drops and reversed the mimeo paper and pressed
it to the paper. After sometime, he removed it
and it was reproduced. He cut it out, scraped it a
little and went to a sari-sari store trying to buy a
cigarette with that bill. What he overlooked was
that, when he placed the bill, the printing was
inverted.
He was apprehended and was
prosecuted and convicted of forgery. Was the
crime of forgery committed?
The Supreme Court ruled that it was only
frustrated forgery because although the offender
has performed all the acts of execution, it is not
possible because by simply looking at the forged
document, it could be seen that it is not genuine.

It can only be a consummated forgery if the

document which purports to be genuine is given
the appearance of a true and genuine document.
Otherwise, it is at most frustrated.
Five classes of falsification:
(1)

Falsification of legislative documents;

(2)

Falsification of a document by a public

officer, employee or notary public;

(3)

Falsification of a public or official, or

commercial documents by a private
individual;

(4)

Falsification of a private document by any

person;

(5)

Falsification of wireless, telegraph and

telephone messages.

* The crime of falsification must involve a writing

that is a document in the legal sense. The
writing must be complete in itself and capable of
extinguishing an obligation or creating rights or
capable of becoming evidence of the facts stated
therein.
Until and unless the writing has
attained this quality, it will not be considered as
document in the legal sense and, therefore, the
crime of falsification cannot be committed in
respect thereto.
Distinction between falsification and forgery:
Falsification is the commission of any of the
eight acts mentioned in Article 171 on legislative
(only the act of making alteration), public or
official, commercial, or private documents, or
wireless, or telegraph messages.
The term forgery as used in Article 169 refers to
the falsification and counterfeiting of treasury or
bank notes or any instruments payable to bearer
or to order.
* Note that forging and falsification are crimes
under Forgeries.
Article 170
FALSIFICATION
DOCUMENTS

OF

LEGISLATIVE

ELEMENTS :
a. That these be a bill, resolution or
ordinance enacted or approved or

pending approval by the national

assembly or any provincial board or
municipal council.
b.

That the offender (any person) alters

the same.

c.

That he has no proper authority

therefor.

d. That the alteration has changed the

meaning of the document.
* The words "municipal council" should include
the city council or municipal board Reyes.

Accused must not be a public official

entrusted with the custody or possession of
such document otherwise Art 171 applies .

* The falsification must be committed on a

genuine, true and authentic legislative document.
If committed on a simulated, spurious or
fabricated legislative document, the crime is not
punished under this article but under Article 171
or 172.

Article 171
FALSIFICATION OF DOCUMENTS BY PUBLIC
OFFICER, EMPLOYEE, OR NOTARY OR
ECCLESTASTICAL MINISTER

ELEMENTS:
a.
That the offender is a public
officer, employee, or notary public.
b.

That he takes advantage of his

official position.

c.

That he falsifies a document by

committing any of the following acts:

1. Counterfeiting or imitating any

handwriting, signature or rubric.
Requisites:
i.
That there be an intent
to imitate, or an attempt to imitate
ii.
That the two signatures
or handwritings, the genuine and the
forged, bear some resemblance, to each
other

(lack of similitude/imitation of a genuine

signature will not be a ground for
conviction under par. 1 but such is not an
impediment to conviction under par. 2)
2. Causing it to appear that persons
have participated in any act or
proceeding when they did not in fact
so participate.
3. Attributing to persons who have
participated in an act or proceeding
statements other than those in fact
made by them.
Requisites:
i.
That the offender caused
it to appear in a document that a person/s
participated in an act or a proceeding; and
ii.
That such person/s did
not in fact so participate in the act or
proceeding
4. Making untruthful statements in a
narration of facts;
Requisites:
i. That the offender makes in a document
statements in a narration of facts
ii. That he has a legal obligation to
disclose the truth of the facts narrated by
him; (required by law to be done) and
iii. That the facts narrated by the offender
are absolutely false; and
iv. That the perversion or truth in the
narration of facts was made with the
wrongful intent of injuring a third person

There must be a narration of facts,

not a conclusion of law. Must be on a
material matter

* For one to be held criminally liable for

falsification under paragraph 4, the untruthful
statement must be such as to effect the integrity
of the document or to change the effects which it
would otherwise produce.
Legal obligation means that there is a law
requiring the disclosure of the truth of the
facts narrated. Ex. Residence certificates

 The person making the narration of facts

must be aware of the falsity of the facts
narrated by him. This kind of falsification
may be committed by omission

8. Intercalating any instrument or note

relative to the issuance thereof in a
protocol, registry, or official book.
(genuine document)

5. Altering true dates.

date must be essential

* In case the offender is an ecclesiastical

minister, the act of falsification is committed
with respect to any record or document of
such character that its falsification may
affect the civil status of persons.

* For falsification to take place under this

paragraph, the date of the document must be
material to the right created or to the obligation
that is extinguished.
6. Making
any
alteration
or
intercalation in a genuine document
which changes its meaning.
Requisites:
i.
That
there
be
an
alteration
(change)
or
intercalation
(insertion) on a document
ii.

That it was made on a

genuine document

iii.

That
the
alteration/intercalation has changed the
meaning of the document

iv.

That the change made

the document speak something false.

7.

Issuing in an authenticated form a

document purporting to be a copy of an
original document when no such
original exists, or including in such
copy a statement contrary to, or
different from, that of the genuine
original; (if no knowledge, falsification
through negligence) or

* The acts of falsification mentioned in this

paragraph are committed by a public officer or by
a notary public who takes advantage of his
official position as custodian of the document. It
can also refer to a public officer or notary who
prepared and retained a copy of the document.
The falsification can be done in two ways. It can
be a certification purporting to show that the
document issued is a copy of the original on
record when no such original exists. It can also
be in the form of a certification to the effect that
the document on file contains statements or
including in the copy issued, entries which are
not found on contrary to, or different from the
original genuine document on file.

There is no crime of attempted or frustrated

falsification of public document

* Alteration or changes to make the document

speak the truth do not constitute falsification.
(US vs. Mateo, 25 Phil. 324)
Persons liable public officer, employee or
notary public or ecclesiastical minister
> Either he has duty to intervene in the
preparation of the document or it may be a
situation wherein the public officer has official
custody of the document.

So even if the offender is a public officer, if

her causes the falsification of a document
which is not in his official custody or if the
falsification committed by him is not related
whatsoever to the performance of his duties,
he will still be liable for falsification but
definitely not under this Article but under
Article 172. (falsification of documents by a
private person)

DOCUMENT: Any written instrument which

establishes a right or by which an obligation is
extinguished. A deed or agreement executed by a
person setting forth any disposition or condition
wherein rights and obligations may arise.
* Writing may be on anything as long as it is a
product of the handwriting, it is considered a
document.

Not necessary that what is falsified is a

genuine or real document, enough that it
gives an appearance of a genuine article

As long as any of the acts of falsification

is committed, whether the document is genuine or
not, the crime of falsification may be committed.
Even totally false documents may be falsified.

COUNTERFEITING

imitating
handwriting, signature or rubric

any

FEIGNING
simulating a signature,
handwriting, or rubric out of one of which
does not in fact exist

* It does not require that the writing be genuine.

Even if the writing was through and through false,
if it appears to be genuine, the crime of
falsification is nevertheless committed.

FALSIFICATION OF PUBLIC, OFFICIAL, OR

COMMERCIAL DOCUMENT BY A PRIVATE
INDIVIDUAL (par 1)

THERE ARE FOUR KINDS OF DOCUMENTS:

(1)
Public document in the execution of which,
a person in authority or notary public has
taken part;
(2)
Official document in the execution of
which a public official takes part;
(3)
Commercial document or any document
recognized by the Code of Commerce or
any commercial law; and
(4)
Private document in the execution of
which only private individuals take part.

ELEMENTS
a.
That the offender is a private
individual or a public officer or
employee who did not take advantage
of his official position.
b.

* Public document is broader than the term official

document. Before a document may be considered
official, it must first be a public document. But
not all public documents are official documents.
To become an official document, there must be a
law which requires a public officer to issue or to
render such document. Example: A cashier is
required to issue an official receipt for the
amount he receives. The official receipt is a
public document which is an official document.
Liability
of
a
private
individual
in
falsification by a public officer when there is
conspiracy.
Under Republic Act 7975, when a public officer
who holds a position classified as Grade 27 or
higher, commits a crime in relation to the
performance of his official functions, the case
against him will fall under the jurisdiction of the
Sandiganbayan. If a private person is included in
the accusation because of the existence of
conspiracy in the commission of the crime, the
Sandiganbayan shall maintain jurisdiction over
the person of the co-accused, notwithstanding
the fact that said co-accused is a private
individual. If the public officer is found guilty, the
same liability and penalty shall be imposed on the
private individual. (U.S. vs. Ponce, 20 Phil. 379)

Article 172

c.

That he committed any of the acts

of falsification enumerated in ART.
171.
1.

Counterfeiting
or
imitating
any
handwriting, signature or rubric.

2.

Causing it to appear that persons

have participated in any act or
proceeding when they did not in fact
so participated.

3.

Attributing to persons who have

participated in an act or proceeding
statements other than those in fact
made by them.

4.

Making untruthful statements in a

narration of facts;

5.

Altering true dates.

6.

Making any alteration or intercalation

in a genuine document which changes
its meaning.

That
the
falsification
was
committed in any public or official or
commercial document.

Under this paragraph,

essential, it is presumed

damage

is

not

* If the falsification of public, official or

commercial documents, whether they be public
official or by private individuals, it is not
necessary that there be present the idea of gain or
the intent to injure a third person. What is
punished under the law is the violation of public
faith and the perversion of the truth as solemnly
proclaimed by the nature of the document.
(Sarep vs. Sandiganbayan)

Defense: lack of malice or criminal intent

The following writings are public:

a. the written acts or records of acts of the
sovereign authority of official bodies and
tribunals, and of the public officers,
legislative,
judicial
and
executive,
whether of the Philippines or of a foreign
country.
b.

Public records kept in the Philippines.

Examples of commercial documents

warehouse receipts, airway bills, bank
checks, cash files, deposit slips and bank
statements, journals, books, ledgers, drafts,
letters of credit and other negotiable
instruments
There is a complex crime of estafa through
falsification of public, official or commercial
document. In the crime of estafa, damage or
intent to cause damage is not an element. It is
sufficient that the offender committed or
performed the acts of falsification as defined and
punished under Article 171. The two offenses can
co-exist as they have distinct elements peculiar to
their nature as a crime. When the falsification is
committed because it is necessary to commit
estafa, what we have is a complex crime defined
and punished under Article 48 of the Revised
Penal Code.

c.

There is a complex crime of falsification of pubic

documents through reckless imprudence.

Cash disbursement vouchers or receipts

evidencing payments are not commercial
documents

A mere blank form of an official document is

not in itself a document

The possessor of falsified document is

presumed to be the author of the falsification

FALSIFICATION UNDER PARAGRAPH 2 OF

ART. 172. OF PRIVATE DOCUMENT

ELEMENTS :
a. That the offender committed any of
the acts of falsification, except those
in paragraph 7 and 8, enumerated in
art. 171.
b.

That the falsification was committed

in any private document (must affect
the truth or integrity of the document)

That the falsification caused damage

(essential element; hence, no crime of
estafa thru falsification of private
document) to a third party or at least
the falsification was committed with
intent to cause such damage.

Not necessary that the offender profited or

hoped to profit from the falsification

* Falsification of a private document is

consummated when such document is actually
falsified with the intent to prejudice a third
person whether such falsified document is or is
not thereafter put to illegal use for which it is
intended. (Lopez vs. Paras, 36 Phil. 146)
* What is emphasized at this point is the element
of falsification of private document. There must
be intent to cause damage or damage is actually
caused. The intention is therefore must be
malicious or there is deliberate intent to commit
a wrong. Reckless imprudence is incompatible
with malicious intent.

Falsification is not a continuing offense

* There is no falsification through reckless

imprudence if the document is a private document.

Falsification by omission

* Mere falsification of a private document is not

enough to commit crime under paragraph 2 of
Article 172. Two acts must be done by the
offender. 1) He must have performed in the
private document the falsification contemplated
under Article 171. 2) He must have performed an
independent act which operates to cause damage
or prejudice to a third person. The third person
mentioned herein may include the government.
Damage is not limited to money or pecuniary
prejudice. Damage to ones honor, reputation or
good name is included.

A document falsified as a necessary means to

commit another crime must be public, official
or commercial

There is no complex crime of estafa

through
falsification
of
a
private
document because the immediate effect of
the latter is the same as that of estafa

* If a private document is falsified to cause

damage to the offended party, the crime
committed is falsification of a private document.
Remember that in estafa, damage or intent to
cause damage is an indispensable element of the
crime. The same element is necessary to commit
the crime of falsification of private document.
Since they have a common element, such element
cannot be divided into the two parts and
considered as two separate offenses.
* There is no complex crime of estafa with
falsification because deceit is a common element
of both. One and the same deceit or damage
cannot give rise to more than one crime. It is
either estafa or falsification.

An employee of a private company who punches

the bundy clock on behalf on a co-employee is
guilty of falsification of a private document.
One who will take the civil service examination
for another and makes it appear that he is the
examinee is guilty of falsification of a public
document.
USE OF FALSIFIED DOCUMENT (par. 3, art.
172)

ELEMENTS:
a. Introducing in a judicial proceeding:
1. That the offender knew that a
document
was
falsified
by
another person.

Criteria to determine whether the crime is

estafa only or falsification only :

2. That the false document is

embraced in art. 171 or in any
subdivisions nos. 1 and 2 of art.
172.

IF the falsification of the private document was

essential in the commission of estafa because the
falsification, estafa cannot be committed, the
crime is falsification; estafa becomes the
consequence of the crime.

3. That
he
introduced
said
document in evidence in any
judicial proceeding. (intent to cause
damage not necessary)

IF the estafa can be committed even without

resorting to falsification, the latter being resorted
only to facilitate estafa, the main crime is estafa;
falsification is merely incidental, since even
without falsification, estafa can be committed.

b.

If the estafa was already consummated at the

time of the falsification of a private document
was committed for the purpose of concealing
the estafa, the falsification is not punishable,
because as regards the falsification of the
private document there was no damage or
intent to cause damage.

2. That the false document is

embraced in art. 171 or in any of
subdivisions nos. 1 and 2 of art.
172.

* A private document which is falsified to obtain

money from offended party is a falsification of
private document only.

A private document may acquire the

character of a public document when it
becomes part of an official record and is
certified by a public officer duly authorized
by law

The crime is falsification of public documents

even if falsification took place before the
private document becomes part of the public
records

Examples:

Use in any other transaction:

1. That the offender knew that a
document
was
falsified
by
another person.

3. That he used such documents (not

in judicial proceedings).
4. That the use of the documents
caused damage to another or at
least was used with intent to
cause such damage.

The user of the falsified document is

deemed the author of falsification, if:
a. the use is so closely connected in
time with the falsification
b.

the user had the capacity of falsifying

the document

Falsification of
Private
Documents
Prejudice to third
party is an element
of the offense.

Falsification of
Public/Official
Documents
Prejudice
to
third
persons is immaterial,
what is punished is the
violation of public faith
and perversion of truth
which the document
proclaims.

2. Falsifying wireless, telegraph or

telephone message
Requisites:
a. That the offender is an officer or
employee of the government or an
officer or employee of a private
corporation, engaged in the service of
sending or receiving wireless, cable or
telephone message.

Rules to observe in the use of a falsified

document.
1. It is a crime when knowingly introduced in a
judicial proceeding even if there is not intent
to cause damage to another. Knowingly
introducing a falsified document in a judicial
proceeding, the use alone is not a crime. The
mere introduction of the forged document is
the crime itself. But when the falsified
document is knowingly introduced in an
administrative proceeding, the use alone is
not a crime. There must be intent to cause
damage or damage is actually inflicted.
2.

3.

b. That the accused commits any of the

following acts:
- uttering fictitious wireless, cable,
telegraph, or telephone message,
or
- falsifying wireless, cable, telegraph,
or telephone message
3. Using such falsified message
Requisites:
a. That the accused knew that wireless,
cable, telegraph, or telephone message
was falsified by any of the person
specified in the first paragraph of art.
173.

Falsification of document is a separate and

distinct offense from that of the use of
falsified documents. So if the falsification of
document was done or performed because it
was necessary to the use of the same and in
the commission of the crime, then we may
have a complex crime defined and punished
under Article 48 of the Revised Penal Code.
Good faith is a defense in falsification of
public document.

Article 173
FALSIFICATION
OF
WIRELESS,
CABLE,
TELEGRAPH, AND TELEPHONE MESSAGES,
AND USE OF SAID FALSIFIED MESSAGES
Acts punishable:
1. Uttering fictitious, wireless, telegraph
or telephone message
Requisites:
a. That the offender is an officer or
employee of the government or an
officer or employee of a private
corporation, engaged in the service of
sending or receiving wireless, cable or
telephone message.
b. That the accused commits any of the
following acts:

uttering fictitious wireless, cable,

telegraph, or telephone message, or
falsifying wireless, cable, telegraph,
or telephone message

b.

That the accused used such falsified

dispatch.

c.

That the use of the falsified dispatch

resulted in the prejudice of a third
party, or that the use thereof was with
intent to cause such prejudice.

The public officer, to be liable must be

engaged in the service of sending or receiving
wireless, cable and telegraph or telephone
message

Article 174
FALSIFICATION OF MEDICAL CERTIFICATES,
CERTIFCATES OF MERIT OR SERVICE AND
THE LIKE:

Persons liable:
a. Physician or surgeon who, in connection
with the practice of his profession, issued
a false certificate (note: such certificate
must refer to the illness or injury of a
person)
b. Public officer who issued a false
certificate of merit of service, good
conduct or similar circumstances

c.

Private individual who

certificate under (1) and (2)

falsified

agency of the Philippine govt or any

foreign govt.

b.

By performing an act pertaining to

any person in authority or public
officer of the Phil govt or foreign
govt under the pretense of such
official position, and without being
lawfully entitled to do so.
In usurpation of authority: The mere act of
knowingly and falsely representing oneself is
sufficient. Not necessary that he performs an
act pertaining to a public officer.

Article 175
USING FALSE CERTIFICATES

ELEMENTS:
a. That a physician or surgeon has issued
a false medical certificate, or a public
officer has issued a false certificate of
merit or service, good conduct, or
similar circumstances, or a private
person had falsified any of said
certificates.
b.

That the offender

certificate was false.

c.

knew

that

the

Elements
1.

2.

That he used the same.

Article 176
MANUFACTURING
AND
POSSESSION
OF
INTRUMENTS
OR
IMPLEMENTS
FOR
FALSIFICATION:

Acts punishable:
a. Making
or
introducing
into
the
Philippines any stamps, dies or marks
or other instruments or implements for
counterfeiting or falsification

Offender
knowingly
and
falsely represents himself;
As an officer, agent or
representative
of
any
department or agency of the
Philippine government or of
any foreign government.

In usurpation of official functions: It is

essential that the offender should have
performed an act pertaining to a person in
authority

Elements
1.
Offender performs any act;

Possessing with intent to use the

instruments
or
implements
for
counterfeiting or falsification made in
or introduced into the Philippines by
another person

2.

Pertaining
to
any
person
in
authority or public officer of the
Philippine
government
or
any
foreign government, or any agency
thereof;

The implement confiscated need not form a

complete set

3.

Under pretense of official position;

Constructive possession is also punished

4.

Without being lawfully entitled to do

so.

b.

OTHER FALSITIES

A public officer may also be an offender

Article 177
USURPATION OF AUTHORITY OR OFFICIAL
FUNCTIONS:

The act performed without being lawfully

entitled to do so must pertain:
a. to the govt
b. to any person in authority
c. to any public office

2 ways of committing the crime:

a. By knowingly and falsely representing
oneself to be an officer, agent or
representative of any department or

* Foreign government adverted to in this article

refers to public officers duly authorized to
perform governmental duties in the Philippines.

The law cannot refer to other foreign governments

as its application may bring us to legal problems
which may infringe on constitutional boundaries.
* If the offender commits the acts of usurpation
as contemplated herein, and he does it because
he is a rebel and pursuant to the crime of
rebellion or insurrection or sedition, he will not
be liable under this article because what is
attributed against him as a crime of usurpation
is in fact one of the elements of committing
rebellion.
* The elements of false pretense is necessary to
commit the crime of usurpation
of official
function.

Article 178
USING FICTITIOUS NAME AND CONCEALING
TRUE NAME

ELEMENTS (using fictitious name) :

a. That the offender uses a name other
than his real name.
b.

That he
publicly.

uses

that

fictitious

name

c.

That the purpose of the offender is

1. To conceal a crime,
2. To evade the execution of a judgment, or
3. To cause damage to public interest. (ex.
Signing fictitious name for a passport)

* The name of a person is what appears in his

birth certificate. The name of a person refers to
his first name, surname, and maternal name.
Any other name which a person publicly applies
to himself without authority of law is a fictitious
name.

ELEMENTS (concealing true name):

a.
that the offender conceals
1.
his true name, and
2.
all other personal circumstances.
b. that the purpose is only to conceal his
identity.
* What the offender does to violate or commit this
act is for him to conceal his true name and other
personal circumstances. His only motive in doing
so is to conceal his identity. In concealment of
true name, the deception is done momentarily,
just enough to conceal the name of the offender.
In the use of fictitious name, the offender presents
himself before the public with another name.

* A person under investigation by the police who

gives a false name and false personal
circumstances, upon being interrogated, is guilty
of this crime.
Use of Fictitious Name
(178)
Element of publicity must
be present
Purpose is to conceal a
crime, to evade the
execution of a judgement,
or to cause damage

Concealing True
Name (178)
Publicity
not
necessary
Purpose is to conceal
identity

Commonwealth Act No. 142 (Regulating the

Use of Aliases)
No person shall use any name different from the
one with which he was registered at birth in the
office of the local civil registry, or with which he
was registered in the bureau of immigration upon
entry; or such substitute name as may have been
authorized by a competent court.
Exception: Pseudonym solely for literary, cinema,
television, radio, or other entertainment and in
athletic events where the use of pseudonym is a
normally accepted practice.
Article 179
ILLEGAL USE OF UNIFORM OR INSIGNIA

ELEMENTS:
a. That the offender makes use of
insignia, uniform or dress
b. That the insignia, uniform or dress
pertains to an office not held by the
offender or to a class of persons of
which he is not a member.
c. That said insignia, uniform or dress is
used publicly and improperly.
* The wearing of a uniform, or insignia of a nonexisting office or establishment is not a crime. It
is necessary that the uniform or insignia
represents an office which carries authority,
respect, dignity, or influence which the public
looks up to.
> So also, an exact imitation of a uniform or dress
is unnecessary;
a
colorable
resemblance
calculated to deceive the common run of people is
sufficient.
* The wearing of insignia, badge or emblem of
rank of the members of the armed forced of the

Philippines or constabulary (now

punished by Republic Act No. 493.

PNP)

is

* When the uniform or insignia is used to

emphasize the pageantry of a play or drama or in
moving picture films, the crime is not committed.
THREE FORMS OF FALSE TESTIMONY
1.
2.
3.

False testimony in criminal cases under

Article 180 and 181;
False testimony in civil case under Article
182;
False testimony in other cases under
Article 183.

False testimony, defined

It is the declaration under oath of a
witness in a judicial proceeding which is contrary
to what is true, or to deny the same, or to alter
essentially the truth.
Nature of the crime of false testimony.
1. It cannot be committed through reckless
imprudence because false testimony requires
criminal intent or intent to violate the law is
an essential element of the crime.
2. If the false testimony is due to honest mistake
or error or there was good faith in making
the false testimony, no crime is committed.
Article 180
FALSE TESTIMONY AGAINST A DEFENDANT

ELEMENTS:
a.
That
there
be
a
criminal
proceeding.
b.
That the offender testifies falsely
under oath against the defendant
therein.
c.
That the offender who gives false
testimony knows that it is false.
d.
That the defendant against whom
the false testimony is given is either
acquitted or convicted in a final
judgment (prescriptive period starts at
this point)

Requires criminal intent, cant be committed

through negligence. Need not impute guilt
upon the accused
The defendant must at least be sentenced to
a correctional penalty or a fine or must have
been acquitted

The witness who gave false testimony is liable

even if the court did not consider his
testimony

* The probative value of the testimonial evidence

is subject to the rules of evidence. It may not be
considered at all by the judge. But whether the
testimony is credible or not or whether it is
appreciated or not in the context that the false
witness wanted it to be, the crime of false
testimony is still committed, since it is punished
not because of the effect it produces, but because
of its tendency to favor the accused. (People vs.
Reyes)

Penalty is dependent upon sentence imposed

on the defendant

Article 181
FALSE TESTIMONY IN FAVOR OF DEFENDANT
in a criminal case:
Elements:
1.
A person gives false testimony;
2.

In favor of the defendant;

3.

In a criminal case.

False testimony by negative statement is in

favor of the defendant

False testimony need not in fact benefit the

defendant

A statement of a mere opinion is not

punishable

Conviction or acquittal is not necessary (final

judgement is not necessary).
The false
testimony need not influence the acquittal

A defendant who voluntarily goes up on the

witness stand and falsely imputes the offense
to another person the commission of the
offense is liable under this article. If he
merely denies the commission of the offense,
he is not liable.

Basis of penalty: gravity of the felony

charged against the defendant

Article 182
FALSE TESTIMONY IN CIVIL CASES

c.

ELEMENTS:
a. That the testimony must be given in a
civil case.

d. That the sworn statement or affidavit

containing the falsity is required by
law.

b. That the testimony must relate to the

issues presented in said case.
c. That the testimony must be false.

d. That the false testimony must be

given by the defendant knowing the
same to be false.

2 ways of committing perjury:

a. by falsely testifying under oath
b. by making a false statement

Subornation of perjury: procures another to

swear falsely.

Solemn affirmation: refers to non-judicial

proceedings and affidavits

A false affidavit to a criminal complaint may

give rise to perjury

e. That the testimony must be malicious

and given with an intent to affect the
issues presented in the said case

Not applicable when testimony given in a

special proceeding (in this case, the crime is
perjury)
Basis of penalty: amount involved in the
civil case

Distinctions between perjury and false testimony:

PERJURY
FALSE TESTIMONY
1. Non-judicial
1. Given in a judicial
proceedings.
proceeding.
2. Statement or
2. Testimony need not
testimony is required
be required by law.
by law.
3. Amount involved is
3. Amount involved in
not material.
civil cases is material.
4. immaterial whether
4. It is always material
statement or testimony in criminal cases.
is favorable or not to
the accused.

Article183
FALSE TESTIMONY IN OTHER CASES AND
PERJURY IN SOLEMN AFFIRMATION
ELEMENTS:
a. That an accused made a statement
under oath or made an affidavit upon
a material matter.
b.

That in that statement or affidavit, the

accused made a willful and deliberate
assertion of a falsehood, and

That the statement or affidavit was

made before a competent officer,
authorized to receive and administer
oath.

* Two contradictory sworn statements are not

sufficient to convict the affiant for the crime of
perjury. There must be evidence to show which is
false. The same must be established or proved
from sources other than the two contradictory
statements. (People vs. Capistrano, 40 Phil.
902)

A matter is material when it is directed to

prove a fact in issue

* The test of materiality is whether a false

statement can influence the court (People vs.
Bnazil).

A competent person authorized to

administer an oath means a person who
has a right to inquire into the questions
presented to him upon matters under his
jurisdiction

* There is no perjury if the accused signed and

swore the statement before a person not
authorized to administer oath (People vs. Bella
David).

There is no perjury through negligence or

imprudence since the assertion of falsehood
must be willful and deliberate

* Because of the nature of perjury, which is the

willful and corrupt assertion of a falsehood, there
is no perjury committed through reckless
imprudence or simple negligence under Article
365. Since admittedly perjury can only be

committed by means of dolo, then good faith or

lack of malice is a good defense when one is
indicted for the crime of perjury.

OFFERING FALSE TESTIMONY IN EVIDENCE

Even if there is no law requiring the

statement to be made under oath, as long as
it is made for a legal purpose, it is sufficient

* If there is no requirement of law to place the

statement or testimony under oath, there is no
Perjury considering the phrases oath in cases in
which the law so requires in Article 183.
* The affidavit or sworn statement must be
required by law like affidavit of adverse claim to
protect ones interest on real property; or an
affidavit of good moral character to take the bar
examination. So if the affidavit was made but the
same is not required by law, even if the allegations
are false, the crime of perjury is not committed.
(Diaz vs. People, 191 SCRA 86)

Perjury is an offense which covers false oaths

other than those taken in the course of
judicial proceedings

False testimony before the justice of the

peace during the P.I. may give rise to the
crime of perjury because false testimony in
judicial proceedings contemplates an actual
trial where a judgment of conviction or
acquittal is rendered

A person who knowingly and willfully

procures another to swear falsely commits
subornation of perjury and the witness
suborned does testify under circumstances
rendering him guilty of perjury.

The false testimony is not in a judicial

proceeding

False testimony vs. Perjury

When one testifies falsely before the court, the
crime committed is false testimony. If one testifies
falsely in a non-judicial proceeding, the crime
committed is perjury. In false testimony, it is not
required that the offender asserts a falsehood on
a material matter. It is enough that he testifies
falsely with deliberate intent. In perjury, the
witness must testify or assert a fact on a material
matter with a full knowledge that the information
given is essentially contrary to the truth. Material
matter means the main fact which is the subject
or object of the inquiry.
Article 184

ELEMENTS:
a
That the offender offered in evidence
a false witness or false testimony.
b

That he knew the witness or the

testimony was false.

That the offer was made in

judicial or official proceeding.

The false witness need not be convicted of

false testimony. The mere offer is sufficient.

* The offender in this article knows that the

witness to be presented is a false witness or that
the witness will lie while testifying. The
proceedings is either judicial or official. There is a
formal offer of testimonial evidence in the
proceedings. The witness is able to testify and the
offender, knowing the testimony is given by the
witness to be false, nevertheless offers the same
in evidence. In this case, the person offering the
false testimony must have nothing to do in the
making of the false testimony. He knows that the
witness is false and yet he asks him to testify and
thereafter offers the testimony in evidence. So if
the offeror, aside from being such, is also the
person responsible in inducing or convincing the
false witness to lie, Article 184 will not apply. The
applicable article will be Article 180, 181, 182, or
183 as the case may be. The offenders in this
case will be charged with perjury; the inducer as
principal by inducement and the induced party
as the principal by direct participation.
* It is for this reason that subornation of
perjury is no longer treated as a specific felony
with a separate article of its own. Nevertheless, it
is a crime defined and punished under the
Revised Penal Code. The crime committed by one
who induces another to testify falsely and the
person who agrees and in conspiracy with the
inducer, testifies falsely, is perjury. (People vs.
Padol, 66 Phil. 365)
FRAUDS
Article 185
MACHINATIONS IN PUBLIC AUCTION

ELEMENTS:
a That there be a public auction.
b That the accused solicited any gift or
a promise from any of the bidders.

That such gifts or promise was the

consideration for his refraining from
taking part in that public auction.
That the accused had the intent to
cause the reduction of the price of the
thing auctioned.

c.

1. By monopolizing any merchandise or

object of trade or commerce, or by
combining with any other person or
persons
to
monopolize
said
merchandise or object;

That the accused attempted to cause

the bidders to stay away from that
public auction

That it was done by threats, gifts,

promises, or any other artifice.

That the accused had the intent to

cause the reduction of the price of the
thing auctioned.

Article 186
MONOPOLIES
AND
COMBINATIONS
RESTRAINT OF TRADE:

2. In order to alter the prices thereof by

spreading false rumors or making use
of any other artifice;
3. To restrain free competition in the
market
d. Manufacturer, producer or processor
or importer combining, conspiring or
agreeing with any person to make
transactions prejudicial to lawful
commerce or to increase the market
price of the merchandise.

IN

Acts punished:
a. Combination
to
prevent
competition in the market

Elements
free

1. Manufacturer, producer, processor or

importer of any merchandise or object
of commerce;

Elements
1.

2.

b.

Monopoly to restrain free competition

in the market

Elements

ELEMENTS OF ATTEMPTING TO CAUSE

BIDDERS TO STAY AWAY:
a That there be a public auction.
b

necessary that there be actual restraint of

trade)

2. Combines, conspires or agrees with any

person;

Entering into any contract or

agreement or taking part in
any
conspiracy
or
combination in the form of a
trust or otherwise;

3. Purpose is to make transactions

prejudicial to lawful commerce or to
increase the market price of any
merchandise or object of commerce
manufactured, produced, processed,
assembled
or
imported
into
the
Philippines.

In restraint of trade or
commerce or to prevent by
artificial
means
free
competition in the market.

By entering into a contract or

agreement or taking part in any
conspiracy or combination in the
form of a trust or otherwise, in
restraint of trade or commerce or
prevent by artificial means free
competition in the market (It is enough
that initial steps are taken. It is not

Person/s liable:
a. manufacturer
b. producer
c. processor
d. importer

Crime is committed by:

a. combining

b. conspiring
c. agreeing with another person
The purpose is:
a. to make transactions prejudicial to lawful
commerce
b. to increase the market price of any
merchandise or object of commerce
manufactured,
produced,
processed,
assembled or imported into the Phil
Also liable as principals:
a. corporation/association
b. agent/representative
c. director/manager

who
willingly
permitted or failed to prevent commission
of above offense
Aggravated if items are:
a. food substance
b. motor fuel or lubricants
c. goods of prime necessity

Article 187
IMPORTATION AND DISPOSITION OF FALSELY
MARKED ARTICLES OR MERCHANDISE MADE
OF GOLD, SILVER, OR OTHER PRECIOUS
METALS OR THEIR ALLOYS

ELEMENTS:
a That the offender imports, sells or
disposes of any of those articles or
merchandise.
b That the stamps, brands, or marks or
those articles or merchandise fails to
indicate the actual fineness or
quality of said metals or alloys.
c That the offender knows that the said
stamp, brand, or mark fails to
indicate the actual fineness or
quality of the metals or alloys.

* To be criminally liable, it is important to

establish that the offender knows the fact that
the imported merchandise fails to indicate the
actual fineness or quality of the precious metal. If
the importer has no expertise on the matter such
that he has no way of knowing how the fraud was
committed, the existence of such fact may be
seriously considered as a defense.
* What the law punishes herein is the selling of
misbranded goods made of gold, silver and other
precious metals. Therefore, it must be shown that
the seller knows that the merchandise is
misbranded. Hence, dishonesty is an essential
element of the crime.

Article 188
SUBSTITUTING ALTERING TRADE-MARK,
TRADENAME,
OR
SERVICE
MARK

Acts punishable:
a By (a) substituting the trade name
(t/n) or trademark (t/m) of some other
manufacturer or dealer or a colorable
imitation thereof, for the t/n or t/m of
the real manufacturer or dealer upon
any article of commerce and (b)
selling the same.
b By selling or by offering for sale such
article of commerce, knowing that the
t/n or t/m has been fraudulently used
c By using or substituting the service
mark of some other person, or a
colorable imitation of such marks, in
the sale or advertising of services
d By
printing,
lithographing
or
reproducing t/n, t/m or service mark
of one person, or a colorable
limitation thereof, to enable another
person to fraudulently use the same,
knowing the fraudulent purpose for
which it is to be used.

If a particular person is defrauded by the

offender; as in the case of locally
manufactured goods, which the offender, by
altering the label, are made to appear as
imported articles and sold to a particular
person, the crime committed is undoubtedly
estafa as far as the particular person is
concerned. But if the falsely mislabeled goods
are displayed in a store and offered for sale to
the public in general, the crime committed is
punished under Article 188. So, if the
deception is isolated and is confined to a
particular person or group of persons, estafa is
committed. If the fraud is employed against
the public, Article 188 is violated.

Must not be another manufacturer otherwise

unfair competition

* Take note that after making the substitution the

goods are displayed in the store or market for
sale, Article 188 is already committed even if no
customer comes to buy any of the goods on
display. The mere offer for sale to the public
consummates the crime.

* The pendency of the administrative aspect of

the case is not a prejudicial question in the
resolution of the criminal case.
Article 189
UNFAIR
COMPETITION,
FRAUDULENT
REGISTRATION
OF
TRADENAME,
TRADEMARK SERVICE MARK, FRAUDULENT
DESIGNATION OF ORIGIN, AND FALSE
DESCRIPTION

Acts punished:
a Unfair competition by selling his goods,
giving them the general appearance of
the goods of another manufacturer or
dealer
b Fraudulent designation of origin;
false description by (a) affixing to his
goods or using in connection with his
services a false designation of origin; or
any false description or representation,
and (b) selling such goods or services
c

Fraudulent registration by procuring

fraudulently from the patent office the
registration of t/m, t/m or service mark.

ELEMENTS:
a That the offender gives his goods the
general appearance of the goods of
another manufacturer or dealer
b

That the general appearance is

shown in the (a) goods themselves, or
in the (b) wrapping of their packages,
or in the (c) device or words therein,
or in (d) any other feature of their
appearance

That the offender offers to sell or

sells those goods or gives other
persons a chance or opportunity to do
the same with a like purpose.

That there is actual intent to deceive

the public or defraud a competitor.

* Under Republic Act No. 166, Section 29,

paragraph 2, unfair competition is defined as
follows: It consists in employing deception or any
other means contrary to good faith by which any
person shall pass off the goods manufactured by
him or in which he deals, or his business, or
services for those of the one having established

goodwill, or committing any acts calculated to

produce such result.
* The true test of unfair competition is whether
certain goods have been clothed with an
appearance which is likely to deceive the ordinary
purchaser exercising ordinary care. (U.S. vs.
Manuel, 7 Phil. 221)
* For unfair competition to take place, it must be
the manufacturer of the goods who will cloth or
label his goods with the trade name or trademark
of another manufacturer, who has established a
good name or good will in the mind of the public
because of the quality of the merchandise
manufactured by him. The imitator is also a
manufacturer of the same kind of product but of
inferior quality. By labeling his product with the
trademark or trade name of said manufacturer,
he profits from the goodwill of another.
* If the labeling or clothing of the goods is not done
by another manufacturer, the crime committed is
not unfair competition but substitution of
trademark or trade name under Article 188.
* When the honorable Supreme Court declared
that unfair competition is broader and more
inclusive than infringement of trade name or
trademark. In infringement of trade name or
trademark, the offended party has a peculiar
symbol or mark on his goods which is considered
a property right which must therefore be
protected. In unfair competition, the offended
party has identified in the mind of the public the
goods he manufactures to distinguish it from the
goods
of
the
other
manufacturers.
In
infringement of trade name or trademark, the
offender uses the trade name or trademark of
another in selling his goods, while in unfair
competition, the offender gives his goods the
general appearance of the goods of another
manufacturer and sells the same to the public.
(E. Spinner & Co. vs. New Hesslein Corp., 54
Phil. 224)

TITLE FIVE
CRIMES RELATED TO OPIUM AND OTHER
PROHIBITED DRUGS (190-194)
COMPREHENSIVE DANGEROUS DRUGS ACT
OF 2002
(RA No. 9165)

I.

Acts Punishable:
a. importation of prohibited drugs
b. sale,
administration,
delivery,
distribution and transportation of
prohibited drugs
c. maintenance of a den, dive or resort
for prohibited drug users
d. being employees or visitors of drug
den
e. manufacture of prohibited drugs
f. possession or use
g. cultivation of plants
h. failure to comply with provisions
relative to keeping of records of
prescription
i. unnecessary prescription
j. possession of opium pipe and other
paraphernalia
k. Importation, sale, etc. of regulated
drugs

PENALTY : Life to death & fine of 500,000 to

10 million regardless of the Quantity
and
purity involved ( includes BROKER )
Qualifying Circumstances
1) if the victim of the offense is a minor or
should a prohibited/regulated drug involve in
any offense under this section be the
proximate cause of the death of a victim
thereof, the maximum penalty herein shall be
imposed.
2) Financier
3) Sale made within 100m from school

Maintenance of a den, dive, or resort for

prohibited/regulated drug users.
** Property escheated in favor of the
government
Qualifying Circumstance where a
prohibited/regulated drug is administered,
delivered, or sold to a minor who is allowed to
use the same in such place, or should a
prohibited drug be the proximate cause of
the death of the person using the same in
such den, dive or resort, the maximum of the
penalty shall be imposed.

Manufacture
drugs.

Possession of prohibited/regulated drugs.

DRUG SYNDICATE any organized group of

two(2) or more persons forming or joining
together with the intention of committing
any offense prescribed under the act.
PLANTING OF EVIDENCE the willful act by
any person of maliciously and surreptitiously
inserting, placing, adding or attaching
directly or indirectly, through any overt or
covert act, whatever quantity of any
dangerous drug and/or controlled precursor
and essential chemical in the person, house,
effects, or in the immediate vicinity of an
innocent individual for the purpose of
implicating, incriminating or imputing the
commission of any violation of this Act.
P D E A Philippine Drug Enforcement Unit

Importation of prohibited/regulated drugs.

PENALTY : Life to death & fine of 500,000 to
10 million regardless of the Quantity
and
purity involved
MAXIMUM PENALTY :
1) Use of diplomatic Passport
2) Financier

Sale, administration, delivery, distribution

and transaction of prohibited/regulated
drugs.

- NOT BAILABLE

of

prohibited/regulated

PENALTY :
a. Life to death & fine of 500,000 to 10 million
10 gms. Opium, morphine, heroine, cocaine,
marijuana resin and Ecstasy.
50 gms. Shabu
500 gms. Marijuana
b. Life Imprisonment and a fine of P400,000.00P500,000.00
10-50 gms. Shabu
c. 20 years to Life and a fine of 400,000.00500,000.00
5-10 gms. Shabu
d. 12 20 years and a fine of 300,000.00400,000.00
Less than 5 gms. Of any dangerous drugs

Possession of paraphernalia
6 mos. 4 yrs. & fine of 10,000 50,000
Use of Dangerous Drugs A person
apprehended or arrested, who is found to be
positive for use of any dangerous drug, after
a confirmatory test, shall be imposed a
penalty of a minimum of six (6) months
rehabilitation in a government center for the

first offense, subject to the provisions of

Article VIII of this Act.
If apprehended using any dangerous drug
act for the second time, he/she shall suffer
the penalty of imprisonment ranging from six
(6) years and one (1) day to twelve(12) years
and a fine ranging from Fifty thousand pesos
(P50,000.00) to Two hundred thousand pesos
(P200,000.00);
Provided, That this section shall not be
applicable where the person tested is also
found to have in his/her possession such
quantity of any dangerous drug provided for
under Section 11 of this Act, in which case
the provisions stated therein shall apply.
Cultivation of plants which are sources of
prohibited drugs.
Penalty - Life to death and a fine of
P500,000.00 to P10 Million

Note: The land/portions thereof and/or

greenhouses in which any of the said
plants is cultivated or cultured shall be
confiscated and escheated to the State,
unless the owner thereof can prove that
he did not know of such cultivation or
culture despite the exercise of due
diligence on his part.

Qualifying Circumstance
1. If the land involved is part of the
public domain, the maximum of the
penalty herein provided shall be imposed.

2. Maximum penalty imposed on

financier

Failure to keep records of prescription,

sales, purchases, acquisitions and/or
deliveries of prohibited/regulated drugs
Persons liable:
Pharmacist,
Physician,
Dentist,
Veterinarian, Manufacturer, Wholesaler,
Importer, Distributor, Dealer, Retailer

Unlawful
prescription
of
prohibited/regulated drugs
Penalty life to death and a fine of P500,000
to P10 Million

Unnecessary
prescription
prohibited/regulated drugs
Penalty 12 to 20 years and fine of
P100,000 to P500,000 plus revocation of
license

of

Persons Liable: Physician or dentist who

shall prescribe any prohibited/regulated drug
for any person whose physical/physiological
condition does not require the use of thereof.
Confiscation and forfeiture of the proceeds or
instruments of the unlawful act, including the
properties of the proceeds derived from the
illegal trafficking of
dangerous drugs.
Forfeited infavor of the government
After the conviction in the Regional Trial Court in
the appropriate criminal case filed, the Court
shall immediately schedule a hearing for the
confiscation and forfeiture of all the proceeds of
the offense and all the assets and properties of
the accused either owned or held by him or in the
name of some other persons if the same shall be
found to be manifestly out of proportion of
his/her income; Provided, however, That if the
forfeited property is a vehicle, the same shall be
auctioned off not later than five (5) days upon
order of confiscation or forfeiture.
During the pendency of the case in the Regional
Trial Court, no property, or income derived
therefrom, which may be confiscated and
forfeited, shall be disposed, alienated or
transferred and the same shall be in custodia
legis and no bond shall be admitted for the
release of the same.
Custody and disposition of confiscated, seized
and/or surrendered dangerous drugs
PDEA in charge and custody for proper
disposition
Procedure in Disposal
1. Apprehending team immediately after seizure
shall make physical inventory and photograph
the seized drugs in the presence of the accused
or his counsel, a representative of the media and
DOJ and any elected public official who shall
sign the copies of the inventory.
2. Within 24 hours upon confiscation/seizure of
dangerous drugs, such drug shall be submitted

to the PDEA forensic laboratory for a qualitative

and quantitative examination.

3. Certification of the forensic examination

results shall be issued within 24 hours.

4. After the filing of the criminal case, the proper

court shall conduct and ocular inspection within
72 hours of the confiscated, seized and/or
surrendered dangerous drugs.
5. After ocular inspection by the court, PDEA
shall destroy or burn the confiscated, seized
and/or surrendered dangerous drugs within 24
hours in the presence of the accused or his
counsel, representative of the media and the
DOJ, civil society groups and any elected public
officer.
6. PDEA shall issue a certification of such
destruction and samples of the dangerous drugs
shall be submitted to the court.
Plea-Bargaining
Any person charged under any commission of
this act regardless of the imposable penalty shall
not be allowed to avail of the provision on pleabargaining.

Probation Law
Any person convicted for drug trafficking
regardless of the penalty imposed cannot avail of
the privilege granted by the probation law.
Qualifying Aggravating Circumstance
A positive finding for the use of dangerous drugs
shall be a qualifying aggravating circumstance in
the commission of a crime by an offender and the
application of the penalty provided for in the
RPC.

Possession of opium pipe, equipment,

apparatus or any paraphernalia fit or
intended
for
smoking,
consuming,
administering,
injecting,
ingesting,
or
otherwise using opium or any other
prohibited drug, shall be prima facie evidence
that the possessor has smoked, consumed,
administered to himself, injected or used a
prohibited drug.
Attempt and conspiracy to commit the
following offenses:
a Importation of dangerous drugs

d
e

Sale,
administration,
delivery,
distribution
and
transportation
of
dangerous drugs
Maintenance of a den, dive or resort for
prohibited drugs
Manufacture of dangerous drugs
Cultivation or culture of plants which are
sources of prohibited drugs

Other persons liable:

a If the violation of the Act is committed by
a partnership, corporation, association or
any judicial person, the partner,
president, director, or manager who
consents to or knowingly tolerates such
violation shall be held criminally liable as
co-principal.
b Partner, president, director, manager,
officer or stockholder, who knowingly
authorizes, tolerates, or consents to the
use of a vehicle, vessel, or aircraft as an
instrument in the importation, sale,
delivery, distribution or transportation of
dangerous drugs, or to the use of their
equipment,
machines
or
other
instruments in the manufacture of any
dangerous drugs, if such vehicle, vessel,
aircraft, equipment, or other instrument,
is owned or under the control and
supervision
of
the
partnership,
corporation, association or judicial entity
to which they are affiliated.
Criminal liability of a public officer or
employee
for
misappropriation,
misapplication or failure to account for
the
confiscated,
seized
and/or
surrendered dangerous drugs
Penalty - life to death and a fine of
P500,000.00 to P10 Million in addition to
absolute perpetual disqualification from any
public office.
Any elective local or national official found to
have benefited from the proceeds of the
trafficking of dangerous drugs or have
received
any
financial
or
material
contributions from persons found guilty of
drug trafficking dangerous drugs, shall be
removed
from
office
and
perpetually
disqualified from holding any elective or
appointive positions in the government.
Planting of Evidence
Any person who is found guilty of planting
any dangerous drug regardless of the

quantity and purity, shall suffer the penalty

of death.

a.

NOTE: They shall be considered as

persons in authority if they are in the
school or within its immediate vicinity, or
beyond such immediate vicinity if they are
in attendance in any school or class
function in their official capacity as school
heads, supervisors or teachers.

b.

Any teacher or school employee who

discovers or finds that any person in the
school or within its immediate vicinity is
violating this Act shall have the duty to
report the violation to the school head or
supervisor who shall, in turn, report the
matter to the proper authorities. Failure to
report in either case shall, after hearing,
constitute sufficient cause for disciplinary
action.

Drug Testing
1. Applicants for drivers license - mandatory
2. Applicants for firearms license and for
permit to carry - mandatory
3. Students of secondary and tertiary schools
random (school shall shoulder expenses)
4. Officers and employees of private and
public offices random (employer shall
shoulder expenses)
Any officer or employee found positive for use
of dangerous drug shall be dealt with
administratively which shall be a ground for
suspension or termination subject to Art. 282
of the Labor Code and pertinent provisions of
the Civil Service Law.
5. Officers and members of the military,
police and other law enforcement agencies
annual mandatory
6. All persons charged before the prosecutors
office with a criminal offense having an
impossible penalty of imprisonment of not
less than six (6) years and one (1) day shall
have to undergo a mandatory drug test
7. All candidates for public office whether
appointed or elected both in the national or
local government shall undergo a mandatory
drug test.
Issuance of False or fraudulent drug test
results (whether willfully or through gross
negligence)
Penalty 6 to 12 years and fine P100,000.00 to
P500,000.00
Additional penalty revocation of license to
practice and closure of the drug testing center
II.

For the purpose of enforcing the provisions

of this Act, all school heads, supervisors
and teachers shall be deemed to be
persons in authority and, as such, are
vested with the power to apprehend,
arrest, or cause the apprehension or
arrest of any person who shall violate any
of the said provision.

III.

Rules regarding rehabilitation of drug

dependents

Voluntary submission
a. Voluntary submission of a drug dependent to
confinement, treatment and rehabilitation by
the drug dependent himself or through his
parent, guardian or relative within the 4th
civil degree of consanguinity or affinity, in a
center and compliance with such conditions
therefor as the Dangerous Drugs Board may
prescribe shall exempt from criminal liability
for
possession
or
use
of
the
prohibited/regulated drug. (Applicable only
to those liable for use of dangerous drugs
and not to possession and sale)
b. Should the drug dependent escape from the
center, he may submit himself for
confinement within 1 week from the date of
his escape, of his parent guardian or relative
may, within the same period surrender him
for confinement.
c. Upon application of the Board, the Court
shall issue an order for recommitment if the
drug dependent does not resubmit himself
for confinement or if he is not surrendered
for recommitment.
d. If, subsequent to such recommitment, he
should escape again, he shall no longer be
exempt from criminal liability for the use or
possession of any dangerous drug.
e. If a person charged with an offense is found
by the fiscal or by the Court at any stage of

the proceedings, to be a drug dependent, the

fiscal or court as the case may be, shall
suspend all further proceedings and
transmit records of the case to the Board.
f. After his rehabilitation, he shall be
prosecuted for such violation. In case of
conviction, the judgement shall, if the
accused is certified by the treatment and
rehabilitation center to have maintained
good behavior, indicate that he shall be given
full credit for the period he was confined in
the center.
NOTE: When the offense is use of dangerous
drugs and the accused is not a recidivist,
the penalty thereof shall be deemed to have
been served in the center upon his release
therefrom.
g. The period of prescription of the offense
charged shall not run during the time that
the respondent/accused is under detention
or confinement in a center.
h. Requisites of suspension of sentence for
first offense in a minor:
1.

If accused is a minor (under 18 years of

age at the time of the commission of the
offense but not more than 21 years of age
when the judgement should have been
promulgated.

2.

He has not been previously convicted of

violating any provision of this Act or of the
RPC or placed on probation.

Sentence shall be deferred and the accused

shall be placed on probation under the
supervision of the Board.
In case of violation of conditions of pardon,
court shall pronounce judgment of
conviction and he shall serve sentence.
If accused did not violate conditions of
probation, case shall be dismissed upon
expiration of the designated period.
Compulsory submission
If a person charged with an offense where the
imposable penalty is imprisonment of not
more than six (6) years and one (1) day, and is
found by the prosecutor or by the court, at any
stage of the proceedings, to be a drug dependent,
the prosecutor of the court as the case may be,

shall suspend all further proceedings and

transmit copies of the record of the case to the
Board.
Jurisdiction Over Dangerous Drug Cases
Section 90. Jurisdiction The Supreme Court
shall designate special courts from among the
existing Regional Trial Court in each judicial
region to exclusively try and hear cases involving
violations of this Act. The number of court
designated in each judicial region shall be based
on population and the number of cases pending
in their respective jurisdiction.
The DOJ shall designate special prosecutors to
exclusively handle cases involving violations of
this Act.
The preliminary investigation of cases filed under
this Act shall be terminated within a period of
thirty (30) days from the date of their filing.
When the preliminary investigation is conducted
by a public prosecutor and a probable cause is
established, the corresponding information shall
be filed in court within 24 hours from the
termination
of
the
investigation.
If the
preliminary investigation is conducted by a judge
and a probable cause is found to exist, the
corresponding information shall be filed by the
proper prosecutor within 48 hours from the
receipt of the records of the case.
Section 91. Responsibility and Liability of
Law Enforcement Agencies and Other
Government
Officials
and
Employees
Testifying as Prosecution Witnesses in
Dangerous Drugs Cases Any member of law
enforcement agencies or any other government
official and employees who, after due notice, fails
or refuses intentionally or negligently, to appear
as a witness for the prosecution in any
proceedings, involving violations of this Act,
without any valid reason, shall be punished with
imprisonment of not less than twelve (12) years
and one (1) day to 20 years and a fine of not less
than
P500,000.00,
in
addition
to
the
administrative liability he/she may be meted out
by
his/her
immediate
superior
and/or
appropriate body.
The immediate superior of a member of the law
enforcement agency or any other government
employee mentioned in the preceding paragraph
shall be penalized with imprisonment of not less
than two (2) months and one (1) day but not
more than six (6) years and a fine of not less than

P10,000.00 but not more than P50,000 and in

addition, perpetual absolute disqualification from
public office if despite due notice to them and to
the witness concerned, the former does not exert
reasonable effort to present the latter to the
court.
The member of the law enforcement agency or
any other government employee mentioned in the
preceding paragraphs shall not be transferred or
re-assigned to any other territorial jurisdiction
during the pendency of the case in court.
However, the concerned member of the law
enforcement agency or government employee may
be transferred or re-assigned for compelling
reasons; Provided, That his/her immediate
superior shall notify the court where the case is
pending of the order of transfer or re-assign,
within 24 hours from its approval; Provided
further, That his/her immediate superior shall be
penalized with imprisonment of not less than two
(2) months and one (1) day but not less than six
(6) years and a fine of not less than P10,000.00
but not more than P50,000.00 and in addition,
perpetual absolute disqualification from public
office, should he/she fail to notify the court of
such order to transfer or re-assign.
Prosecution and punishment under this Section
shall be without prejudice to any liability for
violation of any existing law.
Section 92. Delay and Bungling in the
Prosecution of Drug Cases. - Any government
officer or employee tasked with the prosecution of
drug-related cases under this Act, who, through
patent laxity, inexcusable neglect, unreasonable
delay or deliberately causes the unsuccessful
prosecution and/or dismissal ranging from 12
years and 1 day to 20 years without prejudice to
his/her prosecution under the pertinent
provisions of the Revised Penal Code.
a

b
c

Buy Bust Operation no law or rule to

require policemen to adopt a uniform way
of identifying BUY MONEY (P v. Abedes)
Absence of ultraviolet powder is not fatal
in the prosecution
Transportation/importation
of
MJ

immaterial whether there may or may not

be a distinction for the MJ
Distinguish
Entrapment
and
Instigation:

1. If prosecution can prove the crime without

presenting the informer or asset not
necessary because their testimonies are

merely corroborative. Poseur buyer it

depends on whether the prosecution can
prove the crime without their testimonies (P v.
Rosalinda Ramos)
2. Under
the
RA,
special
aggravating
circumstance if a crime has been committed
while the accused was high on drugs (P v.
Anthony Belgar)
3. Delivery or Sale of Prohibited Drugs the
accused must be aware that what he is selling
or delivering was prohibited drug. But the
moment the fact of sale or delivery is proved
by prosecution, the burden to prove that the
accused is not aware that drugs are
prohibited falls on the defense (P v. Aranda)
4. P v. Angelito Manalo burden of proving
the authority to possess shabu is a matter of
defense
5. P v. Hilario Moscaling court may take
judicial notice of the word shabu
6. Criminal liabilities of a policeman who sold
the drugs confiscated from a pusher: violation
of RA 9165 and malversation under RPC.
e Planting evidence to implicate another
f Buy Bust Operation form of entrapment
(P v. Alberto) not necessary to have prior
police surveillance (P v. Carlos Franca)
g Possession constructive or actual not
necessary to adduce the marked money as
evidence (P v. Romeo Macara)
h Separate crimes sale/possession of MJ
found in his possession after he was frisked
but he cant be convicted for possession of
MJ that he sold
i If victim is minor or drug is proximate cause
of death max penalty is imposed
1.

First offense of a minor suspension

of sentence

CONDITIONS:

under
18
at
time
of
commission but not more than 21 at time
when judgment was promulgated

found guilty of possession or

use of prohibited or regulated drugs

not
been
previously
convicted of violating any provision of this
Act or the RPC
not been placed on probation

defer sentence, place

probation for 6 months to 1 year

on

violation of probation
pronounce sentence convict and serve
sentence

no violation discharge him

and dismiss the proceeding

if minor is drug dependent

commit to a center for treatment and
rehabilitation
TITLE SIX
CRIMES AGAINST PUBLIC MORALS

Crimes against public morals

1. Gambling (Art. 195);
2. Importation, sale and possession of lottery
tickets or advertisements (Art. 196);
3. Betting in sport contests (Art. 197);
4. Illegal betting on horse races (Art. 198);
5. Illegal cockfighting (Art. 199);
6. Grave scandal (Art. 200);
7. Immoral doctrines, obscene publications and
exhibitions (Art. 201); and
8. Vagrancy and prostitution (Art. 202).

Article 195. What Acts Are Punishable in

Gambling
Acts punished
Taking part directly or indirectly in

1.
a.

b.

any game of monte, jueteng, or any other

form of lottery, policy, banking, or
percentage game, dog races, or any other
game or scheme the results of which
depend wholly or chiefly upon chance or
hazard; or wherein wagers consisting of
money, articles of value, or representative
of value are made; or
the exploitation or use of any other
mechanical invention or contrivance to

determine by chance the loser or winner

of money or any object or representative
of value;
2.

Knowingly permitting any form of gambling

to be carried on in any place owned or
controlled by the offender;

3.

Being maintainer, conductor, or banker in

a game of jueteng or similar game;
Knowingly and without lawful purpose
possessing lottery list, paper, or other
matter containing letters, figures, signs or
symbol which pertain to or are in any
manner used in the game of jueteng or any
similar game.

4.

What is gambling?
It is a game or device or method, the
result of which depends wholly or chiefly upon
chance or hazard. So, if the game depends wholly
upon skill or ability of the players, there is no
gambling.
The manner of determining whether the game
played is prohibited or not is whether the result
will depend wholly or chiefly upon chance or
hazard.
Significantly, if the game has been identified and
declared as a form of gambling by express
provision of law, there will be no need or
requirement to go into the methods upon how the
game is played.
What is lottery?
It is a scheme for the distribution of
prizes by chance among persons who have paid,
or agreed to pay, a valuable consideration for a
chance to obtain a prize. (US vs. Filart, et al.,
30 Phil. 80)
Pinball machines or slot machines are considered
gambling devices because the result depends
upon chance or hazard.
If the prizes do not come out of the funds or
contributions of the participants, there is no
lottery. (Uy vs. Palomar, 27 SCRA 287)

Article 196.
IMPORTATION, SALE AND POSSESSION OF
LOTTERY TICKETS OR ADVERTISEMENTS
Acts punished

1.

Importing into the Philippines from any

foreign place or port any lottery
ticket or advertisement; or

2.

Selling or distributing the same in

connivance with the importer;

3.

Possessing, knowingly and with intent to

use
them,
lottery
tickets
or
advertisements; or

4.

Selling or distributing the same without

connivance with the importer of the
same.

Note that possession of any lottery ticket or

advertisement is prima facie evidence of an intent
to sell, distribute or use the same in the
Philippines.

employed for the purpose of influencing the

result of any game, races or sports contest.
Article 198.
ILLEGAL BETTING ON HORSE RACE
Acts punished
Betting on horse races during periods not allowed
by law;
Maintaining or employing a totalizer or other
device or scheme for betting on races or
realizing profit therefrom during the
periods not allowed by law.
When horse races not allowed:
July 4 (Republic Act No. 137);
December 30 (Republic Act No. 229);

Article 197.
BETTING IN SPORT CONTESTS

Any registration or voting days (Republic Act No.

180, Revised Election Code); and

This article has been repealed by Presidential

Decree No. 483 (Betting, Game-fixing or Pointshaving and Machinations in Sport Contests):

Holy Thursday and Good Friday (Republic Act No.

946).

PENALIZING BETTING, GAME-FIXING

POINT-SHAVING AND
MACHINATIONS IN SPORTS CONTESTS
PD 483

OR

Acts Punishable:
a.
Betting: Betting money or any object
or article of value of representative value
upon the result of any game, races and other
sports contests.
b.
Game-fixing:
any
arrangement,
combination, scheme or agreement by which
the result of any game, races, or sports
contests shall be predicated and/or known
other than on the basis of the honest playing
skill or ability of the players or participants.
c.
Point-shaving:
any
such
arrangement
combination,
scheme
or
agreement by which the skill or ability of any
player or participant in a fame, races, or
sports contests to make points of scores
shall be limited deliberately in order to
influence the result thereof in favor of one or
other team, player or participant.
d.

Game Machination: any other

fraudulent, deceitful, unfair or dishonest
means, method, manner or practice

Article 199.
ILLEGAL COCKFIGHTING
This article has been modified or repealed by
Presidential Decree No. 449 (The Cockfighting
Law of 1974):
COCKFIGHTING LAW OF 1974
PD 449
I.
Scope This law shall govern the
establishment, operation, maintenance
and ownership of cockpits.
II.
Rules:
A.
Only Filipino citizens not otherwise
inhibited by existing laws shall be allowed to
own, manage and operated cockpits.
B.
Only one cockpit shall be allowed in
each city or municipality with a population of
100,000 or less.
C.
Cockpits shall be constructed and
operated within the appropriate areas as
prescribed in the Zoning Law or ordinance.
D.

When allowed:

1. Cockfighting shall be allowed only in

licensed cockpits during Sundays and legal
holidays and during local fiestas for not
more than 3 days; or
2. During provincial, city or municipal,
agricultural, commercial or industrial fair,
carnival or exposition for a similar period
of 3 days upon resolution of the province,
city or municipality where such fair,
carnival or exposition is to be held, subject
to the approval of the Chief of
Constabulary
or
his
authorized
representative.
Limitations:
a)
No cockfighting on the occasion
of such fair, carnival or exposition shall be
allowed within the month of the local fiesta
or for more than 2 occasions a year in the
same city of municipality.
b)
No cockfighting shall be held on
December 30, June 12,November 30, Holy
Thursday, Good Friday, Election Day and
during
registration
days
for
such
election/referendum.
3.
If the purpose is for the
entertainment of foreign dignitaries or for
tourists, or for returning balikbayans, or
for the support of national fund-raising
campaigns for charitable purposes as may
be authorized by the Office of the President
upon resolution of a provincial board, city
or municipal council, in licensed cockpits
or in playgrounds or parks.
Limitations: This privilege shall be extended for
only one time, for a period not exceeding 3 days,
within a year to a province, city or municipality.
E.

No gambling of any kind shall be

permitted on the premises of the cockpit or
place of cockfighting during cockfights.

F.

City or municipal mayors are

authorized to issue licenses for the
operation and maintenance of cockpits.

Presidential Decree No. 1602 (Simplifying and

Providing Stiffer Penalties for Violations of
Philippine Gambling Laws)
Section 1. Violations and Penalties. -The penalty of prision mayor in its medium

degree or a fine ranging from Five Hundred Pesos

to Two Thousand Pesos and in case of recidivism
the penalty of prision correccional in its medium
degree or a fine of ranging from One Thousand
Pesos to Six Thousand Pesos shall be imposed
upon:
(a)
Any person other than those
referred to in the succeeding subsection who in
any manner, shall directly or indirectly take part
in any game of cockfighting, jueteng, bookies (jaialai or horse racing to include game fixing) and
other lotteries, cara y cruz or pompiang and the
like, black jack, lucky nine, pusoy or Russian
Poker, monte, baccarat and other card games,
palk que, domino, mahjong, high and low, slot
machines, roulette, pinball and other mechanical
inventories or devices, dog racing, boat racing,
car raising and other races, basketball, volleyball,
boxing, seven-eleven dice games and the like and
other contests to include game fixing, point
shaving and other machinations banking or
percentage game, or any other game or scheme,
whether upon chance or skill, which do not have
a franchise from the national government,
wherein wagers consisting of money, articles of
value of representative of value are made;
(b)
Any person who shall knowingly
permit any form of gambling referred to in the
preceding subdivision to be carried on in
inhabited or uninhabited places or any building,
vessel or other means of transportation owned or
controlled by him. If the place where gambling is
carried on has a reputation of a gambling place
or that prohibited gambling is frequently carried
on therein or the place is a public or government
building or barangay hall, the culprit shall be
punished by the penalty provided for in its
maximum period and a fine of Six Thousand
Pesos.
The penalty of prision correccional in its
maximum degree and a fine of Six Thousand
Pesos shall be imposed upon the maintainer,
conductor of the above gambling schemes.
The penalty of
prision mayor in its
medium
degree
and
temporary
absolute
disqualification and a fine of Six Thousand Pesos
shall be imposed if the maintainer, conductor or
banker is a government official, or if a player,
promoter, referee, umpire, judge or coach in cases
of game-fixing, point-shaving and other game
machination.
The penalty of prision correccional in its
medium degree and a fine ranging from Five

Hundred pesos to Two Thousand Pesos shall be

imposed upon any person who shall knowingly
and without lawful purpose in any hour of any
day shall have in his possession any lottery list,
paper, or other matter containing letter, figures,
signs or symbols which pertain to or in any
manner used in the game of jueteng, jai-alai or
horse racing bookies and similar game or lottery
which has taken place or about to take place.
Section 2.
Barangay Official. Any
barangay official in whose jurisdiction such
gambling house is found and which house has
the reputation of a gambling place shall suffer
the penalty of prision correccional in its medium
period and a fine ranging from Five Hundred to
Two Thousand Pesos and temporary absolute
disqualifications.
While the acts under the Revised Penal Code are
still punished under the new law, yet the concept
of gambling under it has been changed by the
new gambling law.
Before, the Revised Penal Code considered the
skill of the player in classifying whether a game is
gambling or not. But under the new gambling
law, the skill of the players is immaterial.
Any game is considered gambling where there are
bets or wagers placed with the hope to win a
prize therefrom.
Under this law, even sports contents like
boxing, would be gambling insofar as those
who are betting therein are concerned.
Under the old penal code, if the skill of the
player outweighs the chance or hazard
involved in winning the game, the game is not
considered gambling but a sport. It was
because of this that betting in boxing and
basketball games proliferated.

As a general rule, betting or wagering determines

whether a game is gambling or not. Exceptions:
These are games which are expressly prohibited
even without bets. Monte, jueteng or any form of
lottery; dog races; slot machines; these are habitforming and addictive to players, bringing about
the pernicious effects to the family and economic
life of the players.
Mere possession of lottery tickets or lottery lists
is a crime punished also as part of gambling.
However, it is necessary to make a distinction
whether a ticket or list refers to a past date or to
a future date.
Illustration:
X was accused one night and found in his
possession was a list of jueteng. If the date
therein refers to the past, X cannot be convicted
of gambling or illegal possession of lottery list
without proving that such game was indeed
played on the date stated. Mere possession is not
enough. If the date refers to the future, X can be
convicted by the mere possession with intent to
use.
This will already bring about criminal
liability and there is no need to prove that the
game was played on the date stated. If the
possessor was caught, chances are he will not go
on with it anymore.
There are two criteria as to when the lottery is in
fact becomes a gambling game:
1. If the public is made to pay not only for the
merchandise that he is buying, but also for
the chance to win a prize out of the lottery,
lottery becomes a gambling game. Public is
made to pay a higher price.
2.

Unless authorized by a franchise, any form of

gambling is illegal. So said the court in the
recent resolution of the case against the
operation of jai-alai.
There are so-called parlor games which have been
exempted from the operation of the decree like
when the games are played during a wake to keep
the mourners awake at night. Pursuant to a
memorandum circular issued by the Executive
Branch, the offshoot of the exemption is the
intentional prolonging of the wake of the dead by
gambling lords.

If the merchandise is not saleable because of

its inferior quality, so that the public actually
does not buy them, but with the lottery the
public starts patronizing such merchandise.
In effect, the public is paying for the lottery
and not for the merchandise, and therefore
the lottery is a gambling game. Public is not
made to pay a higher price.

Illustrations:
(1)

A certain supermarket wanted to

increase its sales and sponsored a lottery
where valuable prices are offered at
stake. To defray the cost of the prices
offered in the lottery, the management
increased their prices of the merchandise
by 10 cents each. Whenever someone

buys from that supermarket, he pays 10

cents more for each merchandise and for
his purchase, he gets a coupon which is
to be dropped at designated drop boxes
to be raffled on a certain period.
The increase of the price is to answer for
the cost of the valuable prices that will
be covered at stake. The increase in the
price is the consideration for the chance
to win in the lottery and that makes the
lottery a gambling game.
But if the increase in prices of the
articles or commodities was not general,
but only on certain items and the
increase in prices is not the same, the
fact that a lottery is sponsored does not
appear to be tied up with the increase in
prices, therefore not illegal.
Also, in case of manufacturers, you have
to determine whether the increase in the
price was due to the lottery or brought
about by the normal price increase. If
the increase in price is brought about by
the normal price increase [economic
factor] that even without the lottery the
price would be like that, there is no
consideration in favor of the lottery and
the lottery would not amount to a
gambling game.

to patronize them only after the lottery or

raffle, in effect the public is paying for
the price not the product.

Under this decree, a barangay captain who is

responsible for the existence of gambling dens in
their own locality will be held liable and
disqualified from office if he fails to prosecute
these gamblers.
But this is not being
implemented.
Gambling, of course, is legal when authorized by
law.
Fund-raising campaigns are not gambling. They
are for charitable purposes but they have to
obtain a permit from Department of Social
Welfare and Development. This includes concerts
for causes, Christmas caroling, and the like.
OFFENSES AGAINST DECENCY AND GOOD
CUSTOMS
Article 200
GRAVE SCANDAL

ELEMENTS:
a. Offender performs an act
b. Act is highly scandalous as offending
against decency or good customs
c. Highly scandalous conduct does not
expressly fall within any other article
of the RPC
d. Committed in a public place or within
the public knowledge or view. (The
public view is not required, it is sufficient if
in public place. For public knowledge, it
may occur even in a private place; the
number of people who sees it is not
material).

GRAVE SCANDAL: consists of acts which are

offensive to decency and good customs. They
are committed publicly and thus, give rise to
public scandal to persons who have
accidentally witnessed the acts

If the increase in the price is due

particularly to the lottery, then the
lottery is a gambling game. And the
sponsors thereof may be prosecuted for
illegal gambling under Presidential
Decree No. 1602.
(2)

The merchandise is not really saleable

because of its inferior quality. A certain
manufacturer,
Bhey
Company,
manufacture cigarettes which is not
saleable because the same is irritating to
the throat, sponsored a lottery and a
coupon is inserted in every pack of
cigarette so that one who buys it shall
have a chance to participate. Due to the
coupons, the public started buying the
cigarette. Although there was no price
increase in the cigarettes, the lottery can
be considered a gambling game because
the buyers were really after the coupons
not the low quality cigarettes.
If without the lottery or raffle, the public
does not patronize the product and starts

* The crime of grave scandal is a crime against

public morals. Necessarily, the offender must
commit the crime in a public place or within the
view of the public.
In grave scandal, the scandal involved refers to
moral scandal offensive to decency, although it
does not disturb public peace. But such conduct
or act must be open to the public view.

In alarms and scandals, the scandal involved

refers to disturbances of the public tranquility
and not to acts offensive to decency.

Decency: means properly observing

requirements of modesty, good taste etc

Customs: refers to established usage, social

conventions carried on by tradition and
enforced by social disapproval in case of
violation

If the acts complained of are punishable

under another provision of the RPC, Art 200
is not applicable

the

there the man started performing acts of

lasciviousness on the woman.
If it is against the will of the woman, the crime
would be acts of lasciviousness. But if there is
mutuality, this constitutes grave scandal.
Public view is not necessary so long as it is
performed in a public place.
(2)

This is grave scandal.

(3)

* Any act which is notoriously offensive to

decency may bring about criminal liability for the
crime of grave scandal provided such act does not
constitute some other crime under the Revised
Penal Code. Grave scandal is a crime of last
resort.

The essence of grave scandal is publicity and

that the acts committed are not only contrary
to morals and good customs but must
likewise be of such character as to cause
public scandal to those witnessing it.

Distinction should be made as to the place

where the offensive act was
committed, whether in the public
place or in a private place:
(1)

In public place, the criminal liability

arises irrespective of whether the
immoral act is open to the public view.
In short public view is not required.

(2)

When act offensive to decency is done in

a private place, public view or public
knowledge is required.

* Public view does not require numerous persons.

Even if there was only one person who witnessed
the offensive act for as long as the third person
was not an intruder, grave scandal is committed
provided the act does not fall under any other
crime in the Revised Penal Code.
Illustrations:
(1)

A man and a woman enters a movie

house which is a public place and then goes
to the darkest part of the balcony and while

A man and a woman went to Luneta and

slept there. They covered themselves their
blanket and made the grass their conjugal
bed.

In a certain apartment, a lady tenant had

the habit of undressing in her room without
shutting the blinds. She does this every night
at about eight in the evening. So that at this
hour of the night, you can expect people
outside gathered in front of her window
looking at her silhouette. She was charged of
grave scandal. Her defense was that she was
doing it in her own house.

It is no defense that she is doing it in her private

home. It is still open to the public view.
(4)

In a particular building in Makati which

stands right next to the house of a young lady
who goes sunbathing in her poolside. Every
morning several men in the upper floors
would stick their heads out to get a full view of
said lady while in her two-piece swimsuit.
The lady was then charged with grave
scandal. Her defense was that it is her own
private pool and it is those men looking down
at her who are malicious.

This is an act which even though done in a private

place is nonetheless open to public view.
Article 201
IMMORAL
DOCTRINES,
OBSCENE
PUBLICATIONS AND EXHIBITIONS:

Persons liable:
a.
Those who publicly expound or
proclaim doctrines that are contrary to
public morals
b.
Authors of obscene literature,
published with their knowledge in any
form
c.
Editors publishing such obscene
literature

d.

e.

f.

Owners
or
operators
of
establishments
selling
obscene
literature
Those who exhibit indecent or
immoral plays, scenes, acts or shows
ion theaters, fairs, cinemas or any
other place
Those who sell, distribute, or
exhibit prints, engraving, sculptures or
literature which are offensive to morals

MORALS: implies conformity to generally

accepted standards of goodness or rightness
in conduct or character
TEST OF OBSCENITY: whether the matter
has a tendency to deprave or corrupt the
minds of those who are open to immoral
influences. A matter can also be considered
obscene if it shocks the ordinary and
common sense of men as indecency.

> The test is objective. It is more on the effect

upon the viewer and not alone on the conduct of
the performer.
* If the material has the tendency to deprave and
corrupt the mind of the viewer then the same is
obscene and where such obscenity is made
publicly, criminal liability arises.
* The law is not concerned with the moral of one
person. As long as the pornographic matter or
exhibition is made privately, there is no crime
committed under the Revised Penal Code because
what is protected is the morality of the public in
general.
* In committing this crime, there must be
publicity. It means the act or acts done must
come to the knowledge of third persons.

However, Art 201 enumerates what are

considered as obscene literature or
immoral or indecent plays, scenes or
acts:
a. those w/c glorify criminals or condone
crimes
b. those w/c serve no other purpose but to
satisfy the market for violence, lust or
pornography
c. those w/c offend against any race or
religion
d. those w/c tend to abet the traffic in and
the use of prohibited drugs

e.

those that are contrary to law, public

order, morals, good customs, established
policies, lawful orders, decrees and edicts

Mere nudity in paintings and pictures is not

obscene

Pictures w/ a slight degree of obscenity

having no artistic value and intended for
commercial purposes fall within this article

Publicity is an essential element

* Sexual indulgence is not in itself immoral if

done within the bounds of privacy and performed
normally. The moment the parties carry their
private rights and privileges to public view, they
expose themselves to public scrutiny.

Article 202
VAGRANTS AND PROSTITUTES:

Who are considered vagrants:

a. Those who have no apparent means of
subsistence and who have the physical
ability to work yet neglect to apply
themselves to some useful calling
b. Persons found loitering around public
and semi-public places without visible
means of support
c. Persons tramping or wandering around
the country or the streets with no visible
means of support
d. Idle or dissolute persons lodging in
houses of ill-fame
e. Ruffians or pimps and those who
habitually associate with prostitutes
(may include even the rich)
f. Persons found loitering in inhabited or
uninhabited places belonging to others,
without any lawful or justifiable reason
provided the act does not fall within any
other article of the RPC
If fenced and with
prohibition of entry

Trespass to dwelling

If fenced and entered to

hunt/fish

Attempted theft

If not fenced and with

no prohibition of entry

Vagrancy

Who are considered prostitutes - refer to

women who habitually indulge in sexual
intercourse or lascivious conduct for money
or profit (if a man indulges in the same
conduct: vagrancy)

* In law the mere indulging in lascivious conduct

habitually because of money or gain would
amount to prostitution, even if there is no sexual
intercourse.
Virginity is not a defense.
Habituality is the controlling factor; it has to be
more than one time.
* There cannot be prostitution by conspiracy. One
who conspires with a woman in the prostitution
business like pimps, taxi drivers or solicitors of
clients are guilty of the crime under Article 341
for white slavery.
TITLE SEVEN
CRIMES COMMITTED BY PUBLIC OFFICERS
Crimes committed by public officers
1.
Knowingly rendering unjust judgment
(Art. 204);
2.
Judgment rendered through negligence
(Art. 205);
3.
Unjust interlocutory order (Art. 206);
4.
Malicious delay in the administration of
justice (Art. 207);
5.
Prosecution of offenses; negligence and
tolerance (Art. 208);
6.
Betrayal of trust by an attorney or
solicitor Revelation of secrets (Art. 209);
7.
Direct bribery (Art. 210);
8.
Indirect bribery (Art. 211);
9.
Qualified bribery (Art. 211-A);
10.
Corruption of public officials (Art. 212);
11.
Frauds against the public treasury and
similar offenses (Art. 213);
12.
Other frauds (Art. 214);
13.
Prohibited transactions (Art. 215);
14.
Possession of prohibited interest by a
public officer (Art. 216);
15.
Malversation of public funds or property
Presumption of malversation (Art. 217)
16.
Failure of accountable officer to render
accounts (Art. 218);
17.
Failure of a responsible public officer to
render accounts before leaving the
country (Art. 219);
18.
Illegal use of public funds or property
(Art. 220);
19.
Failure to make delivery of public funds
or property (Art. 221);
20.
Conniving with or consenting to evasion
(Art. 223);

21.
22.
23.
24.
25.
26.
27.
28.
29.

30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.

Evasion through negligence (Art. 224);

Escape of prisoner under the custody of
a person not a public officer (Art. 225);
Removal, concealment or destruction of
documents (Art. 226);
Officer breaking seal (Art. 227);
Opening of closed documents (Art. 228);
Revelation of secrets by an officer (Art.
229);
Public officer revealing secrets of private
individual (Art. 230);
Open disobedience (Art. 231);
Disobedience to order of superior officer
when said order was suspended by
inferior officer (Art. 232);
Refusal of assistance (Art. 233);
Refusal to discharge elective office (Art.
234);
Maltreatment of prisoners (Art. 235);
Anticipation of duties of a public office
(Art. 236);
Prolonging performance of duties and
powers (Art. 237);
Abandonment of office or position (Art.
238);
Usurpation of legislative powers (Art.
239);
Usurpation of executive functions (Art.
240);
Usurpation of judicial functions (Art.
241);
Disobeying request for disqualification
(Art. 242);
Orders or requests by executive officers
to any judicial authority (Art. 243);
Unlawful appointments (Art. 244); and
Abuses against chastity (Art. 245).

* The designation of the title is misleading.

Crimes under this title can be committed by
public officers or a non-public officer, when the
latter become a conspirator with a public officer,
or an accomplice, or accessory to the crime. The
public officer has to be the principal.
* In some cases, it can even be committed by a
private citizen alone such as in Article 275
(infidelity in the custody of a prisoner where the
offender is not a public officer) or in Article 222
(malversation).
Article 203
WHO ARE PUBLIC OFFICERS:
a. Takes part in the performance of
public
functions
in
the
Government, or

b.

Performs public duties as an

employee, agent or subordinate
official in the govt or any of its
branches

Notes:
Public officer must derive his authority from:
1. direct provision of law
2. popular election
3.appointment by competent authority
* In defining the term public officers, the law
makes the reference to the manner by which he is
appointed to public office. He thus becomes a
public officer because of his appointment by
competent authority or because he is elected to
public office.
Public officers: embraces every public servant
from the lowest to the highest rank
Under Republic Act No. 3019 (The Anti-Graft and
Corrupt Practices Act), the term public officer is
broader and more comprehensive because it
includes all persons whether an official or an
employee, temporary or not, classified or not,
contractual or otherwise.
Any person who
receives compensation for services rendered is a
public officer.
* A government laborer is not a public officer.
However, temporary performance by a laborer of
public functions makes him a public officer
* Crimes committed by public officers are nothing
but corruption in public service.
Breach of oath of office partakes of three
forms:
a.
b.
c.

Misfeasance: means improper performance of

an act which might be properly be performed
Malfeasance: means performance of an act
which ought not to be done
Nonfeasance: means omission of an act
which ought to be done

Malfeasance

Doing of an act which a public

officer should not have done

Misfeasance

Improper doing of an act which a

person might lawfully do

Nonfeasance

Failure of an agent to perform

his undertaking for the principal

Article 204:
KNOWINGLY
JUDGMENT

RENDERING

AN

UNJUST

ELEMENTS:
a. Offender is a judge
b. Renders a judgment in the case
submitted to him for judgment
c. Judgment is unjust
d. Knowledge that the decision is
unjust

Notes:
JUDGMENT: is a final consideration and
determination by a court of competent
jurisdiction of the issues submitted to it in an
action or proceeding
* The law requires that the judgment must be
written in the official language, personally and
directly prepared by the judge, and signed by
him. It must contain a clear and distinct
statement of facts proved or admitted by the
defendant and upon which the judgment is
based.
UNJUST JUDGMENT: one which is contrary to
law, or not supported by the evidence, or both
An unjust judgment may result from:
1. error (with bad faith)
2. ill-will or revenge
3. bribery
* There must be evidence that the decision
rendered is unjust. It is not presumed
* To be liable for the above crime, not only must
the judgment be proved to be unjust .it must
likewise be established to have been knowingly
rendered. There must be a conscious and
deliberate intent to do an injustice. This usually
occurs when the judge entertains hatred, envy,
revenge, or greed against one of the parties.
* Abuse of discretion or mere error of judgment
cannot likewise serve as basis for rendering an
unjust judgment in the absence of proof or even
an allegation of bad faith (motive or improper
consideration).
Article 205
JUDGMENT
RENDERED
THROUGH
NEGLIGENCE

ELEMENTS:
a. Offender is a judge

b.

Renders a judgment in a case

submitted to him for decision
c. Judgment is manifestly unjust
d. Due to inexcusable negligence or
ignorance

MANIFESTLY UNJUST JUDGMENT: one

that is so contrary to law that even a person
having meager knowledge of the law cannot
doubt the injustice

* The unjust judgment is merely the result of

inexcusable negligence or ignorance of the law.
The ignorance may refer to substantive or
procedural law. There must be an apparent and
notorious manifestation of lack of logic and false
interpretation of the law. (Cortes vs. Catral, 279
SCRA 1)
Article 206
UNJUST INTERLOCUTORY ORDER

ELEMENTS:
a. That the offender is a judge.
b.

1.
2.

That he performs any of the

following acts:
knowingly renders unjust interlocutory
order or decree, or
renders a manifestly unjust interlocutory
order or decree through inexcusable
negligence or ignorance.

INTERLOCUTORY ORDER: one issued by

the court deciding a collateral or incidental
matter. It is not a final determination of the
issues of the action or proceeding

* The crime of knowingly rendering an unjust

judgment, or knowingly issuing an unjust
interlocutory order, may be committed only by a
judge of a trial court and never of an appellate
court. The reason for this is that in appellate
court, not only one magistrate renders or issues
the interlocutory order.
An appellate court
functions as a division and the resolutions
thereof are handed down only after deliberations
among the members of a division so that it
cannot be said that there is malice or inexcusable
negligence or ignorance in the rendering of a
judgment or order that is supposedly unjust as
held by the Supreme Court in one administrative
case.
Article 207

MALICIOUS DELAY IN THE ADMINISTRATION

OR JUSTICE

ELEMENTS:
a. That the offender is a judge.
b. That there is a proceeding in his court.
c. That he delays the administration of
justice.
d. That the delay is malicious, that is, the
delay is caused by the judge with
deliberate intent to inflict damage on
either party in the case.

Mere delay without malice is not punishable

* Malice must be proven. Malice is present where

the delay is sought to favor one party to the
prejudice of the other.
* These have been interpreted by the Supreme
Court to refer only to judges of the trial court.
* The Constitution provides that cases submitted
for decision before the Supreme Court must be
resolved within two years. Before the Court of
Appeals, such cases must be resolved within 1
year; and before the Regional Trial Court and
Metropolitan Trial Court, such cases must be
decided within a period of three months or ninety
days.
Article 208
PROSECUTION OF OFFENSES; NEGLIGENCE
AND TOLERANCE
Acts Punished
1.
Maliciously refraining from instituting
prosecution against violators of the law;
2.

Maliciously tolerating the commission of

offenses.
ELEMENTS OF DERELICTION OF DUTY
THE PROSECUTION OF OFFENSES:
a. That the offender is a public officer
officer of the law who has a duty
cause the prosecution of, or
prosecute offenses.
b.

IN
or
to
to

That there is dereliction of the duties

of his office, that is, knowing the
commission of the crime, he does not
cause (a) the prosecution of the
criminal (People vs. Rosales, G.R. no.
42648) or (b) knowing that a crime is
about to be committed he tolerates its

c.

commission
(if
gift/promise
is
a
consideration for his conduct: direct bribery)

he is considered an offender under the AntiFencing Law.

That the offender acts with malice and

deliberate intent to favor the violator of
the law.

However, in distant provinces or municipalities

where there are no municipal attorneys, the local
chief of police is the prosecuting officer. If he is
the one who tolerates the violations of laws or
otherwise allows offenders to escape, he can be
prosecuted under this article.

PREVARICACION: negligence and tolerance

in the prosecution of an offense

* A public officer engaged in the prosecution of

offenders
shall
maliciously
tolerate
the
commission of crimes or refrain from prosecuting
offenders or violators of the law.
* This crime can only be committed by a public
officer whose official duty is to prosecute
offenders, that is, state prosecutors. Hence, those
officers who are not duty bound to perform these
obligations cannot commit this crime in the strict
sense.

There must be a duty on the part of the

public officer to prosecute or move for the
prosecution of the offender. Note however,
that a fiscal is under no compulsion to file an
information based upon a complaint if he is
not convinced that the evidence before him
does not warrant filing an action in court

When a policeman tolerates the commission of a

crime or otherwise refrains from apprehending the
offender, such peace officer cannot be prosecuted
for this crime but they can be prosecuted as:
(1)

An accessory to the crime committed by

the principal in accordance with Article
19, paragraph 3; or

(2)

He may become a fence if the crime

committed is robbery or theft, in which
case he violates the Anti-Fencing Law; or

(3)

He may be held liable for violating the

Anti-Graft and Corrupt Practices Act.

Illustration:
The offender was caught for white slavery. The
policeman allowed the offender to go free for some
consideration. The policeman does not violate
Article 208 but he becomes an accessory to the
crime of white slavery.
But in the crime of theft or robbery, where the
policeman shared in the loot and allowed the
offender to go free, he becomes a fence. Therefore,

This is also true in the case of a barangay

chairman. They are supposed to prosecute
violators of laws within their jurisdiction. If they
do not do so, they can be prosecuted for this
crime.

The crime must be proved first before an

officer can be convicted of dereliction of duty

A public officer who harbors, conceals, or

assists in the escape of an offender, when it
is his duty to prosecute him is liable as
principal in the crime of dereliction of duty in
the prosecution of offenses. He is not an
accessory

Article not applicable to revenue officers

* Relative to this crime under Article 208,
consider the crime of qualified bribery. Among
the amendments made by Republic Act No. 7659
on the Revised Penal Code is a new provision
which reads as follows:
Article.
211-A.
Qualified Bribery If any public
officer is entrusted with law
enforcement and he refrains from
arresting or prosecuting an
offender who has committed a
crime punishable by Reclusion
Perpetua
and/or
death
in
consideration
of
any
offer,
promise, gift, or present, he shall
suffer the penalty for the offense
which was not prosecuted.
If it is the public officer
who asks or demands such gift or
present, he shall suffer the
penalty of death.
* Actually the crime is a kind of direct bribery
where the bribe, offer, promise, gift or present
has a consideration on the part of the public
officer, that is refraining from arresting or
prosecuting the offender in consideration for
such offer, promise, gift or present. In a way,

this new provision modifies Article 210 of the

Revised Penal Code on direct bribery.
* However, the crime of qualified bribery may be
committed only by public officers entrusted with
enforcement whose official duties authorize then
to arrest or prosecute offenders. Apparently, they
are peace officers and public prosecutors since the
nonfeasance refers to arresting or prosecuting.
But this crime arises only when the offender
whom such public officer refrains from arresting or
prosecuting, has committed a crime punishable by
reclusion perpetua and/or death. If the crime
were punishable by a lower penalty, then such
nonfeasance by the public officer would amount to
direct bribery, not qualified bribery.
* If the crime was qualified bribery, the dereliction
of the duty punished under Article 208 of the
Revised Penal Code should be absorbed because
said article punishes the public officer who
maliciously refrains from instituting prosecution
for the punishment of violators of the law or shall
tolerate the commission of offenses.
The
dereliction of duty referred to is necessarily
included in the crime of qualified bribery.
* On the other hand, if the crime was direct
bribery under Article 210 of the Revised Penal
Code, the public officer involved should be
prosecuted also for the dereliction of duty, which is
a crime under Article 208 of the Revised Penal
Code, because the latter is not absorbed by the
crime of direct bribery. This is because in direct
bribery, where the public officer agreed to
perform an act constituting a crime in connection
with the performance of his official duties, Article
210 expressly provides that the liabilty
thereunder shall be in addition to the penalty
corresponding to the crime agreed upon, if the
crime shall have been committed.
Illustration:
A fiscal, for a sum of money, refrains from
prosecuting a person charged before him. If the
penalty for the crime involved is reclusion
perpetua, the fiscal commits qualified bribery. If
the crime is punishable by a penalty lower than
reclusion perpetua, the crime is direct bribery.
In the latter situation, three crimes are committed:
direct bribery and dereliction of duty on the part of
the fiscal; and corruption of a public officer by the
giver.
Article 209

BETRAYAL OF TRUST BY AN ATTORNEY OR

SOLICITOR
(NOT NECESSARILY A PUBLIC OFFICER
ALTHOUGH ALL LAWYERS ARE OFFICERS OF
THE COURT)

ACTS PUNISHED:
a. Causing
damage
to
client
(prejudice is essential) either
1. by
any
malicious
breach
of
professional duty, or

2. by inexcusable negligence or ignorance.

b.

Revealing any of the secrets of his

client
learned
by
him
in
his
professional
capacity
(damage not
necessary)

c.

Undertaking
the
defense
of
the
st
opposing party of the 1 client and/or
having
received
confidential
information from the latter and
without the latters consent (damage not
necessary)

Note: When the attorney acts with malicious

abuse of his employment or inexcusable
negligence or ignorance, there must be damage to
his client.
* Under the rules on evidence, communications
made with prospective clients to a lawyer with a
view to engaging his professional services are
already privileged even though the client-lawyer
relationship did not eventually materialize
because the client cannot afford the fee being
asked by the lawyer.
The lawyer and his
secretary or clerk cannot be examined thereon.
* That this communication with a prospective
client is considered privileged, implies that the
same is confidential. Therefore, if the lawyer
would reveal the same or otherwise accept a case
from the adverse party, he would already be
violating Article 209. Mere malicious breach
without damage is not violative of Article 209; at
most he will be liable administratively as a
lawyer, e.g., suspension or disbarment under the
Code of Professional Responsibility.
Illustration:
B, who is involved in the crime of seduction
wanted A, an attorney at law, to handle his case.
A received confidential information from B.

However, B cannot pay the professional fee of A.

C, the offended party, came to A also and the
same was accepted.
A did not commit the crime under Article 209,
although the lawyers act may be considered
unethical. The client-lawyer relationship between
A and B was not yet established. Therefore, there
is no trust to violate because B has not yet
actually engaged the services of the lawyer A. A
is not bound to B. However, if A would reveal the
confidential matter learned by him from B, then
Article 209 is violated because it is enough that
such confidential matters were communicated to
him in his professional capacity, or it was made
to him with a view to engaging his professional
services.
Here, matters that are considered confidential
must have been said to the lawyer with the view
of engaging his services. Otherwise, the
communication shall not be considered privileged
and no trust is violated.
Illustration:
A went to B, a lawyer/notary public, to have a
document notarized. A narrated to B the detail of
the criminal case. If B will disclose what was
narrated to him there is no betrayal of trust since
B is acting as a notary public and not as a
counsel.
The lawyer must have learned the
confidential matter in his professional capacity.
Several acts which would make a lawyer
criminally liable:
(1)

Maliciously causing damage to his client

through a breach of his professional
duty. The breach of professional duty
must be malicious.
If it is just
incidental, it would not give rise to
criminal liability, although it may be the
subject of administrative discipline;

(2)

Through
gross
ignorance,
damage to the client;

(3)

Inexcusable negligence;

(4)

Revelation of secrets
professional capacity;

(5)

Undertaking the defense of the opposite

party in a case without the consent of
the first client whose defense has already
been undertaken.

learned

causing

in his

Note that only numbers 1, 2 and 3 must

approximate malice.
* A lawyer who had already undertaken the case
of a client cannot later on shift to the opposing
party. This cannot be done.
* Under the circumstances, it is necessary that
the confidential matters or information was
confided to the lawyer in the latters professional
capacity.
* It is not the duty of the lawyer to give advice on
the commission of a future crime. It is, therefore,
not privileged in character. The lawyer is not
bound
by
the
mandate
of
privilege
communication if he reports such commission of
a future crime. It is only confidential information
relating to crimes already committed that are
covered by the crime of betrayal of trust if the
lawyer should undertake the case of opposing
party
or
otherwise
divulge
confidential
information of a client.
* Under the law on evidence on privileged
communication, it is not only the lawyer who is
protected by the matter of privilege but also the
office staff like the secretary.
* The nominal liability under this article may be
constituted either from breach of professional
duties in the handling of the case or it may arise
out of the confidential relation between the lawyer
and the client.
BREACH OF PROFESSIONAL DUTY
> Tardiness in the prosecution of the case for
which reason the case was dismissed for being
non-prosecuted; or tardiness on the part of the
defense counsel leading to declaration of default
and adverse judgment.
> Professional duties Lawyer must appear on
time. But the client must have suffered damage
due to the breach of professional duty.
Otherwise, the lawyer cannot be held liable.
> If the prosecutor was tardy and the case was
dismissed as non-prosecuted, but he filed a
motion for reconsideration which was granted,
and the case was continued, the lawyer is not
liable, because the client did not suffer damage.
> If lawyer was neglectful in filing an answer, and
his client declared in default, and there was an

adverse judgment, the client suffered damages.

The lawyer is liable.

For purposes of this article, temporary

performance of public functions is sufficient to
constitute a person a public officer.

A private person may commit this crime only

in the case in which custody of prisoners is
entrusted to him

Applicable also to assessors, arbitrators,

appraisal and claim commissioners, experts
or any other person performing public duties

Cannot be frustrated, only attempted or

consummated.

BREACH OF CONFIDENTIAL RELATION

> Revealing information obtained or taking
advantage thereof by accepting the engagement
with the adverse party. There is no need to prove
that the client suffered damages.
The mere
breach of confidential relation is punishable.
> In a conjugal case, if the lawyer disclosed the
confidential information to other people, he would
be criminally liable even though the client did not
suffer any damage.
> The client who was suing his wife disclosed
that he also committed acts of unfaithfulness.
The lawyer talked about this to a friend. He is,
thus, liable.
Article 210
DIRECT BRIBERY

ELEMENTS:
a. That the offender be a public officer
within the scope of Art 203
b.

That the offender accepts an offer or

promise or receives a gift or present by
himself or through another

c.

That such offer or promise be accepted

or gift/present received by the public
officer (mere agreement consummates the
crime)

1.

with a view to committing some crime

(delivery of consideration is not necessary)
or

2.

in consideration of an execution of an act

which does not constitute a crime, but the
act
must
be
unjust
(delivery
of
consideration is necessary), or

3.

to refrain from doing something which is

his official duty to do

d. That the act which the offender agrees

to perform or which he executes be
connected with the performance of his
official duties
* Bribery refers to the act of the receiver and the
act of the giver is corruption of public official.

* Direct bribery may be committed only in the

attempted and consummated stages because, in
frustrated felony, the offender must have
performed all the acts of execution which would
produce the felony as a consequence. In direct
bribery, it is possible only if the corruptor concurs
with the offender. Once there is concurrence, the
direct bribery is already consummated. In short,
the offender could not have performed all the acts
of execution to produce the felony without
consummating the same.
* Actually, you cannot have a giver unless there is
one who is willing to receive and there cannot be a
receiver unless there is one willing to give. So this
crime requires two to commit. It cannot be said,
therefore, that one has performed all the acts of
execution which would produce the felony as a
consequence but for reasons independent of the
will, the crime was not committed.
* It is now settled, therefore, that the crime of
bribery and corruption of public officials cannot be
committed in the frustrated stage because this
requires two to commit and that means a meeting
of the minds.
Illustrations:
(1)

If the public official accepted the corrupt

consideration and turned it over to his
superior as evidence of the corruption, the
offense is attempted corruption only and not
frustrated. The official did not agree to be
corrupted.

If the public officer did not report the same to his

superior and actually accepted it, he allowed
himself to be corrupted.
The corruptor
becomes liable for consummated corruption
of public official. The public officer also

becomes equally liable for consummated

bribery.
(2)

If a public official demanded something from

a taxpayer who pretended to agree and use
marked money with the knowledge of the
police, the crime of the public official is
attempted bribery.
The reason is that
because the giver has no intention to
corrupt her and therefore, he could not
perform all the acts of execution.

Be sure that what is involved is a crime of

bribery, not extortion. If it were extortion,
the crime is not bribery, but robbery. The one
who yielded to the demand does not commit
corruption of a public officer because it was
involuntary.

Bribery exists when the gift is:

a. voluntarily offered by a private person
b.

solicited by the public

voluntarily delivered by
person

officer and
the private

c.

solicited by the public officer but the

private person delivers it out of fear of
the consequences should the public
officer perform his functions (here the
crime by giver is not corruption of public
officials due to involuntariness)

Actual receipt of the gift is not only if acts

constitutes a crime necessary. An accepted
offer or promise of a gift is sufficient.
However, if the offer is not accepted, only the
person offering the gift is liable for attempted
corruption of a public officer

The gift must have a value or capable of

pecuniary estimation. It could be in the form
of money, property or services

If the act required of the public officer

amounts to a crime and he commits it, he
shall be liable for the penalty corresponding
to the crime in addition to the penalty for
bribery

* In direct bribery, consider whether the official

act, which the public officer agreed to
do, is a crime or not.
* If it will amount to a crime, it is not
necessary that the corruptor should deliver the
consideration or the doing of the act. The moment

there is a meeting of the minds, even without the

delivery of the consideration, even without the
public officer performing the act amounting to a
crime, bribery is already committed on the part
of the public officer.
Corruption is already
committed on the part of the supposed giver. The
reason is that the agreement is a conspiracy
involving the duty of a public officer. The mere
agreement is a felony already.
If the public officer commits the act which
constitutes the crime, he, as well as the
corruptor shall be liable also for that other crime.
Illustrations:
(1)

If the corruptor offers a consideration to a

custodian of a public record to remove certain
files, the mere agreement, without delivery of
the consideration, brings about the crime of
direct bribery and corruption of public official.

If the records were actually removed, both the

public officer and the corruptor will in
addition to the two felonies above, will also
be liable for the crime committed, which is
infidelity in the custody of the public records
for which they shall be liable as principals;
one as principal by inducement, the other as
principal by direct participation.
(2)

A party litigant approached the courts

stenographer and proposed the idea of
altering the transcript of stenographic notes.
The court stenographer agreed and he
demanded P 2,000.00.

Unknown to them, there were law enforcers who

already had a tip that the court stenographer
had been doing this before. So they were
waiting for the chance to entrap him. They
were apprehended and they said they have
not done anything yet.
Under Article 210, the mere agreement to commit
the act, which amounts to a crime, is
already bribery. That stenographer becomes
liable already for consummated crime of
bribery and the party who agreed to give
that
money
is
already
liable
for
consummated corruption, even though not a
single centavo is delivered yet and even
though the stenographer had not yet made
the alterations.
If he changed the transcript, another
crime is committed: falsification.

* The same criterion will apply with respect to a

public officer who agrees to refrain from
performing his official duties. If the refraining
would give rise to a crime, such as refraining to
prosecute an offender, the mere agreement to do
so will consummate the bribery and the
corruption, even if no money was delivered to
him. If the refraining is not a crime, it would
only amount to bribery if the consideration be
delivered to him.
* If it is not a crime, the consideration must be
delivered by the corruptor before a public officer
can be prosecuted for bribery. Mere agreement, is
not enough to constitute the crime because the
act to be done in the first place is legitimate or in
the performance of the official duties of the
public official.
* Unless the public officer receives the
consideration for doing his official duty, there is
no bribery. It is necessary that there must be
delivery of monetary consideration. This is so
because in the second situation, the public
officer actually performed what he is supposed to
perform. It is just that he would not perform
what he is required by law to perform without an
added consideration from the public which gives
rise to the crime.
* The idea of the law is that he is being paid
salary for being there. He is not supposed to
demand additional compensation from the public
before performing his public service.
The
prohibition will apply only when the money is
delivered to him, or if he performs what he is
supposed to perform in anticipation of being paid
the money.
* Here, the bribery will only arise when there is
already the acceptance of the consideration
because the act to be done is not a crime. So,
without the acceptance, the crime is not
committed.

The third type of bribery and prevaricacion

(art 208) are similar offenses, both consisting
of omissions to do an act required to be
performed. In direct bribery however, a gift or
promise is given in consideration of the
omission. This is not necessary in
prevaricacion

Distinction between direct bribery and

indirect bribery

Bribery is direct when a public officer is called

upon to perform or refrain from performing an
official act in exchange for the gift, present or
consideration given to him.
If he simply accepts a gift or present given to him
by reason of his public position, the crime is
indirect bribery. Bear in mind that the gift is
given "by reason of his office", not "in
consideration" thereof. So never use the term
consideration.
The public officer in Indirect
bribery is not to perform any official act.
* Note however that what may begin as an
indirect bribery may actually ripen into direct
bribery.
Illustration:
Without any understanding with the public officer,
a taxi operator gave an expensive suiting material
to a BLT registrar. Upon receipt by the BLT
registrar of his valuable suiting material, he asked
who the giver was. He found out that he is a taxi
operator. As far as the giver is concerned, he is
giving this by reason of the office or position of
the public officer involved. It is just indirect
bribery
If the BLT registrar calls up his subordinates and
said to take care of the taxis of the taxi operator
so much so that the registration of the taxis is
facilitated ahead of the others, what originally
would have been indirect bribery becomes direct
bribery.
Bribery (210)
When the victim has
committed a crime and
gives money/gift to avoid
arrest or prosecution.

Victim parts
money
or
voluntarily.

with his
property

Robbery (294)
When the victim did not
commit a crime and he is
intimidated
with
arrest
and/or
prosecution
to
deprive him of his personal
property.
Victim is deprived of his
money or property by force
or intimidation.

* Robbery should be distinguished from Bribery

where a law enforcer, say a policeman, extorts
money from a person, employing intimidation and
threatening to arrest the latter if he will not come
across with money may be guilty of Robbery
(Article 294, par. 5) or Bribery (Article 210). If
the victim actually committed a crime, and the
policeman demanded money so he will not be
arrested, the crime is Bribery. But if no crime
has been committed and the policeman is falsely

charging him of having committed one,

threatening to arrest him if he will not come
across with some consideration, the crime is
Robbery.
Article 211
INDIRECT BRIBERY

ELEMENTS:
a. That the offender is a public
officer.
b.

That he accepts gifts.

c.

That the said gifts are offered to

him by reason of his office.

The gift is given in anticipation of future

favor from the public officer
Indirect bribery, the public officer receives or
accepts gifts, money or anything of value by
reason of his office. If there is only a promise of a
gift or money, no crime is committed because of
the language of the law which uses the phrase
shall accept gifts.

Public officers receiving gifts and private

persons giving gifts on any occasion,
including Christmas are liable under PD 46.

The criminal penalty or imprisonment is

distinct from the administrative penalty of
suspension from the service

Article 211-A
QUALIFIED BRIBERY

b.

Refrains
from
arresting/prosecuting offender for
crime punishable by reclusion
perpetua and/or death
(if lower penalty than stated above,
the crime is direct bribery)

There must be clear intention on the part of

the public officer to take the gift offered and
consider the property as his own for that
moment.
Mere
physical
receipt
unaccompanied
by
any
other
sign,
circumstance or act to show such acceptance
is not sufficient to convict the officer

* The Supreme Court has laid down the rule that

for indirect bribery to be committed, the public
officer must have performed an act of
appropriating of the gift for himself, his family or
employees. It is the act of appropriating that
signifies acceptance. Merely delivering the gift to
the public officer does not bring about the crime.
Otherwise it would be very easy to remove a
public officer: just deliver a gift to him.

There is no attempted or frustrated indirect

bribery

The principal distinction between direct and

indirect bribery is that in the former, the
officer agrees to perform or refrain from doing
an act in consideration of the gift or promise.
In the latter case, it is not necessary that the
officer do any act. It is sufficient that he
accepts the gift offered by reason of his office

ELEMENTS:
a. Public officer entrusted with law
enforcement

c.

In consideration of any offer,

promise or gift
* Note that the penalty is DEATH if the public
officer is the one who asks or demands such
present.
> He need not receive the gift or present
because a mere offer or promise is sufficient.

Article 212
CORRUPTION OF PUBLIC OFFICIALS

ELEMENTS:
a. That the offender makes offers or
promises or gives gifts or present
to a public officer.
b.

That the offers or promises are

made 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

The offender is the giver of the gift or the

offeror of the promise. The act may or may
not be accomplished

Presidential Decree No. 46

Presidential Decree No. 46 prohibits giving and

acceptance of gifts by a public officer or to a
public officer, even during anniversary, or when
there is an occasion like Christmas, New Year, or
any gift-giving anniversary.
The Presidential
Decree punishes both receiver and giver.
The prohibition giving and receiving gifts given by
reason of official position, regardless of whether or
not the same is for past or future favors.
The giving of parties by reason of the promotion
of a public official is considered a crime even
though it may call for a celebration. The giving of
a party is not limited to the public officer only
but also to any member of his family.
Presidential Decree No. 749
> The decree grants immunity from prosecution to
a private person or public officer who shall
voluntarily give information and testify in a case of
bribery or in a case involving a violation of the
Anti-graft and Corrupt Practices Act.
It provides immunity to the bribe-giver provided he
does two things:
(1)
He voluntarily discloses the transaction
he
had
with
the
public
officer
constituting direct or indirect bribery, or
any other corrupt transaction;
(2)

He must willingly testify against the

public officer involved in the case to be
filed against the latter.

Before the bribe-giver may be dropped from the

information, he has to be charged first with the
receiver. Before trial, prosecutor may move for
dropping bribe-giver from information and be
granted immunity. But first, five conditions have
to be met:
(1)

Information must refer to consummated

bribery;

(2)

Information is necessary for the proper

conviction of the public officer involved;

(3)

That the information or testimony to be

given is not yet in the possession of the
government or known to the government;

(4)

That the information can be corroborated

in its material points;

(5)

That the informant has not been

convicted previously for any crime
involving moral turpitude.

* These conditions are analogous to the conditions

under the State Witness Rule under Criminal
Procedure.
* The immunity granted the bribe-giver is limited
only to the illegal transaction where the informant
gave voluntarily the testimony. If there were other
transactions
where
the
informant
also
participated, he is not immune from prosecution.
The immunity in one transaction does not extend
to other transactions.
* The immunity attaches only if the information
given turns out to be true and correct. If the same
is false, the public officer may even file criminal
and civil actions against the informant for
perjury and the immunity under the decree will
not protect him.

Republic Act No. 7080 (Plunder)

Plunder is a crime defined and penalized under
Republic Act No. 7080, which became effective in
1991.
This crime somehow modified certain
crimes in the Revised Penal Code insofar as the
overt acts by which a public officer amasses,
acquires, or accumulates ill-gotten wealth are
felonies under the Revised Penal Code like
bribery (Articles 210, 211, 211-A), fraud against
the public treasury [Article 213], other frauds
(Article 214), malversation (Article 217), when the
ill-gotten wealth amounts to a total value of
P50,000,000.00. The amount was reduced from
P75,000,000.00 by Republic Act No. 7659 and
the penalty was changed from life imprisonment
to reclusion perpetua to death.
Short of the amount, plunder does not arise. Any
amount less than P50,000,000.00 is a violation
of the Revised Penal Code or the Anti-Graft and
Corrupt Practices Act.
Under the law on plunder, the prescriptive period
is 20 years commencing from the time of the last
overt act.
Plunder is committed through a combination or
series of overt acts:
(1)

Through misappropriation, conversion,

misuse, or malversation of public funds
or raids on the public treasury;

(2)

(3)

By receiving, directly or indirectly, any

commission, gift, share, percentage,
kickbacks or any other form of pecuniary
benefit from any person and/or entity in
connection with any government contract
or project by reason of the office or
position of the public officer;
By illegal or fraudulent conveyance or
disposition of asset belonging to the
national government or any of its
subdivisions,
agencies
or
instrumentalities or government-owned
or controlled corporations and their
subsidiaries;

(4)

By obtaining, receiving, or accepting

directly or indirectly any shares of stock,
equity or any other form of interest or
participation including the promise of
future employment in any business or
undertaking;

(5)

By establishing agricultural, industrial,

or commercial monopolies or other
combinations and/or implementations of
decrees and orders intended to benefit
particular persons or special interests; or

(6)

By taking undue advantage of official

position,
authority,
relationship,
connection or influence to unjustly
enrich himself or themselves at the
expense and to the damage and prejudice
of the Filipino people, and the Republic
of the Philippines.

While the crime appears to be malum prohibitum,

Republic Act No. 7080 provides that in the
imposition of penalties, the degree of participation
and the attendance of mitigating and aggravating
circumstances shall be considered by the court.

ANTI-GRAFT AND CORRUPT PRACTICES ACT

RA 3019

Persons Liable:

a.

Any public officer who shall perform any of

the following acts:

1. Persuading, inducing or influencing another

public officer to perform an act constituting a
violation of rules and regulations duly

promulgated by competent authority or an

offense in connection with the official duties
of the latter, or allowing himself to be
persuaded, induced, or influenced to commit
such violation or offense.
2. Directly or indirectly requesting or receiving
any gift, present, share, percentage, or benefit
for himself or for any other person in
connection with any contract or transaction
between the government and any other party
wherein the public officer in his official
capacity has to intervene under the law.
3. Directly, or indirectly requesting or receiving
any gift, present, or other pecuniary or
material benefit, for himself or for another,
from any person for whom the public officer,
in any manner of capacity, has secured or
obtained, or will secure or obtain, any
Government
permit
or
license,
in
consideration for the held given or to be given.
4. Accepting or having any member of his family
accept employment in a private enterprise
which has pending official business with him
during the pendency thereof or within one
year after its termination.
5. Causing any undue injury to any party,
including the Government, or giving any
private party any unwarranted benefits,
advantage, or preference in the discharge of
his official, administrative or judicial function
through manifest partiality, evident bad faith
or gross inexcusable negligence.
This
provision shall apply to officers and employees
of offices or government corporations charged
with the grant of licenses or permits or other
concessions.
6. Neglecting or refusing, after due demand or
request, without sufficient justification, to act
within a reasonable time on any matter
pending before him for the purpose of
obtaining directly or indirectly, from any
person interested in the matter some
pecuniary or material benefit or advantage, or
for the purpose of favoring his own interest of
giving undue advantage in favor of or
discriminating against any other interested
party.
7. Entering, on behalf of the Government, into
any contract or transaction manifestly and
grossly disadvantageous to the same, whether
or not the public officer profited or will profit
thereby.

8. Directly or indirectly having financial or

pecuniary interest in any business, contract
or transaction in connection with which he
intervenes or take part in his official capacity,
or in which he is prohibited by the
constitution or by any law from having any
interest.
9. Directly or indirectly becoming interested, for
personal gain, or having a material interest in
any transaction or act requiring the approval
of a board, panel, or group of which he is a
member, and which exercises discretion in
such approval, even if he votes against the
same or does not participate in the action of
the board, committee, panel or group.
10.
Knowingly approving or granting any
license, permit, privilege, or benefit in favor of
any person not qualified for or not legally
entitled to such license, permit, privilege, or
advantage, or of a mere representative or
dummy of one who is not so qualified or
entitled.
11.
Divulging valuable information of a
confidential character, acquired by his office
or by him on account of his official position to
unauthorized persons, or releasing such
information in advance of its authorized
release date.
b.

Any person having family or close personal

relation with any public official who shall
capitalize or exploit or take advantage of such
family or close personal relation by directly or
indirectly requesting or receiving any present,
gift, or material, or pecuniary advantage from
any
person
having
some
business,
transaction, application, request, or contact
with the government in which such public
official has to intervene (Sec. 4)

c.

Any person who shall knowingly induce or

cause any public official to commit any of the
offenses under (A). (Sec. 4)

d.

Spouse or any relative, by consanguinity or

affinity, within the 3rd civil degree, of the
president of the Philippines, the vicepresident, the president of the Senate, or
speaker of the house of Representatives, who
shall intervene, directly or indirectly, in any
business transaction, contract or application
with the govt (Sec. 5).
This prohibition shall not apply to:

1.

Any person who, prior to the assumption of

office of any of the above officials to whom
he is related, has been already dealing with
the govt along the same line of business;

2.

Any transaction, contract or application

already existing or pending at the time of
such assumption of public office;

3.

Any application filed by him, the approval

of which is not discretionary on the part of
the official(s) concerned but depends upon
compliance with requisites provided by law,
or rules or regulations issued pursuant to
law;

4.

Any act lawfully performed an official

capacity or in the exercise of a profession.

e.

Any member of congress, during the

term for which he has been elected, who
shall acquire or receive any personal
pecuniary interest in any specific business
enterprise which shall be directly and
particularly favored or benefited by any law
or resolution authored by him previously
approved or adopted by Congress during
his term.

f.

Any public officer who shall fail to file

a true, detailed and sworn statement of
assets and liabilities within 30 days after
assuming office and thereafter on or before
the 15th day of April following the close of
every calendar year, as well as upon the
expiration of his term of office, or upon his
resignation or separation from office (Sec.
7).

III.

Prima Facie Evidence of and Dismissal

due to unexplained Wealth (Sec. 8)

If a public official has been found to have

acquired during his incumbency, whether in
his name or in the name of other persons, an
amount of property and/or money manifestly
out of proportion to his salary and to his
other lawful income.

Properties in the name of the spouse and

dependents of such public official may be
taken into consideration, when their
acquisition through legitimate means cannot
be satisfactorily shown.

Bank deposits in the name of or manifestly

excessive expenditures incurred by the public

official, his spouse or any of their dependents

including but not limited to activities in any
club or association or any ostentatious
display of wealth including frequent travel
abroad of a non-official character by any
public official when such activities entail
expenses evidently out of proportion to
legitimate income.
III. Competent court: All prosecutions under
this Act shall be within the original jurisdiction of
the Sandiganbayan (Sec. 10).
* In case none of the principal accused are
occupying positions corresponding to salary
grade 27 or higher; PNP officers occupying the
rank of superintendent or higher of their
equivalent, exclusive jurisdiction over the case
shall be vested in the proper Regional Trial Court,
Metropolitan Trial Court and Municipal Circuit
Trial Court as the case may be. The decision of
the court in these cases shall be appealable to
the Sandiganbayan which exercises exclusive
appellate jurisdiction over them.
IV. Prescription of offenses: all offenses
punishable under this Act shall prescribe in 15
years (Sec. 11).
V. Exceptions: Unsolicited gifts or presents of
small or insignificant value offered or given as a
mere ordinary token of gratitude of friendship
according to local customs or usage, shall be
excepted from the provisions of this act (Sec. 14).
* Once the case is filed with the Sandiganbayan,
by express provision of the law, it becomes
incumbent upon the court to place under
preventive suspension the public officer who
stands accused before it. However, before the
order of suspension is issued, it is necessary that
a pre-suspension hearing be held by the court
wherein the accused is afforded the opportunity
to challenge the validity of the information filed
against him. Such right of the accused to
challenge the validity of the information covers (a)
the right to challenge the sufficiency of the
recitals of the information vis--vis the essential
elements of the offense as defined by substantive
law; (b) the right to challenge the validity of the
criminal proceedings leading to the filing of the
information, i.e., that he has not been afforded
the right of due preliminary investigation, or that
the acts for which he stands charged do not
constitute a violation of the provisions of R.A. No.
3019, which would warrant his mandatory
suspension from office under Section 13 of this

Act; and (c) the right to raise the issue that the
information can be quashed under any of the
grounds provided in Section 2, Rule 117 of the
Rules of Court (People vs. Albano, 163 SCRA
511).
* Once the information is found to be sufficient in
form and substance, the court must issue the
suspension order as a matter of course and there
are no ifs and buts about it (Bayot vs.
Sandiganbayan, et al., 128 SCRA 383).
* Preventive suspension is resorted to in order to
prevent the accused from using his office to
intimidate witnesses or frustrate his prosecution
or continue committing malfeasance in office
because the presumption is that unless the
accused is suspended, he may frustrate his
prosecution
to
commit
further
acts
of
malfeasance or both (Bayot vs. Sandiganbayan,
et al., supra).
* When the administrative case against the
officer or employee under preventive suspension
is not finally disposed of by the disciplining
authority within the period of ninety (90) days
after the date of suspension of the respondent
who is not a presidential appointee, the
respondent shall be automatically reinstated in
the service: Provided, That when the delay in the
disposition of the case is due to the fault,
negligence or petition of the respondent, the
period of delay shall not be counted in computing
the
period
of
suspension
herein
provided.(Segovia vs. Sandiganbayan)
ORTEGA NOTES:
The mere act of a public officer demanding an
amount from a taxpayer to whom he is to render
public service does not amount to bribery, but
will amount to a violation of the Anti-graft and
Corrupt Practices Act.
Illustration:
A court secretary received P500 .00 from a
litigant to set a motion for an early hearing. This
is direct bribery even if the act to be performed is
within his official duty so long as he received a
consideration therefor.
If the secretary persuaded the judge to make a
favorable resolution, even if the judge did not do
so, this constitutes a violation of Anti-Graft and
Corrupt Practices Act, Sub-Section A.

Under the Anti-Graft and Corrupt Practices Act,

particularly Section 3, there are several acts
defined as corrupt practices. Some of them are
mere repetitions of the act already penalized
under the Revised Penal Code, like prohibited
transactions under Article 215 and 216. In such
a case, the act or omission remains to be mala in
se.

Graft and Corrupt Practices Act. His only course

of action to avoid prosecution under the Antigraft and Corrupt Practices Act is to sell his
interest in the enterprise which has filed an
application before that board, panel or group
where he is a member. Or otherwise, he should
resign from his public position.

But there are acts penalized under the Anti-Graft

and Corrupt Practices Act which are not
penalized under the Revised Penal Code. Those
acts may be considered as mala prohibita.
Therefore, good faith is not a defense.

Illustration:

Illustration:
CATCH ALL PROVISION
Section 3 (e) of the Anti-Graft and Corrupt
Practices Act causing undue injury to the
government or a private party by giving
unwarranted benefit to the party whom does not
deserve the same.
In this case, good faith is not a defense because it
is in the nature of a malum prohibitum.
Criminal intent on the part of the offender is not
required. It is enough that he performed the
prohibited act voluntarily.
Even though the
prohibited
act
may
have
benefited
the
government.
The crime is still committed
because the law is not after the effect of the act
as long as the act is prohibited.
Section 3 (g) of the Anti-Graft and Corrupt
Practices Act where a public officer entered into
a contract for the government which is manifestly
disadvantageous to the government even if he did
not profit from the transaction, a violation of the
Anti-Graft and Corrupt Practices Act is
committed.
If a public officer, with his office and a private
enterprise had a transaction and he allows a
relative or member of his family to accept
employment in that enterprise, good faith is not a
defense because it is a malum prohibitum. It is
enough that that the act was performed.
Where the public officer is a member of the
board, panel or group who is to act on an
application of a contract and the act involved one
of discretion, any public officer who is a member
of that board, panel or group, even though he
voted against the approval of the application, as
long as he has an interest in that business
enterprise whose application is pending before
that board, panel or group, the public officer
concerned shall be liable for violation of the Anti-

Sen. Dominador Aytono had an interest in the

Iligan Steel Mills, which at that time was being
subject of an investigation by the Senate
Committee of which he was a chairman. He was
threatened with prosecution under Republic Act
No. 3019 so he was compelled to sell all his
interest in that steel mill; there is no defense.
Because the law says so, even if he voted against
it, he commits a violation thereof.
These cases are filed with the Ombudsman and
not with the regular prosecutors office.
Jurisdiction
is
exclusively
with
the
Sandiganbayan. The accused public officer must
be suspended when the case is already filed with
the Sandiganbayan.
Under the Anti-Graft and Corrupt Practices Act,
the public officer who is accused should not be
automatically suspended upon the filing of the
information in court. It is the court which will
order the suspension of the public officer and not
the superior of that public officer. As long as the
court has not ordered the suspension of the
public officer involved, the superior of that public
officer is not authorized to order the suspension
simply because of the violation of the Anti-Graft
and Corrupt Practices Act. The court will not
order the suspension of the public officer without
first passing upon the validity of the information
filed in court. Without a hearing, the suspension
would be null and void for being violative of due
process.
Illustration:
A public officer was assigned to direct traffic in a
very busy corner. While there, he caught a thief
in the act of lifting the wallet of a pedestrian. As
he could not leave his post, he summoned a
civilian to deliver the thief to the precinct. The
civilian agreed so he left with the thief. When
they were beyond the view of the policeman, the
civilian allowed the thief to go home. What would
be the liability of the public officer?

The liability of the traffic policeman would be

merely administrative. The civilian has no liability
at all.
Firstly, the offender is not yet a prisoner so there
is no accountability yet. The term prisoner
refers to one who is already booked and
incarcerated no matter how short the time may
be.
The policeman could not be said as having
assisted the escape of the offender because as
the problem says, he is assigned to direct traffic
in a busy corner street. So he cannot be
considered as falling under the third 3rd
paragraph of Article 19 that would constitute his
as an accessory.
The same is true with the civilian because the
crime committed by the offender, which is
snatching or a kind of robbery or theft as the
case may be, is not one of those crimes
mentioned under the third paragraph of Article
19 of the Revised Penal Code.
Where the public officer is still incumbent, the
prosecution shall be with the Ombudsman.
Where the respondent is separated from service
and the period has not yet prescribed, the
information shall be filed in any prosecutions
office in the city where the respondent resides.
The prosecution shall file the case in the Regional
Trial Court unless the violation carries a penalty
higher than prision correccional, in which case
the Sandiganbayan has jurisdiction.
The fact that the government benefited out of the
prohibited act is no defense at all, the violation
being mala prohibita.
Section 3 (f) of the Anti-Graft and Corrupt
Practices Act where the public officer neglects
or refuses to act on a matter pending before him
for the purpose of obtaining any pecuniary or
material benefit or advantage in favor of or
discriminating against another interested party.
The law itself additionally requires that the
accuseds dereliction, besides being without
justification, must be for the purpose of obtaining
from any person interested in the matter some
pecuniary or material benefit or for the purpose
of favoring any interested party, or discriminating
against another interested party. This element is
indispensable.
In other words, the neglect or refusal to act must
motivated by gain or benefit, or purposely to favor

the other interested party as held in Coronado v.

SB, decided on August 18, 1993.
Republic Act No. 1379 (Forfeiture of Ill-gotten
Wealth)
Correlate with RA 1379 -- properly under
Remedial Law. This provides the procedure for
forfeiture of the ill-gotten wealth in violation of
the Anti-Graft and Corrupt Practices Act. The
proceedings are civil and not criminal in nature.
Any taxpayer having knowledge that a public
officer has amassed wealth out of proportion to
this legitimate income may file a complaint with
the prosecutors office of the place where the
public officer resides or holds office. The
prosecutor conducts a preliminary investigation
just like in a criminal case and he will forward
his findings to the office of the Solicitor General.
The Solicitor General will determine whether
there is reasonable ground to believe that the
respondent has accumulated an unexplained
wealth.
If the Solicitor General finds probable cause, he
would file a petition requesting the court to issue
a writ commanding the respondent to show cause
why the ill-gotten wealth described in the petition
should not be forfeited in favor of the government.
This is covered by the Rules on Civil Procedure.
The respondent is given 15 days to answer the
petition.
Thereafter
trial
would
proceed.
Judgment is rendered and appeal is just like in a
civil case. Remember that this is not a criminal
proceeding. The basic difference is that the
preliminary investigation is conducted by the
prosecutor.
FRAUDS AND ILLEGAL EXACTIONS AND
TRANSACTIONS
Article 213
FRAUDS AGAINST PUBLIC TREASURY

ELEMENTS: (par. 1)
a. That the offender be a public officer.
b. That he should have taken advantage
of his office, that is, he intervened in
the transaction in his official capacity.
c.

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, or (c) the

adjustment or settlement of account

relating to a public property or funds.
d. That the accused had intent to defraud
the government.

* Be sure to determine whether fraud is against

public treasury or one under Article 214.
ILLEGAL EXACTIONS (par 2)

Notes:
> The public officer must act in his official
capacity
> The felony is consummated by merely entering
into an agreement with any interested party or
speculator or by merely making use of any
scheme to defraud the Government
* The essence of this crime is making the
government pay for something not received or
making it pay more than what is due. It is also
committed by refunding more than the amount
which should properly be refunded. This occurs
usually in cases where a public officer whose
official duty is to procure supplies for the
government or enter into contract for government
transactions, connives with the said supplier
with the intention to defraud the government.
Also when certain supplies for the government
are purchased for the high price but its quantity
or quality is low.
* Not all frauds will constitute this crime. There
must be no fixed allocation or amount on the
matter acted upon by the public officer.
* The allocation or outlay was made the basis of
fraudulent quotations made by the public officer
involved.
For example, there was a need to put some
additional lighting along a street and no one
knows how much it will cost.
An officer was
asked to canvass the cost but he connived with
the seller of light bulbs, pricing each light bulb at
P550.00 instead of the actual price of P500.00.
This is a case of fraud against public treasury.
If there is a fixed outlay of P20,000.00 for the
lighting apparatus needed and the public officer
connived with the seller so that although
allocation was made a lesser number was asked
to be delivered, or of an inferior quality, or
secondhand.
In this case there is no fraud
against the public treasury because there is a
fixed allocation.
The fraud is in the
implementation of procurement.
That would
constitute the crime of other fraud in Article 214,
which is in the nature of swindling or estafa.

ELEMENTS:
a. The offender is a public officer
entrusted with the collection of taxes,
licenses, fees and other imposts.
b.

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

2.

failing voluntarily to issue a receipt, as

provided by law, for any sum of money
collected by him officially, or

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.

Notes:

* This can only be committed principally by a

public officer whose official duty is to collect
taxes, license fees, import duties and other dues
payable to the government.
* Not any public officer can commit this crime.
Otherwise, it is estafa. Fixers cannot commit this
crime unless he conspires with the public officer
authorized to make the collection.
* The essence of the crime is not misappropriation
of any of the amounts but the improper making
of the collection which would prejudice the
accounting of collected amounts by the
government.
* Mere demand of a larger or different amount is
sufficient to consummate the crime. The essence
is the improper collection (damage to govt is not
required)
On the first form of illegal exaction
In this form, mere demand will consummate the
crime, even if the taxpayer shall refuse to come
across with the amount being demanded. That
will not affect the consummation of the crime.

> In the demand, it is not necessary that the

amount being demanded is bigger than what is
payable to the government. The amount being
demanded maybe less than the amount due the
government.
* If sums are received without demanding the
same, a felony under this article is not
committed. However, if the sum is given as a sort
of gift or gratification, the crime is indirect
bribery
* When there is deceit in demanding larger fees,
the crime committed is estafa
* May be complexed with malversation
* Note that this is often committed with
malversation or estafa because when a public
officer shall demand an amount different from
what the law provides, it can be expected that
such public officer will not turn over his
collection to the government.
Illustrations:
(1)

(2)

A taxpayer goes to the local municipal

treasurer to pay real estate taxes on his land.
Actually, what is due the government is
P400.00 only but the municipal treasurer
demanded P500.00. By that demand alone,
the crime of illegal exaction is already
committed even though the taxpayer does not
pay the P500.00.
Suppose the taxpayer came across with
P500.00. But the municipal treasurer, thinking
that he would abstract the P100.00, issued a
receipt for only P400.00. The taxpayer would
naturally ask the municipal treasurer why the
receipt was only for P400.00. The treasurer
answered that the P100.00 is supposed to be
for documentary stamps. The taxpayer left.

He has a receipt for P400.00. The municipal

treasurer turned over to the government coffers
P400.00 because that is due the government
and pocketed the P100.00.
The mere fact that there was a demand for an
amount different from what is due the
government, the public officer already
committed the crime of illegal exaction.
On the P100.00 which the public officer pocketed,
will it be malversation or estafa?

In the example given, the public officer did not

include in the official receipt the P100.00 and,
therefore, it did not become part of the public
funds. It remained to be private. It is the
taxpayer who has been defrauded of his
P100.00 because he can never claim a refund
from the government for excess payment since
the receipt issued to him was only P400.00
which is due the government. As far as the
P100.00 is concerned, the crime committed is
estafa.
(3) A taxpayer pays his taxes. What is due the
government is P400.00 and the public officer
issues a receipt for P500.00 upon payment of
the taxpayer of said amount demanded by the
public officer involved. But he altered the
duplicate to reflect only P400.00 and he
extracted the difference of P100.00.
In this case, the entire P500.00 was covered
by an official receipt. That act of covering the
whole amount received from the taxpayer in
an official receipt will have the characteristics
of becoming a part of the public funds. The
crimes committed, therefore, are the following:
(a) Illegal exaction for collecting more than
he is authorized to collect. The mere act of
demanding is enough to constitute this
crime.
(b) Falsification because there was an
alteration of official document which is
the duplicate of the official receipt to show
an amount less than the actual amount
collected.
(c) Malversation because of his act of
misappropriating the P100.00 excess
which was covered by an official receipt
already, even though not payable to the
government.
The entire P500.00 was
covered by the receipt, therefore, the whole
amount became public funds. So when he
appropriated the P100 for his own benefit,
he was not extracting private funds
anymore but public funds.
Should the falsification be complexed with the
malversation?
As far as the crime of illegal exaction is
concerned, it will be the subject of separate
accusation because there, the mere demand
regardless of whether the taxpayer will pay or
not, will already consummate the crime of

illegal exaction. It is the breach of trust by a

public officer entrusted to make the collection
which is penalized under such article. The
falsification or alteration made on the duplicate
can not be said as a means to commit
malversation.
At most, the duplicate was
altered in order to conceal the malversation. So
it cannot be complexed with the malversation.
It cannot also be said that the falsification is a
necessary means to commit the malversation
because the public officer can misappropriate
the P100.00 without any falsification. All that
he has to do is to get the excess of P100.00 and
misappropriate it.
So the falsification is a
separate accusation.
However, illegal exaction may be complexed with
malversation because illegal exaction is a
necessary means to be able to collect the
P100.00 excess which was malversed.
In this crime, pay attention to whether the
offender is the one charged with the collection
of the tax, license or impost subject of the
misappropriation.
If he is not the one
authorized by disposition to do the collection, the
crime of illegal exaction is not committed.
If it did not give rise to the crime of illegal
exaction, the funds collected may not have
become part of the public funds. If it had not
become part of the public funds, or had not
become impressed with being part of the public
funds, it cannot be the subject of malversation.
It will give rise to estafa or theft as the case may
be.
(3) The Municipal Treasurer demanded P500.00
when only P400.00 was due. He issued the
receipt at P400.00 and explained to taxpayer
that the P100 was for documentary stamps.
The Municipal Treasurer placed the entire
P500.00 in the vault of the office. When he
needed money, he took the P100.00 and spent
it.

Although the excess P100.00 was not

covered by the Official Receipt, it was
commingled with the other public funds in the
vault; hence, it became part of public funds
and
subsequent
extraction
thereof
constitutes malversation.

Note that numbers 1 and 2 are complexed as

illegal exaction with estafa, while in number 3,
malversation is a distinct offense.
* The issuance of the Official Receipt is the
operative fact to convert the payment into public
funds. The payor may demand a refund by virtue
of the Official Receipt.
* In cases where the payor decides to let the
official to keep the change, if the latter should
pocket the excess, he shall be liable for
malversation. The official has no right but the
government, under the principle of accretion, as
the owner of the bigger amount becomes the
owner of the whole.
On the second form of illegal exaction
The act of receiving payment due the government
without issuing a receipt will give rise to illegal
exaction even though a provisional receipt has
been issued. What the law requires is a receipt in
the form prescribed by law, which means official
receipt.
Illustration:
If a government cashier or officer to whom
payment is made issued a receipt in his own
private form, which he calls provisional, even
though he has no intention of misappropriating
the amount received by him, the mere fact that
he issued a receipt not in the form prescribed by
law, the crime of illegal exaction is committed.
There must be voluntary failure to issue the
Official Receipt.
On the third form of illegal exaction

(a) Illegal exaction for demanding a different

amount;

Under the rules and regulations of the government,

payment of checks not belonging to the taxpayer,
but that of checks of other persons, should not be
accepted to settle the obligation of that person.

(b) Estafa for deceiving the taxpayer; and

Illustration:

(c) Malversation for getting the P100.00 from

the vault.

A taxpayer pays his obligation with a check not

his own but pertaining to another. Because of
that, the check bounced later on.

The following crimes were committed:

The crime committed is illegal exaction because

the payment by check is not allowed if the check
does not pertain to the taxpayer himself, unless
the check is a managers check or a certified
check, amended already as of 1990. (See the
case of Roman Catholic.)
* Under Article 213, if any of these acts penalized
as illegal exaction is committed by those
employed in the Bureau of Customs or Bureau of
Internal Revenue, the law that will apply to them
will be the Revised Administrative Code or the
Tariff and Customs Code or National Revenue
Code.
* This crime does not require damage to the
government.
Officers and employees of the BIR or Customs
are not covered by the article.
The NIRC or Administrative Code is
the applicable law
>These officers are authorized to make
impositions and to enter into compromises.
Because of this discretion, their demanding or
collecting different from what is necessary is legal
Article 214
OTHER FRAUDS

That he becomes interested, directly or

indirectly,
in
any
transaction
of
exchange or speculation.

c.

That the transaction takes place within

the territory subject to his jurisdiction.

d. That he becomes interested in

transaction during his incumbency.

c.

That he takes advantage of his official

position.
That he commits any of the frauds or
deceits enumerated in art. 315 to 318.
(estafa; swindling)
Note: RTC has jurisdiction over the offense
because
the
principal
penalty
is
disqualification

Article 215
PROHIBITED TRANSACTIONS

ELEMENTS:
a. That the offender is an appointive public
officer.

the

Notes:
Examples of transactions of exchange or
speculation are: buying and selling stocks,
commodities, land etc wherein one hopes to take
advantage of an expected rise or fall in price
* Purchasing of stocks or shares in a company is
simple investment and not a violation of the
article. However, regularly buying securities for
resale is speculation
Article 216
POSSESSION OF PROHIBITED INTERESTS BY
A PUBLIC OFFICER

Who are liable:

a. Public officer in any contract or business
in which it is his official duty to intervene.
b.

ELEMENTS:
a. That the offender is a public officer.
b.

b.

Experts,
arbitrators
and
private
accountants in any contract or
transaction connected with the estate or
property in the approval, distribution or
adjudication of which they had acted.

Guardians and executors with respect to

property belonging to their wards or the
estate.

Notes:
> Actual fraud is not necessary.
c.

* Act is punished because of the possibility that

fraud may be committed or that the officer may
place his own interest above that of the
Government or party which he represents
* The mere violation of the prohibition is already
punished even if no actual fraud occurs because
of the possibility that fraud may be committed or
that the officer may place his own interest above
that of the government or party he represents.
(U. S. vs. Udarbe, 28 Phil. 383)
Section 14, Article VI of the Constitution

No Senator or Member of the House of

Representatives may personally appear as
counsel before any court of justice or before the
Electoral Tribunals, or quasi-judicial and other
administrative bodies. Neither shall he, directly
or indirectly, be interested financially in any
contract with, or in any franchise or special
privilege granted by the Government or any
subdivision, agency or instrumentality thereof,
including any government-owned or controlled
corporation or its subsidiary, during his term of
office. He shall not intervene in any matter
before any office of the government for his
pecuniary benefit or where he may be called
upon to act on account of his office.
Section 13, Article VII of the Constitution
The
President,
Vice-President,
the
Members of the Cabinet and their deputies or
assistant shall not, unless otherwise provided in
this Constitution, hold any other office or
employment during their tenure. They shall not,
during said tenure, directly or indirectly, practice
any other profession, participate in any business,
or be financially interested in any contract with,
or in any franchise, or special privilege granted
by the Government or any subdivision, agency or
instrumentality thereof, including governmentowned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.

Section 2, Article IX-A of the Constitution

No
member
of
a
Constitutional
Commission shall, during his tenure, hold any
office or employment. Neither shall he engage in
the practice of any profession or in the active
management or control of any business which in
any way may be affected by the functions of his
office, nor shall he be financially interested,
directly or indirectly, in any contract with, or in
any franchise or privilege granted by the
government, or any of its subdivisions, agencies,
or instrumentalities, including governmentowned or controlled corporations or their
subsidiaries.

MALVERSATION OF PUBLIC FUNDS OR

PROPERTY
Article 217
MALVERSATION OF PUBLIC FUNDS OR
PROPERTY

ELEMENTS COMMON TO ALL ACTS

MALVERSATION OF PUBLIC FUNDS OR
PROPERTY :
a. That the offender be a public officer (or
private person if entrusted with public
funds or connived with public officers)

b. That he had the custody or control of

funds or property (if not accountable for the
funds, theft or qualified theft)
c. That those funds or property were public
funds or property (even if private funds if
attached, seized, deposited or commingled with
public funds)
d. That he:
1. Appropriated the funds or property
2.

Took or misappropriated them

3.

Consented or, through abandonment or

negligence, permitted any other person to
take such public funds or property. (it is not
necessary that the offender profited
thereby. His being remiss in the duty of
safekeeping public funds violates the trust
reposed)

Concept of Malversation
It consists in the misappropriation or conversion
of public funds or property to ones personal use
or knowingly, or through abandonment or
negligence allowing other to use or appropriate
the same. The offender is made liable because of
the nature of his duties to take care of the funds
or property entrusted to him with the diligence of
a good father of a family. He is accountable by
virtue of the nature of his office to account for
funds or properties that come to his possession.
If he is not accountable for the funds or properties
and he misappropriates the same, the crime will
not be malversation but estafa under Article 315.

Malversation
embezzlement

is

otherwise

called

* This crime is predicated on the relationship of

the offender to the property or funds involved.
The offender must be accountable for the
property misappropriated.
If the fund or
property, though public in character is the
responsibility of another officer, malversation is
not committed unless there is conspiracy.

* In determining whether the offender is liable for

malversation, it is the nature of the duties of the
public officer that controls. While the name of the
office is important, what is controlling is whether
in performing his duties as a public officer, he
has to account or is required by the nature of the
performance of a duty, to render an account on
the money or property that came into his
possession.
* It is not necessary that the offender profited
because
somebody
else
may
have
misappropriated the funds in question for as long
as the accountable officer was remiss in his duty
of safekeeping public funds or property. He is
liable for malversation if such funds were lost or
otherwise misappropriated by another.

It can be committed either with malice or

through negligence or imprudence

* There is no crime of malversation through

negligence. The crime is malversation, plain and
simple, whether committed through dolo or
culpa. There is no crime of malversation under
Article 365 on criminal negligence because in
malversation under Article 217, the
same
penalty is imposed whether the malversation
results from negligence or was the product of
deliberate act.

In determining whether the offender is a

public officer, what is controlling is the
nature of his office and not the designation

* The offender, to commit malversation, must be

accountable
for
the
funds
or
property
misappropriated by him. If he is not the one
accountable but somebody else, the crime
committed is theft. It will be qualified theft if
there is abuse of confidence.
* Accountable officer does not refer only to
cashier,
disbursing
officers
or
property
custodian. Any public officer having custody of
public funds or property for which he is
accountable can commit the crime of malversation
if he would misappropriate such fund or property
or allow others to do so.

The funds or property must be received in an

official capacity. Otherwise, the crime
committed is estafa

* When private property is attached or seized by

public authority and the public officer accountable

therefor misappropriates the same, malversation is

committed also.
Illustration:
If a sheriff levied the property of the defendants
and absconded with it, he is not liable of qualified
theft but of malversation even though the
property belonged to a private person.
The
seizure of the property or fund impressed it with
the character of being part of the public funds it
being in custodia legis. For as long as the public
officer is the one accountable for the fund or
property that was misappropriated, he can be
liable for the crime of malversation. Absent such
relation, the crime could be theft, simple or
qualified.
Estafa
It is usually committed
by a private individual
Funds or property of
misappropriation
are
privately owned.
The
offender
appropriates personally
the funds or property.

Malversation
Committed
by
accountable
public
officers
The object is public
fund or property.
Personal appropriation
is not indispensable
because
allowing
others to commit the
misappropriation
is
also malversation.

When a public officer has official custody or

the duty to collect or receive funds due the
government, or the obligation to account for
them, his misappropriation of the same
constitutes malversation

* Note that the moment any money is

commingled with the public fund even if not due
the government, it becomes impressed with the
characteristic of being part of public funds. Once
they are commingled, you do not know anymore
which belong to the government and which
belong to the private persons. So that a public
vault or safe should not be used to hold any fund
other that what is due to the government.

In
malversation
thru
negligence,
the
negligence of the accountable public officer
must be positively and clearly shown to be
inexcusable, approximating fraud or malice

> Under jurisprudence, when the public officer

leaves his post without locking his drawer, there
is negligence. Thus, he is liable for the loss.

The measure of negligence to be observed is

the standard of care commensurate with the
occasion

* Payment of the amount misappropriated or

restitution of property misappropriated does not
erase criminal liability but only civil liability.

When malversation is not committed through

negligence, lack of criminal intent or good
faith is a defense

There is also no malversation when the

accountable officer is obliged to go out of his
office and borrow the amount corresponding
to the shortage and later, the missing
amount is found in an unaccustomed place

A person whose negligence made possible the

commission of malversation by another can
be held liable as a principal by indispensable
cooperation

The failure of a public officer to have any duly

forthcoming public funds or property upon
demand, by any authorized officer, shall be
prima facie evidence that he has put such
missing funds or property to personal use.
However, if at the very moment when the
shortage is discovered, the accountable
officer is notified, and he immediately pays
the amount from his pocket, the presumption
does not arise
* An accountable public officer may be convicted
even if there is no direct evidence of
misappropriation and the only evidence is the
shortage in his account which he has not been
able to explain satisfactorily. (Palma Gil vs.
People)

* If a public officer reports the loss of money

before a cash examination is conducted and the
cause of the loss as reported has a distinct ring
of truth to it, the legal presumption of prima facie
evidence of guilt will not apply. In order to
support conviction, the prosecution must prove
the actual misappropriation of the missing funds.
(Salvacion vs. The Honorable Sandiganbayan,
G. R. No. 68233, July 11, 1986)
* To rebut the presumption of guilt prima facie
under Article 217, the accused must raise the
issue of accuracy, correctness and regularity in
the conduct of audit. If asked for a second audit
before the filing of the information against him
and the same was denied, and during the trial,
some disbursement vouchers were introduced
which were not considered in the first audit, the
denial of the request for a second audit is fatal to
the cause of the prosecution because in the
meantime, the evidence introduced does not
establish a fact beyond reasonable doubt. Had
the re-audit requested by the accused been
accorded due course, the remaining balance
could have been satisfactorily accounted for.
(Mahinay vs. The Sandiganbayan. G. R. No.
61442, May 9, 1989)

Returning the embezzled funds

exempting, it is only mitigating

is

not

* It is not necessary that the accountable public

officer should actually misappropriate the fund
or property involved. It is enough that he has
violated the trust reposed on him in connection
with the property.

Demand as well as damage to

government are not necessary elements

the

* Note that damage on the part of the government

is not considered an essential element. It is
enough that the proprietary rights of the
government over the funds have been disturbed
through breach of trust.
* The grant of loans through the vale system is a
clear case of an accountable officer consenting to
the improper or unauthorized use of public funds
by other persons, which is punishable by law. To
tolerate such a practice is to give a license to
every disbursing officer to conduct a lending
operation with the use of public funds. There is
no law or regulation allowing accountable officers
to extend loans to anyone against the vales or
chits given in exchange by the borrowers.
(Meneses vs. Sandiganbayan)
A

private
person
may
malversation
under
situations:

also
commit
the
following

(1)

Conspiracy with a public

committing malversation;

officer

in

(2)

When he has become an accomplice or

accessory to a public officer who commits
malversation;

(3)

When the private person is made the

custodian in whatever capacity of public
funds or property, whether belonging to

national or local government, and he

misappropriates the same;
(4)

When he is constituted as the depositary

or administrator of funds or property
seized or attached by public authority
even though said funds or property belong
to a private individual.

* Technical malversation is not included in the

crime of malversation.
In malversation, the
offender misappropriates public funds or
property for his own personal use, or allows any
other person to take such funds or property for
the latters own personal use.
In technical
malversation, the public officer applies the public
funds or property under his administration to
another public use different from that for which
the public fund was appropriated by law or
ordinance.
Recourse:
File
the
proper
information.
Article 218
FAILURE OF ACCOUNTABLE
RENDER ACCOUNTS

OFFICER

c.

That he must be an accountable officer

for public funds property.
That he is required by law or
regulation to render accounts to the
commission on audit, or to a provincial
auditor.

d. That he fails to do so for a period of

two months after such accounts should
be rendered.
The public officers who are bound to render
accounts are the following:
1. cashiers
2. storekeepers
3. warehousemen and
4. those who by the nature of their position
become custodian or public funds or
property.

Article 219
FAILURE
OF
A
RESPONSIBLE
PUBLIC
OFFICER TO RENDER ACCOUNTS BEFORE
LEAVING THE COUNTRY

ELEMENTS:
a. That the offender is a public officer.
b.

That he must be an accountable officer

for public funds or property.

c.

That 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.

TO

ELEMENTS:
a. That the offender is a public officer,
whether in the service or separated
therefrom.
b.

* It is sufficient that there is a law or regulation

requiring him to render an account. It is the
failure to follow the requirement of the law that is
made punishable. It is not necessary that the
offender prevent the situation of the crime being
committed because of the failure of the
accountable officer to render an account.

Note: Demand and misappropriation are not

necessary

Who can commit this crime?

A responsible public officer, not necessarily an
accountable one, who leaves the country without
first securing clearance from the Commission on
Audit.
Note: The act of leaving the Philippines must
be unauthorized or not permitted by law

* Mere leaving without securing clearance

constitutes violation of the Revised Penal Code. It
is not necessary that they really misappropriated
public funds.
Article 220
ILLEGAL USE OF PUBLIC FUNDS
PROPERTY (Technical Malversation)

OR

ELEMENTS:
a. That the offender is a public officer.
b.

That there is public fund or property

under his administration.

c.

That such public fund or property has

been appropriated by law or ordinance
(without this, it is simple malversation even
if applied to other public purpose).

d. That he applies the same to a public

use other than for which such fund or
property has been appropriated by law
or ordinance.
* The term TECHNICAL MALVERSATION is used
because in this crime, the fund or property
involved is already appropriated or earmarked for
a certain public purpose.
* The offender is entrusted with such fund or
property only to administer or apply the same to
the public purpose for which it was appropriated
by law or ordinance. Instead of applying it to the
public purpose to which the fund or property was
already appropriated by law, the public officer
applied it to another purpose.

To distinguish this article with Art 217, just

remember that in illegal use of public funds
or property, the offender does not derive any
personal gain, the funds are merely devoted
to some other public use

Absence of damage is only a mitigating

circumstance

* Since damage is not an element of malversation,

even though the application made proved to be
more beneficial to public interest than the
original purpose for which the amount or
property was appropriated by law, the public
officer involved is still liable for technical
malversation.
* If public funds were not yet appropriated by law
or ordinance, and this was applied to a public
purpose by the custodian thereof, the crime is
plain and simple malversation, not technical
malversation. If the funds had been appropriated
for a particular public purpose, but the same was
applied to private purpose, the crime committed is
simple malversation only.
Illustration:
The office lacked bond papers.
What the
government cashier did was to send the janitor,
get some money from his collection, told the
janitor to buy bond paper so that the office will
have something to use. The amount involved
maybe immaterial but the cashier commits
malversation pure and simple.

A certain road is to be cemented. Bags of cement

were already being unloaded at the side. But
then, rain began to fall so the supervisor of the
road building went to a certain house with a
garage, asked the owner if he could possibly
deposit the bags of cement in his garage to
prevent the same from being wet. The owner of
the house, Olive, agreed. So the bags of cement
were transferred to the garage of the private
person. After the public officer had left, and the
workers had left because it is not possible to do
the cementing, the owner of the garage started
using some of the cement in paving his own
garage. The crime of technical malversation is
also committed.
* Note that when a private person is constituted as
the custodian in whatever capacity, of public
funds or property, and he misappropriates the
same, the crime of malversation is also committed.
See Article 222.
Illustration:
The
payroll
money
for
a
government
infrastructure project on the way to the site of
the project, the officers bringing the money were
ambushed. They were all wounded. One of
them, however, was able to get away from the
scene of the ambush until he reached a certain
house. He told the occupant of the house to
safeguard the amount because it is the payroll
money of the government laborers of a particular
project. The occupant of the house accepted the
money for his own use. The crime is not theft
but malversation as long as he knew that what
was entrusted in his custody is public fund or
property.
Article 221
FAILURE TO MAKE DELIVERY OF PUBLIC
FUNDS OR PROPERTY
ELEMENTS:
a. Offender has govt funds or property in
his possession
b.

2. to deliver property in his custody or

administration when ordered by
competent authority

* This crime can also be committed by a private

person.
Illustration:

He is under obligation to either:

1.
make payment from such funds

c.

He maliciously fails or refuses to do so

Note: Penalty is based on

funds/property to be delivered

value

d. That he was in connivance with the

prisoner in the latters escape

of

Article 222
PERSONS WHO MAY BE HELD LIABLE UNDER
ARTS 217 TO 221

DETENTION PRISONER: refers to a person

in legal custody, arrested for and charged
with some crime or public offense

a. Private individual who, in any capacity,

have charge of any national, provincial
or
municipal
funds,
revenue,
or
property

The release of a detention prisoner who could

not be delivered to judicial authorities within
the time fixed by law is not infidelity in the
custody of a prisoner. Neither is mere
leniency or laxity in the performance of duty
constitutive of infidelity

There is real and actual evasion of service of

sentence when the custodian permits the
prisoner to obtain a relaxation of his
imprisonment

b.

Administrator or depositary of funds or

property that has been attached, seized
or deposited by public authority, even if
owned by a private individual

Sheriffs and receivers fall under the term

administrator

A judicial administrator in charge of settling

the estate of the deceased is not covered by
the article

* Here, the funds or property belong to private

individuals, but they are considered public funds
or property if they come to the possession of the
public officer because of 1) a writ of attachment;
or 2) if they are seized by virtue of a search
warrant. Or 3) if they are ordered deposited
pending determination of ownership in the
administrative or judicial proceedings.

* A municipal mayor who utilized the prisoners

services for domestic chores in his house,
including using him as a cook is liable for
faithlessness in the custody of prisoner (Art. 223)
even though the convict may not have fled, in as
much as the prisoners leaving the prison was
effected through him. (People vs. Evangelista,
C.A. 38 O.G. 158).

Article 224
EVASION THROUGH NEGLIGENCE

* Private individuals may also be liable for

malversation if they act as conspirators in the
commission of the crime.

ELEMENTS:
a. That the offender is a public officer.
b.

That he is charged with the conveyance

or custody of a prisoner, either
detention prisoner or prisoner by final
judgment.

c.

That such prisoner escapes through his

negligence.

INFIDELITY OF PUBLIC OFFICERS

Article 223
CONNIVING
EVASION

WITH

OR

CONSENTING

TO

ELEMENTS:
a. That the offender is a public officer (on
duty).
b.

c.

That he is charged with the conveyance

or custody of a prisoner, either
detention prisoner or prisoner by final
judgment.
That such prisoner escaped from his
custody

d. Penalty
based
imprisonment

on

nature

of

The article punishes a definite laxity which

amounts to deliberate non-performance of a
duty

* Not every error is negligence under this article.

To be liable, the negligence must be notorious and
apparent. The laxity must be definite and must

seriously suggest a deliberate non-performance of

a duty.

agreed to have the custody or charge of the

prisoner or person under arrest.

* The negligence which is punishable however is

not such definite laxity at all but that which
amounts to deliberate non-performance of the
jailer or the guard. So that if a policemen on
guard duty unlocked the door of the jail to let a
detention prisoner go out so he can clean the
premises, but on the latters third trip to a
nearby faucet, he walked behind the police
headquarters climbed over the wall and escape,
the crime is not committed. (People vs. Solis,
C.A. 43 O.G. 580).

ORTEGA NOTES:

The fact that the public officer recaptured the

prisoner who had escaped from his custody
does not afford complete exculpation

The liability of an escaping prisoner:

a. if he is a prisoner by final judgment,
he is liable for evasion of service (art
157)
b. if he is a detention prisoner, he does
not incur criminal liability (unless
cooperating with the offender).

Article 225
ESCAPE
OF
PRISONERS
UNDER
THE
CUSTODY OF A PERSON NOT A PUBLIC
OFFICER

ELEMENTS:
a. That the offender is a private person
(note: must be on duty)
b.

That the conveyance or custody of a

prisoner or person under arrest is
confined to him.

c.

That the prisoner

arrest escapes.

or

person

under

d. That the offender consents to the

escape of the prisoner or person under
arrest, or that the escape takes place
through his negligence

Note: This article is not applicable if a private

person made the arrest and he consented to
the escape of the person he arrested

* The offender under this article is not the one

who arrested the escaping prisoner but one who

The crime is infidelity in the custody of prisoners

if the offender involved is the custodian of the
prisoner.
If the offender who aided or consented to the
prisoners escaping from confinement, whether
the prisoner is a convict or a detention prisoner,
is not the custodian, the crime is delivering
prisoners from jail under Article156.
The crime of infidelity in the custody of prisoners
can be committed only by the custodian of the
prisoner.
If the jail guard who allowed the prisoner to
escape is already off-duty at that time and he is
no longer the custodian of the prisoner, the crime
committed by him is delivering prisoners from
jail.
Note that you do not apply here the principle of
conspiracy that the act of one is the act of all.
The party who is not the custodian who
conspired with the custodian in allowing the
prisoner to escape does not commit infidelity in
the custody of the prisoner. He commits the
crime of delivering prisoners from jail.

Question & Answer

If a private person approached the
custodian of the prisoner and for a certain
consideration, told the custodian to leave the door
of the cell unlocked for the prisoner to escape.
What crime had been committed?
It is not infidelity in the custody of
prisoners because as far as the private person is
concerned, this crime is delivering prisoners from
jail. The infidelity is only committed by the
custodian.
This crime can be committed also by a private
person if the custody of the prisoner has been
confided to a private person.
Illustration:
A policeman escorted a prisoner to court. After the
court hearing, this policeman was shot at with a
view to liberate the prisoner from his custody. The

policeman fought the attacker but he was fatally

wounded. When he could no longer control the
prisoner, he went to a nearby house, talked to the
head of the family of that house and asked him if
he could give the custody of the prisoner to him.
He said yes. After the prisoner was handcuffed in
his hands, the policeman expired. Thereafter, the
head of the family of that private house asked the
prisoner if he could afford to give something so
that he would allow him to go. The prisoner said,
Yes, if you would allow me to leave, you can come
with me and I will give the money to you. This
private persons went with the prisoner and when
the money was given, he allowed him to go. What
crime/s had been committed?
Under Article 225, the crime can be committed
by a private person to whom the custody of a
prisoner has been confided.
Where such private person, while performing a
private function by virtue of a provision of law,
shall accept any consideration or gift for the nonperformance of a duty confided to him, Bribery is
also committed. So the crime committed by him
is infidelity in the custody of prisoners and
bribery.
If the crime is delivering prisoners from jail,
bribery is just a means, under Article 156, that
would call for the imposition of a heavier penalty,
but not a separate charge of bribery under Article
156.
But under Article 225 in infidelity, what is
basically punished is the breach of trust because
the offender is the custodian. For that, the crime
is infidelity. If he violates the trust because of
some consideration, bribery is also committed.

prisoner in the comfort room is a case of

negligence and therefore the custodian is liable
for infidelity in the custody of prisoner.
Prison guard should not go to any other place not
officially called for. This is a case of infidelity in
the custody of prisoner through negligence under
Article 224.
INFIDELITY IN CUSTODY OF DOCUMENTS
Article 226
REMOVAL, CONCEALMENT, OR DESTRUCTION
OF DOCUMENTS

ELEMENTS:
a. That the offender be a public officer.
b.

That he abstracts, destroys or conceals a

document or papers.

c.

That the said document or paper should

have been entrusted to such public officer
by reason of his office.

d. That damage, whether serious or not, to

a third party or to the public interest
should have been caused.
* The act of obstruction, destruction or
concealment must cause damage to a third party
or to the public interest. Damage to a third party
is usually pecuniary; but damage to public
interest may consist in mere alarm to the public
or the alienation of its confidence on any branch
of the government service.

A higher degree of vigilance is required. Failure

to do so will render the custodian liable. The
prevailing ruling is against laxity in the handling
of prisoners.

The document must be complete and one by

which a right could be established or an
obligation could be extinguished

Books, periodicals, pamphlets etc are not

documents

Illustration:

Papers would include checks, promissory

notes and paper money

A prison guard accompanied the prisoner in the

toilet. While answering the call of nature, police
officer waiting there, until the prisoner escaped.
Police officer was accused of infidelity.

> Removal of a document presupposes unlawful

appropriation of the official document.

There is no criminal liability because it does not

constitute negligence. Negligence contemplated
here refers to deliberate abandonment of duty.
Note, however, that according to a recent
Supreme Court ruling, failure to accompany lady

> Destruction means to render the document

useless. Its nature to prove the existence of a fact
is lost such that it cannot anymore prove the
probability or improbability of a fact in issue.

> Concealment on the other hand means to

make it appear that the document is not
available.

A post office official who retained the mail

without forwarding the letters to their
destination is guilty of infidelity in the
custody of papers

Delivering the document to the wrong party

is infidelity in the custody thereof

Removal of a document or paper must be for

an illicit purpose.

The damage may either be great or small

* If the removal of the document is for a lawful

purpose and that is, to secure the same from
imminent danger or loss, there is no crime
committed under the law, (Kataniag vs. People,
74 Phil. 45).

There is illicit purpose when the

intention of the offender is to:
a. tamper with it
b. to profit by it
c. to commit any act constituting a
breech of trust in the official thereof

* The act of removal, destruction or concealment

should be coupled with criminal intent or malice
(Manzanaris vs. Sandiganbayan, et al., G.R.
No. 64750, Jan. 30, 1984).

Removal is consummated upon removal or

secreting away of the document from its
usual place. It is immaterial whether or not
the illicit purpose of the offender has been
accomplished

* Removal of public records by the custodian does

not require that the record be brought out of the
premises where it is kept. It is enough that the
record be removed from the place where it should
be and transferred to another place where it is
not supposed to be kept. If damage is caused to
the public service, the public officer is criminally
liable for infidelity in the custody of official
documents.

adduced as exhibits partake the nature of a

document and not as money. Although such
monetary consideration acquires the nature
of a document, the best evidence rule does
not apply here. Example, photocopies may
be presented in evidence.

Infidelity in the custody of documents

through destruction or concealment does not
require proof of an illicit purpose
Where in case for bribery or corruption, the
monetary considerations was marked as
exhibits, such considerations acquires the
nature of a document such that if the same
would be spent by the custodian the crime is
not malversation but Infidelity in the custody
of public records, because the money

* Damage to public interest is necessary.

However, material damage is not necessary.
Although there is no material damage
caused, mere delay in rendering public
service is considered
damage.

The offender must be in custody of such

documents

Distinction between infidelity in the custody

of public document, estafa and malicious
mischief
In infidelity in the custody of public document, the
offender is the custodian of the official
document removed or concealed.
In estafa, the offender is not the custodian of the
document removed or concealed.
In malicious mischief, the offender purposely
destroyed
and
damaged
the
property/document.

Article 227
OFFICER BREAKING SEAL

ELEMENTS :
a. That the offender is a public officer.
b.

That he is charged with the custody of

papers or property.

c.

That these papers or property are sealed

by proper authority.

d. That he breaks the seals or permits them

to be broken.

It is the breaking of the seals and not the

opening of a closed envelope which is
punished

* If the official document is sealed or otherwise

placed in an official envelope, the element of
damage is not required. The mere breaking of the
seal or the mere opening of the document would
already bring about infidelity even though no
damage has been suffered by anyone or by the
public at large. The offender does not have to
misappropriate the same. Just trying to discover
or look what is inside is infidelity already.
* A crime is already committed regardless of
whether the contents of the document are secret or
private. It is enough that it is entrusted to him in
a sealed form or in a closed envelope and he
broke the seal or opened the envelop. Public
trust is already violated if he managed to look
into the contents of the document.
Distinction between infidelity and theft
There is infidelity if the offender opened the letter
but did not take the same.
There is theft if there is intent to gain when the
offender took the money.
* Note that the document must be complete in
legal sense. If the writings are mere form, there
is no crime.
Illustration:
As regard the payroll, which has not been signed
by the Mayor, no infidelity is committed because
the document is not yet a payroll in the legal
sense since the document has not been signed
yet.
* In "breaking of seal", the word "breaking"
should not be given a literal meaning. Even if
actually, the seal was not broken, because the
custodian managed to open the parcel without
breaking the seal.
Article 228
OPENING OF CLOSED DOCUMENTS

c.

Damage or intent to cause damage is not

necessary; damage is presumed

ELEMENTS:
a. That the offender is a public officer.
b.

That any closed papers, documents, or

objects are entrusted to his custody.

That he opens or permits to be opened

said closed papers, documents or
objects.

d. That he does not have proper authority.

Note: Damage also not necessary

* In Article 227, the mere breaking of the seal is

what is made punishable while in Article 228,
the mere opening of closed documents is enough
to hold the offender criminally liable. The
breaking of the seal or the opening of the closed
document must be done without lawful authority
or order from competent authority. In both
offenses, damage to the public interest is not
required.
REVELATION OF SECRETS
Article 229
REVELATION OF SECRET BY AN OFFICER
ELEMENTS OF PAR.1: BY REASON OF HIS
OFFICIAL CAPACITY
a. That the offender is a public officer.
b. That he knows of a secret by reason of
his official capacity.
c. That he reveals such secret without
authority or justifiable reasons.
d. That damage, great or small, be caused
to the public interest.
(damage is essential)

Notes:
> Secret must affect public interest
* The secrets referred to in this article are those
which have an official or public character. It does
not include secret information regarding private
individuals. Nor does it include military or State
secrets in as much as the revelation of the same
is classified as espionage, a crime in violation of
the national security of the State.
* Secrets of a private individual is not included
* Espionage for the benefit of another State is not
contemplated by the article. If regarding military
secrets or secrets affecting state security, the
crime may be espionage.

ELEMENTS OF PAR 2 DELIVERING

WRONGFULLY PAPERS OR COPIES OF
PAPERS OF WHICH HE MAY HAVE

CHARGE AND WHICH SHOULD NOT BE

PUBLISHED:
a. That the offender is a public officer.
b.

That he has charge of papers.

c.

That those
published.

papers

should

not

be

d. That he delivers those papers or copies

thereof to a third person.
e.

That the delivery is wrongful.

f.

That damage
interest.

be

caused

to

public

Notes:

CHARGE: means custody or control. If he is

merely entrusted with the papers and not with
the custody thereof, he is not liable under this
article
* If the papers contain secrets which should not
be published, and the public officer having
charge thereof removes and delivers them
wrongfully to a third person, the crime is
revelation of secrets. On the other hand, if the
papers do not contain secrets, their removal for
an illicit purpose is infidelity in the custody of
documents
* Damage is essential to the act committed
Article 230
PUBLIC OFFICER REVEALING SECRETS OF
PRIVATE INDIVIDUAL

ELEMENTS:
a. That the offender is a public office
b. That he knows of the secret of a private
individual by reason of his office.
c. That he reveals such secrets without
authority or justification reason.

Revelation to one person is sufficient

If the offender is an attorney, he is properly

liable under Art 209 (betrayal of trust by an
attorney)

Damage to private individual is not necessary

OTHER OFFENSES OR IRREGULARITIES BY

PUBLIC OFFICERS
Article 231
OPEN DISOBEDIENCE

ELEMENTS:
a. That the offender is a judicial or executive
officer.
b. That there is a judgment, decision or
order of superior authority.
c. That such judgment, decision or order was
made within the scope of the jurisdiction of
the superior authority and issued with all
the legal formalities
d. that the offender without any legal
justification openly refuses to execute the
said judgment, decision or order which he
is duty bound to obey.
* The gravamen of the offense is the open refusal
of the offender to execute the order without
justifiable reason.

Note: Judgment should have been rendered

in a hearing and issued within proper
jurisdiction with all legal solemnities required

* The term execute as found in the law does not

only means performance of an act since the
judgment, decision or order may also direct the
non-performance of an act.
* The article does not apply to the members of
Congress.
Article 232
DISOBEDIENCE TO ORDER OF SUPERIOR
OFFICER
WHEN
SAID
ORDER
WAS
SUSPENDED BY INFERIOR OFFICER
ELEMENTS:
a. That the offender is a public officer.
b.
That an order is issued by his superior
for execution.
c. That he has for any reason suspended
the execution of such order.
d. That his superior disapproves the
suspension of the execution of the order.
e. That the offender disobeys his superior
despite
the
disapproval
of
the
suspension.

Note: A public officer is not liable if the order

of the superior is illegal

* What is contemplated here is a situation where

the subordinate has some doubts regarding the
legality of the order. Hence, he is afforded an
opportunity to suspend the execution of the
order, so as to give him time to further study the
same. He commits no crime for doing this act.
However, if he continues to suspend the
execution of the order notwithstanding the
disapproval by his superior of the stay of the
execution, such refusal on his part already
constitutes a crime punishable under this article.
Article 233
REFUSAL OF ASSISTANCE

ELEMENTS:
a. That the offender is a public officer.
b. That a competent authority demands
from the offender that he lend his
cooperation towards the administration
of justice or other public service.
c. That the offender fails to do so
maliciously.

Involves a request from one public officer to

another

Damage to the public interest or third party

is essential

* Damage is essential whether great or small. But

the penalty is affected by the seriousness of the
damage. Note that the refusal must be done with
malice.

Demand is necessary

* The situation contemplated herein may refer to

the administration of justice before the case is
filed in court. Competent authority may refer to
persons in authority who are charged by the law
to help in the administration of justice. The term
may refer to police authorities. However, when a
case under investigation reaches the court, the
remedy may not be limited to incurring criminal
liability under this article because the refusal
may already be punished as direct or indirect
contempt of court.
* This is a crime, which a policeman may commit
when, being subpoenaed to appear in court in
connection with a crime investigated by him but
because of some arrangement with the offenders,
the policeman does not appear in court anymore
to testify against the offenders. He tried to assail

the subpoena so that ultimately the case would

be dismissed.
It was already held that the
policeman could be prosecuted under this crime
of refusal of assistance and not that of dereliction
of duty.
Article 234
REFUSAL TO DISCHARGE ELECTIVE OFFICE

ELEMENTS:
a. That the offender is elected by popular
election to a public office.
b. That he refuses to be sworn in or
discharge the duties of said office.
c. That there is no legal motive for such
refusal to be sworn in or to discharge the
duties of said office.
* After proclamation of a candidate to a public
office, it becomes his duty to render public
service. Since it is his duty, then his refusal to
perform such duty is punishable under the law.

Note: Even if the person did not run for the

office on his own will as the Constitution
provides that every citizen may be required to
render service

Article 235
MALTREATMENT OF PRISONERS

ELEMENTS:
a. That the offender is a public officer or
employee.
b. That he has under charge a prisoner or
detention prisoner (otherwise the crime is
physical injuries)
c. That he maltreats such prisoner in either
of the following manners:
1.

By overdoing himself in the correction or

handling of a prisoner or detention prisoner
under his charge either

2.

by the imposition of punishments not

authorized by the regulations, or
by inflicting such punishments (those
authorized) in a cruel and humiliating
manner, or

by maltreating such prisoner to extort a

confession or to obtain some information
from the prisoner.

* The maltreatment does not really require

physical injuries. Any kind of punishment not

authorized or though authorized if executed in

excess of the prescribed degree.
> But if as a result of the maltreatment, physical
injuries were caused to the prisoner, a separate
crime for the physical injuries shall be filed. You
do not complex the crime of physical injuries with
the maltreatment because the way Article 235 is
worded, it prohibits the complexing of the crime.
* If the maltreatment was done in order to extort
confession, therefore, the constitutional right of
the prisoner is further violated. The penalty is
qualified to the next higher degree.

The public officer must have actual charge of

the prisoner in order to be held liable

* If the public officer is not the custodian of the

prisoner, and he manhandles the latter, the crime
is physical injuries.
* If a Barangay Captain maltreats a person after
the latters arrest but before confinement, the
offense is not maltreatment but physical injuries.
The victim must actually be confined either as a
convict or a detention prisoner for Art. 235 to
apply. (People vs. Baring, et al., 37 O.G.
1366).

To be considered a detention prisoner, the

person arrested must be placed in jail even
for just a short while

* The offended party here must be a prisoner in

the legal sense. The mere fact that a private
citizen had been apprehended or arrested by a
law enforcer does not constitute him a prisoner.
To be a prisoner, he must have been booked and
incarcerated no matter how short it is.
Illustration:
A certain snatcher was arrested by a law enforcer,
brought to the police precinct, turned over to the
custodian of that police precinct. Every time a
policeman entered the police precinct, he would
ask, What is this fellow doing here? What crime
has he committed?. The other policeman would
then tell, This fellow is a snatcher. So every time
a policeman would come in, he would inflict injury
to him. This is not maltreatment of prisoner
because the offender is not the custodian. The
crime is only physical injuries.
> But if the custodian is present there and he
allowed it, then he will be liable also for the

physical
injuries
inflicted,
but
not
for
maltreatment because it was not the custodian
who inflicted the injury.
> But if it is the custodian who effected the
maltreatment, the crime will be maltreatment of
prisoners plus a separate charge for physical
injuries.

Offender may also be held liable for physical

injuries or damage caused

Article 236
ANTICIPATION OF DUTIES OF A PUBLIC
OFFICE

ELEMENTS:
a. That the offender is entitled to hold a
public office or employment, either by
election or appointment.
b. That the law requires that he should first
be sworn in and/or should first give a
bond.
c. That he assumes the performance of the
duties and powers of such office
d. That he has not taken his oath of office and
/or given the bond required by law.
Article 237
PROLONGING PERFORMANCE OF DUTIES
AND POWERS

ELEMENTS:
a. That the offender is holding a public
office.
b. That the period provided by law,
regulations or special provisions for
holding such office has already expired.
c. That he continues to exercise the duties
and powers of such office.

Note: The article contemplates officers who

have been suspended, separated or declared
over-aged or dismissed
* The crime is committed only if the public officer
has lost every right to the office because there
are offices which require the officer to continue
serving as such properly relieved. The law is
intended to put an end to the principle of hold
over.
Article 238
ABANDONMENT OF OFFICE OR POSITION
ELEMENTS:
a. That the offender is a public officer.

b.

That he formally resigns from his

position.
c. That his resignation has not yet been
accepted.
d. That he abandons his office to the
detriment of the public service.

There must be formal or written resignation

* Oral resignation is not allowed. The resignation

must be in writing and directed to the appointing
power who has the authority to accept or
disapprove the same. This requirement is
indispensable because the letter of resignation
goes into a process.

The offense is qualified if the purpose behind

the abandonment is to evade the discharge of
duties consisting of preventing, prosecuting
or punishing any of the crimes against
national security. The penalty is higher ( one
degree ). This involves the following crimes:
a. treason
b. conspiracy and proposal to commit
conspiracy
c. misprision of treason
d. espionage
e. inciting to war or giving motives to reprisals
f. violation of neutrality
g. correspondence with hostile country
h. flight to enemy country
i. piracy and mutiny on the high seas
j. rebellion
k. conspiracy and proposal to commit
rebellion
l. disloyalty to public officers
m. inciting to rebellion
n. sedition
o. conspiracy to commit sedition
p. inciting to sedition

Abandonment of Office
or Position (238)
There
is
actual
abandonment
through
resignation to evade the
discharge of duties.

Dereliction of Duty
(208)
Public officer does
not
abandon
his
office but merely fails
to
prosecute
a
violation of the law.

Article 239
USURPATION OF LEGISLATIVE POWERS
ELEMENTS:
a. That the offender is an executive or
judicial officer.
b. That he (a.) makes general rules or
regulations beyond the scope of his

authority or (b.) attempts to repeal a law

or (c.) suspends the execution thereof.
Article 240
USURPATION OF EXECUTIVE FUNCTIONS
ELEMENTS:
a. That the offender is a judge.
b. That he (a.) assumes a power pertaining
to the executive authorities, or (b.)
obstructs executive authorities in the
lawful exercise of their powers.

Note: Legislative officers are not liable for

usurpation of executive functions

Article 241
USURPATION OF JUDICIAL FUNCTIONS
ELEMENTS:
a. That the offender is an officer of the
executive branch of the government.
b. That he (a.) assumes judicial powers, or
(b.) obstruct the execution of any order
decision rendered by any judge within
his jurisdiction.

Note: A mayor is guilty under this article

when he investigates a case while a justice of
the peace is in the municipality
Article 242
DISOBEYING
DISQUALIFICATION

REQUEST

FOR

ELEMENTS:
a. That the offender is a public officer.
b. That a proceeding is pending before such
public officer.
c.
That there is a question brought before
the proper authority regarding his
jurisdiction, which is not yet decided.
d. That he has been lawfully required to
refrain from continuing the proceeding.
e.
That he continues the proceeding.
* Even if the jurisdiction of the offender is later
upheld or sustained, he is still liable because
what is in issue is not the legality of his
jurisdiction, but whether he obeyed or disobeyed
the temporary restraining order issued by the
higher authority.
Article 243
ORDERS OR REQUESTS BY EXECUTIVE
OFFICER TO ANY JUDICIAL AUTHORITY
ELEMENTS:

a.
b.
c.

That the offender is an executive

officer.
That he addresses any order or
suggestion to any judicial authority.
That the order or suggestion relates
to any case or business coming
within the exclusive jurisdiction of
the courts of justice.

Note: Legislative or judicial officers are not

liable under this article

Article 244
UNLAWFUL APPOINTMENTS
ELEMENTS:
a. That the offender is a public officer.
b. That he nominates or appoints a person
to a public office.
c.
That
such person lacks the legal
qualification therefor.
d.

That the offender knows that his

nominee
or
appointee
lacks
the
qualification at the time he made the
nomination or appointment.

Recommending, knowing that the person

recommended is not qualified is not a crime

* The word nominate is not the same as

recommend. To nominate is to guarantee to the
appointing power that the person nominated has
all
the
qualifications
to
the
office.
Recommendation on the other hand does not
make any guarantee as to the legal fitness of the
candidate to public office.

There must be a law providing for the

qualifications of a person to be nominated or
appointed to a public office

1.

interested in matters pending before the

offender for decision, or with respect to
which he is required to submit a report to or
consult with a superior officer, or

under the custody of the offender who is a

warden or other public officer directly
charged with care and custody of prisoners
or person under arrest, or

3.

the wife, daughter, sister or relative within

the same degree by affinity of the person in
the custody of the offender

* Only a lady can be a complainant here so that a

gay guard or warden who makes immoral
proposals or indecent advances to a male
prisoner is not liable under this law.
* Mere indecent solicitation or advances of a
woman over whom the public officer exercises a
certain influence because the woman is involved
in a case where the offender is to make a report
of result with superiors or otherwise a case which
the offender was investigating.
* This crime is also committed if the woman is a
prisoner and the offender is her jail warden or
custodian, or even if the prisoner may be a man if
the jail warden would make the immoral
solicitations upon the wife, sister, daughter, or
relative by affinity within the same degree of the
prisoner involved.

The mother of the person in the custody of

the public officer is not included

* This crime cannot be committed if the warden

is a woman and the prisoner is a man. Men have
no chastity.
* If the warden is also a woman but is a lesbian,
it is submitted that this crime could be
committed, as the law does not require that the
custodian be a man but requires that the
offended be a woman.

Article 245
ABUSES AGAINST CHASTITY
ELEMENTS:
a. That the offender is a public officer.
b. That he solicits or makes immoral or
indecent advances to a woman.
c.
That such woman must be

2.

Solicit: means to propose earnestly and

persistently
something
unchaste
and
immoral to a woman

* The word solicit means to demand earnestly.

In this case, the demand is for sexual favor. It
must be immoral or indecent and done by the
public officer taking advantage of his position as
one who can help by rendering a favorable
decision or unwarranted benefits, advantage or
preference to a person under his custody.

The crime is consummated by mere proposal

* It is not necessarily for the offended party to

surrender her virtue to consummate the crime.
> Mere proposal is sufficient to consummate
the crime.
* Even if the woman may have lied with the
hearing officer or to the public officer and
acceded to him, that does not change the crime
because the crime seeks to penalize the taking
advantage of official duties.
* It is immaterial whether the woman did not
agree or agreed to the solicitation. If the woman
did not agree and the public officer involved
pushed through with the advances, attempted
rape may have been committed.
* Legally, a prisoner is an accountability of the
government. So the custodian is not supposed to
interfere. Even if the prisoner may like it, he is
not supposed to do that.
Otherwise, abuse
against chastity is committed.
* If he forced himself against the will of the
woman, another crime is committed, that is, rape
aside from abuse against chastity.
* You cannot consider the abuse against chastity
as absorbed in the rape because the basis of
penalizing the acts is different from each other.

Proof of solicitation is not necessary when

there is sexual intercourse

Republic
Act
No.
7877
(Anti-Sexual
Harassment Act)
> Committed by any person having authority,
influence or moral ascendancy over another in a
work, training or education environment when he
or she demands, requests, or otherwise requires
any sexual favor from the other regardless of
whether the demand, request or requirement for
submission is accepted by the object of the said
act (for a passing grade, or granting of
scholarship or honors, or payment of a stipend,
allowances, benefits, considerations; favorable
compensation terms, conditions, promotions or
when the refusal to do so results in a detrimental
consequence for the victim).
> Also holds liable any person who directs or
induces another to commit any act of sexual
harassment,
or
who
cooperates
in
the
commission, the head of the office, educational
or training institution solidarily.

> Complaints to be handled by a committee on

decorum, which shall be determined by rules and
regulations on such.
> Administrative sanctions shall not be a bar to
prosecution in the proper courts for unlawful
acts of sexual harassment.

TITLE EIGHT
CRIMES AGAINST PERSONS
Crimes against persons
1.
Parricide (Art. 246);
2.
Murder (Art. 248);
3.
Homicide (Art. 249);
4.
Death caused in a tumultuous affray
(Art. 251);
5.
Physical
injuries
inflicted
in
a
tumultuous affray (Art. 252);
6.
Giving assistance to suicide (Art. 253);
7.
Discharge of firearms (Art. 254);
8.
Infanticide (Art. 255);
9.
Intentional abortion (Art. 256);
10.
Unintentional abortion (Art. 257);
11.
Abortion practiced by the woman herself
or by her parents (Art. 258);
12.
Abortion practiced by a physician or
midwife and dispensing of abortives (Art.
259);
13.
Duel (Art. 260);
14.
Challenging to a duel (Art. 261);
15.
Mutilation (Art. 262);
16.
Serious physical injuries (Art. 263);
17.
Administering injurious substances or
beverages (Art. 264);
18.
Less serious physical injuries (Art. 265);
19.
Slight physical injuries and maltreatment
(Art. 266); and
20.
Rape (Art. 266-A).
DESTRUCTION OF LIFE
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 other descendant, or the
legitimate spouse of the accused.
Notes:

* The relationship of the offender with the victim

is the essential element of the felony
* The relationship must be in the direct line and
not in the collateral line.
* The relationship between the offender and the
offended party must be legitimate, except when
the offender and the offended party are related as
parent and child.
* Except between husband and wife, the offender
must be related to the offended party by blood.
* Parents and children are not included in the
term ascendants or descendants
* The other ascendant or descendant must be
legitimate. On the other hand, the father, mother
or child may be legitimate or illegitimate
* If the offender and the offended party, although
related by blood and in the direct line, are
separated
by
an
intervening
illegitimate
relationship, parricide can no longer be committed.
The illegitimate relationship between the child
and the parent renders all relatives after the child
in the direct line to be illegitimate too.
* The only illegitimate relationship that can bring
about parricide is that between parents and
illegitimate children as the offender and the
offended parties.
Illustration:
A is the parent of B, the illegitimate daughter. B
married C and they begot a legitimate child D. If
D, daughter of B and C, would kill A, the
grandmother, the crime cannot be parricide
anymore because of the intervening illegitimacy.
The relationship between A and D is no longer
legitimate.
Hence, the crime committed is
homicide or murder.
* A, an illegitimate son of B, who killed the
legitimate father of the latter, is not guilty of
Parricide because in case of other ascendants
(grandparents, great grandparents, etc.), the
relationship with the killer must be legitimate.
The same is true with other descendants that
is, grandchildren, great grandchildren, etc.
* The child should not be less than 3 days old.
Otherwise, the offense is infanticide

* That the mother killed her child in order to

conceal her dishonor is not mitigating. This is
immaterial to the crime of parricide, unlike in the
case of infanticide. If the child is less than three
days old when killed, the crime is infanticide and
intent to conceal her dishonor is considered
mitigating.
* Relationship must be alleged
* In killing a spouse, there must be a valid
subsisting marriage at the time of the killing. Also,
the information should allege the fact of such valid
marriage between the accused and the victim.
* In a ruling by the Supreme Court, it was held
that if the information did not allege that the
accused was legally married to the victim, he
could not be convicted of parricide even if the
marriage was established during the trial. In such
cases, relationship shall be appreciated as
generic aggravating circumstance.
* The Supreme Court has also ruled that Muslim
husbands with several wives can be convicted of
parricide only in case the first wife is killed. There
is no parricide if the other wives are killed
although their marriage is recognized as valid.
This is so because a Catholic man can commit
the crime only once. If a Muslim husband could
commit this crime more than once, in effect, he
is being punished for the marriage which the law
itself authorized him to contract.
* A stranger who cooperates in committing
parricide is liable for murder or homicide
* Since parricide is a crime of relationship, if a
stranger conspired in the commission of the crime,
he cannot be held liable for parricide.
His
participation would make him liable for murder
or for homicide, as the case may be. The rule of
conspiracy that the act of one is the act of all does
not apply here because of the personal
relationship of the offender to the offended party.
Illustration:
A spouse of B conspires with C to kill B. C is the
stranger in the relationship. C killed B with
treachery. The means employed is made known to
A and A agreed that the killing will be done by
poisoning.
As far as A is concerned, the crime is based on
his relationship with B. It is therefore parricide.
The treachery that was employed in killing Bong

will only be generic aggravating circumstance in

the crime of parricide because this is not one
crime that requires a qualifying circumstance.
But that same treachery, insofar as C is
concerned, as a stranger who cooperated in the
killing, makes the crime murder; treachery
becomes a qualifying circumstance.

* If the accused fails to establish the

circumstances called for in Article 247, he/she
will be guilty of Parricide and Murder or
Homicide if the victims were killed.
* Not necessary that the parent be legitimate
* Article applies only when the daughter is single

* Even if the offender did not know that the

person he had killed is his son, he is still liable
for parricide because the law does not require
knowledge of the relationship
* Article 365 expressly provides that parricide
can be committed through reckless imprudence.
The penalty will not be under Article 246 but
under Article 365.
* Similarly, parricide can be committed by
mistake. This is demonstrated in a situation
where a person wanting to kill a stranger, kills
his own father by mistake. Although the crime
committed is parricide, the offender will not be
punished under Article 246 but under Article 49,
which prescribes a penalty much lower than that
provided under Article 246.
Article 247
DEATH OR

PHYSICAL INJURIES UNDER

EXCEPTIONAL CIRCUMSTANCES

Requisites:
1. A legally married person or parent
surprises his spouse or daughter (the
latter must be under 18 and living with them)
in the act of committing sexual
intercourse with another person
2. He/she kills any or both of them or
inflicts upon any or both of them any
serious physical injury in the act or
immediately thereafter
3. He has not promoted or facilitated the
prostitution of his wife or daughter, or
that he has not consented to the
infidelity of the other spouse.
Notes:
* Article does not define or penalize a felony

* Article 247, far from defining a felony merely

grants a privilege or benefit, more of an
exempting circumstance as the penalty is
intended more for the protection of the accused
than a punishment. Death under exceptional
character can not be qualified by either
aggravating or mitigating circumstances.

* SURPRISE: means to come upon suddenly or

unexpectedly
* Art 247 is applicable when the accused did not
see his spouse in the act sexual intercourse with
another person. However, it is enough that
circumstances reasonably show that the carnal
act is being committed or has been committed
* It is not necessary that the spouse actually saw
the sexual intercourse being committed. It is
enough that he/she surprised them under such
circumstances
that
no
other
reasonable
conclusion can be inferred but that a carnal act
was being performed or has just been committed.
* The article does not apply where the wife was
not surprised in flagrant adultery but was being
abused by a man as in this case there will be
defense of relation.
* If the offender surprised a couple in sexual
intercourse, and believing the woman to be his
wife, killed them, this article may be applied if
the mistake of facts is proved.
* The benefits of this article do not apply to the
person who consented to the infidelity of his
spouse or who facilitated the prostitution of his
wife.
* Sexual intercourse does not include preparatory
acts
* So if the surprising took place before any actual
sexual intercourse could be done because the
parties are only in their preliminaries, the article
cannot be invoked anymore.
* IMMEDIATELY THEREAFTER: means that the
discovery, escape, pursuit and the killing must all
form parts of one continuous act

* The phrase immediately thereafter has been

interpreted to mean that between the
surprising and the killing of the
inflicting of the physical injury, there
should be no break of time. In other
words, it must be a continuous
process.
* If there was already a break of time between the
sexual act and the killing or inflicting of the
injury, the law presupposes that the offender
regained his reason and therefore, the article will
not apply anymore.
* The killing must be the direct by-product of the
rage of the accused
* Article 247 does not provide that the victim is to
be killed instantly by the accused after surprising
his spouse in the act of intercourse. What is
required is that the killing is the proximate result
of the outrage overwhelming the accused upon
the discovery of the infidelity of his spouse. The
killing should have been actually motivated by
the same blind impulse.
* No criminal liability is incurred when less
serious or slight physical injuries are inflicted.
Moreover, in case third persons caught in the
crossfire suffer physical injuries, the accused is
not liable. The principle that one is liable for the
consequences of his felonious act is not
applicable because he is not committing a felony
* In the case of People v. Abarca, 153 SCRA
735, two persons suffered physical injuries as
they were caught in the crossfire when the
accused shot the victim. A complex crime of
double frustrated murder was not committed as
the accused did not have the intent to kill the two
victims.
Here, the accused did not commit
murder when he fired at the paramour of his
wife.
Inflicting death under exceptional
circumstances is not murder. The accused was
held liable for negligence under the first part,
second paragraph of Article 365, that is, less
serious
physical
injuries
through
simple
negligence. No aberratio ictus because he was
acting lawfully.
* A person who acts under Article 247 is not
committing a crime. Since this is merely an
exempting circumstance, the accused must first
be charged with:
(1)

Parricide if the spouse is killed;

(2)

Murder or homicide depending on how

the killing was done insofar as the
paramour or the mistress is concerned;

(3)

Homicide through simple negligence, if

a third party is killed;

(4)

Physical injuries through reckless

imprudence, if a third party is injured.

* If death results or the physical injuries are

serious, there is criminal liability although the
penalty is only destierro. The banishment is
intended more for the protection of the offender
rather than a penalty.
* If the crime committed is less serious physical
injuries or slight physical injuries, there is no
criminal liability.
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 following qualifying circumstances
a.

with treachery, taking advantage of superior

strength, with the aid or armed men, or
employing means to weaken the defense or of
means or persons to insure or afford impunity

b.

in consideration of price, reward or promise

c.

by means of inundation, fire, poison,

explosion, shipwreck, stranding of vessel,
derailment or assault upon a street car or
locomotive, fall of airship, by means of motor
vehicles or with the use of any other means
involving great waste or ruin

d.

on occasion of any of the calamities

enumerated in the preceding paragraph, or of
an earthquake, eruption of a volcano,
destructive cyclone, epidemic or any other
public calamity

e.

with evident premeditation

f.

with cruelty, by deliberately and inhumanely

augmenting the suffering of the victim or
outraging or scoffing at his person or corpse

4. The killing is not parricide or infanticide

Notes:
* While the circumstance of by a band is not
among those enumerated that could qualify
killing to murder, it would seem that if the killers
constituted a band, the crime is murder because
the circumstance of with the aid of armed men
is included in the qualifying circumstances.
* The victim must be killed in order to
consummate the offense. Otherwise, it would be
attempted or frustrated murder
* Killing a person with treachery is murder even if
there is no intent to kill. (People vs. Cagoco, 58
Phil. 530)
* Any of the qualifying circumstances must be
alleged in the information. Otherwise, they will
only be considered as generic aggravating
circumstances
* When the other circumstances are absorbed or
included in one qualifying circumstance, they
cannot be treated or separated as generic
aggravating
circumstances.
(People
vs.
Remalante, 92 Phil. 48)
* Treachery and premeditation are inherent in
murder with the use of poison
Ortega Notes:
In murder, any of the following qualifying
circumstances is present:
(1) Treachery, taking advantage of superior
strength, aid or armed men, or employing
means to waken the defense, or of means or
persons to insure or afford impunity;
There is treachery when the offender commits
any of the crimes against the person
employing means, methods or forms in the
execution thereof that tend directly and
especially to insure its execution without risk
to himself arising from the defense which the
offended party might make.
This circumstance involves means, methods,
form in the execution of the killing which may
actually be an aggravating circumstance also,
in which case, the treachery absorbs the
same.
Illustration:

A person who is determined to kill resorted to

the cover of darkness at nighttime to insure
the killing. Nocturnity becomes a means that
constitutes treachery and the killing would be
murder. But if the aggravating circumstance
of nocturnity is considered by itself, it is not
one of those which qualify a homicide to
murder.
One might think the killing is
homicide unless nocturnity is considered as
constituting treachery, in which case the
crime is murder.
The essence of treachery is that the offended
party was denied the chance to defend himself
because of the means, methods, form in
executing the crime deliberately adopted by
the offender. It is a matter of whether or not
the offended party was denied the chance of
defending himself.
If the offended was denied the chance to defend
himself, treachery qualifies the killing to
murder. If despite the means resorted to by
the offender, the offended was able to put up
a defense, although unsuccessful, treachery is
not
available.
Instead,
some
other
circumstance may be present. Consider now
whether such other circumstance qualifies the
killing or not.
Illustration:
If the offender used superior strength and
the victim was denied the chance to defend
himself, there is treachery. The treachery must
be alleged in the information. But if the victim
was able to put up an unsuccessful resistance,
there is no more treachery but the use of
superior strength can be alleged and it also
qualifies the killing to murder.
One attendant qualifying circumstance is
enough. If there are more than one qualifying
circumstance alleged in the information for
murder, only one circumstance will qualify the
killing to murder and the other circumstances
will be taken as generic.
To be considered qualifying, the particular
circumstance must be alleged in the information.
If what was alleged was not proven and instead
another circumstance, not alleged, was
established during the trial, even if the latter
constitutes a qualifying circumstance under
Article 248, the same can not qualify the killing
to murder. The accused can only be convicted
of homicide.

Generally, murder cannot be committed if at

the beginning, the offended had no intent to kill
because the qualifying circumstances must be
resorted to with a view of killing the offended
party. So if the killing were at the spur of the
moment, even though the victim was denied
the chance to defend himself because of the
suddenness of the attack, the crime would only
be homicide. Treachery contemplates that the
means, methods and form in the execution were
consciously adopted and deliberately resorted to
by the offender, and were not merely incidental
to the killing.
If the offender may have not intended to kill
the victim but he only wanted to commit a crime
against him in the beginning, he will still be
liable for murder if in the manner of committing
the felony there was treachery and as a
consequence thereof the victim died. This is
based on the rule that a person committing a
felony shall be liable for the consequences
thereof although different from that which he
intended.
Illustration:
The accused, three young men, resented the fact
that the victim continued to visit a girl in their
neighborhood despite the warning they gave
him. So one evening, after the victim had visited
the girl, they seized and tied him to a tree, with
both arms and legs around the tree. They
thought they would give him a lesson by
whipping him with branches of gumamela until
the victim fell unconscious. The accused left not
knowing that the victim died.
The crime committed was murder. The accused
deprived the victim of the chance to defend
himself when the latter was tied to a tree.
Treachery is a circumstance referring to the
manner of committing the crime. There was no
risk to the accused arising from the defense by
the victim.
Although what was initially intended was
physical injury, the manner adopted by the
accused was treacherous and since the victim
died as a consequence thereof, the crime is
murder -- although originally, there was no
intent to kill.
When the victim is already dead, intent to kill
becomes irrelevant. It is important only if the
victim did not die to determine if the felony is

physical injury or attempted or frustrated

homicide.
So long as the means, methods and form in the
execution is deliberately adopted, even if there
was no intent to kill, there is treachery.
(2)

In consideration of price, reward or promises;

(3)

Inundation,
fire,
poison,
explosion,
shipwreck, stranding of a vessel, derailment
or assault upon a street car or locomotive, fall
of an airship, by means of a motor vehicle, or
with the use of other means involving great
waste and ruin;

The only problem insofar as the killing by fire is

concerned is whether it would be arson with
homicide, or murder.
When a person is killed by fire, the primordial
criminal intent of the offender is considered.
If the primordial criminal intent of the
offender is to kill and fire was only used as a
means to do so, the crime is only murder. If
the primordial criminal intent of the offender
is to destroy property with the use of
pyrotechnics and incidentally, somebody
within the premises is killed, the crime is
arson with homicide.
But this is not a
complex crime under Article 48. This is
single indivisible crime penalized under
Article 326, which is death as a consequence
of arson. That somebody died during such
fire would not bring about murder because
there is no intent to kill in the mind of the
offender.
He intended only to destroy
property. However, a higher penalty will be
applied.
* When killing was accomplished by means of
fire alleged in the information, it does not qualify
killing to Murder unless the use of fire was
employed to kill the victim.
In People v. Pugay and Samson, 167 SCRA 439,
there was a town fiesta and the two accused were
at the town plaza with their companions. All were
uproariously happy, apparently drenched with
drink. Then, the group saw the victim, a 25 year
old retard walking nearby and they made him
dance by tickling his sides with a piece of wood.
The victim and the accused Pugay were friends
and, at times, slept in the same place together.
Having gotten bored with their form of
entertainment, accused Pugay went and got a can
of gasoline and poured it all over the retard. Then,

the accused Samson lit him up, making him a

frenzied, shrieking human torch. The retard died.
It was held that Pugay was guilty of homicide
through reckless imprudence. Samson only guilty
of homicide, with the mitigating circumstance of no
intention to commit so grave a wrong. There was
no animosity between the two accused and the
victim such that it cannot be said that they resort
to fire to kill him. It was merely a part of their fun
making but because their acts were felonious, they
are criminally liable.
(4) On occasion of any of the calamities
enumerated in the preceding paragraph c, or
an
earthquake,
eruption
of
volcano,
destructive cyclone, epidemic or any other
public calamity;
(5) Evident premeditation; and
* When the actual victim turns out to be different
from the intended victim, premeditation is not
aggravating. (People vs. Guillen, 85 Phil. 307)
(6) Cruelty, by deliberately and inhumanly
augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.
Cruelty includes the situation where the
victim is already dead and yet, acts were
committed which would decry or scoff the
corpse of the victim. The crime becomes
murder.
Hence, this is not actually limited to cruelty.
It goes beyond that because even if the
victim is already a corpse when the acts
deliberately augmenting the wrong done to
him were committed, the killing is still
qualified to murder although the acts done
no longer amount to cruelty.
Under Article 14, the generic aggravating
circumstance of cruelty requires that the
victim be alive, when the cruel wounds were
inflicted and, therefore, must be evidence to
that effect. Yet, in murder, aside from cruelty,
any act that would amount to scoffing or
decrying the corpse of the victim will qualify
the killing to murder.
Illustration:
Two people engaged in a quarrel and they
hacked each other, one killing the other. Up to
that point, the crime is homicide. However, if

the killer tried to dismember the different parts

of the body of the victim, indicative of an
intention to scoff at or decry or humiliate the
corpse of the victim, then what would have
murder
because
this
circumstance
is
recognized under Article 248, even though it
was inflicted or was committed when the victim
was already dead.
The following are holdings of the Supreme
Court with respect to the crime of murder:
(1) Killing of a child of tender age is murder
qualified by treachery because the weakness
of the child due to his tender age results in
the absence of any danger to the aggressor.
(2) Evident premeditation is absorbed in price,
reward
or
promise,
if
without
the
premeditation the inductor would not have
induced the other to commit the act but not
as regards the one induced.
(3 Abuse of superior strength is inherent in and
comprehended by the circumstance of
treachery or forms part of treachery.
(4) Treachery is inherent in poison.
(5) Where one of the accused, who were charged
with murder, was the wife of the deceased but
here relationship to the deceased was not
alleged in the information, she also should be
convicted of murder but the relationship
should be appreciated as aggravating.
(6) Killing of the victims hit by hand grenade
thrown at them is murder qualified by
explosion not by treachery.
(7) Where the accused housemaid gagged a three
year old boy, son of her master, with
stockings, placed him in a box with head
down and legs upward and covered the box
with some sacks and other boxes, and the
child instantly died because of suffocation,
and then the accused demanded ransom from
the parents, such did not convert the offense
into kidnapping with murder. The accused
was well aware that the child could be
suffocated to death in a few minutes after she
left. Ransom was only a part of the diabolical
scheme to murder the child, to conceal his
body and then demand money before
discovery of the body.

* The essence of kidnapping or serious illegal

detention is the actual confinement or restraint of
the victim or deprivation of his liberty. If there is
no showing that the accused intended to deprive
their victims of their liberty for some time and
there being no appreciable interval between their
being taken and their being shot, murder and not
kidnapping with murder is committed.

Article 249
HOMICIDE
ELEMENTS:
1. That a person was killed.
2. That the accused killed him without any
justifying circumstances.
3. That the accused had the intention to
kill, which is presumed.
4. That the killing was not attended by any
of the qualifying circumstances of
murder, or by that of parricide or
infanticide.
Notes:
* Homicide is the unlawful killing of a person not
constituting murder, parricide or infanticide.
* Intent to kill is conclusively presumed when
death resulted. Hence, evidence of intent to kill is
required only in attempted or frustrated homicide
* In all crimes against persons in which the death
of the victim is an element, there must be
satisfactory evidence of (1) the fact of death and
(2) the identity of the victim
Distinction
injuries:

between

homicide

and

physical

In attempted or frustrated homicide, there is intent

to kill.
In physical injuries, there is none. However, if as
a result of the physical injuries inflicted, the
victim died, the crime will be homicide because
the law punishes the result, and not the intent of
the act.
The following are holdings of the Supreme
Court with respect to the crime of homicide:
(1) Physical injuries are included as one of the
essential elements of frustrated homicide.
(2) If the deceased received two wounds from
two persons acting independently of each

other and the wound inflicted by either

could have caused death, both of them are
liable for the death of the victim and each of
them is guilty of homicide.
(3) If the injuries were mortal but were only due
to negligence, the crime committed will be
serious physical injuries through reckless
imprudence as the element of intent to kill
in frustrated homicide is incompatible with
negligence or imprudence.
(4) Where the intent to kill is not manifest, the
crime committed has been generally
considered as physical injuries and not
attempted or frustrated murder or homicide.
(5) When several assailants not acting in
conspiracy inflicted wounds on a victim but
it cannot be determined who inflicted which
would which caused the death of the victim,
all are liable for the victims death.
* Note that while it is possible to have a crime of
homicide through reckless imprudence, it is not
possible to have a crime of frustrated homicide
through reckless imprudence.
* If a boxer killed his opponent in a boxing bout
duly licensed by the Government without any
violation of the governing rules and regulations,
there is no Homicide to speak of. If he hit his
opponent below the belt without any intention to
do so, it is
Homicide Through Reckless
Imprudence if the latter died as a result. If he
intentionally hit his opponent on that part of his
body causing the death, the crime is Homicide.
* The shooting of a peace officer who was fully
aware of the risks in pursuing the malefactors
when done in a spur of the moment is only
Homicide. (People vs. Porras, 255 SCRA 514).
Common misconception on the meaning of
corpus delicti.
Corpus delicti means body of the crime. It does not
refer to the body of the murdered person. In all
crimes against persons in which the death of the
victim is an element of the crime, there must be
proof of the fact of death and identity of the
victim. (Cortez vs. Court of Appeals, 162 SCRA
139)
Article 250
PENALTY FOR FRUSTRATED
MURDER OR HOMICIDE

PARRICIDE,

Article 251
DEATH 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.
Notes:
* Tumultuous affray exists when at least 4
persons take part in it
* When there are 2 identified groups of men who
assaulted each other, there is no tumultuous
affray

a.

b.

Persons liable are:

person/s who inflicted serious physical
injuries
if it is not known who inflicted serious
physical injuries on the deceased, all
persons who used violence upon the person
of the victim

* If those who actually killed the victim can be

determined, they will be the ones to be held
liable, and those who inflicted serious or less
serious or slight physical injuries shall be
punished for said corresponding offenses
provided no conspiracy is established with the
killers.
TUMULTUOUS AFFRAY simply means a
commotion in a tumultuous and
confused manner, to such an extent
that it would not be possible to identify
who the killer is if death results, or who
inflicted the serious physical injury, but
the person or persons who used
violence are known.
* It is not a tumultuous affray which brings
about the crime; it is the inability to ascertain

actual perpetrator. It is necessary that the very

person who caused the death can not be known,
not that he can not be identified. Because if he is
known but only his identity is not known, then
he will be charged for the crime of homicide or
murder under a fictitious name and not death in
a tumultuous affray. If there is a conspiracy, this
crime is not committed.
To be considered death in a tumultuous
affray, there must be:
(1)

a quarrel, a free-for-all, which should

not involve organized group; and

(2)

someone who is injured or killed because

of the fight.

* The person killed in the affray need not be one

of the participants.
* As long as it cannot be determined who killed
the victim, all of those persons who inflicted
serious physical injuries will be collectively
answerable for the death of that fellow.
The Revised Penal Code sets priorities as to
who may be liable for the death or physical
injury in tumultuous affray:
(1) The persons who inflicted serious physical
injury upon the victim;
(2) If they could not be known, then anyone who
may have employed violence on that person
will answer for his death.
(3) If nobody could still be traced to have
employed violence upon the victim, nobody
will answer. The crimes committed might be
disturbance of public order, or if participants
are
armed,
it
could
be
tumultuous
disturbance, or if property was destroyed, it
could be malicious mischief.

Article 252
PHYSICAL
INJURIES
INFLICTED
IN
A
TUMULTOUS AFFRAY
ELEMENTS:
1. that there is a tumultuous affray as
referred to in the preceding article.
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 therefor

cannot be identified.
4. That all those who appear to have used
violence upon the person of the offended
party are known.
* Unlike in Article 251, where the victim need not
be one of the participants, the injured party in the
crime of physical injuries inflicted in tumultuous
affray must be one or some of those involved in
the quarrel.
* In physical injuries caused in a tumultuous
affray, the conditions are also the same. But you
do not have a crime of physical injuries resulting
from a tumultuous affray if the physical injury is
only slight. The physical injury should be serious
or less serious and resulting from a tumultuous
affray.
So anyone who may have employed
violence will answer for such serious or less
serious physical injury.
* If the physical injury sustained is only slight,
this is considered as inherent in a tumultuous
affray. The offended party cannot complain if he
cannot identify who inflicted the slight physical
injuries on him.
* Note that in slight physical injuries is inflicted
in the tumultuous affray and the identity of the
offender is established, the provisions of this
article will not be observed. Instead, the offender
shall be prosecuted in the ordinary course of law.
Article 253
GIVING ASSISTANCE TO SUICIDE

Acts punishable:
1. Assisting another to commit suicide,
whether the suicide is consummated or
not
2. Lending his assistance to another to
commit suicide to the extent of doing the
killing himself

Notes:
* Giving assistance to suicide means giving
means (arms, poison, etc.) or whatever manner of
positive and direct cooperation (intellectual aid,
suggestions regarding the mode of committing
suicide, etc.).
* A person who attempts to commit suicide is not
criminally liable

* In this crime, the intention must be for the

person who is asking the assistance of another to
commit suicide.
* If the intention is not to commit suicide, as
when he just wanted to have a picture taken of
him to impress upon the world that he is
committing suicide because he is not satisfied
with the government, the crime is held to be
inciting to sedition.
> He becomes a co-conspirator in the crime of
inciting to sedition, but not of giving assistance to
suicide because the assistance must be given to
one who is really determined to commit suicide.
* A pregnant woman who tried to commit suicide
by means of poison but instead of dying, the fetus
in her womb was expelled, is not liable for
abortion
* Assistance to suicide is different from mercykilling. Euthanasia/mercy-killing is the practice
of painlessly putting to death a person suffering
from some incurable disease. In this case, the
person does not want to die. A doctor who resorts
to euthanasia may be held liable for murder
* If the person does the killing himself, the
penalty is similar to that of homicide, which is
reclusion temporal. There can be no qualifying
circumstance because the determination to die
must come from the victim.
This does not
contemplate euthanasia or mercy killing where
the crime is murder, if without consent; if with
consent, covered by Article 253.
* In mercy killing, the victim is not in a position
to commit suicide. Whoever would heed his
advice is not really giving assistance to suicide
but doing the killing himself. In giving assistance
to suicide, the principal actor is the person
committing the suicide.
* Both in euthanasia and suicide, the intention to
the end life comes from the victim himself;
otherwise the article does not apply. The victim
must persistently induce the offender to end his
life.
* Penalty is mitigated if suicide is not successful
* Even if the suicide did not materialize, the
person giving assistance to suicide is also liable
but the penalty shall be one or two degrees lower
depending on whether it is frustrated or
attempted suicide.

The following are holdings of the Supreme

Court with respect to this crime:
(1)

(2)

The crime is frustrated if the offender

gives the assistance by doing the killing
himself as firing upon the head of the
victim but who did not die due to medical
assistance.

when it fired for as long as it was initially aimed

at or against the offended party

The following are holdings of the Supreme

Court with respect to this crime:
(1)

If serious physical injuries resulted from

discharge, the crime committed is the
complex crime of serious physical injury
with illegal discharge of firearm, or if less
serious physical injury, the complex
crime of less serious physical injury with
illegal discharge of firearm will apply.

(2)

Firing a gun at a person even if merely to

frighten him constitutes illegal discharge
of firearm.

The person attempting to commit suicide

is not liable if he survives. The accused
is liable if he kills the victim, his
sweetheart, because of a suicide pact.

Article 254
DISCHARGE OF FIREARMS
ELEMENTS:
1. that the offender discharges a firearm
against or at another person.
2. That the offender has no intention to kill
that person.

Notes:
* This crime cannot be committed through
imprudence because it requires that the
discharge must be directed at another.
* The offender must shoot at another with any
firearm without intention of killing him. If the
firearm is not discharged at a person, the act is
not punished under this article
* If the firearm is directed at a person and the
trigger was pressed but did not fire, the crime is
frustrated discharge of firearm.
* If the discharge is not directed at a person, the
crime may constitute alarm and scandal.
* A discharge towards the house of the victim is
not discharge of firearm. On the other hand,
firing a gun against the house of the offended
party at random, not knowing in what part of the
house the people were, it is only alarm under art
155.
* Usually, the purpose of the offender is only to
intimidate or frighten the offended party
* Intent to kill is negated by the fact that the
distance between the victim and the offender is
200 yards
* A person can be held liable for discharge even if
the gun was not pointed at the offended party

* The gun used in the crime must be licensed, or

the person using the firearm must be authorized
to carry the same, otherwise, in addition to the
crime punished under this article, accused may
also be held liable for illegal possession of firearm
under Republic Act No. 1866 as amended by
Republic Act No. 8294.
Article 255
INFANTICIDE
ELEMENTS:
1. That a child was killed.
2. That the deceased child was less than
three days (72 hours) of age.
3. That the accused killed the said child.
Notes:
* When the offender is the father, mother or
legitimate ascendant, he shall suffer the penalty
prescribed for parricide. If the offender is any
other person, the penalty is that for murder. In
either case, the proper qualification for the
offense is infanticide
* Even if the killer is the mother or the father or
the legitimate grandparents, the crime is still
Infanticide and not Parricide.
The penalty
however, is that for Parricide.
Illustration:
An unmarried woman, A, gave birth to a child, B.
To conceal her dishonor, A conspired with C to
dispose of the child. C agreed and killed the child
B by burying the child somewhere.

If the child was killed when the age of the child

was three days old and above already, the crime
of A is parricide. The fact that the killing was
done to conceal her dishonor will not mitigate the
criminal liability anymore because concealment
of dishonor in killing the child is not mitigating in
parricide.
If the crime committed by A is parricide because
the age of the child is three days old or above, the
crime of the co-conspirator C is murder. It is not
parricide because he is not related to the victim.
If the child is less than three days old when killed,
both the mother and the stranger commits
infanticide because infanticide is not predicated
on the relation of the offender to the offended
party but on the age of the child. In such a case,
concealment of dishonor as a motive for the
mother to have the child killed is mitigating.
* When infanticide is committed by the mother
or maternal grandmother in order to conceal the
dishonor, such fact is only mitigating
* The delinquent mother who claims that she
committed the offense to conceal the dishonor
must be of good reputation. Hence, if she is a
prostitute, she is not entitled to a lesser penalty
because she has no honor to conceal
* Concealment of dishonor is not an element of
infanticide. It merely lowers the penalty. If the
child is abandoned without any intent to kill and
death results as a consequence, the crime
committed is not infanticide but abandonment
under Article 276.
* If the purpose of the mother is to conceal her
dishonor, infanticide through imprudence is not
committed because the purpose of concealing the
dishonor is incompatible with the absence of
malice in culpable felonies.
* There is no infanticide when the child was born
dead, or although born alive it could not sustain
an independent life when it was killed
* In our study of persons and family relations, we
have learned that birth determines personality.
So fetus becomes a person by the legal fact of
birth. The Civil Code provides that, if the fetus
had an intra-uterine life of less than seven (7)
months, it will be considered born only if it
survives 24 hours after the umbilical cord is cut.
If such fetus is killed within the 24-hour period,
we have to determine if it would have survived or

it would have died nonetheless, had it not been

killed.
> A legal problem occurs when a fetus having an
intra-uterine life of less than 7 months, born
alive, is killed within 24 hours from the time the
umbilical cord is cut. This is so because there is
difficulty of determining whether the crime
committed is infanticide or abortion. In such a
situation, the court may avail of expert testimony
in order to help it arrive at a conclusion. So, if it
is shown that the infant cannot survive within 24
hours, the crime committed is abortion; otherwise
if it can survive, the crime would be infanticide.

Article 256
INTENTIONAL ABORTION
ELEMENTS:
1. That there is a pregnant woman.
2. That violence is exerted, or drugs or
beverages administered, or that the
accused otherwise acts upon such
pregnant woman.
3. That as a result of the use of violence or
drugs or beverages upon her, or any other
act of the accused, the fetus dies, either
in the womb or after having been expelled
therefrom.
4. That the abortion is intended.
Ortega Notes:
Acts punished
1. Using any violence upon the person of the
pregnant woman;
2. Acting, but without using violence, without
the consent of the woman. (By administering
drugs or beverages upon such pregnant
woman without her consent.)
3. Acting (by administering drugs or beverages),
with the consent of the pregnant woman.
> Abortion is the violent expulsion of a fetus from
the maternal womb.
If the fetus has been
delivered but it could not subsist by itself, it is
still a fetus and not a person. Thus, if it is killed,
the crime committed is abortion not infanticide.
Distinction between infanticide and abortion
It is infanticide if the victim is already a person
less that three days old or 72 hours and is viable

or capable of living separately from the mothers

womb.
It is abortion if the victim is not viable but
remains to be a fetus.
> Abortion is not a crime against the woman but
against the fetus. If mother as a consequence of
abortion suffers death or physical injuries, you
have a complex crime of murder or physical
injuries and abortion.
> In intentional abortion, the offender must know
of the pregnancy because the particular criminal
intention is to cause an abortion. Therefore, the
offender must have known of the pregnancy for
otherwise, he would not try an abortion.
> If the woman turns out not to be pregnant and
someone performs an abortion upon her, he is
liable for an impossible crime if the woman
suffers no physical injury. If she does, the crime
will be homicide, serious physical injuries, etc.
> Under the Article 40 of the Civil Code, birth
determines personality. A person is considered
born at the time when the umbilical cord is cut.
He then acquires a personality separate from the
mother.
> But even though the umbilical cord has been
cut, Article 41 of the Civil Code provides that if
the fetus had an intra-uterine life of less than
seven months, it must survive at least 24 hours
after the umbilical cord is cut for it to be
considered born.
Illustration:
A mother delivered an offspring which had an
intra-uterine life of seven months. Before the
umbilical cord is cut, the child was killed.
If it could be shown that had the umbilical cord
been cut, that child, if not killed, would have
survived beyond 24 hours, the crime is
infanticide because that conceived child is
already considered born.
If it could be shown that the child, if not killed,
would not have survived beyond 24 hours, the
crime is abortion because what was killed was a
fetus only.
> In abortion, the concealment of dishonor as a
motive of the mother to commit the abortion upon
herself is mitigating. It will also mitigate the

liability of the maternal grandparent of the victim

the mother of the pregnant woman if the
abortion was done with the consent of the
pregnant woman.
> If the abortion was done by the mother of the
pregnant woman without the consent of the
woman herself, even if it was done to conceal
dishonor, that circumstance will not mitigate her
criminal liability.
But if those who performed the abortion are the
parents of the pregnant woman, or either of them,
and the pregnant woman consented for the
purpose of concealing her dishonor, the penalty is
the same as that imposed upon the woman who
practiced the abortion upon herself .
> Frustrated abortion is committed if the fetus
that is expelled is viable and, therefore, not dead
as abortion did not result despite the
employment of adequate and sufficient means to
make the pregnant woman abort. If the means
are not sufficient or adequate, the crime would be
an impossible crime of abortion. In consummated
abortion, the fetus must be dead.
> One who persuades her sister to abort is a coprincipal, and one who looks for a physician to
make his sweetheart abort is an accomplice. The
physician will be punished under Article 259 of
the Revised Penal Code.

Article 257
UNINTENTIONAL ABORTION
ELEMENTS:
1. That there is a pregnant woman.
2. That violence is used upon such pregnant
woman without intending an abortion.
3. That the violence is intentionally exerted.
4. That as a result of the violence that fetus
dies, either in the womb or after having
been expelled therefrom.
Notes:
* Unintentional abortion requires physical
violence inflicted deliberately and voluntarily by a
third person upon the person of the pregnant
woman. Mere intimidation is not enough unless
the degree of intimidation already approximates
violence.
* If the pregnant woman aborted because of
intimidation, the crime committed is not

unintentional abortion because there is no

violence; the crime committed is light threats.
* If the pregnant woman was killed by violence by
her husband, the crime committed is the complex
crime of parricide with unlawful abortion.
* While there is no intention on the part of the
accused to cause an abortion, nonetheless, the
violence that he employs on the pregnant woman
must be intentional. In other words, only the
abortion is unintended.
* Unintentional abortion can also be committed
through negligence
* Unintentional abortion may be committed
through negligence as it is enough that the use of
violence be voluntary.
Illustration:
A quarrel ensued between A, husband, and B,
wife. A became so angry that he struck B, who
was then pregnant, with a soft drink bottle on
the hip. Abortion resulted and B died.
* Take note that while unintentional abortion
appears to be a crime that should be committed
with deliberate intent because of the requirement
that the violence employed on the victim must be
intentional, nevertheless, if the circumstances of
the case justifies the application of the other
means of committing a felony (like culpa), then
the same should be applied but the penalty will
not be the penalty provided under Article 257.
Instead, the offender shall be subject to the
penalty prescribed for simple or reckless
imprudence under Article 365.
* The accused can only be held liable if he knew
that the woman was pregnant
- DEBATABLE
In US v. Jeffry, 15 Phil. 391, the Supreme Court
said that knowledge of pregnancy of the offended
party is not necessary. In People v. Carnaso,
decided on April 7, 1964, however, the Supreme
Court held that knowledge of pregnancy is
required in unintentional abortion.
Criticism:
Under Article 4, paragraph 1 of the Revised Penal
Code, any person committing a felony is criminally
liable for all the direct, natural, and logical
consequences of his felonious acts although it may

be different from that which is intended. The act

of employing violence or physical force upon the
woman is already a felony. It is not material if
offender knew about the woman being pregnant
or not.
If the act of violence is not felonious, that is, act
of self-defense, and there is no knowledge of the
womans pregnancy, there is no liability. If the act
of violence is not felonious, but there is
knowledge of the womans pregnancy, the
offender is liable for unintentional abortion.
Illustration:
The act of pushing another causing her to fall is a
felonious act and could result in physical
injuries. Correspondingly, if not only physical
injuries were sustained but abortion also
resulted, the felonious act of pushing is the
proximate cause of the unintentional abortion.
* If there is no intention to cause abortion and
neither was violence exerted, arts 256 and 257
does not apply
Questions & Answers
1.
A pregnant woman decided to
commit suicide. She jumped out of a window of a
building but she landed on a passerby. She did
not die but an abortion followed. Is she liable for
unintentional abortion?
No. What is contemplated in unintentional
abortion is that the force or violence must
come from another. If it was the woman
doing the violence upon herself, it must be to
bring about an abortion, and therefore, the
crime will be intentional abortion. In this
case, where the woman tried to commit
suicide, the act of trying to commit suicide is
not a felony under the Revised Penal Code.
The one penalized in suicide is the one giving
assistance and not the person trying to
commit suicide.
2.
If the abortive drug used in
abortion is a prohibited drug or regulated drug
under Presidential Decree No. 6425 (The
Dangerous Drugs Act of 1972), as amended, what
are the crimes committed?
The crimes committed are (1) intentional
abortion; and (2) violation of the Dangerous
Drugs Act of 1972.

Article 258
ABORTION PRACTICED BY THE
HERSELF OR BY HER PARENTS

abortion. What is punished is the act of

dispensing an abortive without the proper
prescription. It is not necessary that the abortive
be actually used
WOMAN

ELEMENTS :
1. That there is a pregnant woman who has
suffered an abortion.
2. That the abortion is intended.
3. That the abortion is caused by

with

* If the abortion is produced by a physician to

save the life of the mother, there is no liability.
This is known as a therapeutic abortion. But
abortion without medical necessity to warrant it
is punishable even with the consent of the
woman or her husband.
Illustration:

a. the pregnant woman herself

person,

* If the pharmacist knew that the abortive would

be used to cause abortion and abortion results,
he is liable as an accomplice

b.

any other
consent, or

her

c.

any of her parents, with her

consent for the purpose of
concealing her dishonor.

Notes:
* Liability of the pregnant woman is mitigated if
the purpose is to conceal her dishonor. However,
there is no Mitigation for the parents of the
pregnant women even if their purpose is to
conceal their daughters dishonor
* In infanticide, parents can avail of the
mitigating circumstance of concealing the
dishonor of their daughter. This is not so for art
258

Article 259
ABORTION PRACTICED BY A PHYSICIAN OR
MIDWIFE AND DISPENSING OF ABORTIVES
ELEMENTS:
1. That there is a pregnant woman who has
suffered an abortion.
2. That the abortion is intended.
3. That the offender, who must be a
physician or midwife, causes or assists in
causing the abortion.
4. That said physician or midwife takes
advantage of his or her scientific
knowledge or skill.
Notes:
* It is not necessary that the pharmacist knew
that the abortive would be used to cause

A woman who is pregnant got sick. The doctor

administered a medicine which resulted in
Abortion.
The
crime
committed
was
unintentional abortion through negligence or
imprudence.

Question & Answer

What is the liability of a physician who
aborts the fetus to save the life of the mother?
None.
This is a case of therapeutic
abortion which is done out of a state of necessity.
Therefore, the requisites under Article 11,
paragraph 4, of the Revised Penal Code must be
present. There must be no other practical or less
harmful means of saving the life of the mother to
make the killing justified.
Article 260
RESPONSIBILITY OF PARTICIPANTS IN
DUEL
Acts punished:
1. Killing ones adversary in a duel

2. Inflicting upon the adversary serious

physical injuries
3. Making a combat although
physical injuries have been inflicted

no

Persons liable:
1. Principals person who killed or
inflicted physical injuries upon his adversary,
or both combatants in any other cases

2.

Accomplices as seconds

* The person who killed or injured his adversary.

If both survive, both will be liable for the crime of
duel as principals by direct participation. The
seconds will be held liable as accomplices.
Notes:
DUEL: a formal or regular combat previously
concerted between 2 parties in the presence of 2
or more seconds of lawful age on each side, who
make the selection of arms and fix all the other
conditions of the fight
* If death results, the penalty is the same as that
for homicide
* While the agreement is to fight to the death, the
law will disregard the intent to kill, if only
physical injuries is inflicted. The crime will not be
classified as attempted or frustrated homicide.
* If the accused and the deceased, after a verbal
heated argument in a bar, left the place at the
same time and pursuant to their agreement, went
to the plaza to fight each other to death with
knives which they bought on the way, the facts
do not constitute the crime of dueling since there
were no seconds who fixed the conditions of the
fight in a more or less formal manner. If one was
killed, the crime committed would be Homicide.
* There is no such crime nowadays because
people hit each other even without entering into
any pre-conceived agreement. This is an obsolete
provision.

Article 261
CHALLENGING TO A DUEL
Acts punishable:
1. Challenging another to a duel
2. Inciting another to give or accept a
challenge to a duel
3. Scoffing at or decrying another
publicly for having refused to accept a
challenge to fight a duel
Persons liable:
1. Challenger
2. Instigators
* If the challenge is only to fight, without the
challenger having in mind a formal combat to be
agreed upon with the assistance of seconds as

contemplated under the law, the crime committed

will only be grave or light threat as the case may
be.
Illustration:
If one challenges another to a duel by shouting
Come down, Olympia, let us measure your
prowess. We will see whose intestines will come
out. You are a coward if you do not come down,
the crime of challenging to a duel is not committed.
What is committed is the crime of light threats
under Article 285, paragraph 1 of the Revised
Penal Code.
PHYSICAL INJURIES
Article 262
MUTILATION
Kinds of Mutilation
1. Intentionally mutilating another by depriving
him, totally or partially, of some essential
organ for reproduction
2. Intentionally making another mutilation, i.e.
lopping, clipping off any part of the body of
the offended party, other than the essential
organ for reproduction, to deprive him of that
part of the body
Elements:
1. There be a castration i.e. mutilation
of organs necessary for generation
2. Mutilation is caused purposely and
deliberately
Notes:
MUTILATION is the lopping or clipping off of
some part of the body.
* The intent to deliberately cut off the particular
part of the body that was removed from the
offended party must be established. If there is no
intent to deprive victim of particular part of body,
the crime is only serious physical injury.
* The common mistake is to associate this with
the reproductive organs only. Mutilation includes
any part of the human body that is not susceptible
to grow again.
* If what was cut off was a reproductive organ,
the penalty is much higher than that for
homicide.
* This cannot be committed through criminal
negligence.

* In the first kind of mutilation, the castration

must be made purposely. Otherwise, it will be
considered as mutilation of the second kind
MAYHEM:
mutilation

refers

to

any

other

intentional

Article 263
SERIOUS PHYSICAL INJURIES
How Committed
1. Wounding
2. Beating
3. Assaulting
4. Administering injurious substances
* In one case, the accused, while conversing with
the offended party, drew the latters bolo from its
scabbard. The offended party caught hold of the
edge of the blade of his bolo and wounded
himself. It was held that since the accused did
not wound, beat or assault the offended party, he
can not be guilty of serious physical injuries.
What are serious physical injuries:
1.
Injured
person
becomes
insane,
imbecile, impotent or blind
2.
Injured person
a.
loses the use of speech or the power to
hear or to smell, loses an eye, a hand, foot,
arm or leg
b.
loses the use of any such member
c.
becomes incapacitated for the work in
which he had been habitually engaged
3.

Injured person

a.

becomes deformed

b.

loses any other member of his body

c.

loses the use thereof

d.

becomes ill or incapacitated for the

performance of the work in which he had
been habitually engaged in for more than 90
days

4.

Injured
person
becomes
ill
or
incapacitated for labor for more than
30 days (but not more than 90 days)

Notes:
* The crime of physical injuries is a crime of
result because under our laws the crime of

physical injuries is based on the gravity of the

injury sustained.
So this crime is always
consummated.
* The reason why there is no attempted or
frustrated physical injuries is because the crime
of physical injuries is determined on the gravity
of the injury. As long as the injury is not there,
there can be no attempted or frustrated stage
thereof.
* Serious physical injuries may be committed
through
reckless
imprudence
or
simple
imprudence
* There must be no intent to kill
IMPOTENT should include inability to copulate
and sterility
BLINDNESS requires lost of vision in both eyes.
Mere weakness in vision is not contemplated
Loss of power to hear must involve both ears.
Otherwise, it will be considered as serious
physical injuries under par 3
Loss of use of hand or incapacity of usual
work in par 2 must be permanent
* Par 2 refers to principal members of the body.
Par 3 on the other hand, covers any other
member which is not a principal part of the body.
In this respect, a front tooth is considered as a
member of the body, other than a principal
member
DEFORMITY:
means
physical
ugliness,
permanent and definite abnormality. Not curable
by natural means or by nature. It must be
conspicuous and visible. Thus, if the scar is
usually covered by a dress, it would not be
conspicuous and visible
* The loss of 3 incisors is a visible deformity. Loss
of one incisor is not. However, loss of one tooth
which impaired appearance is a deformity
* Deformity by loss of teeth refers to injury which
cannot be impaired by the action of the nature
* Loss of both outer ears constitutes deformity
and also loss of the power to hear. Meanwhile,
loss of the lobule of the ear is only a deformity

* Loss of the index and middle fingers is either a

deformity or loss of a member, not a principal one
of his body or use of the same
* Loss of the power to hear in the right ear is
considered as merely loss of use of some other
part of the body
* If the injury would require medical attendance
for more than 30 days, the illness of the offended
party may be considered as lasting more than 30
days. The fact that there was medical attendance
for that period of time shows that the injuries
were not cured for that length of time
* Under par 4, all that is required is illness or
incapacity, not medical attendance
> In determining incapacity, the injured party
must have an avocation at the time of the injury.
Work: includes studies or preparation for a
profession
* When the category of the offense of serious
physical injuries depends on the period of the
illness or incapacity for labor, there must be
evidence of the length of that period. Otherwise,
the offense will only be considered as slight
physical injuries
* There is no incapacity if the injured party could
still engage in his work although less effectively
than before
* Serious physical injuries is qualified when
the crime is committed against the same persons
enumerated in the article on parricide or when it
is attended by any of the circumstances defining
the crime of murder. However, serious physical
injuries resulting from excessive chastisement by
parents is not qualified serious physical injuries

Ortega Notes:
Classification of physical injuries:
(1) Between slight physical injuries and less
serious physical injuries, you have a duration
of one to nine days if slight physical injuries;
or 10 days to 20 days if less serious physical
injuries. Consider the duration of healing and
treatment.
The significant part here is between slight
physical injuries and less serious physical
injuries.
You will consider not only the
healing duration of the injury but also the

medical attendance required to treat the

injury. So the healing duration may be one to
nine days, but if the medical treatment
continues beyond nine days, the physical
injuries would already qualify as less serious
physical injuries. The medical treatment may
have lasted for nine days, but if the offended
party is still incapacitated for labor beyond
nine days, the physical injuries are already
considered less serious physical injuries.
(2) Between less serious physical injuries and
serious physical injuries, you do not consider
the period of medical treatment. You only
consider the period when the offended party
is rendered incapacitated for labor.
If the offended party is incapacitated to work for
less than 30 days, even though the treatment
continued beyond 30 days, the physical
injuries are only considered less serious
because for purposes of classifying the
physical injuries as serious, you do not
consider the period of medical treatment. You
only consider the period of incapacity from
work.
(3) When the injury created a deformity upon the
offended party, you disregard the healing
duration or the period of medical treatment
involved. At once, it is considered serious
physical injuries.
So even though the deformity may not have
incapacitated the offended party from work, or
even though the medical treatment did not go
beyond nine days, that deformity will bring
about the crime of serious physical injuries.
Deformity requires the concurrence of the
following conditions:
(1)

The
injury
ugliness;

must

produce

(2)

It must be visible;

(3)

The ugliness will not disappear

through natural healing process.

Illustration:
Loss of molar tooth This is not deformity as it
is not visible.
Loss of permanent front tooth This is
deformity as it is visible and permanent.

Loss of milk front tooth This is not deformity

as it is visible but will be naturally replaced.
Question & Answer
The offender threw acid on the face of the
offended party. Were it not for timely medical
attention, a deformity would have been produced
on the face of the victim. After the plastic surgery,
the offended party was more handsome than
before the injury. What crime was committed? In
what stage was it committed?
The crime is serious physical injuries
because the problem itself states that the
injury would have produced a deformity. The
fact that the plastic surgery removed the
deformity is immaterial because in law what
is considered is not the artificial treatment but
the natural healing process.
In a case decided by the Supreme Court,
accused was charged with serious physical
injuries because the injuries produced a scar.
He was convicted under Article 263 (4). He
appealed because, in the course of the trial,
the scar disappeared.
It was held that
accused can not be convicted of serious
physical injuries. He is liable only for slight
physical injuries because the victim was not
incapacitated, and there was no evidence
that the medical treatment lasted for more
than nine days.
Serious physical injuries is punished with
higher penalties in the following
cases:
(1)

If it is committed against any of the

persons referred to in the crime of
parricide under Article 246;

(2)

If any of the circumstances qualifying

murder attended its commission.

Thus, a father who inflicts serious physical

injuries upon his son will be liable for qualified
serious physical injuries.

Republic Act No. 8049 (THE ANTI-HAZING

LAW)
Hazing -- This is any initiation rite or practice
which is a prerequisite for admission into
membership in a fraternity or sorority or any

organization which places the neophyte or

applicant in some embarrassing or humiliating
situations or otherwise subjecting him to physical
or psychological suffering of injury. These do not
include any physical, mental, psychological
testing and training procedure and practice to
determine and enhance the physical and
psychological fitness of the prospective regular
members of the below.
Organizations include any club or AFP, PNP, PMA
or officer or cadet corps of the CMT or CAT.
Section 2 requires a written notice to school
authorities from the head of the organization
seven days prior to the rites and should not
exceed three days in duration.
Section 3 requires supervision by head of the
school or the organization of the rites.
Section 4 qualifies the crime if rape, sodomy or
mutilation results therefrom, if the person
becomes insane, an imbecile, or impotent or blind
because of such, if the person loses the use of
speech or the power to hear or smell or an eye, a
foot, an arm or a leg, or the use of any such
member or any of the serious physical injuries or
the less serious physical injuries. Also if the
victim is below 12, or becomes incapacitated for
the work he habitually engages in for 30, 10, 1-9
days.
It holds the parents, school authorities who
consented or who had actual knowledge if they
did nothing to prevent it, officers and members
who planned, knowingly cooperated or were
present, present alumni of the organization,
owner of the place where such occurred liable.
Makes presence a prima facie presumption of guilt
for such.
Article 264
ADMINISTERING INJURIOUS SUBSTANCES OR
BEVERAGES
ELEMENTS:
1. That the offender inflicted upon another
person any serious physical injury
2. That
it
was
done
knowingly
administering to him any injurious
substances or beverages or by taking
advantage of his weakness of mind of
credulity
3. He had no intent to kill

Notes:
* The article under consideration does not deal
with a crime. It refers to means of committing
serious physical injuries.
* It is frustrated murder when there is intent to
kill
* Administering means introducing into the
body the substance, thus throwing of the acid in
the face is not contemplated
Article 265
LESS SERIOUS PHYSICAL INJURIES
ELEMENTS:
1. That the offended party is incapacitated
for labor for 10 days or more (but not
more than 30 days), or needs medical
attendance for the same period of time
2.

That the physical injuries must not be

those described in the preceding articles

Notes:
Circumstances qualifying the offense:
a.
when there is manifest intent to insult or
offend the injured person
b.

when there are circumstances adding

ignominy to the offense

c.

when the victim is either the offenders

parents, ascendants, guardians, curators
or teachers

d.

when the victim is a person of rank or

person in authority, provided the crime is
not direct assault

* It falls under this article even if there was no

incapacity but the medical treatment was for 13
days
* In this article, the offended party is
incapacitated from work for ten (10) days or more
but not more than thirty (30) days. If the injury
causes the illness of the victim, the healing
duration must be more than nine (9) days but not
more than thirty (30) days.
* Article 265 is an exception to Article 48 in
relation to complex crimes as the latter only
takes place in cases where the Revised Penal
Code has no specific provision penalizing the
same with a definite, specific penalty. Hence,

there is no complex crime of slander by deed with

less serious physical injuries but only less
serious physical injuries if the act which was
committed produced the less serious physical
injuries with the manifest intent to insult or
offend
the
offended
party,
or
under
circumstances adding ignominy to the offense.
Article 266
SLIGHT PHYSICAL INJURIES
3 Kinds:
1. That
which
incapacitated
the
offended party for labor from 1-9
days or required medical attendance
during the same period
2. That which did not prevent the
offended party from engaging in his
habitual work or which did not
require medical attendance (ex. Blackeye)
3. Ill-treatment of another by deed
without causing any injury (ex.
slapping
but
without
causing
dishonor)
* This involves even ill-treatment where there is
no sign of injury requiring medical treatment.
* Slapping the offended party is a form of illtreatment which is a form of slight physical
injuries.
> But if the slapping is done to cast dishonor
upon the person slapped, the crime is slander by
deed. If the slapping was done without the
intention of casting dishonor, or to humiliate or
embarrass the offended party out of a quarrel or
anger, the crime is still ill-treatment or slight
physical injuries.
* The crime is slight physical injury if there is no
proof as to the period of the offended partys
incapacity for labor or of the required medical
attendance.
Republic Act No. 7610 (Special Protection of
Children against Child Abuse, Exploitation
and Discrimination Act), in relation to murder,
mutilation or injuries to a child

1. By a man who have carnal knowledge of a

woman under any of the following
circumstances:

The last paragraph of Article VI of Republic Act

No. 7610, provides:
For purposes of this Act, the penalty for the
commission of acts punishable under Articles
248, 249, 262 (2) and 263 (1) of Act No 3815, as
amended of the Revised Penal Code for the
crimes of murder, homicide, other intentional
mutilation, and serious physical injuries,
respectively, shall be reclusion perpetua when the
victim is under twelve years of age.

a.

The provisions of Republic Act No. 7160 modified

the provisions of the Revised Penal Code in so far
as the victim of the felonies referred to is under
12 years of age. The clear intention is to punish
the said crimes with a higher penalty when the
victim is a child of tender age. Incidentally, the
reference to Article 249 of the Code which defines
and penalizes the crime of homicide were the
victim is under 12 years old is an error. Killing a
child under 12 is murder, not homicide, because
the victim is under no position to defend himself
as held in the case of People v. Ganohon, 196
SCRA 431.

through 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 though
none of the circumstances mentioned above
be present

2. By any person who, under any of the

circumstances mentioned in par 1
hereof, shall commit an act of sexual
assault by inserting

For murder, the penalty provided by the Code, as

amended by Republic Act No. 7659, is reclusion
perpetua to death higher than what Republic
Act no. 7610 provides. Accordingly, insofar as
the crime is murder, Article 248 of the Code, as
amended, shall govern even if the victim was
under 12 years of age. It is only in respect of the
crimes of intentional mutilation in paragraph 2 of
Article 262 and of serious physical injuries in
paragraph 1 of Article 263 of the Code that the
quoted provision of Republic Act No. 7160 may be
applied for the higher penalty when the victim is
under 12 years old.

a.

his penis into another persons mouth or

anal orifice, or

b.

any instrument or object, into the genital

or anal orifice of another person

Rape committed under par 1 is punishable by:

1. reclusion perpetua
2.

reclusion perpetua to DEATH when

a. victim became insane by reason or on the
occasion of rape
b.

the rape is attempted and a homicide is

committed by reason or on the occasion
thereof

3. DEATH when
a. homicide is committed

RAPE
ART 266-A
RAPE
The Anti-Rape Law of 1997 (RA 8353) now
classified the crime of rape as Crime Against
Persons incorporated into Title 8 of the RPC
to be known as Chapter 3
ELEMENTS:
Rape is committed

b.

victim under 18 years and offender is:

parent
ascendant
step-parent
guardian
relative by consanguinity or affinity with the
3rd civil degree or
common law spouse of parent of victim

c.

under the custody of the police or military

authorities or any law enforcement or penal
institution

i.
ii.
iii.
iv.
v.
vi.

d.

committed in full view of the spouse, parent

or any of the children or other relatives
within the 3rd degree of consanguinity

e.

victim is a religious engaged in legitimate

religious vocation or calling and is personally
known to be such by the offender before or at
the time of the commission of the crime

f.

a child below 7 years old

g.

offender knows he is afflicted with HIV or

AIDS or any other sexually transmissible
disease and the virus is transmitted to the
victim
offender; member of the AFP, or paramilitary units thereof, or the PNP, or any law
enforcement agency or penal institution,
when the offender took advantage of his
position to facilitate the commission of the
crime

h.

i.

victim
suffered
permanent
mutilation or disability

j.

the offender knew of the pregnancy of the

offended party at the time of the commission
of the crime; and

k.

when the offender knew of the mental

disability, emotional disorder and/or physical
handicap or the offended party at the time of
the commission of the crime

physical

Rape committed under par 2 is punishable by:

1. prision mayor
2. prision mayor to reclusion temporal
a. use of deadly weapon or
b.

by two or more persons

3.

reclusion temporal when the victim has

become insane

4.

reclusion temporal to reclusion pepetua

rape is attempted and homicide is committed

5.

reclusion perpetua homicide is committed

by reason or on occasion of rape

6.

reclusion temporal committed with any of

the 10 aggravating circumstances mentioned
above

Notes:

DIVIDING AGE IN RAPE:

a. less than 7 yrs old, mandatory death
b. less than 12 yrs old, statutory rape
c. less than 18 yrs old and there is
relationship (e.g. parent etc); mandatory
death
* Because of this amendment which reclassified
rape as a crime against persons, an impossible
crime may now be committed in case of rape; that
is, if there is inherent impossibility of its
accomplishment
or
on
account
of
the
employment of inadequate or ineffectual means.
* The case of People vs. Orita (G.R. No. 88724,
April 3, 1990), laid a new doctrine in Philippine
penal law insofar as the crime of rape is
concerned, as it finally did away with frustrated
rape and allowed only attempted rape and
consummated rape to remain in our statute books.
* The act of touching should be understood as
inherently part of the entry of the penis into the
labia of the female organ and not the mere
touching alone of the mons pubis or the
pudendum. Jurisprudence dictates that the labia
majora (or he outer lips of the female organ) must
be entered for rape to be consummated, and not
merely for the penis to stroke the surface of the
female organ. Thus, grazing of the surface of the
female organ or touching the mons pubis of the
pudendum is not sufficient to constitute rape. ( Pp
vs. Campuhan)
Classification of rape
!) Traditional concept under Article 335
carnal knowledge with a woman against
her will. The offended party is always a
woman and the offender is always a man.
2)

Sexual assault - committed with an

instrument or an object or use of the
penis with penetration of mouth or anal
orifice.
The offended party or the
offender can either be man or woman,
that is, if a woman or a man uses an
instrument on anal orifice of male, she or
he can be liable for rape.

Since rape is not a private crime anymore, it can

be prosecuted even if the woman does not file a
complaint.
If carnal knowledge was made possible because
of fraudulent machinations and grave abuse of

authority, the crime is rape. This absorbs the

crime of qualified and simple seduction when no
force or violence was used, but the offender
abused his authority to rape the victim.
Under Article 266-C, the offended woman may
pardon the offender through a subsequent valid
marriage, the effect of which would be the
extinction of the offenders liability. Similarly, the
legal husband may be pardoned by forgiveness of
the wife provided that the marriage is not void ab
initio.
Obviously, under the new law, the
husband may be liable for rape if his wife does
not want to have sex with him. It is enough that
there is indication of any amount of resistance as
to make it rape.
Incestuous rape was coined in Supreme Court
decisions. It refers to rape committed by an
ascendant of the offended woman. In such cases,
the force and intimidation need not be of such
nature as would be required in rape cases had
the accused been a stranger. Conversely, the
Supreme Court expected that if the offender is
not known to the woman, it is necessary that
there be evidence of affirmative resistance put up
by the offended woman. Mere no, no is not
enough if the offender is a stranger, although if
the rape is incestuous, this is enough.
The new rape law also requires that there be a
physical overt act manifesting resistance, if the
offended party was in a situation where he or she
is incapable of giving valid consent, this is
admissible in evidence to show that carnal
knowledge was against his or her will.
When the victim is below 12 years old, mere
sexual intercourse with her is already rape. Even
if it was she who wanted the sexual intercourse,
the crime will be rape. This is referred to as
statutory rape.
If the victim however is exactly twelve (12) years
old (she was raped on her birthday) or more, and
there is consent, there is no rape. However,
Republic Act No. 7610, Sec. 5 (b) provides that:
Even if the victim is over twelve (12) year old and
the carnal act was with her consent as long as
she falls under the classification of a child
exploited in prostitution and other sexual abuse,
the crime is rape.
In other cases, there must be force, intimidation,
or violence proven to have been exerted to bring
about carnal knowledge or the woman must have
been deprived of reason or otherwise unconscious.

It is not necessary that the force or intimidation

employed be so great or of such character as
could not be resisted it is only necessary that it
be sufficient to consummate the purpose which
the accused had in mind. (People vs. Canada,
253 SCRA 277).
Carnal knowledge with a woman who is asleep
constitutes Rape since she was either deprived of
reason or otherwise unconscious at that time.
(People vs. Caballero, 61 Phil. 900).
Sexual intercourse with an insane, deranged or
mentally deficient, feeble-minded or idiotic
woman is Rape pure and simple. The deprivation
of reason contemplated by law need not be
complete; mental abnormality or deficiency is
sufficient.
Where the victim is over 12 years old, it must be
shown that the carnal knowledge with her was
obtained against her will. It is necessary that
there be evidence of some resistance put up by
the offended woman.
It is not, however,
necessary that the offended party should exert
all her efforts to prevent the carnal intercourse.
It is enough that from her resistance, it would
appear that the carnal intercourse is against her
will.
Mere initial resistance, which does not indicate
refusal on the part of the offended party to the
sexual intercourse, will not be enough to bring
about the crime of rape.
Note that it has been held that in the crime of
rape, conviction does not require medico-legal
finding of any penetration on the part of the
woman.
A medico-legal certificate is not
necessary or indispensable to convict the
accused of the crime of rape.
It has also been held that although the offended
woman who is the victim of the rape failed to
adduce evidence regarding the damages to her by
reason of the rape, the court may take judicial
notice that there is such damage in crimes
against chastity. The standard amount given now
is P 50,000.00, with or without evidence of any
moral damage.
An accused may be convicted of rape on the sole
testimony of the offended woman. It does not
require that testimony be corroborated before a
conviction may stand. This is particularly true if
the commission of the rape is such that the
narration of the offended woman would lead to

no other conclusion except that the rape was

committed.

would be paid handsomely, may be guilty of Rape

if later on he refuses to pay the said amount.

Illustration:
Daughter accuses her own father of having raped
her.

A person in authority who maneuvered a

scheme where a woman landed in jail, and who
upon promise of being released after having sex
with the officer, willingly consented to the sexual
act, may also be found guilty of Rape under this
new section.

Allegation of several accused that the woman

consented to their sexual intercourse with her is
a proposition which is revolting to reason that a
woman would allow more than one man to have
sexual intercourse with her in the presence of the
others.
It has also been ruled that rape can be
committed in a standing position because
complete penetration is not necessary.
The
slightest penetration contact with the labia will
consummate the rape.
On the other hand, as long as there is an intent to
effect sexual cohesion, although unsuccessful, the
crime becomes attempted rape. However, if that
intention is not proven, the offender can only be
convicted of acts of lasciviousness.
The main distinction between the crime of
attempted rape and acts of lasciviousness is the
intent to lie with the offended woman.
In a case where the accused jumped upon a
woman and threw her to the ground, although
the accused raised her skirts, the accused did
not make any effort to remove her underwear.
Instead, he removed his own underwear and
placed himself on top of the woman and started
performing sexual movements. Thereafter, when
he was finished, he stood up and left. The crime
committed is only acts of lasciviousness and not
attempted rape. The fact that he did not remove
the underwear of the victim indicates that he
does not have a real intention to effect a
penetration. It was only to satisfy a lewd design.
The new law, R.A. 8353, added new circumstance
that is, when carnal knowledge was had by
means of fraudulent machinations or grave abuse
of authority. It would seem that if a woman of
majority age had sexual intercourse with a man
through the latters scheme of pretending to
marry her which is the condition upon which the
woman agreed to have sex with him,
manipulating a sham marriage, the man would
be guilty of Rape under this Section. So also, a
prostitute who willingly had sexual congress with
a man upon the latters assurance that she

IN RAPE CASES, COURT MUST ALWAYS BE

GUIDED BY THE FOLLOWING PRINCIPLES:
1.

An accusation of rape can be made with

facility; it is difficult to prove, but more
difficult for the person accused, though
innocent, to disprove;

2.

In view of the intrinsic nature of the crime

where only two persons are usually involved,
the testimony of the complainant must be
scrutinized with extreme caution; and

3. The evidence for the prosecution must stand

or fall on its own merits, and cannot be
allowed to draw strength from the weakness
of the evidence for the defense. (People vs.
Ricafort)
TITLE NINE
CRIMES AGAINST PERSONAL LIBERTY AND
SECURITY
Crimes against liberty
1.
Kidnapping and serious illegal detention
(Art. 267);
2.
Slight illegal detention (Art. 268);
3.
Unlawful arrest (Art. 269);
4.
Kidnapping and failure to return a minor
(Art. 270);
5.
Inducing a minor to abandon his home
(Art. 271);
6.
Slavery (Art. 272);
7.
Exploitation of child labor (Art. 273);
8.
Services rendered under compulsion in
payment of debts (Art. 274).
Crimes against security
1.
Abandonment of persons in danger and
abandonment of one's own victim (Art.
275);
2.
Abandoning a minor (Art. 276);
3.
Abandonment of minor by person
entrusted with his custody; indifference
of parents (Art. 277);
4.
Exploitation of minors (Art. 278);
5.
Trespass to dwelling (Art. 280);

6.
7.
8.
9.
10.
11.
12.
13.

Other forms of trespass (Art. 281);

Grave threats (Art. 282);
Light threats (Art. 283);
Other light threats (Art. 285);
Grave coercions (Art. 286);
Light coercions (Art. 287);
Other similar coercions (Art. 288);
Formation, maintenance and prohibition
of combination of capital or labor
through violence or threats (Art. 289);
Discovering secrets through seizure of
correspondence (Art. 290);
Revealing secrets with abus of office (Art.
291);
Revealing of industrial secrets (Art. 292).

14.
15.
16.

Article 267
KIDNAPPING
DETENTION

AND

SERIOUS

ILLEGAL

ELEMENTS:
1. Offender is a private individual
2. He kidnaps or detains another, or in
any other manner deprives the latter of
his liberty
3. The act of detention or kidnapping
must be illegal
4. That in the commission of the offense,
any of the following circumstances are
present (becomes serious)
a.

that the kidnapping/detention lasts for more

than 3 days

b.

that it is
authority

committed

simulating

public

c.

that any serious physical injuries are inflicted

upon the person kidnapped or detained or
threats to kill him are made, or

d.

that the person kidnapped or detained is a

minor (except if parent is the offender), female
or a public officer

Note: When death penalty is imposed:

a. If kidnapping is committed for the
purpose of extorting ransom either from
the victim or from any other person even
if none of the aforementioned are present
in the commission of the offense (even if
none of the circumstances are present)
b.

When the victim is killed or dies as a

consequence of the detention or is raped

or
is
subjected
to
torture
or
dehumanizing acts
*
The essence of the offense is the actual
deprivation of the victims liberty coupled with
the intent of the accused to effect it. There must
be indubitable proof that the actual intent of the
malefactor was to deprive the offended party of
liberty.
The restraint however need not be
permanent. (People vs. Godoy, 250 SCRA 676).
Ortega Notes:
When a public officer conspires with a private
person in the commission of any of the crimes
under Title IX, the crime is also one committed
under this title and not under Title II.
Illustration:
If a private person commits the crime of
kidnapping or serious illegal detention, even
though a public officer conspires therein, the
crime cannot be arbitrary detention. As far as
that public officer is concerned, the crime is also
illegal detention.
In the actual essence of the crime, when one says
kidnapping,
this
connotes
the
idea
of
transporting the offended party from one place to
another. When you think illegal detention, it
connotes the idea that one is restrained of his
liberty without necessarily transporting him from
one place to another.
The crime of kidnapping is committed if the
purpose of the offender is to extort ransom either
from the victim or from any other person. But if a
person is transported not for ransom, the crime
can be illegal detention. Usually, the offended
party is brought to a place other than his own, to
detain him there.
When one thinks of kidnapping, it is not only
that of transporting one person from one place to
another. One also has to think of the criminal
intent.
Forcible abduction -- If a woman is transported
from one place to another by virtue of restraining
her of her liberty, and that act is coupled with
lewd designs.
Serious illegal detention If a woman is
transported just to restrain her of her liberty.
There is no lewd design or lewd intent.

Grave coercion If a woman is carried away just

to break her will, to compel her to agree to the
demand or request by the offender.

Arbitrary detention is committed by a public

officer who detains a person without legal
grounds.

In a decided case, a suitor, who cannot get a

favorable reply from a woman, invited the woman
to ride with him, purportedly to take home the
woman from class. But while the woman is in
his car, he drove the woman to a far place and
told the woman to marry him. On the way, the
offender had repeatedly touched the private parts
of the woman. It was held that the act of the
offender of touching the private parts of the
woman could not be considered as lewd designs
because he was willing to marry the offended
party. The Supreme Court ruled that when it is a
suitor who could possibly marry the woman,
merely kissing the woman or touching her private
parts to compel her to agree to the marriage,
such cannot be characterized as lewd design. It is
considered merely as the passion of a lover.
But if the man is already married, you cannot
consider that as legitimate but immoral and
definitely amounts to lewd design.

The penalty for kidnapping is higher than for

forcible abduction. This is wrong because if the
offender knew about this, he would perform
lascivious acts upon the woman and be charged
only for forcible abduction instead of kidnapping
or illegal detention. He thereby benefits from this
absurdity, which arose when Congress amended
Article 267, increasing the penalty thereof,
without amending Article 342 on forcible
abduction.
Article 267 has been modified by Republic Act
No. 7659 in the following respects:
(1)

Illegal detention becomes serious when it

shall have lasted for more than three
days, instead of five days as originally
provided;

(2)

In paragraph 4, if the person kidnapped

or detained was a minor and the offender
was anyone of the parents, the latter has
been expressly excluded from the
provision. The liability of the parent is
provided for in the last paragraph of
Article 271;

(3)

A paragraph was added to Article 267,

which states:

If a woman is carried against her will but without

lewd design on the part of the offender, the crime
is grave coercion.
Illustration:
Tom Cruz invited Nicole Chizmacks for a snack.
They drove along Roxas Boulevard, along the
Coastal Road and to Cavite. The woman was
already crying and wanted to be brought home.
Tom imposed the condition that Nicole should
first marry him. Nicole found this as, simply, a
mission impossible. The crime committed in this
case is grave coercion. But if after they drove to
Cavite, the suitor placed the woman in a house
and would not let her out until she agrees to
marry him, the crime would be serious illegal
detention.
If the victim is a woman or a public officer, the
detention is always serious no matter how short
the period of detention is.
Distinction between illegal detention and
arbitrary detention
Illegal detention is committed by a private person
who kidnaps, detains, or otherwise deprives
another of his liberty.

When the victim is killed or dies as a

consequence of the detention or is
raped, or is subjected to torture, or
dehumanizing acts, the maximum
penalty shall be imposed.
This amendment brings about a composite
crime of kidnapping with homicide when it
is the victim of the kidnapping who was
killed, or dies as a consequence of the
detention and, thus, only one penalty is
imposed which is death.
Article 48, on complex crimes, does not govern in
this case. But Article 48 will govern if any other
person is killed aside, because the provision
specifically refers to victim. Accordingly, the
rulings in cases of People v. Parulan, People v.
Ging Sam, and other similar cases where the
accused were convicted for the complex crimes of
kidnapping with murder have become academic.

In the composite crime of kidnapping with

homicide, the term homicide is used in the
generic sense and, thus, covers all forms of
killing whether in the nature of murder or
otherwise.
It does not matter whether the
purpose of the kidnapping was to kill the victim
or not, as long as the victim was killed, or died as
a consequence of the kidnapping or detention.
There is no more separate crime of kidnapping
and murder if the victim was kidnapped not for
the purpose of killing her.
If the victim was raped, this brings about the
composite crime of kidnapping with rape. Being a
composite crime, not a complex crime, the same
is regarded as a single indivisible offense as in
fact the law punishes such acts with only a single
penalty. In a way, the amendment depreciated
the seriousness of the rape because no matter
how many times the victim was raped, there will
only be one kidnapping with rape. This would not
be the consequence if rape were a separate crime
from kidnapping because each act of rape would
be a distinct count.
However for the crime to be kidnapping with rape,
the offender should not have taken the victim with
lewd designs as otherwise the crime would be
forcible abduction; and if the victim was raped, the
complex crime of forcible abduction with rape
would be committed. If the taking was forcible
abduction, and the woman was raped several
times, there would only be one crime of forcible
abduction with rape, and each of the other rapes
would constitute distinct counts of rape. This was
the ruling in the case of People v. Bacalso.
In People v. Lactao, decided on October 29,
1993, the Supreme Court stressed that the crime
is serious illegal detention if the purpose was to
deprive the offended party of her liberty. And if
in the course of the illegal detention, the offended
party was raped, a separate crime of rape would
be committed. This is so because there is no
complex crime of serious illegal detention with
rape since the illegal detention was not a
necessary means to the commission of rape.
In People v. Bernal, 131 SCRA 1, the appellants
were held guilty of separate crimes of serious
illegal detention and of multiple rapes. With the
amendment by Republic Act No. 7659 making
rape a qualifying circumstance in the crime of
kidnapping and serious illegal detention, the
jurisprudence is superseded to the effect that the
rape should be a distinct crime. Article 48 on
complex crimes may not apply when serious

illegal detention and rape are committed by the

same offender. The offender will be charged for
the composite crime of serious illegal detention
with rape as a single indivisible offense,
regardless of the number of times that the victim
was raped.
Also, when the victim of the kidnapping and
serious illegal detention was subjected to torture
and sustained physical injuries, a composite
crime of kidnapping with physical injuries is
committed.
Palattao notes:
When the person is deprived of his liberty or is
seized and forcibly taken to another place, the
inquiry would, be what is the purpose of the
offender in taking him or her away:
1. If the seizure is only to facilitate the killing of
the victim the crime committed would either
be homicide or murder and the crime of
kidnapping is absorbed.
2. If the seizure or deprivation of liberty is only
to compel the victim to perform an act, be it
right or wrong, the crime committed would
only be grave coercion. (People vs. Astorga,
283 SCRA 420).
3. If the deprivation of liberty is to take away the
victim to satisfy the lewd design of the
offender, the crime would only be forcible
abduction.
4. If the seizure of the victim is solely to deprive
him of his liberty, the crime is illegal
detention.
In the penultimate paragraph of Article 267,
there is deprivation of liberty but not for any for
the purposes enumerated above. It is for the
purpose of extorting ransom from the victim or
from any other person. The law classifies the
crime committed by the offender as serious illegal
detention even if none of the circumstances to
make it serious is present in the commission of
the crime. In this particular mode of committing
the crime of serious illegal detention, demand for
ransom is an indispensable element. (People vs.
Bustamante, G. R. No. 66427, Dec. 4, 1991)
SANDOVAL Notes:
If the victim was not kidnapped or taken away
but was restrained and deprived of his liberty,
like in the case of a hostage incident where the
accused, who was one of the occupants of the

house, grabbed a child, poked a knife on the

latters neck, called for media people and
demanded a vehicle from the authorities which
he could use in escaping, as it turned out that
there was an unserved arrest warrant against
him, the proper charge is Serious Illegal
Detention (without kidnapping anymore) but
likewise under Article 267 of the Revised Penal
Code.

When the offender voluntarily releases the

offended party from detention within three days
from the time the restraint of liberty began, as
long as the offender has not accomplished his
purposes, and the release was made before the
criminal prosecution was commenced, this would
serve to mitigate the criminal liability of the
offender, provided that the kidnapping or illegal
detention is not serious.

Where after taking the victim with her car, the

accused called the house of the victim asking for
ransom but upon going to their safehouse saw
several police cars chasing them, prompting them
to kill their victim inside the car, there were two
crime committed Kidnapping for Ransom and
Murder, not a complex crime of Kidnapping with
Murder as she was not taken or carried away to
be killed, killing being an afterthought . (People
vs. Evanoria, 209 SCRA 577).

If the illegal detention is serious, however, even if

the offender voluntarily released the offended
party, and such release was within three days
from the time the detention began, even if the
offender has not accomplished his purpose in
detaining the offended party, and even if there is
no criminal prosecution yet, such voluntary
release will not mitigate the criminal liability of
the offender.

Article 268
SLIGHT ILLEGAL DETENTION
ELEMENTS:
1. Offender is a private person
2. He kidnaps or detains another or in any
other maner deprives him pof his liberty /
furnished place for the perpetuation of
the crime
3. That the act of detention or kidnapping
must be illegal
4. That the crime is committed without the
attendant of any of the circumstances
enumerated in Art 267
Note: Privileged mitigating circumstances:
If the offender:
a. voluntarily releases the person so
kidnapped or detained within 3 days
from the commencement of the detention
b.

without having attained the purpose

intended and

c.

before the institution

proceedings against him

of

criminal

Ortega Notes:
One should know the nature of the illegal
detention to know whether the voluntary release
of the offended party will affect the criminal
liability of the offender.

One who furnishes the place where the offended

party is being held generally acts as an
accomplice. But the criminal liability in connection
with the kidnapping and serious illegal detention,
as well as the slight illegal detention, is that of the
principal and not of the accomplice.
The prevailing rule now is Asistio v. Judge,
which provides that voluntary release will only
mitigate criminal liability if crime was slight
illegal detention. If serious, it has no effect.
In kidnapping for ransom, voluntary release will
not mitigate the crime. This is because, with the
reimposition of the death penalty, this crime is
penalized with the extreme penalty of death.
What is ransom? It is the money, price or
consideration paid or demanded for
redemption of a captured person or
persons, a payment that releases a
person from captivity.
The definition of ransom under the Lindberg law
of the U.S. has been adopted in our
jurisprudence in People v. Akiran, 18 SCRA
239, 242, such that when a creditor detains a
debtor and releases the latter only upon the
payment of the debt, such payment of the debt,
which was made a condition for the release is
ransom, under this article.
In the case of People v. Roluna, decided March
29, 1994, witnesses saw a person being taken
away with hands tied behind his back and was
not heard from for six years. Supreme Court
reversed the trial court ruling that the men

accused were guilty of kidnapping with murder.

The crime is only slight illegal detention under
Article 268, aggravated by a band, since none of
the circumstances in Article 267 has been proved
beyond a reasonable doubt. The fact that the
victim has been missing for six years raises a
presumption of death, but from this disputable
presumption of death, it should not be further
presumed that the persons who were last seen
with the absentee is responsible for his
disappearance.

* If the arrest is made without a warrant and

under circumstances not allowing a warrantless
arrest, the crime would be unlawful arrest.

Article 269
UNLAWFUL ARREST
ELEMENTS:
1. That the offender arrests or detains
another person
2. That the purpose of the offender is to
deliver him to the proper authorities
3. That the arrest or detention is not
authorized by law or there is no
reasonable ground therefor

* If the detention or arrest is for a legal ground,

but the public officer delays delivery of the
person arrested to the proper judicial authorities,
then Article 125 will apply.

Notes:
* Offender is any person, so either a public officer
or private individual

* In art 125, the crime pertains to failure to

deliver the person to the proper judicial authority
within the prescribed period while here, the
arrest is not authorized by law

* The offender in this article can be a private

individual or public officer. In the latter case, the
offender, being a public officer, has the authority
to arrest and detain a person, but the arrest is
made without legal grounds. For him to be
punished under this article, the public officer
must make the arrest and detention without
authority to do so; or without acting in his official
capacity.
* This felony consists in making an arrest or
detention without legal or reasonable ground for
the purpose of delivering the offended party to
the proper authorities.
* The offended party may also be detained but
the crime is not illegal detention because the
purpose is to prosecute the person arrested. The
detention is only incidental; the primary criminal
intention of the offender is to charge the offended
party for a crime he did not actually commit.
* Generally, this crime is committed by
incriminating innocent persons by the offenders
planting evidence to justify the arrest a complex
crime results, that is, unlawful arrest through
incriminatory machinations under Article 363.
* Refers to warrantless arrests

* If the person arrested is not delivered to the

authorities, the private individual making the
arrest incurs criminal liability for illegal detention
under Article 267 or 268.
* If the offender is a public officer, the crime is
arbitrary detention under Article 124.

* Note that this felony may also be committed by

public officers.
* In art 125, the detention is for some legal
ground while here, the detention is not
authorized by law

Article 270
KIDNAPPING AND FAILURE TO RETURN A
MINOR
ELEMENTS:
1. That the offender is entrusted with
the custody of a minor person
(whether over or under 7 but less than
18 yrs old)
2. That he deliberately fails to restore
the said minor to his parents
* If any of the foregoing elements is absent, the
kidnapping of the minor will then fall under
Article 267.
* If the accused is any of the parents, Article 267
does not apply; Articles 270 and 271 apply.
* If the taking is with the consent of the parents,
the crime in Article 270 is committed.
* In People v. Generosa, it was held that
deliberate failure to return a minor under ones
custody constitutes deprivation of liberty.
Kidnapping and failure to return a minor is
necessarily included in kidnapping and serious
illegal detention of a minor under Article 267(4).

* In People v. Mendoza, where a minor child was

taken by the accused without the knowledge and
consent of his parents, it was held that the crime
is kidnapping and serious illegal detention under
Article 267, not kidnapping and failure to return
a minor under Article 270.
Article 271
INDUCING A MINOR TO ABANDON HIS HOME
ELEMENTS:
1. That the minor (whether over or under
7) is living in the home of his parents
or guardians or the person entrusted
with his custody
2. That the offender induces a minor to
abandon such home
Notes:
* The inducement must be actually done with
malice and a determined will to cause damage.
(People vs. Paalam, C.A., O.G. 8267-8268). But
where the victims abandoned their respective
homes out of an irresponsible spirit of
restlessness and adventure, the crime is not
committed.
* Minor should not leave his home of his own free
will

Note: Qualifying circumstance if the purpose

of the offender is to assign the offended party to
some immoral traffic (prostitution), the penalty is
higher
* This is distinguished from illegal detention by
the purpose. If the purpose of the kidnapping or
detention is to enslave the offended party, slavery
is committed.
* The crime is slavery if the offender is not
engaged in the business of prostitution. If he is,
the crime is white slave trade under Article 341.
Article 273
EXPLOITION OF CHILD LABOR
ELEMENTS:
1. That the offender retains a minor in his
service.
2. That it is against the will of the minor.
3. That it is under the pretext of
reimbursing himself of a debt incurred
by an ascendant, guardian or person
entrusted with the custody of such
minor.
* If the minor agrees to serve the accused, no
crime is committed, even if the service is
rendered to pay an ascendants alleged debt.

* Mitigating if by father or mother

* The article also punishes the father or mother
who commits the act penalized under the law.
This arises when the custody of the minor is
awarded by the court to one of them after they
have separated. The other parent who induces
the minor to abandon his home is covered by this
article.
Article 272
SLAVERY
ELEMENTS:
1. That the offender purchases. Sells,
kidnaps or detains a human being.
2. That the purpose of the offender is to
enslave such human being.
SLAVERY is the treatment of a human being as a
mere property, stripped of dignity and human
rights. The person is reduced to the level of an
ordinary animal, a mere chattel with material
value capable of pecuniary estimation and for
which reason, the offender purchases and sells
the same.

Article 274
SERVICES RENDERED UNDER COMPULSION
IN PAYMENT OF DEBT
ELEMENTS:
1. That the offender compels a debtor to
work for him, either as household
servant or farm laborer.
2. That it is against the debtors will.
3. That the purpose is to require or enforce
the payment of a debt.
Involuntary servitude or service. In this article,
no distinction is made whether the offended is a
minor or an adult.
CRIMES AGAINST SECURITY
Article 275
ABANDONMENT OF PERSON IN DANGER AND
ABANDONMENT OF ONES OWN VICTIM

Acts punishable:
1. By failing to render assistance to any
person whom the offender finds in an
inhabited 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
Elements
a. That place is not inhabited.
b. The accused found there a person
wounded or in danger of dying.
c. The accused can render assistance
without detriment to himself.
d. The accused fails to render assistance.
2. By failing to help or render assistance to
another
whom
the
offender
has
accidentally wounded or injured
3. By failing to deliver a child, under 7
whom the offender has found abandoned,
to the authorities or to his family, or by
failing to take him to a safe place

1. That the offender has the custody of

a child.
2. That the child is under seven years of
age.
3. That he abandons such child.
4. That he has no intent to kill the child
when the latter is abandoned.
Notes:
* Conscious, deliberate, permanent
* In order to hold one criminally liable under this
article, the offender must have abandoned the
child with deliberate intent. The purpose of the
offender must solely be avoidance of the obligation
of taking care of the minor.
Qualifying circumstances:
a.
When the death of the minor resulted
from such abandonment
b. If the life of the minor was in danger
because of the abandonment

* Under the first act, the offender is liable only

when he can render such assistance without
detriment to himself, unless such omission shall
constitute a more serious offense. Where the
person is already wounded and already in danger
of dying, there is an obligation to render
assistance only if he is found in an uninhabited
place. If the mortally wounded, dying person is
found in a place not uninhabited in legal
contemplation, abandonment will not bring about
this crime. An uninhabited place is determined
by possibility of person receiving assistance from
another. Even if there are many houses around,
the place may still be uninhabited if possibility of
receiving assistance is remote.

Article 277
ABANDONMENT OF MINOR BY PERSON
ENTRUSTED
WITH
HIS
CUSTODY;
INDIFFERENCE OF PARENTS
Acts punished:
1. By delivering a minor to a public
institution or other persons w/o consent
of the one who entrusted such minor to
the care of the offender or, in the absence
of that one, without the consent of the
proper authorities
Elements:
a. That the offender has charged of the
rearing or education of a minor.

* If what happened was an accident at first, there

would be no liability pursuant to Article 12 (4) of
the RPC damnum absque injuria. But if you
abandon your victim, you will be liable under
Article 275. Here, the character of the place is
immaterial. As long as the victim was injured
because of the accident caused by the offender,
the offender would be liable for abandonment if
he would not render assistance to the victim.

b. That he delivers said minor to a public

institution or other persons.

Article 276
ABANDONING A MINOR
ELEMENTS:

c. That the one who entrusted such child to

the offender has not consented to such act,
or if the one who entrusted such child to the
offender is absent; the proper authorities
have not consented to it.
2. By neglecting his (offenders) children by
not giving them education which their
station in life requires and financial
condition permits
Elements:
a. That the offender is a parent.

b. That he neglects his children by not giving

them education.
c. That his station in life requires such
education and his financial condition
permits it.
Indifference of parents while they are
financially capable of supporting the needs of
their children, they deliberately neglect to
support the educational requirements of these
children through plain irresponsibility caused by
wrong social values.
Article 278
EXPLOITATION OF MINORS
Acts punished:
1. By causing any boy or girl under 16 to
perform any dangerous feat of balancing,
physical strength or contortion, the
offender being any person
2. By employing children under 16 who are
not the children or descendants of the
offender in exhibitions of acrobat,
gymnast, rope-walker, diver, or wildanimal tamer or circus manager or
engaged in a similar calling
3. By employing any descendant under 12 in
dangerous exhibitions enumerated in the
next preceding paragraph, the offender
being engaged in any of said callings
4. By
delivering
a
child
under
16
gratuitously to any person following any
of the callings enumerated in par 2 or to
any habitual vagrant or beggar, the
offender being an ascendant, guardian,
teacher or person entrusted in any
capacity with the care of such child
5. By inducing any child under 16 to
abandon the home of its ascendants;
guardians, curators or teachers to follow
any person engaged in any of the callings
mentioned in par 2 or to accompany any
habitual vagrant or beggar, the offender
being any person
Note: Qualifying Circumstance if the delivery
of the child to any person following any of the
callings of acrobat, rope-walker, diver or wildanimal trainer or circus manager or to any
habitual vagrant of beggar is made in
consideration of any price, compensation or
promise, the penalty is higher.

* The offender is engaged in a kind of business

that would place the life or limb of the minor in
danger, even though working for him is not
against the will of the minor.
Nature of the Business This involves circuses
which generally attract children so
they themselves may enjoy working
there unaware of the danger to their
own lives and limbs.
Age Must be below 16 years. At this age, the
minor is still growing.
* If the employer is an ascendant, the crime is not
committed, unless the minor is less than 12
years old.
Because if the employer is an
ascendant, the law regards that he would look
after the welfare and protection of the child;
hence, the age is lowered to 12 years. Below that
age, the crime is committed.
* But remember Republic Act No. 7610 (Special
Protection of Children against Child Abuse,
Exploitation and Discrimination Act). It applies to
minors below 18 years old, not 16 years old as in
the Revised Penal Code.
As long as the
employment is inimical even though there is no
physical risk and detrimental to the childs
interest against moral, intellectual, physical,
and mental development of the minor the
establishment will be closed.
* Article 278 has no application if minor is 16
years old and above. But the exploitation will be
dealt with by Republic Act No. 7610.
* If the minor so employed would suffer some
injuries as a result of a violation of Article 278,
Article 279 provides that there would be
additional criminal liability for the resulting
felony.
ADDITIONAL
PENALTIES
OFFENSES: (279)

FOR

OTHER

Article 280
QUALIFIED TRESPASS TO DWELLING
ELEMENTS:
1. That the offender is a private person.
2. That he enters the dwelling of another.
3. That such entrance is against the latters
will.
Notes:

DWELLING This is the place that a person

inhabits. It includes the dependencies which
have interior communication with the house. It
is not necessary that it be the permanent
dwelling of the person. So, a persons room in a
hotel may be considered a dwelling. It also
includes a room where one resides as a boarder.
Qualifying circumstance: if the offense is
committed by means of violence or intimidation,
the penalty is higher
* There must be an opposition to the entry of the
accused
* If the entry is made by a way not intended for
entry, that is presumed to be against the will of
the occupant (example, entry through a window).
It is not necessary that there be a breaking.
* Lack of permission to enter a dwelling does not
amount to prohibition. So, one who enters a
building is not presumed to be trespasser until the
owner tells him to leave the building. In such a
case, if he refuses to leave, then his entry shall
now be considered to have been made without
the express consent of the owner. (People vs. De
Peralta, 42 Phil. 69)
* Even if the door is not locked, for as long as it is
closed, the prohibition is presumed especially if
the entry was done at the late hour of the night
or at an unholy hour of the day. (U. S. vs.
Mesina, 21 Phil. 615)
* Implied prohibition is present considering the
situation late at night and everyones asleep or
entrance was made through the window
Against the will -- This means that the
entrance is, either expressly or impliedly,
prohibited or the prohibition is presumed.
Fraudulent entrance may constitute trespass. The
prohibition to enter may be made at any time and
not necessarily at the time of the entrance.
* To prove that an entry is against the will of the
occupant, it is not necessary that the entry
should be preceded by an express prohibition,
provided that the opposition of the occupant is
clearly established by the circumstances under
which the entry is made, such as the existence of
enmity or strained relations between the accused
and the occupant.
* Prohibition is not necessary when violence or
intimidation is employed by the offender

* On violence, Cuello Calon opines that violence

may be committed not only against
persons but also against things. So,
breaking the door or glass of a
window or door constitutes acts of
violence.
Our Supreme Court
followed this view in People v. Tayag.
Violence
or
intimidation
must,
however, be anterior or coetaneous
with the entrance and must not be
posterior.
But if the violence is
employed
immediately
after
the
entrance without the consent of the
owner of the house, trespass is
committed. If there is also violence or
intimidation, proof of prohibition to
enter is no longer necessary.
* When there is no overt act of the crime intended
to be committed, this is the crime
* If the purpose in entering the dwelling is not
shown, trespass is committed. If the purpose is
shown, it may be absorbed in the crime as in
robbery with force upon things, the trespass
yielding to the more serious crime. But if the
purpose is not shown and while inside the
dwelling he was found by the occupants, one of
whom was injured by him, the crime committed
will be trespass to dwelling and frustrated
homicide, physical injuries, or if there was no
injury, unjust vexation.
* May be committed even by the owner (as against
the actual occupant)
* Even if the house belonged to the accused, if
the possession has been delivered to another by
reason of contract or by a mere tolerance, his
being the owner would not authorize him to enter
the house against the will of the lawful occupant.
His ownership is no authority for him to place the
law in his hands. (People vs. Almeda, 75 Phil.
476)
Distinction between qualified trespass
dwelling and violation of domicile

to

Unlike qualified trespass to dwelling, violation of

domicile may be committed only by a public
officer or employee and the violation may consist
of any of the three acts mentioned in Article 128
(1) entering the dwelling against the will of the
owner without judicial order; (2) searching papers
or other effects found in such dwelling without
the previous consent of the owner thereof; and

(3) refusing to leave the dwelling when so

requested by the owner thereof, after having
surreptitiously entered such dwelling.
Not applicable to:
a. entrance is for the purpose of preventing
harm to himself, the occupants or a third
person
b. purpose is to render some service to
humanity or justice
c. place is a caf, tavern etc while open

b.
c.

d.

honor or property, or upon that of the latters

family, of any wrong.
That such wrong amounts to a crime.
That there is a demand for money or that
any other condition is imposed, even though
not unlawful.
That the offender attains his purpose.

2. By making such threat without

offender attaining his purpose

the

* Pursuant to Section 6, Rule 113 of the Rules of

Court, a person who believes that a crime has
been committed against him has every right to go
after the culprit and arrest him without any
warrant even if in the process he enters the
house of another against the latters will.

3. By threatening another with the 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 a condition (Note: threat is
without condition)

Medina case: when the accused entered the

dwelling through the window, he had no intent to
kill any person inside, but the intention to kill
came to his mind when he was being arrested by
the occupants thereof, the crime of trespass to
dwelling is a separate and distinct offense from
frustrated homicide

Elements
a. That the offender threatens another person
with the infliction upon the latters person,
honor or property, or upon that of the latters
family, of any wrong.
b. That such wrong amounts to a crime.
c. That the threat is not subject to a condition

Article 281
OTHER FORMS OF TRESPASS
ELEMENTS:
1. That the offender enters the closed
premises or the fenced estate of another.
2. That the entrance is made while either of
them is uninhabited.
3. That the prohibition to enter be manifest.
4. That the trespasser has not secured the
permission of the owner or the caretaker
thereof.

Notes:

THREATS and COERCIONS

Article 282
GRAVE THREATS
Acts punishable:
1. By threatening another with the infliction
upon his person, honor or property 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
(Note: threat is with condition)
Elements
a. That the offender threatens another person
with the infliction upon the latters person,

Intimidation is an indispensable element in the

crime of threat. The very essence of threat is to
sow fear, anxiety and insecurity in the mind of
the offended party. It is done by threatening to
commit the crime upon the person, honor and
property of the offended party. There is a promise
of some future harm or injury.
Aggravating circumstances: if made in writing
or thru a middleman
Frustrated if not received by the person being
threatened
* Art 284 bond for good behavior may be imposed
(only in these offenses)
Ortega Notes:
Threat is a declaration of an intention or
determination to injure another by the
commission upon his person, honor or property
or upon that of his family of some wrong which
may or may not amount to a crime:

(1)

Grave threats when the wrong

threatened to be inflicted amounts to a
crime. The case falls under Article 282.

(3)

As to subject matter Robbery refers to

personal property; threat may refer to the
person, honor or property.

(2)

Light threats if it does not amount to

a crime. The case falls under Article
283.

(4)

As to intent to gain In robbery, there is

intent to gain; in threats, intent to gain is
not an essential element.

But even if the harm intended is in the nature of

a crime, if made orally and in the heat of anger
and after the oral threat, the issuer of the threat
did not pursue the act, the crime is only other
light threats under Article 285.

(5)

In robbery, the robber makes the danger

involved in his threats directly imminent
to the victim and the obtainment of his
gain immediate, thereby also taking
rights to his person by the opposition or
resistance which the victim might offer;
in threat, the danger to the victim is not
instantly imminent nor the gain of the
culprit immediate.

To constitute grave threats, the threats must refer

to a future wrong and is committed by acts or
through words of such efficiency to inspire terror
or fear upon another.
It is, therefore,
characterized by moral pressure that produces
disquietude or alarm.
The greater perversity of the offender is
manifested when the threats are made demanding
money or imposing any condition, whether lawful
or not, and the offender shall have attained his
purpose. So the law imposes upon him the
penalty next lower in degree than that prescribed
for the crime threatened to be committed. But if
the purpose is not attained, the penalty lower by
two degrees is imposed. The maximum period of
the penalty is imposed if the threats are made in
writing or through a middleman as they manifest
evident premeditation.
Distinction between threat and coercion:
The essence of coercion is violence or
intimidation. There is no condition involved;
hence, there is no futurity in the harm or wrong
done.
In threat, the wrong or harm done is future and
conditional. In coercion, it is direct and personal.
Distinction between threat and robbery:
(1)

As to intimidation In robbery, the

intimidation is actual and immediate; in
threat, the intimidation is future and
conditional.

(2)

As to nature of intimidation In robbery,

the intimidation is personal; in threats, it
may be through an intermediary.

Article 283
LIGHT THREATS
ELEMENTS:
1. That the offender makes a threat to
commit a wrong.
2. That the wrong does not constitute a
crime.
3. That there is a demand for money or that
other condition is imposed, even though
not unlawful
4. That the offender has attained his
purpose or, that he has not attained his
purpose
* In order to convict a person of the crime of light
threats, the harm threatened must not be in the
nature of crime and there is a demand for money
or any other condition is imposed, even though
lawful
Question & Answer
Blackmailing constitutes what crime?
It is a crime of light threat under Article
283 if there is no threat to publish any libelous
or slanderous matter against the offended party.
If there is such a threat to make a slanderous or
libelous publication against the offended party,
the crime will be one of libel, which is penalized
under Article 356.
For example, a person
threatens to expose the affairs of married man if
the latter does not give him money. There is
intimidation done under a demand.

Article 284
BOND FOR GOOD BEHAVIOR
* The law imposes the penalty of bond for good
behavior only in case of grave and light threats.
If the offender can not post the bond, he will be
banished by way of destierro to prevent him from
carrying out his threat.
* Bond for good behavior means the posting of
bond on the part of the accused in order to
guarantee that he will not molest the offended
party. It is in the nature of an additional penalty.
* Bond to keep peace under Article 35 is
applicable to all cases and is treated as a distinct
penalty. If the sentenced prisoner fails to give the
bond, he shall be detained for a period not
exceeding six months if the crime for which he
was convicted is classified as grave felony or for a
period not exceeding thirty days if convicted for a
light felony.
Article 285
OTHER LIGHT THREATS
ELEMENTS:
1. Person shall threaten another with a
weapon, or draw weapon in a quarrel
unless in self-defense.
2. In the heat of anger, person orally
threatens another with some harm
constituting a crime, without persisting
in the idea involved in the threat.
Subsequent acts did not persist.
3. Person orally threatens another with
harm not constituting a felony.
* In the crime of light threats, there is no demand
for money and the threat made is not planned or
done with deliberate intent. So threats which
would otherwise qualify as grave threats, when
made in the heat of anger or which is a product
of a spur of the moment are generally considered
as light threats.
* Whether it is grave or light threats, the crime is
committed even in the absence of the person to
whom the threat is directed.
Article 286
GRAVE COERCIONS
ELEMENTS:
1. That a person prevented another from
doing something OR not to do something
against his will, be it right or wrong;

2. That the prevention or compulsion be

effected by violence, of force as would
produce intimidation and control the
will.
3. That the person that restrained the will
and liberty by another had not the
authority of law or the right to do so, or,
in other words, that the restraint shall
not be made under authority of law or in
the exercise of any lawful right.
Acts punished
1.

Preventing another, by means of violence,

threats or intimidation, from doing
something not prohibited by law;

2.

Compelling another, by means of

violence, threats or intimidation, to do
something against his will, whether it be
right or wrong.

* In grave coercion, the act of preventing by force

must be made at the time the offended party was
doing or was about to do the act to be prevented.
* Grave coercion arises only if the act which the
offender prevented another to do is not prohibited
by law or ordinance. If the act prohibited was
illegal, he is not liable for grave coercion.
* If a person prohibits another to do an act
because the act is a crime, even though some
sort of violence or intimidation is employed, it
would not give rise to grave coercion. It may only
give rise to threat or physical injuries, if some
injuries are inflicted. However, in case of grave
coercion where the offended party is being
compelled to do something against his will,
whether it be wrong or not, the crime of grave
coercion is committed if violence or intimidation
is employed in order to compel him to do the act.
No person shall take the law into his own hands.
Illustration:
Compelling the debtor to deliver some of his
properties to pay a creditor will amount to
coercion although the creditor may have a right
to collect payment from the debtor, even if the
obligation is long over due.
* The violence employed in grave coercion must be
immediate, actual, or imminent. In the absence of
actual or imminent force or violence, coercion is

not committed. The essence of coercion is an

attack on individual liberty.
* The physical violence is exerted to (1) prevent a
person from doing something he wants to do; or
(2) compel him to do something he does not want
to do.
Illustration:
If a man compels another to show the contents of
the latters pockets, and takes the wallet, this is
robbery and not grave coercion. The intimidation
is a means of committing robbery with violence
or intimidation of persons. Violence is inherent
in the crime of robbery with violence or
intimidation upon persons and in usurpation of
real properties because it is the means of
committing the crime.
* Exception to the rule that physical violence
must be exerted: where intimidation is so serious
that it is not a threat anymore it approximates
violence.
* In Lee v. CA, 201 SCAR 405, it was held that
neither the crime of threats nor coercion
is committed although the accused, a
branch manager of a bank made the
complainant sign a withdrawal slip for
the amount needed to pay the spurious
dollar check she had encashed, and also
made her execute an affidavit regarding
the return of the amount against her
better sense and judgment. According to
the court, the complainant may have
acted reluctantly and with hesitation, but
still, it was voluntary. It is different
when a complainant refuses absolutely to
act such an extent that she becomes a
mere automaton and acts mechanically
only, not of her own will.
In this
situation, the complainant ceases to exits
as an independent personality and the
person who employs force or intimidation
is, in the eyes of the law, the one acting;
while the hand of the complainant sign,
the will that moves it is the hand of the
offender.
Article 287
LIGHT COERCIONS
ELEMENTS:
1. That the offender must be a creditor.
2. That he seizes anything belonging to his
debtor.

3. That the seizure of the thing be

accomplished by means of violence or a
display of material force producing
intimidation;
4. That the purpose of the offender is to
apply the same to the payment of the
debt.
UNJUST VEXATION
* In unjust vexation, any act committed without
violence, but which unjustifiably annoys or vexes
an innocent person amounts to light coercion.
* As a punishable act, unjust vexation should
include any human conduct which, although not
productive of some physical or material harm
would, however, unjustifiably annoy or vex an
innocent person.
* It is distinguished from grave coercion under
the first paragraph by the absence of violence.
Illustration:
Persons stoning someone elses house. So long
as stoning is not serious and it is intended to
annoy, it is unjust vexation. It disturbs the peace
of mind.
* The main purpose of the statute penalizing
coercion and unjust vexation is precisely to
enforce the principle that no person may take the
law into his hands and that our government is
one of laws, not of men. The essence of the
crimes is the attack on individual liberty.

Article 288
OTHER SIMILAR COERCIONS
ELEMENTS OF NO. 1
Forcing or compelling, directly or indirectly, or
knowingly permitting the forcing or compelling of
the laborer or employee of the offender to
purchase merchandise of commodities of any kind
from him;
1. That the offender is any person, agent or
officer of any association or corporation.
2. That he or such firm or corporation has
employed laborers or employees.
3. That he forces or compels, directly or
indirectly, or knowingly permits to be
forced or compelled, any of his or its

laborers or employees to purchase

merchandise or commodities of any kind
from his or from said firm or corporation.
ELEMENTS OF NO. 2
Paying the wages due his laborer or employee by
means of tokens or object other than the legal
tender currency of the Philippines, unless
expressly requested by such laborer or employee.
1. That the offender pays the wages due a
laborer or employee employed by him by
means of tokens or objects.
2. That those tokens or objects are other
than the legal tender currency to the
Philippines.
3. That such employee or laborer does not
expressly request that he be paid by
means of tokens or objects.
* Under the Republic Act No. 602, known as the
Minimum Wage Law, wages of laborers must be
paid in legal tender. Accordingly, it is unlawful to
pay the wages of the laborers in the form of
promissory notes, vouchers, coupons, tokens, or
any other forms alleged to represent legal tender.

Article 289
FORMATION,
MAINTENANCE,
AND
PROHIBITION OF COMBINATION OF CAPITAL
OR
LABOR
THROUGH
VIOLENCE
OR
THREATS
ELEMENTS:
1. That the offender employs violence or
threats, in such a degree as to compel or
force the laborers or employers in the free
and legal exercise of their industry or
work
2. That the purpose is to organize, maintain
or prevent coalitions of capital or labor,
strike of laborers or lockout of employees.
* Peaceful picketing is part of the freedom of
speech and is not covered by this article.
* Preventing employees or laborers from joining
any registered labor organization is punished
under Art. 248 of the Labor Code.
DISCOVERY AND REVELATION OF SECRETS
Article 290
DISCOVERING SECRETS THROUGH SEIZURE
OF CORRESPONDENCE

ELEMENTS:
1. That the offender is a private
individual or even a public officer not
in the exercise of his official
function,
2. That he seizes the papers or letters of
another.
3. That the purpose is to discover the
secrets of such another person.
4. That offender is informed of the
contents or the papers or letters
seized.
Notes:
* This is a crime against the security of ones
papers and effects. The purpose must be to
discover its effects. The act violates the privacy
of communication.
* Not applicable to parents with respect to minor
children
* The last paragraph of Article 290 expressly
makes the provision of the first and second
paragraph thereof inapplicable to parents,
guardians, or persons entrusted with the custody
of minors placed under their care or custody, and
to the spouses with respect to the papers or
letters of either of them. The teachers or other
persons entrusted with the care and education of
minors are included in the exceptions.
In a case decided by the Supreme Court, a
spouse who rummaged and found love letters of
husband to mistress does not commit this crime,
but the letters are inadmissible in evidence
because of unreasonable search and seizure. The
ruling held that the wife should have applied for
a search warrant.
* Contents need not be secret but purpose
prevails
* According to Ortega, it is not necessary that the
offender should actually discover the contents of
the letter. Reyes, citing People v. Singh, CA, 40
OG, Suppl. 5, 35, believes otherwise.
Circumstances qualifying the offense: when
the offender reveals contents of such papers or
letters of another to a 3rd person, the penalty is
higher
Distinction from estafa, damage to property,
and unjust vexation:

If the act had been executed with intent of gain, it

would be estafa;
If, on the other hand, the purpose was not to
defraud, but only to cause damage to anothers, it
would merit the qualification of damage to
property;
If the intention was merely to cause vexation
preventing another to do something which the
law does not prohibit or compel him to execute
what he does not want, the act should be
considered as unjust vexation.
Article 291
REVEALING
OFFICE

SECRETS

WITH

ABUSE

OF

ELEMENTS:
1. That the offender is a manager,
employee or servant.
2. That he learns the secrets of his
principal or master in such capacity.
3. That he reveals such secrets.
* An employee, manager, or servant who came to
know of the secret of his master or principal in
such capacity and reveals the same shall also be
liable regardless of whether or not the principal
or master suffered damages.
* The essence of this crime is that the offender
learned of the secret in the course of his
employment.
He is enjoying a confidential
relation with the employer or master so he should
respect the privacy of matters personal to the
latter.
* If the matter pertains to the business of the
employer or master, damage is necessary and the
agent, employee or servant shall always be liable.
Reason: no one has a right to the personal
privacy of another.
Article 292
REVELATION OF INDUSTRIAL SECRETS
ELEMENTS:
1. That the offender is a person in
charge, employee or workman of a
manufacturing
or
industrial
establishment.
2. That the manufacturing or industrial
establishment has a secret of the
industry which the offender has
learned.

3. That the offender reveals such

secrets.
4. That the prejudice is caused to the
owner.
* A business secret must not be known to other
business entities or persons. It is a matter to be
discovered, known and used by and must belong
to one person or entity exclusively. One who
merely copies their machines from those already
existing and functioning cannot claim to have a
business secret, much less, a discovery within
the contemplation of Article 292.

TITLE TEN
CRIMES AGAINST PROPERTY
Crimes against property
1.
Robbery with violence against or
intimidation of persons (Art. 294);
2.
Attempted
and
frustrated
robbery
committed under certain circumstances
(Art. 297);
3.
Execution of deeds by means of violence
or intimidation (Art. 298);
4.
Robbery in an inhabited house or public
building or edifice devoted to worship
(Art. 299);
5.
Robbery in an inhabited place or in a
private building (Art. 302);
6.
Possession of picklocks or similar tools
(Art. 304);
7.
Brigandage (Art. 306);
8.
Aiding and abetting a band of brigands
(Art. 307);
9.
Theft (Art. 308);
10.
Qualified theft (Art. 310);
11.
Theft of the property of the National
Library and National Museum (Art. 311);
12.
Occupation
of
real
property
or
usurpation of real rights in property (Art.
312);
13.
Altering boundaries or landmarks (Art.
313);
14.
Fraudulent insolvency (Art. 314);
15.
Swindling (Art. 315);
16.
Other forms of swindling (Art. 316);
17.
Swindling a minor (Art. 317);
18.
Other deceits (Art. 318);
19.
Removal, sale or pledge of mortgaged
property (Art. 319);
20.
Destructive arson (Art. 320);
21.
Other forms of arson (Art. 321);
22.
Arson of property of small value (Art.
323);
23.
Crimes involving destruction (Art. 324);

24.
25.
26.
27.
28.
29.

Burning ones own property as means to

commit arson (Art. 325);
Setting fire to property exclusively owned
by the offender (Art. 326);
Malicious mischief (Art. 327);
Special case of malicious mischief (Art.
328);
Damage and obstruction to means of
communication (Art. 330);
Destroying or damaging statues, public
monuments or paintings (Art. 331).

Article 293
ROBBERY IN GENERAL
ELEMENTS:
1. That there be personal property
belonging to another.
2. That there is unlawful taking of that
property.
3. That the taking must be with intent
to gain, and
4. That there is violence against or
intimidation of any person, or force
upon anything.
Notes:
ROBBERY This is the taking or personal
property belonging to another, with intent to gain,
by means of violence against, or intimidation of
any person, or using force upon anything.
Two kinds of robbery: 1) robbery with violence
or intimidation and 2) robbery with force upon
things.
Belonging to another person from whom
property was taken need not be the owner, legal
possession is sufficient
* The property must be personal property and
cannot refer to real property.
* Name of the real owner is not essential so long
as the personal property taken does not belong to
the accused except if crime is robbery with
homicide
* The owner of the property may be held liable for
robbery where he forcible takes the property from
the possession of the bailee with intent to charge
the latter with its value. (U. S. vs. Albao, 29
Phil. 86)
* In the absence of any explanation as to how one
has come into possession of stolen effects

belonging to a person wounded and treacherously

killed, the possessor must necessarily be
considered the author of the aggression and
death of the victim as well as of the robbery
committed. (People vs. Rapuela. G. R. NO.
85178, March 15, 1990
Suppose the property is res nullus or without
an owner?
The crime of robbery or theft cannot be
committed if the property is without an owner for
the simple reason that no one can be prejudiced
by the taking of the personal property, even
though the intent to gain is present in the taking.
Taking of personal property
unlawful; if given in trust estafa

must

be

* The taking of the property must be coupled

with the intention to permanently deprive the
offended party of his possession of the things
taken. (People vs. Kho Choc, C. A., 50 O. G.
1667)
As to robbery with violence or intimidation
from the moment the offender gains possession
of the thing even if offender has had no
opportunity to dispose of the same, the unlawful
taking is complete
As to robbery with force upon things thing
must be taken out of the building
Intent to gain presumed from unlawful taking
* Intent to gain may be presumed from the
unlawful taking of anothers property. However,
when one takes a property under the claim of
ownership or title, the taking is not considered to
be with intent to gain. (U. S. vs. Manluco, et al.,
28 Phil. 360)
* When theres no intent to gain but there is
violence in the taking grave coercion
* Violence or intimidation must be against the
person of the offended party, not upon the thing
General rule: violence or intimidation must be
present before the taking is complete
Except: when violence results in homicide,
rape, intentional mutilation or any of the serious
physical injuries in par 1 and 2 of art 263, the
taking of the property is robbery complexed with
any of these crimes under art 294, even if taking
is already complete when violence was used by
the offender

Use of force upon things entrance to the

building by means described in arts 299 and 302
(offender must enter)
* The other kind of robbery is one that is
committed with the use of force upon anything in
order to take with intent to gain, the personal
property of another. The use of force here must
refer to the force employed upon things in order
to gain entrance into a building or a house.
(People vs. Adorno, C. A. 40 O. G. 567)
* When both violence or intimidation and force
upon things concur it is robbery with violence
Robbery and Theft, compared.
1. Both robbery and theft involve unlawful taking
or asportation as an element;
2.

Both involve personal property belonging to

another;

3. In both crimes, the taking is done with intent

to gain;
5.

In robbery, the taking is done either with the

use of violence or intimidation of person or
the employment of force upon things;
whereas in theft, the taking is done simply
without the knowledge and consent of the
owner.

Robbery with
violence
Intent to gain
Immediate
harm

Grave threats
No intent to
gain
Intimidation;
promises some
future harm or
injury

Robbery
X didnt commit crime
but is intimidated to
deprive him of his
property
Deprived of money thru

Grave
coercion
None
Intimidation
(effect)
is
immediate
and offended
party
is
compelled to
do something
against
his
will
(w/n
right
or
wrong)

Bribery
X has committed a
crime
and
gives
money as way to
avoid
arrest
or
prosecution
Giving of money is in

force or intimidation
Neither

one sense voluntary

Transaction
is
voluntary
and
mutual

Ex. defendant demands

payment of P2.00 with
threats of arrest and
prosecution, therefore,
robbery
because
(a)
intent to gain and (b)
immediate harm

ANTI CARNAPPING ACT ( RA # 6539 )

Carnapping is the taking, with intent to gain,
of a motor vehicle belonging to another without
the latters consent, or by means of violence
against or intimidation of persons, or by using
force upon things.
Any vehicle which is motorized using the streets
which are public, not exclusively for private use is
covered within the concept of motor vehicle under
the Anti-Carnapping Law. A tricycle which is not
included in the enumeration of exempted vehicles
under the Carnapping Law is deemed to be motor
vehicle as defined in the law, the stealing of
which comes within its penal sanction.
If the vehicle uses the streets with or without the
required license, the same comes within the
protection of the law, for the severity of the
offense is not to be measured by what kind of
street or highway the same is used but by the
nature of the vehicle itself and the case to which
it is devoted. (Izon, et al., vs. People, 107 SCRA
118)
Article 294
ROBBERY WITH VIOLENCE AGAINST OR
INTIMIDATION OF PERSON
Acts punished as robbery with violence
against
or
intimidation
of
persons
By reason or on occasion of the robbery, the
following are committed:
1. homicide
2. robbery accompanied with rape or intentional
mutilation, SPI insane, imbecile, impotent or
blind

3. SPI lost the use of speech, hear, smell, eye,

hand, foot, arm, leg, use of any such member,
incapacitated for work habitually engaged in
4. Violence/intimidation shall have been carried
to a degree clearly unnecessary for the crime or
when in the cause of its execution
SPI/deformity, or shall have lost any part of the
body or the use thereof or shall have been ill or
incapacitated for the performance of the work for
> 90 days; > 30 days
5. Any kind of robbery with less serious physical
injuries or slight physical injuries
Notes:
SPECIAL
COMPLEX
CRIMES
(specific
penalties prescribed)
ROBBERY WITH HOMICIDE
a.
if original design is robbery and
homicide is committed robbery with
homicide even though homicide precedes
the robbery by an appreciable time.
b.

If original design is not robbery but

robbery was committed after homicide as
an afterthought 2 separate offenses.

c.

Still robbery with homicide if the

person killed was an innocent bystander
and not the person robbed and if death
supervened by mere accident.

* The original criminal design of the culprit must

be Robbery and the Homicide is perpetrated with
a view to the consummation of the Robbery.
* If death results or even accompanies a robbery,
the crime will be robbery with homicide provided
that the robbery is consummated.
* As long as the criminal objective or plan is to
rob, whether the killing committed by reason or
on occasion thereof is intentional or accidental,
the crime is Robbery with Homicide. ( Pp vs.
Pecato, 151 scra 14 ) As long as there was
killing when Robbery was taking place, Robbery
with Homicide was committed, the killing
occurring on the occasion thereof.
Problem:
A, B, C and D robbed a bank.
When they were about to flee,
policemen came, and they traded
shots with them.
If one of the
policemen was killed, the offense is
Robbery with Homicide. If one of the
robbers was the one killed, the

remaining robbers shall be charged

also with Robbery with Homicide. If
a bank employee was the one killed
either by the robbers or by the
policemen in the course of the latters
action of arresting or trying to arrest
the robbers, the crime is still Robbery
with Homicide.
* As long as the criminal intent is to rob, that is,
robbery was the real motive, the offense would
still be classified as Robbery with Homicide even
if the killing preceded or was done ahead of the
robbing.
(People vs. Tolentino, 165 SCRA
490).
* Thus, as a member of the agaw-armas gang
whose plan and design is to rob a policeman of
his service revolver, but because he fears that
said policeman may beat him to the draw, first
shoots the policeman fatally and only after when
the latter lies dead, does he get the gun the
crime is still considered Robbery with Homicide.
* This is a crime against property, and therefore,
you contend not with the killing but with the
robbery.
* As long as there is only one (1) robbery,
regardless of the persons killed, the crime will only
be one (1) count of robbery with homicide. The
fact that there are multiple killings committed in
the course of the robbery will be considered only
as aggravating so as to call for the imposition of
the maximum penalty prescribed by law.
* If, on the occasion or by reason of the robbery,
somebody is killed, and there are also physical
injuries inflicted by reason or on the occasion of
the robbery, dont think that those who sustained
physical injuries may separately prosecute the
offender for physical injuries. Those physical
injuries
are
only
considered
aggravating
circumstances in the crime of robbery with
homicide.
* This is not a complex crime as understood
under Article 48, but a single indivisible crime.
This is a special complex crime because the
specific penalty is provided in the law.
* The term homicide is used in the generic sense,
and the complex crime therein contemplated
comprehends not only robbery with homicide in
its restricted sense, but also with robbery with
murder. So, any kind of killing by reason of or on
the occasion of a robbery will bring about the

crime of robbery with homicide even if the person

killed is less than three days old, or even if the
person killed is the mother or father of the killer,
or even if on such robbery the person killed was
done by treachery or any of the qualifying
circumstances. In short, there is no crime of
robbery with parricide, robbery with murder,
robbery with infanticide any and all forms of
killing is referred to as homicide.
Illustration:
The robbers enter the house. In entering through
the window, one of the robbers stepped on a child
less than three days old.
The crime is not
robbery with infanticide because there is no such
crime. The word homicide as used in defining
robbery with homicide is used in the generic
sense. It refers to any kind of death.
* Although it is a crime against property and
treachery is an aggravating circumstance that
applies only to crimes against persons, if the
killing in a robbery is committed with treachery,
the treachery will be considered a generic
aggravating circumstance because of the homicide.
* When two or more persons are killed during the
robbery, such should be appreciated as an
aggravating circumstance.
* As long as there is only one robbery, regardless
of the persons killed, you only have one crime of
robbery with homicide. Note, however, that one
robbery does not mean there is only one taking.
Illustration:
Robbers decided to commit robbery in a house,
which turned out to be a boarding house. Thus,
there were different boarders who were offended
parties in the robbery. There is only one count of
robbery. If there were killings done to different
boarders during the robbery being committed in
a boarders quarter, do not consider that as
separate counts of robbery with homicide
because when robbers decide to commit robbery
in a certain house, they are only impelled by one
criminal intent to rob and there will only be one
case of robbery. If there were homicide or death
committed, that would only be part of a single
robbery. That there were several killings done
would only aggravate the commission of the crime
of robbery with homicide.

* In People v. Quiones, 183 SCRA 747, it was

held that there is no crime of robbery
with multiple homicides.
The charge
should be for robbery with homicide only
because the number of persons killed is
immaterial and does not increase the
penalty prescribed in Article 294. All the
killings are merged in the composite
integrated whole that is robbery with
homicide so long as the killings were by
reason or on occasion of the robbery.
* In another case, a band of robbers entered a
compound, which is actually a sugar mill. Within
the compound, there were quarters of the
laborers. They robbed each of the quarters. The
Supreme Court held that there was only one
count of robbery because when they decided and
determined to rob the compound, they were only
impelled by one criminal intent to rob.
* With more reason, therefore, if in a robbery, the
offender took away property belonging to different
owners, as long as the taking was done at one
time, and in one place, impelled by the same
criminal intent to gain, there would only be one
count of robbery.
* In robbery with homicide as a single indivisible
offense, it is immaterial who gets killed. Even
though the killing may have resulted from
negligence, you will still designate the crime as
robbery with homicide.
Illustration:
On the occasion of a robbery, one of the offenders
placed his firearm on the table. While they were
ransacking the place, one of the robbers bumped
the table. As a result, the firearm fell on the floor
and discharged. One of the robbers was the one
killed. Even though the placing of the firearm on
the table where there is no safety precaution
taken may be considered as one of negligence or
imprudence, you do not separate the homicide as
one of the product of criminal negligence. It will
still be robbery with homicide, whether the person
killed is connected with the robbery or not. He
need not also be in the place of the robbery.
* In one case, in the course of the struggle in a
house where the robbery was being committed,
the owner of the place tried to wrest the arm of
the robber. A person several meters away was
the one who got killed. The crime was held to be
robbery with homicide.

* Note that the person killed need not be one who

is identified with the owner of the place where the
robbery is committed or one who is a stranger to
the robbers. It is enough that the homicide was
committed by reason of the robbery or on the
occasion thereof.
Illustration:
There are two robbers who broke into a house
and carried away some valuables. After they left
such house these two robbers decided to cut or
divide the loot already so that they can go of
them. So while they are dividing the loot the
other robber noticed that the one doing the
division is trying to cheat him and so he
immediately boxed him. Now this robber who
was boxed then pulled out his gun and fired at
the other one killing the latter. Would that bring
about the crime of robbery with homicide? Yes.
Even if the robbery was already consummated,
the killing was still by reason of the robbery
because they quarreled in dividing the loot that is
the subject of the robbery.
* In People v. Domingo, 184 SCRA 409, on the
occasion of the robbery, the storeowner, a
septuagenarian, suffered a stroke due to
the extreme fear which directly caused
his death when the robbers pointed their
guns at him. It was held that the crime
committed was robbery with homicide. It
is immaterial that death supervened as a
mere accident as long as the homicide
was produced by reason or on the
occasion of the robbery, because it is only
the result which matters, without
reference to the circumstances or causes
or persons intervening in the commission
of the crime which must be considered.
* Remember also that intent to rob must be
proved. But there must be an allegation as to the
robbery not only as to the intention to rob.
* If the motive is to kill and the taking is committed
thereafter, the crimes committed are homicide and
theft. If the primordial intent of the offender is to
kill and not to rob but after the killing of the
victims a robbery was committed, then there are
will be two separate crimes.
Illustration:
If a person had an enemy and killed him and
after killing him, saw that he had a beautiful ring
and took this, the crime would be not robbery

with homicide because the primary criminal

intent is to kill. So, there will be two crimes: one
for the killing and one for the taking of the
property after the victim was killed. Now this
would bring about the crime of theft and it could
not be robbery anymore because the person is
already dead.
* For robbery with homicide to exist, homicide
must be committed by reason or on the occasion
of the robbery, that is, the homicide must be
committed in the course or because of the
robbery. Robbery and homicide are separate
offenses when the homicide is not committed on
the occasion or by reason of the robbery.
* Where the victims were killed, not for the purpose
of committing robbery, and the idea of taking the
money and other personal property of the victims
was conceived by the culprits only after the killing,
it was held in People v. Domingo, 184 SCRA 409,
that the culprits committed two separate crimes
of homicide or murder (qualified by abuse of
superior strength) and theft.
* The victims were killed first then their money
was taken the money from their dead
bodies. This is robbery with homicide. It
is important here that the intent to commit
robbery must precede the taking of human
life in robbery with homicide.
The
offender must have the intent to take
personal property before the killing.
* It must be conclusively shown that the homicide
was committed for the purpose of robbing
the victim. In People v. Hernandez,
appellants had not thought of robbery
prior to the killing.
The thought of
taking the victims wristwatch was
conceived only after the killing and
throwing of the victim in the canal.
Appellants were convicted of two separate
crimes of homicide and theft as there is
absent direct relation and intimate
connection between the robbery and the
killing.
* However, if the elements of the crime of robbery
with violence employed against persons, fail to
meet the requirements of Article 294, as when
the robbery resulted only in the commission of
frustrated homicide, then Article 294 should be
ignored and the general provision of the law
should be applied, such as the provision of
Article 48.

* If robbery is proved but the homicide is not

proven, the accused should be convicted of
robbery only and the penalty shall not be based
under paragraph 1 but on paragraph 5 of the
same article, since only intimidation or violence
was employed and it did not result in any of the
situations mentioned in paragraphs 1 to 4.
* If the robbery is not proven but the homicide is
established, then the accused should be held
liable only for homicide and the penalty shall be
taken from Article 249, which deals with crimes
against property, so, if several homicides are
alleged in the information for robbery with
homicide, and all of these homicides are proven
beyond reasonable doubt, the court will impose a
separate penalty for each of the homicide that is
established by the evidence. (People vs.
Barruga, 61 Phil. 318)
* It is important to remember that the special
complex crime of robbery with homicide is
committed, where there exists a direct relation,
an intimate connection between the robbery and
the killing, irrespective of whether the killing be
prior or subsequent to the robbery; or whether
both crimes were committed at the same time.
(People vs. Puesca, 87 SCRA 130)
* Robbery with homicide need not be committed
inside a building. What constitutes the crime as
robbery with homicide is the killing of a person
on the occasion or by reason of the taking of
personal property belonging to another with
intent to gain.
* The killing on the occasion of robbery may come
in different forms. 1) It may be done by the
offender for the purpose of suppressing evidence,
like when the victim is killed because he happens
to know the person of the offender; or 2) when
the killing is done in order to prevent or remove
any opposition which the victim may put up as
regards the taking of his personal belongings. 3)
The killing may also result from the offenders
defense of his possession of the stolen goods. 4)
Or it may be resorted to by the offender to
facilitate his escape after the commission of the
robbery.
* In People vs. Macalalad, 9 Phil. (1907), the
Supreme Court ruled that whenever homicide is
committed as a consequence or on the occasion of
a robbery, all those who took part in the
commission of the robbery are guilty as principals
in the crime of robbery with homicide unless it
appears that the principal claiming innocence in

the killing, has attempted or tried to prevent the

killing. The burden of proving the attempt to
prevent others from killing the victim rests on the
co-principal of the crime who makes such
assertion or claim.
* The same principle has been applied by the
Supreme Court where the crime committed is
robbery accompanied by rape. The criminal
liability of the person or persons who took no part
in the commission of the rape which accompanied
the robbery is the same as the robber or robbers
who actually committed the rape unless the robber
or robbers claiming innocence of the rape had
endeavored to prevent the commission of the rape.
(People vs. Tiongco, 37 Phil. 95)
ROBBERY WITH RAPE
* intent to commit robbery must precede rape.
* Prosecution of the crime need not be by
offended party fiscal can sign the information.
* When rape and homicide co-exist, rape should
be considered as aggravating only and the crime
is still robbery with homicide
* Article 48 is not applicable to this crime
because robbery is not a necessary means for the
commission of rape. Neither is rape necessary to
commit robbery.
* This is another form of violence or intimidation
upon person. The rape accompanies the robbery.
In this case where rape and not homicide is
committed, there is only a crime of robbery with
rape if both the robbery and the rape are
consummated. If during the robbery, attempted
rape were committed, the crimes would be
separate, that is, one for robbery and one for the
attempted rape.
* The rape committed on the occasion of the
robbery is not considered a private crime because
the crime is robbery, which is a crime against
property. So, even though the robber may have
married the woman raped, the crime remains
robbery with rape. The rape is not erased. This
is because the crime is against property which is
a single indivisible offense.
* If the woman, who was raped on the occasion of
the robbery, pardoned the rapist who is one of the
robbers, that would not erase the crime of rape.
The offender would still be prosecuted for the

crime of robbery with rape, as long as the rape is

consummated.
* Pardon by the offended party will not alter the
criminal liability of the offender because in
robbery with rape, the crime committed is not a
crime against chastity but a crime against
property. Even under the present amendment
which classifies rape as a crime against person,
the change has no legal effect on the provision of
Article 294 since the special complex crime of
robbery with rape is considered, by express
provision of law, a single crime notwithstanding
that there is a plurality of crimes committed.
* If the rape is attempted, since it will be a
separate charge and the offended woman
pardoned the offender, that would bring about a
bar to the prosecution of the attempted rape. If the
offender married the offended woman, that would
extinguish the criminal liability because the rape
is the subject of a separate prosecution.
* The intention must be to commit robbery and
even if the rape is committed before the robbery,
robbery with rape is committed. But if the
accused tried to rape the offended party and
because of resistance, he failed to consummate the
act, and then he snatched the vanity case from
her hands when she ran away, two crimes are
committed: attempted rape and theft.
* There is no complex crime under Article 48
because a single act is not committed and
attempted rape is not a means necessary to
commit theft and vice-versa.
* The Revised Penal Code does not differentiate
whether rape was committed before, during or
after the robbery. It is enough that the robbery
accompanied the rape. Robbery must not be a
mere accident or afterthought.
* If the two (2) crimes were separated both by time
and place, there is no complex crime of Robbery
with Rape. Thus, when complainant went out of
her room about 1:30 a.m. to urinate, one of the
accused grabbed her, poked an icepick on her
neck , and dragged her out of the house and was
made to board a taxi; and before boarding, she
saw the two (2) companions of the man carrying
her typewriter and betamax and then joining
them in the taxi, and that after alighting from the
taxi, the two (2) companions left her, and the
man who had grabbed her brought her to a
motel, where by means of force and intimidation
he was able to have sex with her, the crimes

committed are Robbery and Forcible Abduction

with Rape.
The Rape committed cannot be
complexed with Robbery. (People vs. Angeles,
222 SCRA 451).
* In People v. Flores, 195 SCRA 295, although
the offenders plan was to get the victims money,
rape her and kill her, but in the actual execution
of the crime, the thoughts of depriving the victim
of her valuables was relegated to the background
and the offenders prurient desires surfaced.
They persisted in satisfying their lust. They
would have forgotten about their intent to rob if
not for the accidental touching of the victims
ring and wristwatch. The taking of the victims
valuables turned out to be an afterthought. It
was held that two distinct crimes were
committed: rape with homicide and theft.
* In People v. Dinola, 183 SCRA 493, it was
held that if the original criminal design of the
accused was to commit rape and after
committing the rape, the accused committed
robbery because the opportunity presented itself,
two distinct crimes rape and robbery were
committed not robbery with rape. In the latter,
the criminal intent to gain must precede the intent
to rape.
* If rape was the primary objective of the accused
and the taking of her jewelries was not done with
intent to gain but as a token of her supposed
consent to the sexual intercourse, the accused is
guilty of two distinct crimes: rape and unjust
vexation. (People vs. Villarino, C. A. G. R. No.
6342-R, Nov. 26, 1951)
ROBBERY WITH INTIMIDATION
* acts done by the accused which by their own
nature or by reason of the circumstances inspire
fear in the person against whom they are directed
* In the taking of personal property, it is
necessary that violence must be employed by the
offender in order that the taking may be
considered as robbery. So, where the taking is
without violence or intimidation and the same is
complete, but the victim pursued the offender in
order to recover the personal property taken and
by the reason thereof, he suffers less serious or
slight physical injuries in the hands of the
offender, the violence employed on the victim
which resulted to his injuries will not convert the
taking of his personal property to robbery. In
such a case, the offender is liable for two crimes,

namely, theft and less serious or slight physical

injuries.
* The intimidation must be present at the time of
the taking before it is completed. If the taking is
completed without intimidation and it is
employed by the offender only to prevent the
owner from recovering his stolen property, two
crimes are committed by the offender: theft and
grave threat.
* If violence is employed against the offended
party in order to deprive him of his personal
property and the violence resulted to the
infliction of less serious or slight physical
injuries, the crime committed would only be
robbery. Hence, there is no crime of robbery with
less serious or slight injuries. (U. S. vs. Barroga,
21 Phil 161)
On ROBBERY WITH PHYSICAL INJURIES
* To be considered as such, the physical injuries
must always be serious. If the physical injuries
are only less serious or slight, they are absorbed
in the robbery.
The crime becomes merely
robbery. But if the less serious physical injuries
were committed after the robbery was already
consummated, there would be a separate charge
for the less serious physical injuries. It will only
be absorbed in the robbery if it was inflicted in
the course of the execution of the robbery. The
same is true in the case of slight physical
injuries.
Illustration:
After the robbery had been committed and the
robbers were already fleeing from the house
where the robbery was committed, the owner of
the house chased them and the robbers fought
back. If only less serious physical injuries were
inflicted, there will be separate crimes: one for
robbery and one for less serious physical injuries.
* But if after the robbery was committed and the
robbers were already fleeing from the house
where the robbery was committed, the owner or
members of the family of the owner chased them,
and they fought back and somebody was killed,
the crime would still be robbery with homicide.
But if serious physical injuries were inflicted and
the serious physical injuries rendered the victim
impotent or insane or the victim lost the use of
any of his senses or lost a part of his body, the
crime would still be robbery with serious physical
injuries. The physical injuries (serious) should

not be separated regardless of whether they

retorted in the course of the commission of the
robbery or even after the robbery was
consummated.
* In Article 299, it is only when the physical
injuries resulted in the deformity or incapacitated
the offended party from labor for more than 30
days that the law requires such physical injuries
to have been inflicted in the course of the
execution of the robbery, and only upon persons
who are not responsible in the commission of the
robbery.
* But if the physical injuries inflicted are those
falling under subdivision 1 and 2 of Article 263,
even though the physical injuries were inflicted
upon one of the robbers themselves, and even
though it had been inflicted after the robbery was
already consummated, the crime will still be
robbery with serious physical injuries. There will
only be one count of accusation.
Illustration:
After the robbers fled from the place where the
robbery was committed, they decided to divide the
spoils and in the course of the division of the
spoils or the loot, they quarreled. They shot it out
and one of the robbers was killed. The crime is
still robbery with homicide even though one of
the robbers was the one killed by one of them. If
they quarreled and serious physical injuries
rendered one of the robbers impotent, blind in both
eyes, or got insane, or he lost the use of any of his
senses, lost the use of any part of his body, the
crime will still be robbery with serious physical
injuries.
* If the robbers quarreled over the loot and one of
the robbers hacked the other robber causing a
deformity in his face, the crime will only be
robbery and a separate charge for the serious
physical injuries because when it is a deformity
that is caused, the law requires that the deformity
must have been inflicted upon one who is not a
participant in the robbery. Moreover, the physical
injuries which gave rise to the deformity or which
incapacitated the offended party from labor for
more than 30 days, must have been inflicted in
the course of the execution of the robbery or
while the robbery was taking place.
* If it was inflicted when the thieves/robbers are
already dividing the spoils, it cannot be
considered as inflicted in the course of execution
of the robbery and hence, it will not give rise to

the crime of robbery with serious physical

injuries. You only have one count of robbery and
another count for the serious physical injuries
inflicted.
* If, during or on the occasion or by reason of the
robbery, a killing, rape or serious physical injuries
took place, there will only be one crime of robbery
with homicide because all of these killing, rape,
serious physical injuries -- are contemplated by
law as the violence or intimidation which
characterizes the taking as on of robbery. You
charge the offenders of robbery with homicide.
The rape or physical injuries will only be
appreciated as aggravating circumstance and is
not the subject of a separate prosecution. They
will only call for the imposition of the penalty in
the maximum period.
* If on the occasion of the robbery with homicide,
robbery with force upon things was also
committed, you will not have only one robbery but
you will have a complex crime of robbery with
homicide and robbery with force upon things (see
Napolis v. CA). This is because robbery with
violence or intimidation upon persons is a
separate crime from robbery with force upon
things.
* Robbery with homicide, robbery with
intentional mutilation and robbery with rape are
not qualified by band or uninhabited place. These
aggravating circumstances only qualify robbery
with physical injuries under subdivision 2, 3, and
4 of Article 299.
* When it is robbery with homicide, the band or
uninhabited place is only a generic aggravating
circumstance. It will not qualify the crime to a
higher degree of penalty.
* In People v. Salvilla, it was held that if in a
robbery with serious physical injuries, the
offenders herded the women and children into an
office and detained them to compel the offended
party to come out with the money, the crime of
serious illegal detention was a necessary means
to facilitate the robbery; thus, the complex crimes
of robbery with serious physical injuries and
serious illegal detention.

* But if the victims were detained because of the

timely arrival of the police, such that the
offenders had no choice but to detain the
victims as hostages in exchange for their
safe passage, the detention is absorbed
by the crime of robbery and is not a
separate crime. This was the ruling in
People v. Astor.
On ROBBERY WITH ARSON
* Another innovation of Republic Act No. 7659 is
the composite crime of robbery with arson if
arson is committed by reason of or on occasion of
the robbery. The composite crime would only be
committed if the primordial intent of the offender is
to commit robbery and there is no killing, rape, or
intentional mutilation committed by the offender
during the robbery. Otherwise, the crime would
be robbery with homicide, or robbery with rape,
or robbery with intentional mutilation, in that
order, and the arson would only be an
aggravating circumstance. It is essential that
robbery precedes the arson, as in the case of rape
and
intentional
mutilation,
because
the
amendment included arson among the rape and
intentional mutilation which have accompanied
the robbery.
* Moreover, it should be noted that arson has
been made a component only of robbery with
violence against or intimidation of persons in said
Article 294, but not of robbery by the use of force
upon things in Articles 299 and 302.
* So, if the robbery was by the use of force upon
things and therewith arson was committed, two
distinct crimes are committed.

Article 295
QUALIFIED ROBBERY WITH VIOLENCE OR
INTIMIDATION
Qualifying circumstances in robbery with
violence or intimidation of persons, if any of the
offenses defined in subdivisions 3, 4 and 5 of Art
294 is committed:
a.
b.
c.
d.

in an uninhabited place or
by a band or
by attacking a moving train, street
car, motor vehicle or airship, or
by
entering
the
passengers
compartments in a train, or in any manner
taking the passengers thereof by surprise in
the respective conveyances, or

e.

on a street, road, highway or alley

and the intimidation is made with the use of
firearms, the offender shall be punished by
the max period of the proper penalties
prescribed in art 294

Notes:
* Must be alleged in the information
* Cant be offset by generic mitigating
* Art 295 will not apply to: robbery w/ homicide,
rape or SPI under par 1 of art 263
Article 296
ROBBERY BY A BAND
Notes:
BAND is defined as consisting of at least four
armed malefactors organized with the intention of
carrying out any unlawful design. Their
participation in the commission of the crime
must be actual. The offender must be principal
by direct participation, so that, a principal by
inducement cannot be convicted of this crime
where the aggravating circumstance of band shall
be appreciated against him, since the law
requires as a condition to its commission the
actual participation of the offender in the
execution of the crime. In such a case, the
conviction of a principal by inducement will only
be limited to his criminal liability as a coconspirator.
Liability for the acts of the other members of
the band
a. he was a member of the band
b. he was present at the commission of a
robbery by that band
c. other members of the band committed an
assault
d. he did not attempt to prevent the assault
Conspiracy to commit robbery with homicide
even if less than 4 armed men
Conspiracy to commit robbery only but
homicide was committed also on the occasion
thereof all members of the band are liable for
robbery with homicide
* Even if the agreement refers only to the robbery,
nonetheless, where the robbery is committed by a
band and a person is killed, any member who
was present at the commission of the robbery
and who did not do anything to prevent the

killing of the victim on the occasion of the

robbery shall be held liable for the crime of
robbery with homicide. (People vs. Cinco, 194
SCRA 535)
* Conspiracy is presumed when 4 or more armed
persons committed robbery
* Unless the others attempted to prevent the
assault guilty of robbery by band only
* Band is a generic aggravating circumstance in
the crime of robbery with homicide or rape. But
in the other circumstances provided under Article
294 particularly paragraphs 3, 4 and 5, band is a
special aggravating circumstance which must be
alleged in the information.
* Band is a special aggravating circumstance if
the robbery results in the infliction of serious
physical injuries.
* The arms contemplated under this article refers
to any deadly weapon and is not limited to
firearms, whether long or short.
Article 297
ATTEMPTED OR FRUSTRATED ROBBERY
WITH HOMICIDE
Notes:
* Whether robbery is attempted or frustrated,
penalty is the same
* When the robbery is attempted or frustrated,
Art. 294 has no application because the robbery
and the homicide must be both consummated.
* Where the homicide is only attempted or
frustrated, Article 297 does not apply. In the
same manner, where the attempted or frustrated
robbery results in the commission of serious
physical injuries, Article 297 has no application.
In such a case, the crime shall be treated under
the provisions of Article 48 on ordinary complex
crimes. Consequently, the penalty prescribed by
Article 48 shall be observed.

Article 298
EXECUTION OF DEEDS BY MEANS OF
VIOLENCE OR INTIMIDATION
ELEMENTS:
1. That the offender has intent to defraud
another.

2. That the offender compels him to sign,

execute, or deliver any public instrument
or document.
3. That the compulsion is by means of
violence or intimidation.
* The element of intent to gain or fraudulent intent
is what distinguishes this felony from grave
coercion. Although both crimes share a common
element which is the compelling of any person to
do something against his will, nonetheless, in
coercion, the fear created in the mind of the
offended party is not immediate but remote. In
this type of robbery, the fear is immediate and
not remote. In coercion, there is no intent to gain
whereas in this form of robbery, intent to gain is
an indispensable element.

Article 299
ROBBERY IN AN INHABITED HOUSE OR
PUBLIC BUILDING OR EDIFICE DEVOTED TO
WORSHIP
ELEMENTS:
1. That the offender entered (a) an inhabited
house, or (b) public buildings, or (c)
edifice devoted to religious worship.
2. That the entrance was effected by any of
the following means:
a. Through an opening not intended for entrance
or egress.
b. By breaking any wall, roof, or floor or
breaking any door or window.
c. By using false keys, picklocks or similar tools
or.
d. By using any fictitious name or pretending
the exercise of public authority.
3. That once inside the building, the
offender
took
personal
property
belonging to another with intent to gain.

the store which has a door. (U.S. vs. Ventura,

39 Phil. 523).
INHABITED HOUSE any shelter, ship or vessel
constituting the dwelling of one or more person
even though temporarily absent dependencies,
courts, corals, barns, etc.
* NOT INCLUDED ORCHARD, LANDS FOR
CULTIVATION.
* Important for robbery by use of force upon
things, it is necessary that offender enters the
building or where object may be found. NO
ENTRY, NO ROBBERY
* In the absence of evidence to show how bandits
effected an entrance into the convent which they
robbed, there can be no conviction under this
article. The act would be treated as Theft. ( U.S.
vs. Callotes, 2 PHIL 16 )
"FORCE UPON THINGS" has a technical
meaning in law.
Not any kind of force upon
things will characterize the taking as one of
robbery.
The force upon things contemplated
requires some element of trespass into the
establishment where the robbery was committed.
In other words, the offender must have entered
the premises where the robbery was committed.
If no entry was effected, even though force may
have been employed actually in the taking of the
property from within the premises, the crime will
only be theft.
* The term force upon things has a legal meaning.
It means the employment of force to effect
entrance into the house or building by destroying
the door, window, roof, wall or floor of the
aforesaid house or building. In other words, the
force upon things has no reference to personal
property but to a house or building which is
ordinarily classified as real property.

Notes:
* In this kind of Robbery, no violence or
intimidation against persons is ever used.

* Entrance is necessary mere insertion of

hand is not enough (whole body); not to get out
but to enter therefore, evidence to such effect is
necessary

* Includes dependencies (stairways, hallways,

etc.)

Two predicates that will give rise to the crime

as robbery:

* A small store located on the ground floor of a

house is a dependency of the house, there being
no partition between the store and the house and
in going to the main stairway, one has to enter

1.

By mere entering alone, a robbery will be

committed if any personal property is
taken from within;

2.

The entering will not give rise to robbery

even if something is taken inside. It is
the breaking of the receptacle or closet or
cabinet where the personal property is
kept that will give rise to robbery, or the
taking of a sealed, locked receptacle to be
broken outside the premises.

* If by the mere entering, that would already

qualify the taking of any personal property inside
as robbery, it is immaterial whether the offender
stays inside the premises. The breaking of things
inside the premises will only be important to
consider if the entering by itself will not
characterize the crime as robbery with force upon
things.
* Modes of entering that would give rise to the
crime of robbery with force upon things if
something is taken inside the premises: entering
into an opening not intended for entrance or
egress, under Article 299 (a).
Illustration:
The entry was made through a fire escape. The
fire escape was intended for egress. The entry
will not characterize the taking as one of robbery
because it is an opening intended for egress,
although it may not be intended for entrance. If
the entering were done through the window, even
if the window was not broken, that would
characterize the taking of personal property
inside as robbery because the window is not an
opening intended for entrance.
Illustration:
On a sari-sari store, a vehicle bumped the wall.
The wall collapsed. There was a small opening
there. At night, a man entered through that
opening without breaking the same. The crime
will already be robbery if he takes property from
within because that is not an opening intended
for the purpose.
Even of there is a breaking of wall, roof, floor or
window, but the offender did not enter, it would
not give rise to robbery with force upon things.

without breaking of any sealed or

receptacle, will not give rise to robbery.

closed

Illustration:
A found B inside his (As) house. He asked B
what the latter was doping there. B claimed he is
an inspector from the local city government to
look after the electrical installations. At the time
B was chanced upon by A, he has already
entered. So anything he took inside without
breaking of any sealed or closed receptacle will
not give rise to robbery because the simulation of
public authority was made not in order to enter
but when he has already entered.
P v. Lamahang intent to rob being present is
necessary
Place: house or building; not car
PUBLIC BUILDING every building owned,
rented or used by the government (though owned
by private persons) though temporarily vacant
* Not robbery passing through open door but
getting out of a window
* If accused entered the house through a door,
and it was while escaping that he broke any wall,
floor or window after taking personal property
inside the house there is no Robbery
committed, only Theft.
* Outside door must be broken, smashed. Theft
if lock is merely removed or door was merely
pushed
* Breaking of the door under Article299 (b)
Originally, the interpretation was that in
order that there be a breaking of the door
in contemplation of law, there must be
some damage to the door.

* Note that in the crime of robbery with force

upon things, what should be considered is the
means of entrance and means of taking the
personal property from within. If those means do
not come within the definition under the Revised
Penal Code, the taking will only give rise to theft.

* Before, if the door was not damaged but only

the lock attached to the door was broken, the
taking from within is only theft. But the ruling is
now abandoned because the door is considered
useless without the lock. Even if it is not the door
that was broken but only the lock, the breaking of
the lock renders the door useless and it is
therefore tantamount to the breaking of the door.
Hence, the taking inside is considered robbery
with force upon things.

* Those means must be employed in entering. If

the offender had already entered when these
means were employed, anything taken inside,

FALSE KEYS genuine keys stolen from the

owner or any keys other than those intended by
the owner for use in the lock

PICKLOCKS specially
commission of robbery

made,

adopted

for

KEY stolen not by force, otherwise, its robbery

by violence and intimidation against persons
* False key used in opening house and not
furniture inside, otherwise, theft (for latter to be
robbery., must be broken and not just opened)
* Use of picklocks or false keys refers to the
entering into the premises If the
picklock or false key was used not to
enter the premises because the
offender had already entered but was
used to unlock an interior door or
even a receptacle where the valuable
or personal belonging was taken, the
use of false key or picklock will not
give rise to the robbery with force
upon things because these are
considered by law as only a means to
gain entrance, and not to extract
personal belongings from the place
where it is being kept.
GEN. RULE: outside door. EXCEPTION: inside
door in a separate dwelling
* If in the course of committing the robbery
within the premises some interior doors are
broken, the taking from inside the room where
the door leads to will only give rise to theft. The
breaking of doors contemplated in the law refers
to the main door of the house and not the
interior door.
* But if it is the door of a cabinet that is broken
and the valuable inside the cabinet was taken,
the breaking of the cabinet door would
characterize the taking as robbery. Although
that particular door is not included as part of the
house, the cabinet keeps the contents thereof
safe.
> E.g. pretending to be police to be able to enter
(not pretending after entrance)
* When the robbery is committed in a house
which is inhabited, or in a public building or in a
place devoted to religious worship, the use of
fictitious name or pretension to possess authority
in order to gain entrance will characterize the
taking inside as robbery with force upon things.

* If A and B told the occupant of the house that

they were the nephews of the spouse of the owner
of the house, and because of that, the closed
door was opened, or that they were NBI agents
executing a warrant of arrest, and so the
occupant opened the door, any taking personal
property thereat with intent to gain, would be
Robbery.
Question & Answer
Certain men pretended to be from the
Price Control Commission and went to a
warehouse owned by a private person. They told
the guard to open the warehouse purportedly to
see if the private person is hoarding essential
commodities there. The guard obliged. They went
inside and broke in . They loaded some of the
merchandise inside claiming that it is the product
of hoarding and then drove away. What crime
was committed?
It is only theft because the premises
where the simulation of public authority was
committed is not an inhabited house, not a
public building, and not a place devoted to
religious worship. Where the house is a private
building or is uninhabited, even though there is
simulation of public authority in committing the
taking or even if he used a fictitious name, the
crime is only theft.
ELEMENTS OF ROBBERY WITH FORCE UPON
THINGS, SUBDIVISION (B) ART.
299
1. That the offender is inside a dwelling
house, public building, or edifice devoted
to religious worship, regardless of the
circumstances under which he entered it
2. That
the
offender
takes
personal
property belonging to another with intent
to gain, under any of the following
circumstances.
a. by the breaking of doors, wardrobes,
chests, or any other kind of locked or sealed
furniture or receptacle, or
b.

by taking such furniture or objects away to

be broken or forced open outside the place
of the robbery.

Notes:
* Entrance ( no matter how done)

* If the entering does not characterize the taking

inside as one of robbery with force upon things, it
is the conduct inside that would give rise to the
robbery if there would be a breaking of sealed,
locked or closed receptacles or cabinet in order to
get the personal belongings from within such
receptacles, cabinet or place where it is kept.
* Offender may be servants or guests

even though the inhabitants thereof shall

temporarily be absent therefrom when the
robbery is committed.
Public building Includes every building owned
by the government or belonging to a private
person but used or rented by the government,
although temporarily unoccupied by the same.

* A friend who has invited in a house and who

enters a room where he finds a closed cabinet
where money is kept, is guilty of robbery if he
forcibly opens the said cabinet and takes the
money contained therein.

dependencies are all interior courts, corrals,

warehouses, granaries or enclosed places:
a. contiguous to the building
b. having an interior entrance connected
therewith
c. which form part of the whole

* When sealed box is taken out for the purpose of

breaking it, no need to open already
consummated robbery

Garage must have 3 requirements. Exception:

orchards/lands

Estafa if box is in the custody of accused

Article 302
ROBBERY IN AN UNINHABITED PLACE OR IN
A PRIVATE BUILDING
ELEMENTS:
1. That the offender entered an uninhabited
place or a building which was not a
dwelling house, not a public building, or
not an edifice devoted to religious
worship.
2. that any of the following circumstances
was present:

Theft if box found outside and forced open

Article 300
ROBBERY IN AN UNINHABITED PLACE AND
BY A BAND
* When the robbery with force upon things is
committed in an uninhabited place and by a band,
the robbery becomes qualified. In the same
manner, where robbery with violence against or
intimidation of persons is committed by a band or
in an uninhabited place, the crime becomes
qualified.
* The place considered uninhabited when it is not
used as a dwelling. It may refer to a building or a
house which is not used as a dwelling.
* If a house is inhabited and its owners or
occupants temporarily left the place to take a
short vacation in another place, their casual
absence will not make the place or house
uninhabited. (U. S. vs. Ventura, 39 Phil. 523)

Article 301
WHAT IS AN INHABITED HOUSE, PUBLIC
BUILDING OR BUILDING DEDICATED TO
RELIGIOUS
WORSHIP
AND
THEIR
DEPENDENCIES
Notes:
Inhabited house Any shelter, ship, or vessel
constituting the dwelling of one or more persons,

a.

That entrance was effected through an

opening not intended for entrance or
egress.
b. A wall, roof, floor, or outside door or
window was broken.
c. The entrance was effected through the
use of false keys, picklocks or other
similar tools.
d. A door, wardrobe, chest, or any sealed or
closed furniture or receptacle was broken
or
e. A closed or sealed receptacle was
removed, even if the same be broken open
elsewhere.
3. That with intent to gain the offender took
therefrom personal property belonging to
another.
Notes:
* Second kind of robbery with force upon things

* It must be taken note of, that the entrance by

using any fictitious name or pretending the
exercise of public authority is not among those
mentioned in Article 302 because the place is
Uninhabited and therefore without person
present. Likewise, in this class of Robbery, the
penalty depends on the amount taken
disregarding the circumstances of whether the
robbers are armed or not as in the case in
Robbery in Inhabited Place.
UNINHABITED PLACE is an uninhabited
building (habitable, not any of the 3 places
mentioned)
Ex. warehouse, freight car, store. Exception:
pigsty
* A store may or may not be an inhabited place
depending upon the circumstances of whether or
not it is usually occupied by any person lodging
therein at night. Although it may be used as a
dwelling to sustain a conviction under Article
299, the information must allege that the same
was used and occupied as a dwelling (People vs.
Tubog, 49 Phil. 620), otherwise Art. 302 is
applicable.
* Same manner as 299 except that was entered
into was an uninhabited place or a building other
than the 3 mentioned in 299. Exception: does
not include use of fictitious name or pretending
the exercise of public authority
* Breaking of padlock (but not door) is only theft
False keys genuine keys stolen from the owner
or any other keys other than those intended by
the owner for use in the lock forcibly opened

Article 303
ROBBERY OF CEREALS, FRUITS OR FIRE
WOOD IN AN UNINHABITED PLACE OR
PRIVATE BUILDING

* While the law uses the term uninhabited place,

it however refers to uninhabited building and its
dependencies. If the cereals, fruits or firewood
were taken outside a building and its
dependencies, the crime committed would only
be theft even though the taking was done in an
uninhabited place.
Article 304
ILLEGAL POSSESSION OF PICKLOCKS OR
SIMILAR TOOLS
ELEMENTS:
1. That the offender has in his possession
picklocks or similar tools.
2. That such picklocks or similar tools are
specially adopted to the commission of
robbery.
3. That the offender does not have lawful
cause for such possession.
Note: Actual use of the same is not necessary
* The law also prohibits the manufacture or
fabrication of such tools. If the manufacturer or
maker or locksmith himself is the offender, a
higher penalty is prescribed by law.
Supposing that in the crime of robbery, the
offender used a picklock to enter a building. Can
he be charged of illegal possession of picklocks or
similar tools? The answer is NO since the same
possession of these tools is already absorbed in
the graver crime of robbery.
Article 305
FALSE KEYS
WHAT CONSTITUTES:
1. Picklocks, etc.
2. Genuine key stolen from owner.
3. Any key other than those intended by
owner for use in the lock forcibly opened
by the offender
Notes:
* Possession of false keys here not punishable

* Under Article 303, if the robbery under Article

299 and 302 consists in the taking of cereals,
fruits, or firewood, the penalty imposable is lower.

* If key was entrusted and used to steal, not

robbery (not stolen)
BRIGANDAGE

* The word cereals however must be understood

to mean seedlings or semilla. It does not
include hulled rice. It may include palay or
unhulled palay.

Brigandage This is a crime committed by more

than three armed persons who form a band of
robbers for the purpose of committing robbery in
the highway or kidnapping persons for the
purpose of extortion or to obtain ransom, or for

any other purpose to be attained by means of

force and violence.
Article 306
WHO ARE BRIGANDS
BRIGANDS more than three armed persons
forming a band
Elements of brigandage:
1.
There are least four armed persons;
2.
They formed a band of robbers;
3.
The purpose is any of the following:
a. To commit robbery in the highway;
b. To kidnap persons for the purpose of
extortion or to obtain ransom; or
c.
To attain by means of force and violence
any other purpose.
Presumption of Brigandage:
a. if members of lawless band and
possession of unlicensed firearms (any of
them)
b. possession of any kind of arms (not just
firearm)
BRIGANDAGE
Purposes are given
Mere formation of a
band for the above
purpose

ROBBERY IN BAND
Only to commit robbery, not
necessarily in hi-way
If the purpose is to commit
a part robbery
Necessary to prove that
band actually committed
robbery

* There is no need for the band robbers to

execute the object of their association in order to
hold them criminally liable for the crime of
brigandage.
* The primary object on the law on brigandage is
to prevent the formation of bands of robbers.
Hence, if the formed band commits robbery with
the use of force upon persons or force upon
things, their criminal liability shall be limited to
the commission of such crimes.
* Likewise, if the offenders are charged with
robbery but the same is not established by the
evidence and what appears clear are the elements
of brigandage where the allegation in the
information necessarily includes such offense,
the offender can be convicted of the crime of
brigandage.
* It does not mean however that to constitute
violation of P.D. 532, there must be a band. One
or two persons can be held liable under this law

if they perpetrated their acts of depredation in

Philippine Highways against persons who are not
pre-determined victims.
* If the agreement among more than three armed
men is to commit a particular robbery, brigandage
is not committed because the latter must be an
agreement to commit robbery in general or
indiscriminately.
Article 307
AIDING AND ABETTING A BAND OF BRIGANDS
ELEMENTS:
1. That there is a band of brigands.
2. That the offender knows the band to be of
brigands.
3. That the offender does any of the
following acts:
a. he in any manner aids, abets or protects
such band of brigands, or
b. he gives them information of the
movements of the police or other peace
officers of the government or
c. He acquires or receives the property taken
by such brigands.
Notes:
PD 532 brigandage.
> Seizure of any person for: (a) ransom; (b)
extortion or other unlawful purpose; (c) taking
away of property by violence or intimidation or
force upon things or other unlawful means
> Committed by any person
> On any Phil hi-way
Distinction between brigandage under the
Revised Penal Code and highway
robbery/brigandage under Presidential
Decree No. 532:
(1)
Brigandage as a crime under the Revised
Penal Code refers to the formation of a band of
robbers by more than three armed persons for
the purpose of committing robbery in the
highway, kidnapping for purposes of extortion
or ransom, or for any other purpose to be
attained by force and violence. The mere
forming of a band, which requires at least four
armed persons, if for any of the criminal
purposes stated in Article 306, gives rise to
brigandage.
(2)
Highway
robbery/brigandage
under
Presidential Decree No. 532 is the seizure of
any person for ransom, extortion or for any
other lawful purposes, or the taking away of
the property of another by means of violence

against or intimidation of persons or force

upon things or other unlawful means
committed by any person on any Philippine
highway.
* Brigandage under Presidential Decree No. 532
refers to the actual commission of the robbery on
the highway and can be committed by one person
alone. It is this brigandage which deserves some
attention because not any robbery in a highway
is brigandage or highway robbery. A distinction
should
be
made
between
highway
robbery/brigandage under the decree and
ordinary robbery committed on a highway under
the Revised Penal Code.
* In People v. Puno, decided February 17, 1993,
the trial court convicted the accused of
highway robbery/ brigandage under
Presidential
Decree
No.
532
and
sentenced them to reclusion perpetua.
On appeal, the Supreme Court set aside
the judgment and found the accused
guilty of simple robbery as punished in
Article 294 (5), in relation to Article 295,
and sentenced them accordingly. The
Supreme Court pointed out that the
purpose of brigandage is, inter alia,
indiscriminate highway robbery.
And
that PD 532 punishes as highway
robbery or Brigandage only acts of
robbery
perpetrated
by
outlaws
indiscriminately against any person or
persons on a Philippine highway as
defined therein, not acts committed
against a predetermined or particular
victim. A single act of robbery against a
particular person chosen by the offender
as his specific victim, even if committed
on a highway, is not highway robbery or
brigandage.
* In US v. Feliciano, 3 Phil. 422, it was pointed
out that highway robbery or brigandage is more
than ordinary robbery committed on a highway.
The purpose of brigandage is indiscriminate
robbery in highways. If the purpose is only a
particular robbery, the crime is only robbery or
robbery in band, if there are at least four armed
participants.
* Presidential Decree No. 532 introduced
amendments to Article 306 and 307 by
increasing the penalties. It does not require at
least four armed persons forming a band of
robbers. It does not create a presumption that
the offender is a brigand when he an unlicensed

firearm is used unlike the Revised Penal Code.

But the essence of brigandage under the Revised
Penal Code is the same as that in the Presidential
Decree, that is, crime of depredation wherein the
unlawful acts are directed not only against
specific, intended or preconceived victims, but
against any and all prospective victims anywhere
on the highway and whoever they may potentially
be.
THEFT
Article 308
THEFT
ELEMENTS:
1. That there be taking of personal
property.
2. That said property belongs to another.
3. That the taking be done with intent to
gain.
4. That the taking be done without the
consent of the owner.
5. That the taking be accomplished without
the
use
of
violence
against
or
intimidation of persons or force upon
things.
PERSONS LIABLE:
1. Those who
a) with intent to gain
b) But without violence against or intimidation of
persons nor force upon things
c) take personal property of another
d) without the latters consent

The taking from an enclosed corral of a

carabao belonging to another, after force is
employed to destroy a part of the corral to
enter the same, is considered merely as theft
because corral is not a building nor a
dependency of a building. (U. S. vs. Rosales,
et al., 1 Phil. 300)

2. Those who
a) having found lost property
b) fail to deliver the same to local authorities
or its owner
Notes:
* Retention of money/property found is theft.
Retention is failure to return (intent to gain)
* The word lost is used in the generic sense. It
embraces loss by stealing or any act of a person
other than the owner, as well as the act of the

owner, or through some casual occurrence.

(People vs. Rodrigo, 16 SCRA 475)
* The felony is not limited to the actual finder.
Theft of a lost property may be committed even by
a person who is not the actual finder. (People vs.
Avila, 44 Phil. 720)
* Knowledge of owner is not required, knowledge
of loss is enough
* It is not necessary that the owner of the lost
property be known to the accused. What is
important is that he knows or has reason to
know that the property was lost and for this fact
alone, it is his duty to turn it over to the
authorities. If he does otherwise, like, if he sells
the thing to another, then the crime of theft is
committed.
* Finder in law is liable
Hidden Treasure
Under Article 438 and 439 of the Civil Code, the
finder of hidden treasure on the property of
another and by chance is entitled to one-half of
the treasure that he found. His duty is to tell the
owner about the treasure. If he appropriates the
other half pertaining to the owner of the property,
he is liable for theft as to that share. (People vs.
Longdew, C. A. G. R. No. 9380-R, June 4,
1953)
3. Those who
a) after having maliciously damaged the
property of another
b) remove or make use of the fruits or object of
the damage caused by them
* Theft of damaged property occurs only after the
accused has committed the crime of malicious
mischief. In malicious mischief, the offender
destroys the property of another because of
hatred, resentment or other evil motive against
the owner. So, a neighbor who shoots and kills a
goat which has destroyed his flower plants and
thereafter slaughters and eats the meat of the
wandering goat is guilty of theft.
4. Those who
a) enter an enclosed estate or a field where
b) trespass is forbidden or which belongs to
another and, without the consent of its
owner

c)

hunts or fish upon the same or gather

fruits, cereals or other forest or farm
products

Notes:
Theft is consummated when offender is able to
place the thing taken under his control and in
such a situation as he could dispose of it at once
(though no opportunity to dispose) i.e, the
control test
* In the crime of theft, the law makes only of the
term taking and not taking away. The noninclusion of the word away is significant
because it means that as soon as the culprit
takes possession of the things taken by him, the
crime of theft is already consummated since the
law does not require that the thief be able to carry
away the thing taken from the owner. (People vs.
Jaranilla, 55 SCRA 563)
* The consummation of the crime of theft takes
place upon the voluntary and malicious taking of
the property belonging to another which is realized
by the material occupation of the thing. The
property need not be actually taken away by the
thief. It is enough that he has obtained, at some
particular moment, complete control and
possession of the thing desired, adverse to the
right of the lawful owner. (People vs. Naval, 46
O. G. 2641)
P v. Dino applies only in theft of bulky goods
(meaning there has to be capacity to dispose of
the things). Otherwise, P v. Espiritu full
possession is enough
* Servant using car without permission deemed
qualified theft though use was temporary
Reyes says: there must be some character of
permanency in depriving owner of the use of the
object and making himself the owner, therefore
must exclude joyride
Theft: if after custody (only material possession)
of object was given to the accused, it is actually
taken by him (no intent to return) e.g. felonious
conversion. But it is estafa if juridical
possession is transferred e.g., by contract of
bailment
* Juridical possession of a thing is transferred to
another when he receives the thing in trust or on
commission or for administration, or under a
quasi-contract or a contract of bailment. When

possession by the offender is under any of these

circumstances and he misappropriates the thing
received, he cannot be held guilty of theft but of
estafa because here, he has both the physical
and juridical possession of the property.
* Includes electricity and gas
a. inspector misreads meter to earn
b. one using a jumper
c.
Personal Property
Personal property in the crime of theft includes
electric current or properties that may have no
material or concrete appearance. The test is not
whether the subject is corporeal or incorporeal but
whether it is incapable of appropriation by another
from the owner. Hence, checks, promissory notes,
and any other commercial documents may be the
object of theft because while they may not be of
value to the accused, they are without doubt of
value to the offended party. (U. S. vs. Raboy, 25
Phil. 1) In such a case, the penalty shall be
based on the amount of money represented by
the checks or promissory note since, while it may
not of value to the thief, it is undoubtedly of
value to the offended party. (People vs. Koc
Song, 63 Phil. 369).
* Selling share of co-partner is not theft
The personal
another.

property

must

belong

to

1. A joint owner or partner who sells the palay to

other persons or a co-owner or co-heir whp
appropriates the whole property cannot be
guilty of theft since the property cannot be
said to belong to another. (U. S. Reyes, 6 Phil.
441)
2. One who takes away the property pledged by
him to another without the latters consent,
does not commit theft for the simple reason
that he is the owner of the thing taken by
him. (L. B. Reyes)
* Salary must be delivered first to employee; prior
to this, taking of Php is theft

Gain means the acquisition of a thing useful for

the purpose of life. It includes the benefit which
in any other sense may be derived or expected
from the act performed.
* Actual gain is not necessary (intent to gain
necessary)
* Allege lack of consent in info is important
Consent as an element of the crime of theft must
be in the concept of consent that is freely given
and not one which is inferred from mere lack of
opposition on the part of the owner.
* Where the charge of theft under the first
sentence of Article 308, the information must
allege lack of consent. The allegation of lack of
consent is indispensable under the first
paragraph of Article 308 since the language or
epigraph of the law expressly requires that the
(unlawful) taking should be done without the
consent of the owner. In view of the clear text of
the law, an information which does not aver lack
of consent of the owner would render the
allegation insufficient and the information may
be quashed for failure to allege an essential
element of the crime. (Pua Yi Kun vs. People,
G. R. No. 26256, June 26, 1968)
Robbery and theft distinguished.
For robbery to exist, it is necessary that personal
property be taken against the will of the owner;
whereas in theft, it is sufficient that consent on
the part of the owner is lacking.
Presumption:
A person found in possession of a thing taken in
the recent doing of a wrongful act is the taker of
the thing and the doer of the whole act.
* Possession is not limited to actual personal
custody. One who deposits stolen property in a
place where it cannot be found may be deemed to
have such property in his possession.

* If offender claims property as his own (in good

faith) not theft (though later found to be untrue.
If in bad faith theft)

ELEMENTS OF HUNTING, FISHING OR

GATHERING FRUITS, ETC. IN ENCLOSED
ESTATE (PAR. NO.3, ART. 308)

* Gain is not just Php satisfaction, use,

pleasure desired, any benefit (e.g. joyride)

1. That there is an enclosed estate or a field

where trespass is forbidden or which
belongs to another;

2. That the offender enters the same.

3. That the offender hunts or fishes upon
the same or gathers fruits, cereals or
other forest or farm products, and
4. That the hunting or fishing or gathering
of products is without the consent of the
owner.
Note: Fish not in fishpond, otherwise, qualified
Ortega Notes:
Fencing under Presidential Decree No. 1612 is
a distinct crime from theft and robbery. If the
participant who profited is being prosecuted with
person who robbed, the person is prosecuted as
an accessory.
If he is being prosecuted
separately, the person who partook of the
proceeds is liable for fencing.
In People v. Judge de Guzman, it was held that
fencing is not a continuing offense. Jurisdiction is
with the court of the place where the personal
property subject of the robbery or theft was
possessed, bought, kept, or dealt with. The place
where the theft or robbery was committed was
inconsequential.
Since Section 5 of Presidential Decree No. 1612
expressly provides that mere possession
of anything of value which has been
subject of theft or robbery shall be prima
facie evidence of fencing, it follows that a
possessor of stolen goods is presumed to
have knowledge that the goods found in
his possession after the fact of theft or
robbery has been established.
The
presumption does not offend the
presumption of innocence in the
fundamental law. This was the ruling in
Pamintuan v. People, decided on July
11, 1994.
Burden of proof is upon fence to overcome
presumption; if explanation insufficient or
unsatisfactory, court will convict.
This is a
malum prohibitum so intent is not material. But if
prosecution is under the Revised Penal Code, as
an accessory, the criminal intent is controlling.
When there is notice to person buying, there may
be fencing such as when the price is way below
ordinary prices; this may serve as notice. He
may be liable for fencing even if he paid the price
because of the presumption.

Cattle Rustling and Qualified Theft of Large

Cattle The crime of cattle-rustling is defined
and punished under Presidential Decree No.
533, the Anti-Cattle Rustling law of 1974, as the
taking by any means, method or scheme, of any
large cattle, with or without intent to gain and
whether committed with or without violence
against or intimidation of person or force upon
things, so long as the taking is without the consent
of the owner/breed thereof. The crime includes
the killing or taking the meat or hide of large
cattle without the consent of the owner.
Since the intent to gain is not essential, the killing
or destruction of large cattle, even without taking
any part thereof, is not a crime of malicious
mischief but cattle-rustling.
The Presidential Decree, however, does not
supersede the crime of qualified theft of large
cattle under Article 310 of the Revised Penal
Code, but merely modified the penalties provided
for theft of large cattle and, to that extent,
amended Articles 309 and 310. Note that the
overt act that gives rise to the crime of cattlerustling is the taking or killing of large cattle.
Where the large cattle was not taken, but received
by the offender from the owner/overseer thereof,
the crime is not cattle-rustling; it is qualified theft
of large cattle.
Where the large cattle was received by the
offender who thereafter misappropriated it, the
crime is qualified theft under Article 310 if only
physical or material possession thereof was
yielded to him. If both material and juridical
possession thereof was yielded to him who
misappropriated the large cattle, the crime would
be estafa under Article 315 (1b).

Presidential Decree No. 533 is not a special law in

the context of Article 10 of the Revised
Penal Code.
It merely modified the
penalties provided for theft of large cattle
under the Revised Penal Code and
amended Article 309 and 310. This is
explicit from Section 10 of the
Presidential Decree. Consequently, the
trial court should not have convicted the
accused of frustrated murder separately
from cattle-rustling, since the former
should have been absorbed by cattlerustling as killing was a result of or on
the occasion of cattle-rustling. It should
only be an aggravating circumstance.
But because the information did not
allege the injury, the same can no longer
be appreciated; the crime should,
therefore be only, simple cattle-rustling.
(People v. Martinada, February 13,
1991)
PENALTIES FOR QUALIFIED THEFT; (309)
* The basis of the penalty is the value of the
things stolen.
* If the property has some value but is not proven
with reasonable certainty, the minimum
penalty shall be imposed under par. 6 of Art.
309 (People vs. Reyes, 58 Phil. 964).
* When there is no evidence as to the value of the
property stolen, the court is allowed to take
judicial knowledge of the value of such
property. (People vs. dela Cruz, 43 O. G.
3206)
* When the resulting penalty for the accessory to
the crime of theft has no medium period, the
court can impose the penalty which is found
favorable to the accused. (Cristobal vs.
People, 84 Phil. 473).

Article 310
QUALIFIED THEFT
THEFT IS QUALIFIED WHEN:
1. Committed by domestic servant, or
2. With grave abuse of confidence, or
3. Property stolen is:
a. motor vehicle
b. mail matter
c. large cattle
d. coconut from plantation

e. fish from fishpond or fishery, or

4. On occasion of calamities and civil
disturbance.
Notes:
* When the theft is committed by a domestic
servant, the offended party may either be the
employer where the offender is working as a
household help, or a third person as a guest in
the house. The roomboy is a hotel is embraced
within the term domestic servant.
GRAVE ABUSE high degree of confidence e.g.
guests
* In the case of abuse of confidence, the latter
must be grave in order to comply with the
requirement of the law because abuse of
confidence is not enough. There must be an
allegation in the information that there is a
relation between the accused and the offended
party wherein the latter confided his security as
to his person, life and property to the accused
with such degree of confidence and that the
accused abused the same.
* Abuse of confidence is determined from the trust
reposed by the offended party to the offender. It
may also refer to the nature of the work of the
offender which must necessarily involve trust and
confidence.
* Abuse of confidence is also an element of estafa.
To avoid confusion between theft with abuse of
confidence (qualified theft) and estafa with abuse
of
confidence,
where
the
offender
misappropriates a thing after he receives it from
the victim, the student must remember that in
qualified theft, only the physical or material
possession of the thing is transferred. If the
offender acquires the juridical as well as the
physical possession of the thing and he
misappropriates it, the crime committed is estafa.
Juridical possession of the thing is acquired
when one holds the thing in trust, or on
commission, or for administration or under any
other obligation involving the duty to deliver or to
return the thing received. If the possession of the
offender is not under any of these concepts, the
crime is qualified theft.
* no confidence, not qualified theft
THEFT material possession ESTAFA juridical
possession

* Where only the material possession is

transferred, conversion of the property gives rise
to the crime of theft. Where both the material
and
juridical
possession
is
transferred,
misappropriation
of
the
property
would
constitute estafa. When the material and juridical
possession of the thing transfers ownership of the
property to the possessor, any misappropriation
made by the possessor will not result in the
commission of any crime, either for theft of estafa.
Qualified: if done by one who has access to
place where stolen property is kept e.g., guards,
tellers
* novation theory applies only if theres a relation
* industrial partner is not liable for QT (estafa)
* when accused considered the deed of sale as
sham (modus) and he had intent to gain, his
absconding is QT
* motor vehicle in kabit system sold to anothertheft. Motor vehicle not used as PU in kabit
system but under K of lease-estafa
On carnapping and theft of motor vehicle
When the subject is motor vehicle, the Theft
becomes qualified.
Under R.A. 6539, AntiCarnapping Act of 1972, the term motor vehicle
includes, within its protection, any vehicle which
uses the streets, with or without the required
license, or any vehicle which is motorized using
the streets, such as a motorized tricycle. (Izon
vs. People, 107 SCRA 123)
* The taking with intent to gain of a motor vehicle
belonging to another, without the latters consent,
or by means of violence or intimidation of persons,
or by using force upon things is penalized as
carnapping under Republic Act No. 6539 (An
Act Preventing and Penalizing Carnapping), as
amended. The overt act which is being punished
under this law as carnapping is also the taking of
a motor vehicle under circumstances of theft or
robbery. If the motor vehicle was not taken by
the offender but was delivered by the owner or
the possessor to the offender, who thereafter
misappropriated the same, the crime is either
qualified theft under Article 310 of the Revised
Penal Code or estafa under Article 315 (b) of the
Revised Penal Code. Qualified theft of a motor
vehicle is the crime if only the material or physical
possession was yielded to the offender; otherwise,

if juridical possession was also yielded, the crime

is estafa.
* mail matter private mail to be QT, Not
postmaster Art. 226
* theft of large cattle
Article 311
THEFT OF PROPERTY OF THE NATIONAL
LIBRARY AND NATIONAL MUSEUM
USURPATION
Article 312
OCCUPATION OF REAL PROPERTY OR
USURPATION OF REAL RIGHTS IN PROPERTY
Acts punished:
1. Taking possession of any real property
belonging to another by means of violence
against or intimidation of persons;
2. Usurping any real rights in property belonging
to another by means of violence against or
intimidation of persons.
ELEMENTS:
1. That the offender takes possession of any
real property or usurps any real rights in
property.
2. That the real property or real rights
belong to another.
3. That violence against or intimidation of
persons is used by the offender in
occupying real property or usurpation
real rights in property.
4. That there is intent to gain.
* Since this is a crime against property, there
must be intent to gain. In the absence of the
intent to gain, the act may constitute Coercion.
* Use the degree of intimidation to determine the
degree of the penalty to be applied for the
usurpation.
* Usurpation under Article 312 is committed in
the same way as robbery with violence or
intimidation of persons.
The main
difference is that in robbery, personal
property is involved; while in usurpation
of real rights, it is real property. (People
v. Judge Alfeche, July 23, 1992)
* The possession of the land or real rights must
be done by means of violence or intimidation. So,
if the evidence of the prosecution shows that the

accused entered the premises by means of

strategy, stealth or methods other than the
employment of violence, no crime was committed
by the offender. (People vs. Alfeche, Jr., 211
SCRA 770)
* Usurpation of real rights and property should
not be complexed using Article 48 when violence
or intimidation is committed. There is only a
single crime, but a two-tiered penalty is
prescribed to be determined on whether the acts
of violence used is akin to that in robbery in
Article 294, grave threats or grave coercion and
an incremental penalty of fine based on the value
of the gain obtained by the offender.
* There is no crime of threat and usurpation of
real property since threat is an indispensable
element of usurpation of real rights. Hence,
where threats are uttered to the owner of real
property by one illegally occupying it, the crime
committed is not the complex crime of
usurpation of real property with grave threats
because making a threat is an inherent element
of usurpation of real property. (Castrodes vs.
Cubelo, 83 SCRA 670)
* The complainant must be the person upon
whom violence was employed. If a tenant was
occupying the property and he was threatened by
the offender, but it was the owner who was not in
possession of the property who was named as the
offended party, the same may be quashed as it
does not charge an offense. The owner would, at
most, be entitled to civil recourse only.
On squatting
According to the Urban Development
Housing Act, the following are squatters:

and

1.

Those who have the capacity or means to

pay rent or for legitimate housing but are
squatting anyway;

2.

Also the persons who were awarded lots

but sold or lease them out;

3.

Intruders of lands reserved for socialized

housing, pre-empting possession by
occupying the same.

* Note that violation of Article 312 is punishable

only with fine. So, if physical injuries are inflicted
on the victim due to the violence employed by the
offender in the usurpation of real rights, the

latter shall be punished separately for the crime

of physical injuries.
* Violence employed results to the death of the
offended party. When such eventuality does
occur, then the crime may rightfully be
denominated as usurpation of real rights
resulting to homicide, murder, parricide, or
infanticide as the case may be.
Article 313
ALTERING BOUNDARIES OR LANDMARKS
ELEMENTS:
1. That there be boundary marks or
monuments of towns, provinces, or
estates, or any other marks intended to
designate the boundaries of the same.
2. That the offender alters said boundary
marks.

CULPABLE INSOLVENCY
Article 314
FRAUDULENT
insolvency)

INSOLVENCY

(culpable

ELEMENTS
1. That the offender is a debtor; that is, he
was obligations due and payable.
2. That he absconds with his property.
3. That there be prejudice to his creditors.
* To be liable for fraudulent insolvency, the
disposal of the merchandise must be done with
malice. The mere circumstance that a person has
disposed of his merchandise by removing them
from the place where they were kept would
necessarily imply fraud. What is required is
actual prejudice to the creditor. The intention of
the accused alone is not enough. (People vs.
Guzman, C. A. 40 O. G. 2655)
* The law does not require the offender to be a
merchant. The law says any person, and this
refers to anyone who becomes a debtor and
performs the acts made punishable by the law.
* The property which the offender may abscond
which consists of both real and personal
property. (People vs. Chong Chuy Lingobo, 45
Phil. 372)
* The law on fraudulent insolvency is different
from the Insolvency Law. For the Insolvency Law

to apply, the criminal act must have been

committed after the institution of the insolvency
proceedings against the offending debtor. But
under the present article, there is no requirement
that the accused should be adjudged bankrupt or
insolvent.
SWINDLING AND OTHER DECEITS
ESTAFA is embezzlement under common law. It
is a well-known crime to lawyers and
businessmen. It is a continuing crime unlike
theft. Being a public crime, it can be prosecuted
de officio.
Article 315
A. ELEMENTS OF ESTAFA IN GENERAL: (315)
1. That the accused defrauded another (a.)
by abuse of confidence, or (b) or means of
deceit and
2. That damage or prejudice capable of
pecuniary estimation is caused to the
offended party or third person
* The concept of damage under this article does
not mean actual or real damage. It may consist in
mere disturbance of the property rights of the
offended party. However, the damage must be
capable of pecuniary estimation. This requirement
is important because in estafa, the penalty is
dependent on the value of the property.
* Since estafa is a material crime, it can be
divided into consummated, attempted or
frustrated stages. In the latter case, the damage
can be in the form of temporary prejudice or
suffering, or inconvenience capable of pecuniary
estimation.
B.
ELEMENTS
OF
ESTAFA
WITH
UNFAITHFULNESS: (315)
1. That the offender has an onerous
obligation to deliver something of value.
2. That he alters its substance, quantity, or
quality.
3. That damage or prejudice is caused to
another.
* The accused does not receive the goods but
delivers a thing under an onerous obligation
which is not in accordance with the substance,
quantity or quality agreed upon. It is the altering
of the substance, quality or quantity of the thing
delivered which makes the offender liable for the
crime of estafa.

* The word onerous means that the offended

party has fully complied with his obligations to
pay. So, if the thing delivered whose substance
was altered, is not yet fully or partially paid, then
the crime of estafa is not committed.
C. ELEMENTS OF ESTAFA WITH ABUSE OF
CONFIDENCE UNDER SUBDIVISION NO.1 PAR.
(B), OF ART.315
1. That money, goods, or other personal
property be 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.
2. That there be misappropriation or
conversion of such money or property by
the offender, or dental on his part of such
receipt.
3. that such misappropriation or conversion
or dental is to the prejudice of another
and
4. That there is a demand made by the
offended party to the offender.
(The fourth element is not necessary when there
is evidence of misappropriation of the goods by
the defendant. [Tubb v. People, et al., 101 Phil.
114] ).
* It is necessary in this kind of estafa, for the
money, goods or personal property to have been
received by the offender in trust, or on
commission or for administration. He must
acquire both material or physical as well as
juridical possession of the thing received. In
these instances, the offender, who is the
transferee, acquires a right over a thing which he
may set up even against the owner.
* A money market transaction however partakes
of the nature of a loan, and non-payment thereof
would not give rise to criminal liability for Estafa
through misappropriation or conversion.
In
money market placements, the unpaid investor
should institute against the middleman or dealer,
before the ordinary courts, a simple action for
recovery of the amount he had invested, and if
there is allegation of fraud, the proper forum
would be the Securities and Exchange
Commission. (Sesbreno vs. Court of Appeals,
et al., 240 SCRA 606).
D. 2ND ELEMENT OF ESTAFA WITH ABUSE OF
CONFIDENCE
UNDER
PARAGRAPH
(B),

SUBDIVISION N0.1, ART. 315 = 3 WAYS OF

COMMITTING:
1. By misappropriating the thing received.
2. By converting the thing received.
3. By denying that the thing was received.

j.

Failure to account after the DEMAND is

circumstantial
evidence
of
misappropriation
k. DEMAND is not a condition precedent to
existence
of
estafa
when
misappropriation may be established by
other proof
l. In theft, upon delivery of the thing to the
offender, the owner expects an immediate
return of the thing to him otherwise,
Estafa
m. Servant, domestic or employee who
misappropriates a thing he received from
his master is NOT guilty of estafa but of
qualified theft

Notes:
Unfaithfulness or Abuse of Confidence
a. by altering the substance
b. existing obligation to deliver even if it is
not a subject of lawful commerce
c. thing delivered has not been fully or
partially paid for not estafa
d. no agreement as to quality No estafa if
delivery is unsatisfactory
By misappropriating and converting
a. thing is received by offender under
transactions
transferring
juridical
possession, not ownership
b. under PD 115 (Trust Receipts Law)
failure to turn over to the bank the
proceeds of the sale of the goods covered
by TR Estafa
c. same thing received must be returned
otherwise estafa; sale on credit by agency
when it was to be sold for cash estafa
d. Estafa not affected by Novation of
Contract because it is a public offense
e. Novation must take place before criminal
liability was incurred or perhaps prior to
the filing of the criminal information in
court by state prosecutors
f. Misappropriating to take something
for ones own benefit
g. Converting act of using or disposing of
anothers property as if it was ones own;
thing has been devoted for a purpose or
use different from that agreed upon
h. There must be prejudice to another not
necessary that offender should obtain
gain
* There is no estafa through negligence. There is
likewise no estafa where the accused did not
personally
profit
or
gain
from
the
misappropriation.
i.

Partners No estafa of money or property

received for the partnership when the
business is commercial and profits
accrued. BUT if property is received for
specific purpose and is misappropriated
estafa!

When in the prosecution for malversation the

public officer is acquitted, the private
individual allegedly in conspiracy with him
may be held liable for estafa

ESTAFA WITH ABUSE

OF CONFIDENCE
Offenders are entrusted
with funds or property
and
are
continuing
offenses
Funds: always private
Offender:
private
individual, or public
officer not accountable
Committed
by
misappropriating,
converting,
denying
having received money

MALVERSATION
offenders are entrusted
with funds or property
and
are
continuing
offenses
Funds: public funds or
property
Offender:
public officer
accountable for public
funds
Committed
by
appropriating, taking,
misappropriating

E. ELEMENTS OF ESTAFA BY TAKING UNDUE

ADVANTAGE OF THE SIGNATURE IN BLANK:
(315)
1. That the paper with the signature of the
offended party be in blank.
2. That the offended party should have
delivered it to offender.
3. That above the signature of the offended
party a document is written by the
offender without authority to do so.
4. That the document so written creates a
liability of, or causes damage to, the
offended party or any third person.
* The element of this estafa is also abuse of
confidence. The offended party leaves a blank
paper with his signature to another, with specific
instructions to make entries thereon according to

the wishes of the offended party. But contrary to

such instructions and wishes, the accused makes
entries in writing which creates liabilities against
the owner of the signature.
* If the unauthorized writings were done by a
person other than the one to whom the owner of
the signature delivered the paper in blank, and it
caused damage to the offended party, the crime
committed by the third party is not estafa but
falsification.
Note: If the paper with signature in blank was
stolen Falsification if by making it appear that
he participated in a transaction when in fact he
did not so participate

F. ELEMENTS OF ESTAFA BY MEANS OF

DECEIT: (315)
1. that there must be a false pretense,
fraudulent means must be made or
executed prior to or
2. That such false pretense, fraudulent act
or fraudulent means must be made or
executed prior to or simultaneously with
the commission of the fraud.
3. That the offended party must have relied
on the false pretense, fraudulent act, or
fraudulent means, that is, he was
induced to part with his money or
property because of the false pretense,
fraudulent act, or fraudulent means.
4. That as a result thereof, the offended
party suffered damage.
Notes:
FALSE PRETENSES OR FRAUDULENT ACTS
executed prior to or simultaneously with delivery
of the thing by the complainant
* There must be evidence that the pretense of the
accused that he possesses power/influence is
false
* The representation that accused possessed
influence, to deceive and inveigle the complainant
into parting with his money must however be
false to constitute deceit under No. 2 of Article
315, RPC. (Dela Cruz vs. Court of Appeals, et
al., 265 SCRA 299).
Elements of estafa by means of false pretenses
or fraudulent acts under Article 315 (2)

Acts punished under paragraph (a)

1.
Using fictitious name;
2.
Falsely pretending to possess power,
influence, qualifications, property, credit,
agency,
business
or
imaginary
transactions; or
3.
By means of other similar deceits.
* In the prosecution of estafa under Article 315,
no. 2(a), it is indispensable that the element of
deceit consisting in the false statement or
fraudulent representation of the accused, be made
prior to, before or at least simultaneously with the
delivery of the thing by the offended party. The
added requirement that such false statement or
fraudulent representation constitutes the very
motive or the only reason or cause which induces
the offended party to part with the thing while
they may be false representation after the
delivery of the goods or the thing by the aggrieved
party,
such
false
statement
or
false
representation, no matter how fraudulent and
obnoxious it may appear, cannot serve as a basis
for prosecution under this category of estafa. For
the case to prosper against the accused, the
prosecution must prove two indispensable
elements: deceit and damage to another. (Celino
vs. Court of Appeals, 163 SCRA 97)
CREDIT means the ability to buy things or
merchandise on the basis of ones character,
capacity to pay or goodwill in the business
community. So, if it is used to deceive another
and the deception is the principal reason for the
delivery of the goods which results in damage to
the offended party, the crime committed is estafa.
Under paragraph (b)
Altering the quality, fineness, or weight
anything pertaining to his art or business.

of

Under paragraph (c)

Pretending to have bribed any government
employee, without prejudice to the action for
calumny which the offended party may deem
proper to bring against the offender.

G. ELEMENTS OF ESTAFA BY POSTDATING A

CHECK OR ISSUING A CHECK IN PAYMENT
OF AN OBLIGATION: (315)

1. That the offender postdated a check, or

issued a check in payment of an
obligation.
2. That such postdatig or issuing a check
was done when the offender had no funds
in the bank or his funds deposited
therein were not sufficient to cover the
amount of the check.
Notes:
Note that this only applies if
(1)
The obligation is not pre-existing;
(2)
The check is drawn to enter into an
obligation;
(Remember that it is the check that is
supposed to be the sole consideration for
the other party to have entered into the
obligation. For example, Rose wants to
purchase a bracelet and draws a check
without insufficient funds. The jeweler
sells her the bracelet solely because of
the consideration in the check.)
(3)

It does not
purpose of
guarantee a
obligation
paragraph

cover checks where the

drawing the check is to
loan as this is not an
contemplated
in
this

* The check must be genuine. If the check is

falsified and is cashed with the bank or
exchanged for cash, the crime is estafa thru
falsification of a commercial document.
* The general rule is that the accused must be
able to obtain something from the offended party
by means of the check he issued and delivered.
Exception: when the check is issued not in
payment of an obligation.
* It must not be promissory notes, or guaranties.
* good faith is a defense. (PP. VS. VILLAPANDO, 56
PHIL.31)
* dishonor for lack of funds - prima facie evidence
of deceit or failure to make good within three
days after notice of.
* If the checks were issued by the defendant and
he received money for them, then stopped
payment and did not return the money, and he
had an intention to stop payment when he issued
the check, there is estafa.

* Deceit is presumed if the drawer fails to deposit

the amount necessary to cover the check within
three days from receipt of notice of dishonor or
insufficiency of funds in the bank.
* If check was issued in payment of pre-existing
debt no estafa
* It is therefore essential that the check be issued
in payment of a simultaneous obligation. The
check in question must be utilized by the
offender in order to defraud the offended party.
So, if the check was issued in payment of a
promissory note which had matured and the
check was dishonored, there is not estafa since
the accused did not obtain anything by means of
said check. (People vs. Canlas, O. G. 1092)
* If a bouncing check is issued to pay a preexisting obligation, the drawer is liable under B. P.
Blg. 22 which does not make any distinction as to
whether a bad check is issued in payment of an
obligation or to guarantee an obligation. (Que vs.
People, 73217-18, Sept. 21, 1987)
* Offender must be able to obtain something from
the offended party by means of the check he
issues and delivers
* The check must be issued in payment of an
obligation. If the check was issued without any
obligation or if there is lack of consideration and
the check is subsequently dishonored, the crime
of estafa is not committed.
* If postdating a check issued as
guarantee/promissory note no estafa

mere

H. ELEMENTS OF OFFENSE DEFINED IN THE

FIRST PARAGRAPH OF SECTION 1: BP 22
1. That a person makes or draws and issues
any check.
2. That the check is made or drawn and
issued to apply on account or for value.
3. That the person who makes or draws and
issues the check knows at the time of
issue that he does not have sufficient
funds in or credit with the drawee bank
for the payment of such check in full
upon its presentment.
4. That
the
check
is
subsequently
dishonored by the drawee bank for
insufficiency of funds or credit, or would
have been dishonored for the same reason
had not the drawee, without any valid

reason, ordered
payment.

the

bank

to

stop

Note: Failure to make good within 5 banking days

prima facie evidence of knowledge of lack and
insufficiency
I. ELEMENTS OF THE OFFENSE DEFINED IN
THE SECOND PARAGRAPH OF SECTION 1: BP
22
1. That a person has sufficient funds in or
credit with the drawee bank when he
makes or draws and issues a check.
2. That he fails to keep sufficient funds or
to maintain a credit to cover the full
amount of the check if presented within a
period of 90 days from the date
appearing thereon.
3. That the check is dishonored by the
drawee bank.
Note: Failure to make good within 5 banking days
prima facie evididence of knowledge of lack and
insufficiency
Distinction between estafa under Article 315
(2) (d) of the Revised Penal Code and violation
of Batas Pambansa Blg. 22:
(1)

Under both Article 315 (2) (d) and Batas

Pambansa Blg. 22, there is criminal
liability if the check is drawn for non-preexisting obligation.
If the check is drawn for a pre-existing
obligation, there is criminal liability only
under Batas Pambansa Blg. 22.

(2)

Estafa under Article 315 (2) (d) is a crime

against property while Batas Pambansa
Blg. 22 is a crime against public interest.
The gravamen for the former is the deceit
employed, while in the latter, it is the
issuance of the check. Hence, there is
no double jeopardy.

(3)

In the estafa under Article 315 (2) (d),

deceit and damage are material, while in
Batas Pambansa Blg. 22, they are
immaterial.

(4)

In estafa under Article 315 (2) (d),

knowledge by the drawer of insufficient
funds is not required, while in Batas
Pambansa Blg. 22, knowledge by the
drawer of insufficient funds is reqired.

* When is there prima facie evidence of knowledge

of insufficient funds?
* There is a prima facie evidence of knowledge of
insufficient funds when the check was presented
within 90 days from the date appearing on the
check and was dishonored.
Exceptions
1.

When the check was presented after 90

days from date;

2.

When the maker or drawer -a.

Pays the holder of the check the

amount due within five banking
days after receiving notice that
such check has not been paid by
the drawee;

b.

Makes arrangements for payment

in full by the drawee of such
check within five banking days
after notice of non-payment

* The drawee must cause to be written or

stamped in plain language the reason for the
dishonor.
* If the drawee bank received an order of stoppayment from the drawer with no reason, it must
be stated that the funds are insufficient to be
prosecuted here.
* If the drawer has valid reasons for stopping
payment, he cannot be held criminally liable
under B.P. Blg. 22.
* The unpaid or dishonored check with the
stamped information re: refusal to pay is prima
facie evidence of (1) the making or issuance of the
check; (2) the due presentment to the drawee for
payment & the dishonor thereof; and (3) the fact
that the check was properly dishonored for the
reason stamped on the check.
On issuance of a bouncing check
The issuance of check with insufficient funds may
be held liable for estafa and Batas Pambansa Blg.
22. Batas Pambansa Blg. 22 expressly provides
that prosecution under said law is without
prejudice to any liability for violation of any
provision in the Revised Penal Code. Double
Jeopardy may not be invoked because a violation
of Batas Pambansa Blg. 22 is a malum

prohibitum and is being punished as a crime

against the public interest for undermining the
banking system of the country, while under the
Revised Penal Code, the crime is malum in se
which requires criminal intent and damage to the
payee and is a crime against property.
In estafa, the check must have been issued as a
reciprocal consideration for parting of goods
(kaliwaan). There must be concomitance. The
deceit must be prior to or simultaneous with
damage done, that is, seller relied on check to
part with goods. If it is issued after parting with
goods as in credit accommodation only, there is
no estafa. If the check is issued for a pre-existing
obligation, there is no estafa as damage had
already been done. The drawer is liable under
Batas Pambansa Blg. 22.
For criminal liability to attach under Batas
Pambansa Blg. 22, it is enough that the check
was issued to "apply on account or for value" and
upon its presentment it was dishonored by the
drawee bank for insufficiency of funds, provided
that the drawer had been notified of the dishonor
and inspite of such notice fails to pay the holder of
the check the full amount due thereon within five
days from notice.
Under Batas Pambansa Blg. 22, a drawer must be
given notice of dishonor and given five banking
days from notice within which to deposit or pay
the amount stated in the check to negate the
presumtion that drawer knew of the insufficiency.
After this period, it is conclusive that drawer
knew of the insufficiency, thus there is no more
defense to the prosecution under Batas
Pambansa Blg. 22.
* The mere issuance of any kind of check
regardless of the intent of the parties, whether
the check is intended to serve merely as a
guarantee or as a deposit, makes the drawer
liable under Batas Pambansa Blg. 22 if the check
bounces.
As a matter of public policy, the
issuance of a worthless check is a public
nuisance and must be abated.
* Each act of drawing and issuing a bouncing
check constitutes a violation of B. P. Blg. 22.
* In De Villa v. CA, decided April 18, 1991, it
was held that under Batas Pambansa Blg. 22,
there is no distinction as to the kind of check
issued. As long as it is delivered within Philippine
territory, the Philippine courts have jurisdiction.
Even if the check is only presented to and

dishonored in a Philippine bank, Batas

Pambansa Blg. 22 applies. This is true in the
case of dollar or foreign currency checks. Where
the law makes no distinction, none should be
made.
* In People v. Nitafan, it was held that as long
as instrument is a check under the negotiable
instrument law, it is covered by Batas Pambansa
Blg. 22.
A memorandum check is not a
promissory note, it is a check which have the
word memo, mem, memorandum written
across the face of the check which signifies that if
the holder upon maturity of the check presents
the same to the drawer, it will be paid absolutely.
But there is no prohibition against drawer from
depositing memorandum check in a bank. *
Whatever be the agreement of the parties in
respect of the issuance of a check is
inconsequential to a violation to Batas Pambansa
Blg. 22 where the check bounces.
* Cross checks do not make them non-negotiable
and therefore they are within the coverage of B. P.
Blg. 22.
* The law does not distinguish between foreign
and local checks.
(De Villa vs. Court of
Appeals, et al., 195 SCRA 722).
* But overdraft or credit arrangement may be
allowed by banks as to their preferred clients and
Batas Pambansa Blg. 22 does not apply. If check
bounces, it is because bank has been remiss in
honoring agreement.
* The check must be presented for payment within
a 90-day period. If presented for payment beyond
the 90 day period and the drawers funds are
insufficient to cover it, there is no Batas
Pambansa Blg. 22 violation.

* Where check was issued prior to August 8,

1984, when Circular No. 12 of the
Department of the Justice took effect,
and the drawer relied on the then
prevailing Circular No. 4 of the Ministry
of Justice to the effect that checks issued
as part of an arrangement/agreement of
the parties to guarantee or secure
fulfillment of an obligation are not
covered by Batas Pambansa Blg. 22, no
criminal liability should be incurred by
the drawer. Circular should not be given
retroactive effect. (Lazaro v. CA,
November 11, 1993, citing People v.
Alberto, October 28, 1993)

J. BY OBTAINING FOOD OR CREDIT AT

HOTELS, INNS, RESTAURANTS ETC.
Acts punished under paragraph (e)
1.
a. Obtaining
food,
refreshment,
or
accommodation at a hotel, inn, restaurant,
boarding house, lodging house, or
apartment house;
b. Without paying therefor;
c. With intent to defraud the proprietor or
manager.
2.
a.
Obtaining
credit
at
any
of
the
establishments;
b. Using false pretense;
3.

a.

Abandoning or surreptitiously removing

any part of his baggage in the
establishment;
b. After obtaining credit, food, refreshment,
accommodation;
c.
Without paying.

* Failure to pay food or accommodation in a hotel,

restaurant or inn usually gives rise to civil
liability but if the intent to defraud is clear like a
surreptitious removal of baggage from the hotel,
or resorting to deceitful means to evade payment,
the act shall be punished criminally as Estafa.

K. ELEMENTS OF ESTAFA BY INDUCING

ANOTHER TO SIGN ANY DOCUMENTS: (315)
1. That the offender induced the offended
party to sign a document.
2. That deceit be employed to make him
sign the document.

3. That the offended party

signed the document.
4. That prejudice be caused.

personally

Note: If offended party willingly signed the

document and there was deceit as to the
character or contents of the document
falsification; but where the accused made
representation to mislead the complainants as to
the character of the documents - estafa
Under paragraph (b)
Resorting to some fraudulent practice to insure
success in a gambling game;

L. ELEMENTS OF ESTAFA BY REMOVING,

CONCEALING OR DESTROYING DOCUMENTS:
(315)
1. That there be court records, office files,
documents or any other papers.
2. That the offender removed, concealed or
destroyed any of them.
3. That the offender had intent to defraud
another.
* In order to commit a crime, the offender must
have the intention to defraud. In other words, the
removal, concealment or destruction of the court
record should be done with the intent to defraud
the victim. This is distinguished from the crime of
removal, concealment or destruction of documents
under Article 226 wherein fraud is not an element
of the crime, and which is committed only by
public officers. What is punished under this
Article is the damage to public interest.
* If the act of removing, concealing or destroying
results from hatred, revenge, or other evil motive,
the crime committed is malicious mischief under
Article 327.
Note: No intent to defraud destroying or
removal = malicious mischief
When a lawyer, pretending to verify a certain
pleading in a case pending before a court,
borrows the folder of the case, and removes or
destroys a document which constitute evidence in
the said case, said lawyer is guilty of Estafa
under par. 3 (c) of Article 315, RPC.
SYNDICATED ESTAFA.

A syndicate of five or more persons formed with

intent to carry out an unlawful or illegal act,
transaction or scheme and defraudation which
results in misappropriation of money contributed
by stockholders or members of rural banks,
cooperatives, samahang nayon or formers
association; or funds contributed by corporations
or associations for the general welfare.
M. DAMAGE OR PREJUDICE CAPABLE OF
PECUNIARY
ESTIMATION:
(315)
(second
element of any form of estafa)
THE ELEMENTS OF DAMAGE OR PREJUDICE
MAY CONSIST OF THE FF.:
1. The offender party being deprived of his
money or property, as a result of the
defraudation.
2. Disturbance in property right or
3. Temporary prejudice.
N. ELEMENTS OF SWINDLING (PAR.1) BY
CONVEYING, SELLING, ENCUMBERING, OR
MORTGAGING
ANY
REAL
PROPERTY,
PRETENDING TO BE THE OWNER OF THE
SAME: (316)
1. That the thing be immovable, such as a
parcel of land or a building.
2. That the offender who is not the owner of
said property represented that he is the
owner thereof.
3. That the offender should have executed
an act of ownership (selling, leasing,
encumbering or mortgaging the real
property).
4. That the act be made to the prejudice of
the owner or a third person.
ESTAFA
Private individual
was entrusted
Intent to defraud

INFIDELITY IN THE
CUSTODY OF DOCUMENTS
Public officer entrusted
No intent to defraud

O. ELEMENTS OF SWINDLING (PAR. 2) BY

DISPOSING OF REAL PROPERTY AS FREE
FROM ENCUMBRANCE, ALTHOUGH SUCH
ENCUMBRANCE BE NOT RECORDED: (316)
1. that the thing disposed of be real
property.
2. That the offender knew that the real
property was encumbered, whether the
encumbrance is recorded or not.

3. That
there
must
be
express
representation by the offender that the
real property is free from encumbrance.
4. That the act of disposing of the real
property be made to the damage of
another.
* In Saddul Jr. v. CA, 192 SCRA 277, it was
held that the act of using or disposing of anothers
property as if it were ones own, or of devoting it to
a purpose or use different from that agreed upon,
is a misappropriation and conversion to the
prejudice of the owner.
Conversion is
unauthorized assumption an exercise of the right
of ownership over goods and chattels belonging to
another, resulting in the alteration of their
condition or exclusion of the owners rights.
P. ELEMENTS OF SWINDLING (PAR.3) BY
WRONGFULLY TAKING BY THE OWNER HIS
PERSONAL FROM ITS LAWFUL POSSESSOR:
(316)
1. That the offender is the owner of
personal property.
2. That said personal property is in the
lawful possession of another.
3. That the offender wrongfully takes it
from its lawful possessor.
4. That prejudice is thereby caused to the
possessor or third person.
Under paragraph 4 by executing any fictitious
contract to the prejudice of another
Under paragraph 5 by accepting any
compensation for services not rendered or for
labor not performed
Q. ELEMENTS OF SWINDLING (PAR. 6) BY
SELLING, MORTGAGING OR ENCUMBERING
REAL PROPERTY OR PROPERTIES WITH
WHICH THE OFFENDER GUARANTEED THE
FULFILLMENT OF HIS OBLIGATION AS
SURETY: (316)
1. That the offender is a surety in a bond
given in a criminal or civil action.
2. That he guaranteed the fulfillment of
such obligation with his real property or
properties.
3. That he sells, mortgages, or, in any other
manner encumbers said real property.
4. That such sale, mortage or encumbrance
is (a) without express authority from the
court, or (b) made before the cancellation

of his bond, or (c) before being relieved

from the obligation contracted by him.
R. ELEMENTS OF SWINDLING A MINOR: (317)
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.
4. That the transaction is to the detriment
of such minor.
* The property referred to in this article is not
real property. It is limited to personal property
since a minor cannot convey real property without
judicial intervention. So, if what is involved is real
property, the crime of swindling a minor under
this article is not committed even if the offender
succeeds in inducing the minor to deal with such
real property since no damage or detriment is
caused against the minor.
S. ELEMENTS OF OTHER DECEITS: (318)
1. not mentioned above;
2. interpretation of dreams, forecast, futuretelling for profit or gain.
* The meaning of other deceits under this article
has reference to a situation wherein fraud or
damage is done to another by any other form of
deception which is not covered by the preceding
articles.
* Another form of deceit would be in the nature of
interpreting dreams, or making forecasts, telling
fortunes or simply by taking advantage of the
credulity of the public by any other similar
manner, done for profit or gain.
CHATTEL MORTGAGE
Article 319
A.
SELLING OR PLEDGING PERSONAL
PROPERTY ALREADY PLEDGED
ELEMENTS:
1. That personal property is already pledged
under the terms of the chattel mortgage law.
2. That the offender, who is the mortgagee of
such property, sells or pledges the same or
any part thereof.

3.

That there is no consent of the mortgagee

written on the back of the mortgage and noted
on the record thereof in the office of the
register of deeds.

B. KNOWINGLY
REMOVING
MORTGAGED
PERSONAL PROPERTY
ELEMENTS:
1. that personal property is mortgaged under the
chattel mortage law.
2. That the offender knows that such property is
so mortaged.
3. That he removes such mortgaged personal to
any province or city other than the one in
which it was located at the time of the
execution of the mortgage.
4. that the removal is permanent.
5. That there is no written consent of the
mortgagee or his executors, administration or
assigns to such removal.
* It would be the mortgagor who is made liable if
the personal property is transferred to the
prohibited place. The liability extends to third
persons who shall knowingly remove the
mortgaged to another city or province.
* If the chattel mortgage is not registered, there is
no violation of Article 319

ARSON AND OTHER CRIMES INVOLVING

DESTRUCTIONS
(Note: PD 1613 expressly repealed or amended
Arts 320-326, but PD 1744 revived Art 320)
A. ELEMENTS OF ARSONS OF PROPERTY OF
SMALL VALUES
1. That an uninhabited hut, storehouse, barn,
shed or any other property is burned
2. That the value of the property burned does not
exceed 25 pesos
3. That the burning was done at a time or under
circumstances which clearly exclude all
danger of the fire spreading
B. ELEMENTS
OF
CRIME
INVOLVING
DESTRUCTION
1. That the offender causes destruction of the
property
2. That the destruction was done by means of:
a. explosion
b. discharge of electric current
c. inundation
d. sinking or stranding of a vessel
e. damaging the engine of the vessel
f. taking up rails from the railway track

g.
h.

destroying telegraph wires and posts or

those of any other system
other
similar
effective
means
of
destruction

C. ELEMENTS
OF
BURNING
ONES
PROPERTY AS A MEANS TO COMMIT
ARSON
1. That the offender set fire to or destroyed his
own property
2. That the purpose of the offender in doing so
was to commit arson or to cause a great
destruction
3. That the property belonging to another was
burned or destroyed
D. ELEMENTS OF ARSON
1. That the property burned is the exclusive
property of the offender
2. That (a) the purpose of the offender is burning
it is to defraud or cause damage to another or
(b) prejudice is actually caused, or (c) the thing
burned is a building in an inhabited place
Palattao notes:
Arson is defined as the intentional or malicious
destruction of a property by fire.
Legal effect if death results from arson.
The crime committed is still arson. Death is
absorbed in the crime of arson but the penalty to
be imposed ranges from reclusion perpetua to
death. (Sec. 5, P.D. No. 1613)
How arson is established.
Arson is established by proving the corpus delicti,
usually in the form of circumstancial evidence
such as the criminal agency, meaning the
substance used, like gasoline, kerosene or other
form of bustible materials which caused the fire.
It can also be in the form of electrical wires,
mechanical, chemical or electronic contrivance
designed to start a fire; ashes or traces of such
objects which are found in the ruins of the
burned premises.
Notes:
* If the crime of arson was employed by the
offender as a means to kill the offended
party, the crime committed is murder. The
burning of the property as the means to kill
the victim is what is contemplated by the
word fire under Article 248 which qualifies

the crime to murder. (People vs. Villarosa,

54 O. G. 3482)
* When the burning of the property was done by
the offender only to cause damage but the
arson resulted to death of a person, the crime
committed is still arson because the death of
the victim is a mere consequence and not the
intention of the offender. (People vs.
Paterno, 47 O. G. 4600)
* There is no special complex crime of arson with
homicide. What matters in resolving cases
involving intentional arson is the criminal
intent of the offender.
* There is such a crime as reckless imprudence
resulting in the commission of arson. When
the arson results from reckless imprudence
and it leads to death, serious physical
injuries and damage to the property of
another, the penalty to be imposed shall not
be for the crime of arson under P. D. No.
1613 but rather, the penalty shall be based
on Article 365 of the Revised Penal Code as a
felony committed by means of culpa.
MALICIOUS MISCHIEF
Article 326
MALICIOUS MISCHIEF
ELEMENTS:
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
damaging
anothers
property be committed merely for the
sake of damaging it.
Notes:
MALICIOUS MISCHIEF willful damaging of
anothers property for the sake of causing
damage due to hate, revenge or other evil motive
* No negligence
Example. Killing the cow as revenge
* If no malice only civil liability
Meaning of damage in malicious mischief.
> It means not only loss but a diminution of the
value of ones property. It includes defacing,
deforming or rendering it useless for the purpose
for which it was made.

* But after damaging the thing, he used it = theft

* There is destruction of the property of another
but there is no misappropriation. Otherwise, it
would be theft if he gathers the effects of
destruction.
* Damage is not incident of a crime (breaking
windows in robbery)
Article 328
SPECIAL CASES OF MALICIOUS MISCHIEF
1. Obstruct performance of public functions.
2. Using poisonous or corrosive substances.
3. Spreading infection or contagious among
cattle.
4. Damage to property of national museum or
library, archive, registry, waterworks, road,
promenade, or any other thing used in
common by the public.
* The cases of malicious mischief enumerated in
this article are so-called qualified malicious
mischief. The crime becomes qualified either
because of the nature of the damage caused to
obstruct a public; or because of the kind of
substance used to cause the damage. The crime
is still malicious mischief because the offender
has no intent to gain but derives satisfaction
from the act because of hate, revenge or other evil
motive.
Note: Qualified malicious mischief no uprising
or sedition (#1)
Article 329
OTHER MISCHIEF
ELEMENTS:
1. Not included in 328
a. scattering human excrement
b. killing of cow as an act of revenge
* The offender is punished according to the value
of the damage caused to the offended party. If the
damages cannot be estimated, the minimum
penalty is arresto menor or a fine of not more
than 200 pesos shall be imposed on the offender.
Article 330
DAMAGE AND OBSTRUCTION TO MEANS OF
COMMUNICATION
done by damaging railways, telegraph,
telephone lines, electric wires, traction
cables, signal system of railways
Notes:

* removing rails from tracks is destruction (art

324)
* not applicable when telegraph/phone lines
dont
pertain
to
railways
(example:
for
transmission of electric power/light)
people killed as a result:
a. murder if derailment is means of intent
to kill
b. none art 48
* If the damage was intended to cause derailment
only without any intention to kill, it will be a
crime involving destruction under Article 324. If
the derailment is intentionally done to cause the
death of a person, the crime committed will be
murder under Article 248.
* circumstance qualifying the offense if the
damage shall result in any derailment of cars,
collision or other accident a higher penalty shall
be imposed
Article 331
DESTROYING
OR
DAMAGING
STATUES,
PUBLIC MONUMENTS OR PAINTINGS
Article 332
EXEMPTION FROM CRIMINAL LIABILITY IN
CRIMES AGAINST PROPERTY
Persons exempt from criminal liability
1. Spouse, ascendants and descendants or
relatives by affinity in the same line
2. The widowed spouse with respect to the
property w/c belonged to the deceased
spouse before the same passed into the
possession of another
3. Brothers and sisters and brothers-in-law
and sisters-in-law, if living together
Offenses involved in the exemption
1. Theft ( not robbery )
2. Swindling
3. Malicious mischief
Notes:
* Exemption is based on family relations
* For the exemption to apply insofar as brothers
and sisters, and brothers-in-law and sisters-inlaw are concerned, they must be living together at
the time of the commission of the crime of theft,
estafa or malicious mischief.

* Parties to the crime not related to the offended

party still remains criminally liable
Persons exempt include:
a.
stepfather/mother
affinity)

(ascendants

b.

adopted children (descendants)

c.

concubine/paramour (spouse)

by

d. common law spouse (property is part of

their earnings)
* Only the relatives enumerated incur no liability
if the crime relates to theft (not robbery),
swindling, and malicious mischief. Third parties
who participate are not exempt. The relationship
between the spouses is not limited to legally
married couples; the provision applies to live-in
partners.
* Estafa should not be complexed with any other
crime in order for exemption to operate.
TITLE ELEVEN
CRIMES AGAINST CHASTITY
Crimes
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

against chastity
Adultery (Art. 333);
Concubinage (Art. 334);
Acts of lasciviousness (Art. 336);
Qualified seduction (Art. 337);
Simple seduction (Art. 338);
Acts of lasciviousness with the consent of
the offended party (Art. 339);
Corruption of minors (Art. 340);
White slave trade (Art. 341);
Forcible abduction (Art. 342);
Consented abduction (Art. 343).

* The crimes of adultery, concubinage, seduction,

abduction and acts of lasciviousness are the socalled private crimes. They cannot be prosecuted
except upon the complaint initiated by the
offended party. The law regards the privacy of
the offended party here as more important than
the disturbance to the order of society. For the
law gives the offended party the preference
whether to sue or not to sue. But the moment the
offended party has initiated the criminal
complaint, the public prosecutor will take over and
continue with prosecution of the offender. That is
why under Article 344, if the offended party
pardons the offender, that pardon will only be

valid if it comes before the prosecution starts.

The moment the prosecution starts, the crime has
already become public and it is beyond the
offended party to pardon the offender.
Article 333
ADULTERY
ELEMENTS:
1. That the woman is married (even if
marriage subsequently declared void)
2. That she has sexual intercourse with a
man not her husband.
3. That as regards the man with whom she
has sexual intercourses, he must know
her to be married.
Notes:
* There are two reasons why adultery is made
punishable by law. Primarily, it is a violation of
the marital vow and secondarily, it paves the way
to the introduction of a spurious child into the
family.
* Adultery is a crime not only of the married
woman but also of the man who had intercourse
with a married woman knowing her to be married.
Even if the man proves later on that he does not
know the woman to be married, at the beginning,
he must still be included in the complaint or
information.
This is so because whether he
knows the woman to be married or not is a matter
of defense and its up to him to ventilate that in
formal investigations or a formal trial.
* If after preliminary investigation, the public
prosecutor is convinced that the man did not
know that the woman is married, then he could
simply file the case against the woman.
* The acquittal of the woman does not necessarily
result in the acquittal of her co-accused.
In order to constitute adultery, there must be a
joint physical act. Joint criminal intent is not
necessary. Although the criminal intent may
exist in the mind of one of the parties to the
physical act, there may be no such intent in the
mind of the other party. One may be guilty of the
criminal intent, the other innocent, and yet the
joint physical act necessary to constitute the
adultery may be complete. So, if the man had no
knowledge that the woman was married, he
would be innocent insofar as the crime of
adultery is concerned but the woman would still
be guilty; the former would have to be acquitted

and the latter found guilty, although they were

tried together.
* A husband committing concubinage may be
required to support his wife committing adultery
under the rule in pari delicto.
* For adultery to exist, there must be a marriage
although it be subsequently annulled. There is no
adultery, if the marriage is void from the
beginning.
* Adultery is an instantaneous crime which is
consummated and completed at the moment of
the carnal union.
Each sexual intercourse
constitutes a crime of adultery. Adultery is not a
continuing crime unlike concubinage.
Illustration:
Madamme X is a married woman residing in
Pasay City.
He met a man, Y, at Roxas
Boulevard. She agreed to go with to Baguio City,
supposedly to come back the next day. When
they were in Bulacan, they stayed in a motel,
having sexual intercourse there. After that, they
proceeded again and stopped at Dagupan City,
where they went to a motel and had sexual
intercourse.
* There are two counts of adultery committed in
this instance: one adultery in Bulacan, and
another adultery in Dagupan City. Even if it
involves the same man, each intercourse is a
separate crime of adultery.
* Mitigated if wife was abandoned without
justification by the offended spouse (man is
entitled to this mitigating circumstance)
* Abandonment without justification is not
exempting but only a mitigating circumstance. One
who invokes abandonment in the crime of
adultery hypothetically admits criminal liability
for the crime charged. (U. S. vs. Serrano, et al.,
28 Phil. 230)
* While abandonment is peculiar only to the
accused who is related to the offended party and
must be considered only as to her or him as
provided under Article 62, paragraph 3,
nonetheless, judicially speaking, in the crime of
adultery, there is only one act committed and
consequently both accused are entitled to this
mitigating circumstance. (People vs. Avelino, 40
O.G. Supp. 11, 194)

Attempted: caught disrobing a lover

* There is no frustrated adultery because of the
nature of the offense.
* In the case of People vs. Pontio Guinucud, et
al., (58 Phil. 621), a private agreement was
entered into between the husband and wife for
them to separate from bed and board and for
each of them to go for his and her own separate
way. Thereafter, the wife Rosario Tagayum lived
with her co-accused Pontio Guinucud in a nearby
barangay. Their love affair ultimately embroiled
the spouses conservative and reputable families
in a human drama exposed in legal battles and
whispers of unwanted gossips. In dismissing the
complaint, the Court ruled that while a private
agreement between the husband and wife was
null and void, the same was admissible proof of
the express consent given by the condescending
husband to the prodigal wife, a license for her to
commit adultery. Such agreement bars the
husband from instituting a criminal complaint for
adultery.
* After filing the complaint for adultery and while
the case is pending trial and resolution by the
trial court, the offended spouse must not have
sexual intercourse with the adulterous wife since
an act of intercourse subsequent to the adulterous
conduct is considered as implied pardon. (People
vs. Muguerza, et al., 13 C.A. Rep. 1079)
* It is seldom the case that adultery is
established by direct evidence. The legal tenet has
been
and
still
is
circumstancial
and
corroborative evidence as will lead the guarded
discretion of a reasonable and just man to the
conclusion that the criminal act of adultery has
been committed will bring about conviction for
the crime. (U. S. vs. Feliciano, 36 Phil. 753)

Article 334
CONCUBINAGE
ELEMENTS:
1. That the man must be married.
2. That he committed any of the following
acts:
a. Keeping a mistress in the conjugal dwelling.
b. Having
sexual
intercourse
under
scandalous circumstances with a woman
who is not his wife.
c.
Cohabiting with her in any other place.
3. That as regards the woman she must
know him to be married.

Note: Scandal consists in any reprehensible

word/deed that offends public conscience,
redounds to the detriment of the feelings of
honest persons and gives occasions to the
neighbors spiritual damage and ruin
* With respect to concubinage the same principle
applies: only the offended spouse can bring the
prosecution. This is a crime committed by the
married man, the husband. Similarly, it includes
the woman who had a relationship with the
married man.
* It has been asked why the penalty for adultery
is higher than concubinage when both crimes are
infidelities to the marital vows. The reason given
for this is that when the wife commits adultery,
there is a probability that she will bring a stranger
into the family.
If the husband commits
concubinage, this probability does not arise
because the mother of the child will always carry
the child with her. So even if the husband brings
with him the child, it is clearly known that the
child is a stranger. Not in the case of a married
woman who may bring a child to the family under
the guise of a legitimate child. This is the reason
why in the former crime the penalty is higher
than the latter.
* Unlike adultery, concubinage is a continuing
crime.
* If the charges consist in keeping a mistress in the
conjugal dwelling, there is no need for proof of
sexual intercourse. The conjugal dwelling is the
house of the spouse even if the wife happens to
be temporarily absent therefrom. The woman
however must be brought into the conjugal house
by the accused husband as a concubine to fall
under this article. Thus, if the co-accused was
voluntarily taken and sheltered by the spouses in
their house and treated as an adopted child being
a relative of the complaining wife, her illicit
relations with the accused husband does not
make her a mistress. (People vs. Hilao, et al.,
(C.A.) 52 O.G. 904).
* It is only when a married man has sexual
intercourse with a woman elsewhere that
scandalous circumstances becomes an element
of crime.
* For the existence of the crime of concubinage by
having sexual intercourse under scandalous
circumstances, the latter must be imprudent and

wanton as to offend modesty and sense of

morality and decency.
* When spies are employed to chronicle the
activities of the accused and the evidence
presented to prove scandalous circumstances are
those taken by the detectives, it is obvious that
the sexual intercourse done by the offenders was
not under scandalous circumstances. (U.S. vs.
Campos-Rueda, 35 Phil. 51)
* Causal sexual intercourse with a woman in a
hotel is not concubinage. Likewise, keeping of a
mistress in a townhouse procured and furnished
by a married man who does not live or sleep with
her in said townhouse does not constitute
concubinage since there is no cohabitation.
* The rule is that, if a married mans conduct
with a woman who is not his wife was not
confined to occasional or transient interview for
carnal intercourse but is carried n in the manner
of husband and wife and for some period of time,
then such association is sufficient to constitute
cohabitation. (People vs. Zuniga, CA 57 O.G.
2497)
* If the evidence of the prosecution consists of a
marriage contract between the offender and the
offended party, and the additional fact of the
birth certificate of a child showing the accused to
be the father of the child with the alleged
cocubine, the same will not be sufficient to
convict the accused of concubinage since the law
clearly states that the act must be one of those
provided by law.
Article 335. Rape
This has been repealed by Republic Act No. 8353
or the Anti-Rape Law of 1997. See Article 266A.
Article 336
ACTS OF LASCIVIOUSNESS
ELEMENTS:
1. That the offender commits any act of
lasciviousness or lewdness.
2. That it is done under any of the following
circumstances:
a. by using force or intimidation, or
b. when the offended party is deprived of
reason or otherwise unconscious, or
c. when the offended party is under 12 years
of age.

3. That the offended

person of either sex.

another

the offense is of no importance because the

essence of lewdness is in the act itself.

Note that there are two kinds of acts of

lasciviousness under the Revised Penal Code: (1)
under Article 336, and (2) under Article 339.

* What constitutes lewd or lascivious conduct

must be determined from the circumstances of
each case. The demarcation line is not always
easy to determine but in order to sustain a
conviction for acts of lasciviousness, it is
essential that the acts complained of be prompted
by lust or lewd designs and the victim did not
consent to nor encouraged the act.

1.

party

is

Article 336. Acts of Lasciviousness

Under this article, the offended party may
be a man or a woman.
The crime
committed, when the act performed with
lewd
design
was
perpetrated
under
circumstances which would have brought
about the crime of rape if sexual intercourse
was effected, is acts of lasciviousness under
this article. This means that the offended
party is either
(1) under 12 years of age; or
(2) being over 12 years of age, the lascivious
acts were committed on him or her
through violence or intimidation, or while
the offender party was deprived of reason,
or otherwise unconscious.

2.

Article 339. Acts of Lasciviousness with

the Consent of the Offended Party:

Under this article, the victim is limited only to a

woman. The circumstances under which the
lascivious acts were committed must be that
of qualified seduction or simple seduction,
that is, the offender took advantage of his
position of ascendancy over the offender
woman either because he is a person in
authority, a domestic, a househelp, a priest,
a teacher or a guardian, or there was a
deceitful promise of marriage which never
would really be fulfilled.
* Always remember that there can be no
frustration of acts of lasciviousness, rape or
adultery because no matter how far the offender
may have gone towards the realization of his
purpose, if his participation amounts to
performing all the acts of execution, the felony is
necessarily produced as a consequence thereof.
* Intent to rape is not a necessary element of the
crime of acts of lasciviousness. Otherwise, there
would be no crime of attempted rape.
* In the crime of acts of lasciviousness, the
intention of the wrongdoer is not very material.
The motive that impelled the accused to commit

* To be guilty of this crime however, the acts of

lasciviousness must be committed under any of
the circumstances that had there been sexual
intercourse, the crime would have been Rape.
Where
circumstances
however
are
such,
indicating a clear intention to lie with the
offended party, the crime committed as
Attempted Rape.
* This crime (Art. 336) can be committed by either
sex unlike in Acts of Lasciviousness with Consent
under Article 339. Thus, a lesbian who toyed
with the private part of an eleven-year-old girl
who enjoyed it since she was given $50 dollars
before the act, is guilty of Act of Lasciviousness
under this Article as the victim is below twelve
year old; and had sexual intercourse been
possible and done, the act would have been Rape.
SEDUCTION
Article 337
QUALIFIED SEDUCTION OF A VIRGIN
Two classes of qualified seduction:
1. Seduction of a virgin over 12 and under
18 years of age by certain persons,
such as a person in authority, priest,
teachers etc and
2. Seduction of a sister by her brother or
descendant
by
her
ascendant,
regardless of her age or reputation
(incestuous seduction)
Elements:
1.That the offended party is a virgin, (presumed
if she unmarried and of good reputation.)
2.That she must be over 12 and under 18 years
of age.
3.That the offender has sexual intercourse with
her.
4.That there is abuse of authority, confidence or
relationship on the part of the offender (
person entrusted with education or custody

of victim; person in public authority, priest;

servant)
Persons liable:
1.
Those who abuse their authority:
a. persons in public authority
b. guardian
c. teacher
d. person who, in any capacity, is
entrusted with the education or
custody of the woman seduced
2.
Those who abused the confidence
reposed in them:
a. priest
b. house servant
c. domestic
3.

Those who abused their relationship:

a. brother who seduced his sister
b. ascendant
who
seduced
his
descendant

* This crime also involves sexual intercourse. The

offended woman must be over 12 but below 18
years.
* The distinction between qualified seduction and
simple seduction lies in the fact, among others,
that the woman is a virgin in qualified seduction,
while in simple seduction, it is not necessary that
the woman be a virgin. It is enough that she is of
good repute.
* For purposes of qualified seduction, virginity
does not mean physical virginity. It means that
the offended party has not had any experience
before.
* The virginity referred to here, is not to be
understood in so material a sense as to exclude
the idea of abduction of a virtuous woman of a
good reputation. Thus, when the accused claims
he had prior intercourse with the complainant,
the latter is still to be considered a virgin (U.S.
vs. Casten, 34 Phil. 808).
But if it was
established that the girl had a carnal relations
with other men, there can be no crime of
Seduction as she is not a virgin.
* Although in qualified seduction, the age of the
offended woman is considered, if the offended
party is a descendant or a sister of the offender
no matter how old she is or whether she is a
prostitute the crime of qualified seduction is
committed.
Illustration:

If a person goes to a sauna parlor and finds there

a descendant and despite that, had sexual
intercourse with her, regardless of her reputation
or age, the crime of qualified seduction is
committed.
* In the case of a teacher, it is not necessary that
the offended woman be his student. It is enough
that she is enrolled in the same school.
* Deceit is not necessary in qualified seduction.
Qualified seduction is committed even though no
deceit intervened or even when such carnal
knowledge was voluntary on the part of the
virgin. This is because in such a case, the law
takes for granted the existence of the deceit as an
integral element of the crime and punishes it
with greater severity than it does the simple
seduction, taking into account the abuse of
confidence on the part of the agent. Abuse of
confidence here implies fraud.
* The fact that the offended party gave her
consent to the sexual intercourse is not a
defense. Lack of consent on the part of the
complainant is not an element of the crime.
* The term domestic refers to a person usually
living under the same roof with the offended
party. It includes all those persons residing with
the family and who are members of the same
household, regardless of the fact that their
residence may only be temporary or that they
may be paying for their board and lodging.
* A domestic should not be confused with a house
servant. A domestic is not necessarily a house
servant.
* Where the offended party is below 12 years of
age, regardless of whether the victim is a sister or
a descendant of the offender, the crime
committed is rape.
* If the offended party is married and over 12
years of age, the crime committed will be
adultery.
* An essential element of a qualified seduction is
virginity (doncella). It is a condition existing in a
woman who has had no sexual intercourse with
any man. It does not refer to the condition of the
hymen as being intact.
* One who is charged with qualified seduction
can be convicted of rape. But one who is charged

with rape cannot be convicted of qualified

seduction under the same information. (People
vs. Ramirez, 69 SCRA 144)

* The offended woman must be under 18 but not

less than 12 years old; otherwise, the crime is
statutory rape.

* Even if the woman has already lost her virginity

because of rape, in the eyes of the law, she
remains a virtuous woman even if physically she
is no longer a virgin.

* Unlike in qualified seduction, virginity is not

essential in this crime. What is required is that
the woman be unmarried and of good reputation.
Simple seduction is not synonymous with loss of
virginity. If the woman is married, the crime will
be adultery.

Article 338
SIMPLE SEDUCTION
ELEMENTS:
1. That the offended party is over 12 and
under 18 years of age.
2. That she must be of good reputation,
single or widow.
3. That the offender has sexual intercourse
with her.
4. That it is committed by means of deceit.
* Deceit generally takes the form of unfulfilled
promise to marry. The promise of marriage must
serve as the inducement. The woman must yield
on account of the promise of marriage or other
forms of inducement. (People vs. Hernandez, 29
Phil. 109)
* Where the accused failed to have sex with this
sweetheart over twelve (12) but below eighteen
(18) years old because the latter refused as they
were not yet married, and the accused procured
the performance of a fictitious marriage
ceremony because of which the girlfriend yielded,
he is guilty of Simple Seduction.
(U.S. vs.
Hernandez, 29 Phil. 109). Here, there was
deceit employed. This act may now be considered
Rape under R.A. 8353, Sec. 2 par. 6.
* A promise of material things in exchange for the
womans surrender of her virtue does not
constitute deceit.
* If a woman under 18 years of age but over 12
agrees to a sexual intercourse with a man who
promised her precious jewelries but the man
reneges on his promise, there is no seduction
that the woman is of loose morals. (Luis B. Reyes)
Promise of marriage must precede sexual
intercourse.
> A promise of marriage made by the accused
after sexual intercourse had taken place, or after
the woman had yielded her body to the man by
mutual consent will not render the man liable for
simple seduction.

Article 339
ACTS OF LASCIVIOUSNESS WITH THE
CONSENT OF THE OFFENDED PARTY
ELEMENTS:
1. that the offender commits acts of
lasciviousness or lewdness.
2. That the acts are committed upon a
woman who is virgin or single or widow
of good reputation, under 18 years of age
but over 12 years, or a sister or
descendant regardless of her reputation
or age.
3. that the offender accomplishes the acts
by abuse of authority, confidence,
relationship, or deceit.
* When the acts of lasciviousness is committed
with the use of force or intimidation or when the
offended party is under 12 years of age, the
object of the crime can either be a woman or a
man.
* Where the acts of the offender were limited to
acts of lewdness or lasciviousness, and no carnal
knowledge was had; but had there been sexual
intercourse, the offense would have been
Seduction, he is guilty of Acts of Lasciviousness
under this article.
* The crime of acts of lasciviousness under Article
339 is one that is done with the consent of the
offended party who is always a woman. The lewd
acts committed against her is with her consent
only because the offender took advantage of his
authority, or there was abuse of confidence, or
the employment of deceit, or the offender is
related to the victim.
* In the commission of the acts of lasciviousness
either by force or intimidation, or with the
consent of the offended party, there must be no
sexual intercourse, or the acts performed are short
of sexual intercourse. In the first situation, the
crime would either be qualified seduction or
simple seduction if the offender succeeds in

having sexual intercourse with the victim. In

these two cases, there is consent but the same is
procured
by
the
offender
through
the
employment of deceit, abuse of confidence, abuse
of authority or because of the existence of blood
relationship.
Article 340
CORRUPTION OF MINORS
Act punishable:
By promoting or facilitating the prostitution
or corruption of persons underage to satisfy
the lust of another
* It is not required that the offender be the
guardian or custodian of the minor.
* It is not necessary that the minor be prostituted
or corrupted as the law merely punishes the act
of promoting or facilitating the prostitution or
corruption of said minor and that he acted in
order to satisfy the lust of another.
* A single act of promoting or facilitating the
corruption or prostitution of a minor is sufficient
to constitute violation of this article.
* What the law punishes is the act of pimp
(bugaw) who facilitates the corruption of a minor.
It is not the unchaste act of the minor which is
being punished. So, a mere proposal to promote
or facilitate the prostitution or corruption of a
minor is sufficient to consummate the crime.
* Young minor should enjoy a good reputation.
Apparently, a prostitute above 12 and under 18
years of age cannot be the victim in the crime of
corruption of minors.
Article 341
WHITE SLAVE TRADE
Acts penalized:
1. Engaging in the business of prostitution
2. Profiting by prostitution
3. Enlisting the service of women for the
purpose of prostitution
* The person liable under Article 341 is the one
who maintains or engages in the trade of
prostitution. A white slave is a woman held
unwillingly
for
purposes
of
commercial
prostitution. A white slaver on the other hand is
one engaged in white slave traffic, procurer of
white slaves or prostitutes.

* The most common way of committing this crime

would be through the maintenance of a bar or
saloon where women engage in prostitution. For
each intercourse, the women pay the maintainer
or owner of a certain amount in this case, the
maintainer of owner of the bar or saloon is liable
for white slave trade. (People vs. Go Lo, 56 O.G.
4056)
ABDUCTION
Article 342
FORCIBLE ABDUCTION
ELEMENTS:
1. That the person abducted is any woman,
regardless of her age, civil status, or
reputation.
2. That the abduction is against her will.
3. That the abduction is with lewd designs.
Note: Sexual intercourse is NOT necessary
Crimes against chastity where age and
reputation of victim are immaterial: rape, acts
of
lasciviousness,
qualified
seduction
of
sister/descendant, forcible abduction
Forcible abduction defined.
> It is the taking away of any woman against her
will, from her house or the place where she may
be, for the purpose of carrying her to another
place with intent to marry or corrupt her.
* A woman is carried against her will or brought
from one place to another against her will with
lewd design.
* Unlike in Rape and Seduction, in the crime of
Abduction, whether Forcible or Consented, there
is no sexual intercourse. The acts are limited to
taking away from a place the victim, but the
same must be with lewd designs, that is, with
unchaste design manifested by kissing and
touching the victims private parts.
* If the element of lewd design is present, the
carrying of the woman would qualify as
abduction; otherwise, it would amount to
kidnapping. If the woman was only brought to a
certain place in order to break her will and make
her agree to marry the offender, the crime is only
grave coercion because the criminal intent of the
offender is to force his will upon the woman and
not really to restrain the woman of her liberty.

* Where lewd design was not proved or shown,

and the victim was deprived of her liberty, the
crime is Kidnapping with Serious Illegal
Detention under this Article 267, RPC.
* The element of lewd designs, which is essential
to the crime of abduction through violence refers
to the intention to abuse the abducted woman. If
such intention is lacking or does not exist, the
crime may be illegal detention. It is necessary to
establish the unchaste design or purpose of the
offender. But it is sufficient that the intent to
seduce the girl is present. The evil purpose of the
offender may be established or inferred from the
overt acts of the accused.
* If the offended woman is under 12 years old,
even if she consented to the abduction, the crime
is forcible abduction and not consented
abduction.
* Where the offended woman is below the age of
consent, even though she had gone with the
offender through some deceitful promises
revealed upon her to go with him and they live
together as husband and wife without the benefit
of marriage, the ruling is that forcible abduction
is committed by the mere carrying of the woman
as long as that intent is already shown. In other
words, where the man cannot possibly give the
woman the benefit of an honorable life, all that
man promised are just machinations of a lewd
design and, therefore, the carrying of the woman
is characterized with lewd design and would
bring about the crime of abduction and not
kidnapping. This is also true if the woman is
deprived of reason and if the woman is mentally
retardate. Forcible abduction is committed and
not consented abduction.
* Lewd designs may be demonstrated by the
lascivious acts performed by the offender on her.
Since this crime does not involve sexual
intercourse, if the victim is subjected to this, then a
crime of rape is further committed and a complex
crime of forcible abduction with rape is committed.
* Lewd design does not include sexual intercourse.
So, if sexual intercourse is committed against the
offended party after her forcible abduction, the
offender commits another crime separate and
distinct from forcible abduction. In this case, the
accused should be charged with forcible
abduction with rape. (People vs. Jose, et al., 37
SCRA 450)

* If the accused carried or took away the victim

by means of force and with lewd design and
thereafter raped her, the crime is Forcible
Abduction with Rape, the former being a
necessary means to commit the latter.
The
subsequent two (2) other sexual intercourse
committed against the will of the complainant
would be treated as independent separate crimes
of Rape. (People vs. Bacalso, 210 SCRA 206).
* If the main object of the offender is to rape the
victim, and the forcible abduction was resorted to
by the accused in order to facilitate the
commission of the rape, then the crime
committed is only rape. (People vs. Toledo, 83
Phil. 777)
* Where the victim was taken from one place to
another, solely for the purpose of killing him and
not detaining him for any legal length of time, the
crime committed is murder. (People vs. Ong, 62
SCRA 174)
* True intention of the offender should be
ascertained. If the detention is only incidental,
the same should be considered as absorbed.
Otherwise, it should be treated as a separate
offense. When such a situation arises, we should
consider the application of Article 48 on complex
crimes.
* The taking away of the woman may be
accomplished by means of deceit at the beginning
and then by means of violence and intimidation
later.
* The virginity of the complaining witness is not a
determining factor in forcible abduction.
* In order to demonstrate the presence of the
lewd design, illicit criminal relations with the
person abducted need not be shown. The intent
to seduce a girl is sufficient.
* If there is a separation in fact, the taking by the
husband of his wife against her will constitutes
grave coercion.
Distinction between forcible abduction and
illegal detention:
When a woman is kidnapped with lewd or
unchaste designs, the crime committed is forcible
abduction.
When the kidnapping is without lewd designs,
the crime committed is illegal detention.

> But where the offended party was forcibly

taken to the house of the defendant to coerce her
to marry him, it was held that only grave coercion
was committed and not illegal detention.
* Forcible abduction must be distinguished from
the crime of kidnapping. When the violent taking
of a woman is motivated by lewd design, the
crime committed is forcible abduction. But if the
motive of the offender is to deprive the woman of
her liberty, the crime committed is kidnapping.
Abduction is a crime against chastity while
kidnapping is a crime against personal liberty.
Article 343
CONSENTED ABDUCTION
ELEMENTS:
1. That the offended party must be a virgin.
2. That she must be over 12 and under 18
years of age.
3. That the taking away of the offended
party must be with her consent, after
solicitation or cajolery from the offender.
4. That the taking away of the offended
party must be with lewd designs.
VIRGINITY may be presumed from the fact that
the offended party is unmarried and has been
leading moral life. Virginity or maidenhood
should not be understood in such a matter of fact
as to completely exclude a woman who has had
previous sexual intercourse. If the previous
sexual intercourse was the result of the crime of
rape, the intercourse committed with her against
he will and over her violent objection should not
render her unchaste and a woman of bad
reputation.
* If the virgin in under 12 years old, the crime
committed is forcible abduction because of the
theory that a child below 12 years of age has no
will of her own.
* The purpose of the law on consented abduction
is to punish the offender for causing disgrace and
scandal to the family of the offended party. The
law does not punish the offender for the wrong
done to the woman since in the eyes of the law,
she consented to her seduction.
* The deceit which is termed by the law as
solicitation or cajolery maybe in the form of
honeyed promises of marriage.
* In consented Abduction, it is not necessary that
the young victim, (a virgin over twelve and under

eighteen) be personally taken from her parents

home by the accused; it is sufficient that he was
instrumental in her leaving the house. He must
however use solicitation, cajolery or deceit, or
honeyed promises of marriage to induce the girl
to escape from her home.
* In consented abduction, the taking away of the
virgin must be with lewd design. Actual sexual
intercourse with the woman is not necessary.
However, if the same is established, then it will be
considered as a strong evidence to prove lewd
design.
* Where several persons participated in the
forcible abduction and these persons also raped
the offended woman, the original ruling in the
case of People v. Jose is that there would be one
count of forcible abduction with rape and then
each of them will answer for his own rape and the
rape of the others minus the first rape which was
complexed with the forcible abduction.
This
ruling is no longer the prevailing rule. The view
adopted in cases of similar nature is to the effect
that where more than one person has effected the
forcible abduction with rape, all the rapes are just
the consummation of the lewd design which
characterizes the forcible abduction and, therefore,
there should only be one forcible abduction with
rape.
Article 344
PROSECUTION OF ADULTERY, CONCUBINAGE,
SEDUCTION, ABDUCTION RAPE AND ACTS OF
LASCIVIOUSNESS
1. Adultery and concubinage must be
prosecuted upon complaint signed by the
offended spouse
2. Seduction, abduction, rape or acts of
lasciviousness must be prosecuted upon
complaint signed by:
a.
b.
c.
d.

offended party
by her parents
grandparents
guardians in the order in which they
are named above

* The crimes of adultery and concubinage must be

prosecuted upon a complaint signed by the
offended spouse. In the complaint, the offended
party must include both guilty parties if they are
both alive.
* Distinguished between a private crime and a
public crime. In the case of a private crime, the

same cannot be prosecuted de oficio, meaning it

cannot be initiated by any person except the
offended party. These are the crimes against
chastity
such
as
seduction,
adultery,
concubinage and acts of lasciviousness. These
are crimes which are initiated with the filing of
an information. A public crime is one which can
be prosecuted de officio, meaning it can be
prosecuted by any person interested to prosecute
the same. The accusation is usually initiated with
the filling of an information.
* The law requires that the complaint must be
initiated by the said persons in order that they
are named or enumerated in the article. If this
legal requirement is not observed, the case
should be dismissed for lack of jurisdiction over
the subject matter.
* If the offended party is of age and is in complete
possession of her mental faculties, she alone can
file the complaint (People vs. Mandia, 60 Phil.
372)
* If the offended party cannot sign the complaint
because of her tender age, the parents can do it
for her. The same can be done either by the
father or the mother. (U.S. vs. Gariboso, 25 Phil
171 )
* The word guardian as mentioned in the law
refers to the guardian appointed by the court.
(People vs. Formento, et al., 60 Phil. 434)
What is the meaning of shall have
consented which bars the institution of
criminal action for adultery or concubinage?
The term consent has reference to the tie prior
to the commission of the crime. In other words,
the offended party gives his or her consent to the
future infidelity of the offending spouse.
> And so, while consent refers to the offense prior
to its commission, pardon refers to the offense
after
its
commission.
(People
vs.
Schnekenburger, et al., 73 Phil. 413)
Note: Marriage of the offender with the offended
party extinguishes the criminal action or remit
the penalty already imposed upon him. This
applies as well to the accomplices, accessoriesafter-the-fact. But marriages must be in good
faith. This rule does not apply in case of multiple
rape
* In the crimes involving rape, abduction,
seduction, and acts of lasciviousness, the

marriage by the offender with the offended

woman generally extinguishes criminal liability,
not only of the principal but also of the accomplice
and accessory.
However, the mere fact of
marriage is not enough because it is already
decided that if the offender marries the offended
woman without any intention to perform the
duties of a husband as shown by the fact that
after the marriage, he already left her, the
marriage would appear as having been
contracted only to avoid the punishment. Even
with that marriage, the offended woman could still
prosecute the offender and that marriage will not
have the effect of extinguishing the criminal
liability.
* Pardon by the offended woman of the offender is
not a manner of extinguishing criminal liability but
only a bar to the prosecution of the offender.
Therefore, that pardon must come before the
prosecution is commenced.
When the
prosecution is already commenced or initiated,
pardon by the offended woman will no longer be
effective
because
pardon
may
preclude
prosecution but not prevent the same.
* Pardon in crimes against chastity, is a bar to
prosecution. But it must come before the
institution of the criminal action. (See the cases
of People vs. Villorente, 210 SCRA 647;
People vs. Avila, 192 SCRA 635) To be effective,
it must include both accused.
How about pardon declared by the offended
party during the trial of the case? Such a
declaration is not a ground for the dismissal of
the case. Pardon is a matter of defense which the
accused must plead and prove during the trial.
(People vs. Riotes, C.A., 49 O.G.3403).
* All these private crimes except rape cannot be
prosecuted de officio. If any slander or written
defamation is made out of any of these crimes, the
complaint of the offended party is still necessary
before such case for libel or oral defamation may
proceed. It will not prosper because the court
cannot acquire jurisdiction over these crimes
unless there is a complaint from the offended
party. The paramount decision of whether he or
she wanted the crime committed on him or her to
be made public is his or hers alone, because the
indignity or dishonor brought about by these
crimes affects more the offended party than
social order. The offended party may prefer to
suffer the outrage in silence rather than to
vindicate his honor in public.

1.
Article 345
CIVIL LIABILITY OF PERSONS GUILTY OF
RAPE, SEDUCTION OR ABDUCTION
1. To idemnify the offended women
2. To acknowledge the offspring, unless the
law should prevent him from doing so
3. In every case to support the offspring
* The civil liability of the adulterer and the
concubine is limited to indemnity for damages
caused to the offended spouse. The law does not
mention the adulteress in the crime of adultery
such that only the adulterer shall be held civilly
liable.
* There is likewise no mention of the offender in
the crime of acts of lasciviousness, as being held
liable for civil damages under Article 345, the law
only mentioned the crimes of rape, seduction and
abduction.
* Under Article 2219 of the Civil Code, moral
damages may be recovered in seduction,
abduction, rape or other lascivious acts. The
crimes of adultery and concubinage are also
included.
* In the crimes of rape, abduction and seduction,
if the offended woman had given birth to the
child, among the liabilities of the offender is to
support the child. This obligation to support the
child may be true even if there are several
offenders.
As to whether all of them will
acknowledge the child, that is a different
question because the obligation to support here
is not founded on civil law but is the result of a
criminal act or a form of punishment.
* It has been held that where the woman was the
victim of the said crime could not possibly
conceive anymore, the trial court should not
provide in its sentence that the accused, in case
a child is born, should support the child. This
should only be proper when there is a probability
that the offended woman could give birth to an
offspring.
Article 346
LIABILITY
OF
ASCENDANTS,
OTHER
PERSONS ENTRUSTED WITH CUSTODY OF
OFFENDED PARTY WHO BY ABUSE OF
AUTHORITY
OR
CONFIDENCE
SHALL
COOPERATE AS ACCOMPLIES
TITLE TWELVE
CRIMES AGAINST THE CIVIL STATUS OF
PERSONS
Crimes against the civil status of persons

Simulation of births, substitution of one

child for another and concealment or
abandonment of a legitimate child (art.
347);
2.
Usurpation of civil status (Art. 348);
3.
Bigamy (Art. 349);
4.
Marriage contracted against provisions of
law (Art. 350);
5.
Premature marriages (Art. 351);
6.
Performance of illegal marriage ceremony
(Art. 352)
Article 347
SIMULATION OF BIRTHS, SUBSTITUTION OF
ONE
CHILD
FOR
ANOTHER,
AND
CONCEALMENT OR ABANDONMENT OF A
LEGITIMATE CHILD
Acts Punished:
1. Simulation of births
2. Substitution of one child for another
3. Concealing or abandoning any legitimate
child with the intent to cause such child to
lose its civil status
Requisites:
1. The child must be legitimate
2. The offender conceals or abandons such
child
3. The offender has the intent to cause the
child to lose its civil status
Elements of Simulation of Birth
1.Child is baptized or registered in the Registry
of birth as hers
2.Child loses its real status and acquiires a new
one
3.Actors purpose was to cause the loss of any
trace as to the childs true filiation
Simulation of birth takes place when a woman
pretends to be pregnant when in fact she is not
and on the day of the supposed delivery, she
takes the child of another and declares the child
to be her own. This is done by entering in the
birth certificate of the child that the offender is
the alleged mother of the child when in fact the
child belongs to another.
Illustration:
People who have no child and who buy and adopt
the child without going through legal adoption.
If the child is being kidnapped and they knew that
the kidnappers are not the real parents of their
child, then simulation of birth is committed. If
the parents are parties to the simulation by

making it appear in the birth certificate that the

parents who bought the child are the real parents,
the crime is not falsification on the part of the
parents and the real parents but simulation of
birth.
Questions & Answers
1.
A woman who has given birth to
a child abandons the child in a certain place to
free herself of the obligation and duty of rearing
and caring for the child. What crime is committed
by the woman?
The crime committed is abandoning a
minor under Article 276.
2.
Suppose that the purpose of the
woman is abandoning the child is to preserve the
inheritance of her child by a former marriage,
what then is the crime committed?
The crime would fall under the second
paragraph of Article 347. The purpose of the
woman is to cause the child to lose its civil status
so that it may not be able to share in the
inheritance.
3.
Suppose a child, one day after
his birth, was taken to and left in the midst of a
lonely forest, and he was found by a hunter who
took him home. What crime was committed by the
person who left it in the forest?
It is attempted infanticide, as the act of
the offender is an attempt against the life of the
child. See US v. Capillo, et al., 30 Phil. 349.

* Committed by asuming the filiation, or the

parental or conjugal rights of another
* Usurpation is committed by assuming the
filiation or parental (when maternal, paternal or
conjugal) claim of another. To be liable for
usurpation of civil status, the offender must have
the intent to enjoy the rights arising from the
civil status of another.
Circumstances qualifying the offense: penalty
is heavier when the purpose of the impersonation
is to defraud the offended party or his heirs
Article 349
BIGAMY
ELEMENTS:
1. That the offender has been legally
married.
2. That the marriage has not been legally
dissolved or, in case his or her spouse
is absent, the absent spouse could not
yet be presumed dead according to the
civil code.
3. That he contracts a second or
subsequent marriage.
4. That
the
second
or
subsequent
marriage
has
all
the
essential
requisites for validity.
Notes:
* The crime does not fall within the category of
private crimes that can be prosecuted only at the
instance of the offended party PUBLIC CRIME

For the crime of bigamy to prosper the first

marriage must be valid. If the first marriage
is void from the beginning, such nullity of the
marriage is not a defense in a charge of
bigamy. Consequently, when raised as a
defense, the accused should be convicted
since until and unless annulled, the bond of
matrimony remains or is maintained.

Need for judicial declaration of nullity

The second marriage must have all the

essential requisites for validity were it not for
the existence of the first marriage.

Article 348
USURPATION OF CIVIL STATUS
Committed by a person who represents
himself as another and assumes the
filiation or rights pertaining to such person
Notes:
* There must be criminal intent to enjoy the civil
rights of another by the offender knowing he is
not entitled thereto
* The term "civil status" includes one's public
station, or the rights, duties, capacities and
incapacities which determine a person to a given
class.
It seems that the term "civil status"
includes one's profession.

* A simulated marriage is not marriage at all and

can be used as a defense for bigamy
* Good faith is a defense in bigamy.

* One who, although not yet married before,

knowingly consents to be married to one who is
already married is guilty of bigamy knowing that
the latters marriage is still valid and subsisting.
* In the crime of bigamy, the second spouse is not
necessarily liable. The language of Article 349
indicates the crime of bigamy is committed by
one person who contracts a subsequent marriage
while the former marriage is valid and subsisting.
If the second wife knew of the previous marriage
of the accused, she will be liable for the crime of
bigamy but only as an accomplice.
* There must be a summary proceeding to declare
the absent spouse presumptively dead for
purposes of remarriage
* Failure to exercise due diligence to ascertain the
whereabouts of the 1st wife is bigamy through
reckless imprudence
* A judicial declaration of the nullity of a marriage
void ab initio is now required
* The language of the law is clear when it
declared before the former marriage has been
legally dissolved. The Supreme Court said the
even if the accused, as plaintiff in the civil case
prevails, and his first marriage is annulled, such
pronouncement has no retroactive effect as to
exculpate him in the bigamy case. Parties to a
marriage should not be permitted to judge its
nullity, for only competent courts have such
authority. (Landicho vs. Relova, 22 SCRA 731,
735)
* The civil case for annulment of the first
marriage does not pose a prejudicial question as
to warrant the suspension of the trial and
proceeding in the criminal case for bigamy.
(Roco, et al., Cinco, et al., 68 O.G.2952)
* One convicted for bigamy may be prosecuted for
concubinage as both are distinct offenses
* One convicted of bigamy may also be
prosecuted for concubinage as both are distinct
offenses. The first is an offense against civil
status, which may be prosecuted at the instance
of the state; the second is an offense against
chastity, and may be prosecuted only at the
instance of the offended party. The test is not
whether the defendant has already been tried for
the same act, but whether he has been put in
jeopardy for the same offense.

* One who vouches that there is no legal

impediment knowing that one of the parties is
already married is an accomplice
Distinction
marriage:

between

bigamy

and

illegal

Bigamy is a form of illegal marriage. The offender

must have a valid and subsisting marriage.
Despite the fact that the marriage is still
subsisting, he contracts a subsequent marriage.
Illegal marriage includes also such other
marriages
which
are
performed
without
complying with the requirements of law, or such
premature marriages, or such marriage which
was solemnized by one who is not authorized to
solemnize the same.
Article 350
MARRIAGE
CONTRACTED
AGAINST
PROVISIONS OF LAWS
ELEMENTS:
1. That the offender contracted marriage.
2. That he knew at the time that
a.

the requirement of the law were not complied

with, or

b.

The marriage was in disregard of a legal

impediment.

Note: Circumstance qualifying the offense: if

either of the contracting parties obtains the
consent of the other by means of violence,
intimidation or fraud
The requirements of the law for a valid
marriage are:
1. The legal capacity of the contracting parties;
2. Their consent freely given;
3.
Authority of the person performing the
marriage; and
4. Marriage license, except in marriage under
exceptional circumstances.
* The law further provides that for accused to be
liable under this article, he should not be guilty
of bigamy because otherwise, the crime punished
under Article 350 is deemed absorbed in the
bigamy.
Marriages contracted against the provisions of
laws

1. The marriage does not constitute bigamy.

2. The marriage is contracted knowing that the
requirements of the law have not been
complied with or in disregard of legal
impediments.
3.
One where the consent of the other was
obtained by means of violence, intimidation or
fraud.
4.
If the second marriage is void because the
accused knowingly contracted it without
complying with legal requirements as the
marriage license, although he was previously
married.
5. Marriage solemnized by a minister or priest
who does not have the required authority to
solemnize marriages.
Article 351
PREMATURE MARRIAGE
Acts punished:
1. A widow who within 301 days from death
of husband, got married or before her
delivery, if she was pregnant at the time
of his death
2. A woman whose marriage having been
dissolved or annulled, married before her
delivery or within 301 days after the
legal separation
* The Supreme Court has already taken into
account the reason why such marriage within
301 days is made criminal, that is, because of the
probability that there might be a confusion
regarding the paternity of the child who would be
born. If this reason does not exist because the
former husband is impotent, or was shown to be
sterile such that the woman has had no child
with him, that belief of the woman that after all
there could be no confusion even if she would
marry within 301 days may be taken as evidence
of good faith and that would negate criminal
intent.
* Article 84 of the Civil Code provides that no
marriage license shall be issued to a widow until
after 300 days following the death of her
husband, unless in the meantime she has given
birth to a child.
Article 352
PERFORMANCE OF ILLEGAL MARRIAGE
CEREMONY
Act punished:
performance
of
any
illegal
marriage
ceremony by a priest or minister of any

religious denomination or sect or by civil

authorities
TITLE THIRTEEN
CRIMES AGAINST HONOR
Crimes against honor
1.
Libel by means of writings or similar
means (Art. 355);
2.
Threatening to publish and offer to
prevent
such
publication
for
a
compensation (Art. 356);
3.
Prohibited publication of acts referred to
in the course of official proceedings (Art.
357);
4.
Slander (Art. 358);
5.
Slander by deed (Art. 359);
6.
Incriminating innocent person (Art. 363);
7.
Intriguing against honor (Art. 364).
Article 353
LIBEL
ELEMENTS:
1. That there must be an imputation of a
crime, or of a vice or defect, real or
imaginary,
or
any
act,
omission,
condition, status, or circumstances.
2. That the imputation must be made
publicly.
3. That it must be malicious.
4. That the imputation must be directed at
a natural or juridical person, or one who
is dead.
5. That the imputation must tend to cause
the dishonor, discredit or contempt of the
person defamed.

Notes:
LIBEL is a public and malicious imputation of a
crime, or a vice or defect, real or imaginary or
any act, commission, condition, status or
circumstances tending to cause the dishonor,
discredit or contempt of a natural or juridical
person, or to blacken the memory of one who is
dead
Character of the words used to make it
defamatory.
Words calculated to induce suspicion are more
effective in destroying reputation than false
charges directly made. Ironical and metaphorical
language is a favored vehicle for slander. A charge

is sufficient if the words are calculated to induce

the hearer to suppose and understand that the
person against whom they are uttered is guilty of
certain offenses, or are sufficient to impeach his
honesty, virtue or reputation, or to hold him up to
public ridicule. (U.S. vs. OConnell, 37 Phil. 767)
Malice has been defined as a term used to
indicate the fact that the defamer is prompted by
personal ill or spite and speaks not in response to
duty but merely to injure the reputation of the
person defamed.
Kinds of Malice.
Malice in law This is assumed and is inferred
from the defamatory character of an
imputation. The presumption of malice
attaches to the defamatory statement
especially if it appears to be insulting per se.
The law presumes that the defamer made the
imputation without good intention or
justifiable motive.
Malice in fact This refers to malice as a fact.
The presence and existence of personal illwill or spite may still appear even if the
statement is not defamatory. So, where the
defamatory acts may be presumed from the
publication of the defamatory acts imputed
refer to the private life of the individual,
malice may be presumed from the
publication of the defamatory statement
because no one has a right to invade
anothers privacy.
Distinction between malice in fact and malice
in law
Malice in fact is the malice which the law
presumes from every statement whose tenor is
defamatory. It does not need proof. The mere
fact that the utterance or statement is
defamatory negates a legal presumption of
malice.
In the crime of libel, which includes oral
defamation, there is no need for the prosecution to
present evidence of malice. It is enough that the
alleged defamatory or libelous statement be
presented to the court verbatim. It is the court
which will prove whether it is defamatory or not.
If the tenor of the utterance or statement is
defamatory, the
legal presumption of malice
arises even without proof.

Malice in fact becomes necessary only if the

malice in law has been rebutted. Otherwise,
there is no need to adduce evidence of malice in
fact. So, while malice in law does not require
evidence, malice in fact requires evidence.
Malice in law can be negated by evidence that, in
fact, the alleged libelous or defamatory utterance
was made with good motives and justifiable ends
or by the fact that the utterance was privileged in
character.
In law, however, the privileged character of a
defamatory statement may be absolute or
qualified.
When the privileged character is said to be
absolute, the statement will not be actionable
whether criminal or civil because that means the
law does not allow prosecution on an action
based thereon.
Illustration:
As regards the statements made by Congressmen
while they are deliberating or discussing in
Congress, when the privileged character is
qualified, proof of malice in fact will be admitted
to take the place of malice in law. When the
defamatory statement or utterance is qualifiedly
privileged, the malice in law is negated. The
utterance or statement would not be actionable
because malice in law does not exist. Therefore,
for the complainant to prosecute the accused for
libel, oral defamation or slander, he has to prove
that the accused was actuated with malice
(malice in fact) in making the statement.
* Malice is presumed to exist in injurious
publications
* Where the imputation is based upon matters of
public interest, the presumption of malice does
not arise from the mere publication of the
defamatory statement. A matter of public interest
is common property. Malice in fact comes into
play when the statement made is not defamatory
per se, as when the offender resorts to
underserved praises or satirical method of
impeaching the virtue, honesty and reputation of
the offended party. It can also appear in the form
of innuendos.
* This discussion leads to the conclusion that the
determination of libelous meaning is left to the
good judgment of the court after considering all
the circumstances which lead to the utterance or
publication of the defamatory statement. The

question is not what the writer of an alleged libel

means but what the words used by him mean.
The meaning given by the writer or the words
used by him is immaterial. The question is not
what the writer meant but what he conveyed to
those who heard or read him (People vs.
Encarnacion, 204 SCRA 1)
How to overcome the presumption of malice.
The presumption
showing :
1.

of

malice

is

rebutted

by

that the accused published the defamatory

imputation with good intention;

2. that there is justifiable motive for making it;

3.

that the communication made is privileged;

and

4.

accused must prove the truth of the

defamatory imputation in those cases
wherein truth is a defense.

PUBLICATION is the communication of the

defamatory matter to some third person/s
Publication is the communication of the
defamatory matter to a third person or persons.
So, the delivery of a defamatory writing to a
typesetter is sufficient publication. Writing a
letter to another person other than the person
defamed is sufficient publication. (See Sazon vs.
Court of Appeals, 255 SCRA 692)
> The crime is libel if the defamation is in writing
or printed media.
> The crime is slander or oral defamation if it is
not printed.
* Person libeled must be identified. But the
publication need not refer by name to the libeled
party. If not named it must be shown that the
description of the person referred to in the
defamatory publication was sufficiently clear so
that at least a 3rd person would have identified
the plaintiff.
* When a libel is addressed to several persons,
unless they are identified in the same libel, even if
there are several persons offended by the libelous
utterance or statement, there will only be one
count of libel.

* If the offended parties in the libel were distinctly

identified, even though the libel was committed at
one and the same time, there will be as many
libels as there are persons dishonored.
Illustration:
If a person uttered that All the Marcoses are
thieves," there will only be one libel because
these particular Marcoses regarded as thieves are
not specifically identified.
If the offender said, All the Marcoses the
father, mother and daughter are thieves. There
will be three counts of libel because each person
libeled is distinctly dishonored.
* If you do not know the particular persons
libeled, you cannot consider one libel as giving
rise to several counts of libel. In order that one
defamatory utterance or imputation may be
considered as having dishonored more than one
person, those persons dishonored must be
identified. Otherwise, there will only be one count
of libel.
* Note that in libel, the person defamed need not
be expressly identified. It is enough that he could
possibly be identified because innuendos may
also be a basis for prosecution for libel. As a
matter of fact, even a compliment which is
undeserved, has been held to be libelous.
* To presume publication there must be a
reasonable probability that the alleged a libelous
matter was thereby exposed to be read or seen by
3rd persons.
Republication
punishable.

of

defamatory

article

is

One is liable for publication of defamatory words

against another although he is only repeating
what he heard and names the source of his
information. A person who repeats a slander or
libelous publication heard or read from another
is presumed to indorse it. (People vs.
Salumbides and Reanzares, C.A., 55 O.G.
2638)
Criterion to determine whether statements
are defamatory
1) words are calculated to induce the hearers
to suppose and understand that the
person against who they are uttered were
guilty of certain offenses, or are sufficient
to impeach their honesty, virtue or

reputation, or to hold the person up to

public ridicule(US v OConnel)
2 )construed not only as to the expression
used but also with respect to the whole
scope and apparent object of the writer.(P
v Encarnacion)
* The test of libelous meanings is not the analysis
of a sentence into component phrases with the
meticulous care of the grammarian or stylist, but
the import conveyed by the entirety of the
language to the ordinary reader. (Lacsa vs. FAC,
et al., 161 SCRA 427).
* In libel cases, the question is not what the
offender means but what the words used by him
mean. ( Sazon vs. CA, 255 SCRA 692)
Praises undeserved are slander in disguise.
Where the comments are worded in praise of the
plaintiff, like describing him with qualities which
plaintiff does not deserve because of his social,
political and economic status in the community
which is too well known to all concerned, are
which intended are intended to ridicule rather
than praise him, the publication is deemed
libelous (Jimenez vs. Reyes, 27 SCRA 52)
* Even if what was imputed is true, the crime of
libel is committed unless one acted with good
motives or justifiable end. Poof of truth of a
defamatory imputation is not even admissible in
evidence, unless what was imputed pertains to
an act which constitutes a crime and when the
person to whom the imputation was made is a
public officer and the imputation pertains to the
performance of official duty. Other than these,
the imputation is not admissible.
When proof of truth is admissible
1.

When the act or omission imputed

constitutes a crime regardless of whether
the offended party is a private individual
or a public officer;

2.

When the offended party is a government

employee, even if the act or omission
imputed does not constitute a crime,
provided if its related to the discharged of
his official duties.

Requisites of defense in defamation

1.
If it appears that the matter charged as
libelous is true;
2.
It was published with good motives;
3.
It was for justifiable ends.
If a crime is a private crime, it cannot be
prosecuted de officio.
A complaint from the
offended party is necessary.
Libel
-false accusation need not
be made under oath

Perjury
-false
accusation
made under oath

Newsweek v IAC
Newsweek portrayed the island province of
Negros Occidental as a place dominated by big
landowners. Plaintiffs are associations of
sugarcane planters. HELD: Dismissed. To
maintain a libel suit, the specific victim must be
identifiable. Defamatory remarks directed at a
group of persons are not actionable unless the
statements are all-embracing or sufficiently
specific for victim to be identifiable. An action for
libel allegedly directed against a group of sugar
planters cannot be done by resort to filing a class
suit as each victim has his specific reputation to
protect. In this case, each of the plaintiffs has a
separate and distinct reputation in the
community.
Rule regarding Public Officers:
Defamatory remarks and comments on
the conduct or acts of public officers which are
related to the discharge of their official duties will
not constitute libel if the accused proves the
truth of the imputation. But any attack upon the
private character of the public officers on matters
which are not related to the discharge of their
official functions may constitute Libel.
* Where malice cannot be inferred from false
defamatory statements, the ruling appears to be
the true only if the offended party is a
government employee, with respect to facts
related to the discharge of his official duties. With
his jurisprudence, it should now be emphasized
that actual malice is now required to be proven.
It is enough to rely on presumed malice in libel
cases involving a public official or public figure.
* Malice is now understood to mean publication
with knowledge of falsehood or reckless disregard
of the statements veracity. The burden of proof
has not only been shifted to the plaintiff in libel,

is

but proof has not only been shifted to the plaintiff

in libel, but proof of malice must now be clear and
convincing.
Case Doctrines:
* The fact that a communication is privileged is
not a proper ground for the dismissal of a
complaint for libel. In the first place, it is a matter
of defense.
Secondly,
the
fact that a
communication is privileged does not mean that
it is not actionable. The privileged character
simply does away with the presumption of malice
which the prosecution has to prove in such a case.
(Lu Chu Sing, et al., vs. Lu Tiong Gui, 76 Phil.
669)
* Libel in answer to another libel is not a defense.
(Pellicena vs. Gonzales, 6 Phil. 50)
* If the defamatory imputation is in the nature of
self-defense under Article 11 of the Revised Penal
Code such that the publication was done in good
faith, without malice and just adequate enough
to protect his good name, the statement may be
considered privileged. (People vs. Baja, 40 O.G.
206; People vs. Mendoza, C.A. 74 O.G. 5607)
* The fair and true report of official proceedings
refer to proceedings in the three branches of
government, to wit: judicial, legislative and
executive. The publisher is limited only to the
narration of what had taken place even if the
report contains defamatory and injurious matter
affecting another person, libel is not committed
for as long as what is contained is a fair and true
report of the proceedings.
* Under Article 354, the publisher becomes liable
when he makes comments or remarks upon the
private character of person, which are not
relevant or related to the judicial, legislative or
executive proceedings.
* Under our libel law, defamatory remarks against
government employees with respect to facts
related to the discharge of their official duties will
not constitute libel, if defendant is able to prove
the truth of the imputations. But any attack on
the private character of the officer on matters
which are not related to the discharge of his
official functions may constitute libel since under
our laws, the right of the press to criticize public
officers does not authorize defamation. (U.S. vs.
Bustos, supra; Sazon vs. Court of Appeals,
supra).

Article354
REQUIREMENT OF PUBLICITY
Kinds of privileged communication
a. ABSOLUTELY
PRIVILEGED

not
actionable even if the actor has acted in
bad faith
b. QUALIFIEDLY PRIVILEGED those which
although
containing
defamatory
imputations could not be actionable unless
made with malice or bad faith
* When the defamatory imputation comes under
the
criteria
of
an
absolute
privileged
communication, the presumption of malice under
Article 354 has no application.
* The presumption of malice, however, comes into
play when the defamatory statement is a
conditional
or
qualified
privileged
communication. To overcome this presumption of
malice in law, the defamer must prove during the
proceeding that the defamatory imputation was
committed because of a legal, moral or social
duty.
* Privileged communication as categorized in this
discussion is a matter of defense. It is not a
ground for a motion to quash after the
arraignment of the accused. (See Mercado vs.
CFI of Rizal, 116 SCRA 93). If after the
prosecution has presented its evidence, it
becomes evident that the defamatory statement
was made by the accused because of a legal,
moral or social duty, then the accused can file a
demurrer to evidence, as in the meantime, there
is absence of malice in law which is presumed in
all defamatory imputations.
GENERAL RULE: Every defamatory imputation is
presumed malicious even if it be true, if no good
intention and justifiable motive for making it is
shown
EXCEPTION:
a. private
communication
in
performance of legal, moral or social
duty
Requisites
1. that
the
person
who
made
the
communication had a legal, moral or social
duty to make the communication or at
least he had an interest to be upheld
2. that the communication is addressed to an
officer or a board, or superior, having some
interest or duty on the matter

3. that the statements in the communication

are made in good faith without malice in
fact
b. fair and true report, made in good faith,
without any comments and remarks
Requisites
1. that the publication of a report of an official
proceeding is a fair and true report of a
judicial, legislative, or other official
proceedings which are not of confidential
nature, or of a statement, report, or speech
delivered in said proceedings, or of any
other act performed by a public officer
2. that it is made in good faith
3. that it is made without any comments or
remarks
Doctrine of fair comment
A fair comment on matters of public interest is
included and is covered by the mantle of
privileged communication which constitutes a
valid defense against libel and slander. If the
comment is an expression of opinion based on
established facts, then it is immaterial that the
opinion happens to be mistaken, as long as it
might be reasonably inferred from the facts.
Further explaining the right to comment on a
public issue, the Court said, If a matter is a
subject of public or general interest, it cannot
become less so merely because a private
individual is involved. The public primary interest
is in the event; the public focus is on the conduct
of the participants and not on their prior
anonymity or notoriety. ( Borjal vs. CA, 301
SCRA 1 )
Santos v CA
HELD: No malice, he simply furnished the
readers with the info that a complaint has been
filed against the brokerage firm and reproduced
the pleading verbatim with no embellishments.

Article 355
LIBEL BY MEANS OF WRITING OR SIMILAR
MEANS
A libel
1.
2.
3.
4.
5.

may be committed by means of

Writing;
Printing;
Lithography;
Engraving;
Radio;

6.
7.
8.
9.
10.

Photograph;
Painting;
Theatrical exhibition;
Cinematographic exhibition; or
Any similar means.

* In the enumeration above, television is not

included, probably because at the time the
Revised Penal Code was conceived, television had
not yet been invented. However, the law provides,
or any similar means which easily qualifies
television is such species or category. (People vs.
Casten, C.A., G.R. No. 07924-CR promulgated
December 13, 1974)

Article 356
THREATENING TO PUBLISH LIBEL AND
OFFER TO PREVENT SUCH PUBLICATION FOR
A COMPENSATION
Acts punished
1.
Threatening another to publish a libel
concerning him, or his parents, spouse,
child, or other members of his family;
2.
Offering to prevent the publication of
such libel for compensation or money
consideration.
* It involves the unlawful extortion of money by
appealing to the fear of the victim, through
threats
of
accusation
or
exposure.
It
contemplates of two offenses: a threat to
establish a libel and an offer to prevent such
publication. The gravamen of the crime is the
intent to extort money or other things of value.
Blackmail In its metaphorical sense, blackmail
may be defined as any unlawful extortion of
money by threats of accusation or exposure. Two
words are expressive of the crime hush money.
(US v. Eguia, et al., 38 Phil. 857) Blackmail
is possible in (1) light threats under Article 283;
and (2) threatening to publish, or offering to
prevent the publication of, a libel for compensation,
under Article 356.
Article 357
PROHIBITED
PUBLICATION
OF
ACTS
REFERRED TO IN THE COURSE OF OFFICIAL
PROCEEDINGS
ELEMENTS:
1. That the offender is a reporter, editor or
manager of a newspaper, daily or
magazine.

2. That he publishes facts connected with

the private life of another.
3. That such facts are offensive to the
honor, virtue and reputation of said
person.
Note:
* Even though 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.
* With its provisions, Article 357 has come to be
known as the Gag Law. It prohibits reporters,
editors or managers of newspapers from
publishing articles containing facts connected
with the private life of an individual; facts which
are offensive to the honor, virtue and reputation
of persons. But these must refer to facts which
are intimately related to the offended partys
family and home. Occasionally, it involves
conjugal troubles and quarrels because of
infidelity, adultery or crimes involving chastity.
Lacsa v IAC
Lacsa found that Marquez was not a proprietary
member of PCA thus not qualified to be
president. He wrote to the BOD and to Marquez.
He caused to publish the second letter. HELD:
Letter is not privileged communication. To be
classified as such it must be free from malice.
Granting that the letter was privileged
communication, written out of a duty of an
officer towards the members, such character was
lost when it was published.
* Under Republic Act No. 1477, amending Rep.
Act. No. 58, the publisher, editor, columnist or
duly accredited reporter of any newspaper,
magazine or periodical of general circulation
cannot be compelled to reveal the source of any
news report information appearing in the said
publication which was related to him in
confidence unless the court or a house or
committee of Congress finds that such revelation
is demanded by the security of the State.

Article 358
ORAL DEFAMATION / SLANDER
Two Kinds of Oral Defamation:
1. action of a serious and insulting nature
(Grave slander)
2. light insult or defamation not serious in
nature (simple slander)

Factors that determine gravity of the offense:

a) expressions used
b) personal relations of the accused and the
offended party
c) circumstances surrounding the case
Notes:
* The gravity of oral defamation depends not only
on the expressions but also on the personal
relation of the accused with the offended party.
Other circumstances like the presence of
important people when the crime was committed,
the social standing and position of the offended
party are factors which may influence the gravity
and defamatory imputation (Victorio vs. Court
of Appeals, 173 SCRA 645).
* Note that slander can be committed even if the
defamatory remark was done in the absence of
the offended party. (People vs. Clarin, C.A., 37
O.G. 1106)
* Words uttered in the heat of anger constitute
light oral defamation (P v Doronilla)
* If the utterances were made publicly and were
heard by many people and the accused at the
same time levelled his finger at the complainant,
oral defamation is committed (P v Salleque)
* The word puta does not impute that the
complainant is prostitute. (People vs. Atienza,
G.R. No. L-19857, Oct. 26, 1968 ) It is a
common expression of anger or displeasure. It is
seldom taken in its literal sense by the hearer. It
is viewed more as a threat on the part of the
accused to manifest and emphasize a point.
(Reyes vs. People, 27 SCRA 686)

Article 359
SLANDER BY DEED
ELEMENTS:
1. That the offender performs any act not
included in any other crime against
honor.
2. That such act is performed in the
presence of other person or persons.
3. That such act casts dishonor, discredit or
contempt upon the offended party.
Notes:

Slander by deed is a defamation committed by

the offender against the complainant through the
performance of any act which casts dishonor,
discredit or contempt upon another person.
* Slander by deed refers to performance of an act,
not use of words.

Two kinds of slander by deed

1.

Simple slander by deed; and

2.

Grave slander by deed, that is, which is

of a serious nature.

* Whether a certain slanderous act constitutes

slander by deed of a serious nature or not,
depends on the social standing of the offended
party, the circumstances under which the act
was committed, the occasion, etc.
* The acts of slapping and boxing the woman, a
teacher, in the presence of many people has put
her to dishonor, contempt and ridicule. (P v
Costa)
* If the acts committed against the offended party
caused her physical injury which did not require
medical attendance, then the crime would be
maltreatment which is classified as slight
physical injuries.
P v Motita
> Accused held a mirror between the legs of
complainant to reflect her private parts. The
crowd laughed. Guilty of slander by deed.
Distinctions:
a.

Unjust
Vexation-irritation
annoyance/anything
that
annoys
irritates without justification.

or
or

b. Slander by Deed-irritation or annoyance +

attendant publicity and dishonor or
contempt.
Acts of lasciviousness-irritation or
annoyance + any of 3 circumstance
provided in Art335 of RPC on rape
i. use of force or intimidation
ii. deprivation of reason or rendering the
offended unconscious
iii. offended party under 12 yrs of age+lewd
designs
c.

Article 360
PERSONS RESPONSIBLE FOR LIBEL
Who are liable:
a. person who publishes, exhibits or causes
the publication or exhibition of any
defamation
in
writing
or
similar
means(par.1)
b. author or editor of a book or pamphlet
c. editor or business manager of a daily
newspaper
magazine
or
serial
publication(par.2)
d. owner of the printing plant which
publishes a libelous article with his
consent and all other persons who in any
way participate in or have connection
with its publication (US v Ortiz)
* A defamatory statement by itself is not a crime.
It is the undue publication of the defamatory
imputation which makes it a crime. It is therefore
in this concept that proprietors and editors of
periodicals are also made responsible for the
appearance of defamatory matters in any
newspaper under their management.
Venue of criminal and civil action for damages
in cases of written defamation:
a. where the libelous article is printed and 1 st
published OR
b. where any of the offended parties actually
resides at the time of the commission of
the offense
* Libel cases are within the original and exclusive
jurisdiction of the Regional Trial Courts. Inferior
courts have no jurisdiction to try written
defamation. (People vs. Hechanova, 54 SCRA
101)
Where one of the offended parties is a public
officer:
a. if his office is in the City of Manila
- RTC of Manila OR
- city/province where the article is printed
and 1st published
b. Otherwise
- RTC of the city/province where he held
office at the time of offense OR
- where the article is 1st published

Where one of the offended parties is a private

individual:
- RTC of province/city where he actually
resides at the time of the crime
- where article was printed or 1st published
* In order to prevent controversies as to the venue
of criminal actions for written defamation, the
information or complaint must contain averments
as to whether the offended party is a private or
public officer at the time of the commission of the
offense and whenever possible, the place where
the written defamation was printed and first
published. (Agbayani, et al., vs. Hon. Sayo, et
al., L-47880, April 30, 1979)

b. the offended party is a government

employee, even if the act or omission
imputed does not constitute a crime
provided it is related to the discharge of
his official duties
Requisites for Acquittal:
a. it appears that the matter charged as
libelous is TRUE (for situations 1 and 2
above)
b. it was published with good motives
and for a justifiable end (for situation 1
only)

Note: Offended party must file complaint for

defamation imputing a crime which cannot be
prosecuted de oficio (e.g. adultery, concubinage,
rape, seduction, abduction, and acts of
lasciviousness)

Notes: The proof of the truth of the accusation

cannot be made to rest upon mere hearsay,
rumors, or suspicion. It must rest upon positive
direct evidence, upon which a definite finding
may be made by the court (US v Sotto)

* Under the last paragraph of Article 360, only

defamation consisting of the imputation of
private offenses such as adultery, concubinage,
seduction, abduction and acts of lasciviousness
shall be prosecuted by the offended party by
filing a complaint. Outside of this enumeration by
law, the crime is considered a public crime which
may be prosecuted de oficio.

* Admission on the part of the accused that he

committed a mistake will not serve to free him
from criminal liability. But it may serve to
mitigate the penalty imposed on him or lessen his
civil liability. ( Phee vs. La Vanguardia, 45 Phil
211 )

Soriano v IAC
> The Philippines follows the multiple
publication rule which means that every time
the same written matter is communicated, such
communication is considered a distinct and
separate publication of libel.

Article 362
LIBELOUS REMARKS

* Where the publication is libelous per se, actual

damages need not be established. This is so
because libel, by its very nature, causes
dishonor, disrepute and discredit and injury to
the reputation of the offended party. It is
something inherent and natural in the crime of
libel. (Lu Chu Sing vs. Lu Tiong Gui, 76 Phil.
669)

Article 361
PROOF OF THE TRUTH
Admissible when:
a. the act or omission imputed
constitutes a crime regardless of whether
the offended party is a private individual
or a public officer

Libelous remarks or comments on privileged

matters (under Art. 354) if made with malice
in fact will not exempt the author and editor.
* This article is a limitation to the defense of
privileged communication.
* The main thrust of the law is to punish libelous
remarks or comments on matters which are
privileged, if made with malice in fact. So, a
newspaper reporter who distorts facts connected
with official proceedings or who adds comments
thereon as to cast aspersion on the character of
the parties involved, is guilty of libel even
through the defamatory matter is published in
connection with a privileged communication.
(Dorr vs. U. S., 11 Phil. 706)

INCRIMINATORY MACHINATIONS

Article363
INCRIMINATING INNOCENT PERSON
ELEMENTS:
1. That the offender performs an act.
2. That
by
such
act
he
directly
incriminates or imputes to an innocent
person the commission of a crime.
3. That such act does not constitute
perjury.
Two Kinds:
a. making a statement which is
b i. defamatory or
ii. perjurious (if made under oath and is
false)
b. planting evidence
Note: article is limited to planting evidence and
the like
* This crime cannot be committed through verbal
incriminatory statements. It is defined as an act
and, therefore, to commit this crime, more than a
mere utterance is required.
* If the incriminating machination is made orally,
the crime may be slander or oral defamation.
* If the incriminatory machination was made in
writing and under oath, the crime may be perjury
if there is a willful falsity of the statements made.

blemish the honor or reputation of another

person
Notes:
* The crime is committed by resorting to any form
of scheme or plot designed to blemish the
reputation of a person. The offender does not
employ written or spoken words, pictures or
caricatures to ridicule the victim. Rather, he uses
some ingenious, crafty and secret ploy which
produces the same effect.
* Intriguing against honor is referred to as
gossiping. The offender, without ascertaining the
truth of a defamatory utterance, repeats the
same and pass it on to another, to the damage of
the offended party. Who started the defamatory
news is unknown.
* Where the source of polluted information can be
traced and pinpointed, and the accused adopted
as his own the information he obtained, and
passed it to another in order to cause dishonor to
the complainants reputation, the act is Slander
and not Intriguing Against Honor. But where the
source or the author of the derogatory
information can not be determined and the
accused borrows the same, and without
subscribing to the truth thereof, passes it to
others, the act is one of Intriguing Against Honor.
*
Committed
by
saying
to
others
an
unattributable thing, if said to the person himself
it is slander.

* If the statement in writing is not under oath, the

crime may be falsification if the crime is a
material matter made in a written statement
which is required by law to have been rendered.

Distinction between intriguing against honor

and slander:

* As far as this crime is concerned, this has been

interpreted to be possible only in the so-called
planting of evidence.

When the source of the defamatory utterance is

unknown and the offender simply repeats or
passes the same, the crime is intriguing against
honor.

* There is such a crime as incriminating an

innocent person through unlawful arrest. (People
vs. Alagao, et al., G.R. No. L-20721, April 30,
1966)
Article 364
INTRIGUING AGAINST HONOR
How committed:
-by any person who shall make any intrigue
which has for its principal purpose to

If the offender made the utterance, where the

source of the defamatory nature of the utterance
is known, and offender makes a republication
thereof, even though he repeats the libelous
statement as coming from another, as long as
the source is identified, the crime committed by
that offender is slander.
Distinction between intriguing against honor
and incriminating an innocent person:
In intriguing against honor, the offender resorts to
an intrigue for the purpose of blemishing the
honor or reputation of another person.

In incriminating an innocent person, the offender

performs an act by which he directly incriminates
or imputes to an innocent person the commission
of a crime.
RA4200 The Anti - Wire Tapping Act
Acts punished:
1) any person, not authorized by all the parties to
any private communication or spoken word
a) taps any wire of cable OR
b) uses any other device or arrangement, to
secretly overhear, intercept, or record such
communication or spoken word by using a
device commonly known as a dictaphone
or dictagraph or walkie talkie or tape
recorder
2) any person, whether or not a participant in the
above-mentioned acts:
a) knowingly possesses any tape record,
wire record, disc record, or any other such
record
or copies
thereof
of any
communication or spoken word
b) replays the same for any other person
c) communicates the contents thereof,
whether complete or partial, to any other
person
Notes:
* Peace officer is exempt if acts done under lawful
order of the court. You can only use the recording
for the case for which it was validly requested.
* Information obtained in violation of the Act is
inadmissible in evidence in any hearing or
investigation.
Gaanan v IAC
> An extension phone is not one of those
prohibited under RA 4200. There must be either
a physical interruption through the wiretap or
the deliberate installation of a device or
arrangement in order to overhear, intercept or
record the spoken words. The extension phone
was not installed for such purpose.
CRIMINAL NEGLIGENCE
Article 365
ELEMENTS OF RECKLESS IMPRUDENCE:
1. That the offender does or fails to do an
act.
2. That the doing of or the failure to do that
act is voluntary.
3. That it be without malice.
4. That material damage results.

5. That there is inexcusable lack of

precaution on the part of the offender,
taking into consideration
a. his employment or occupation
b. degree
of
intelligence,
physical
condition, and
c. other
circumstances
regarding
persons, time and place.
ELEMENTS OF SIMPLE IMPRUDENCE:
1. That there is lack of precaution on the
part of the offender.
2. That the damage impending to be caused
in not immediate or the danger is not
clearly manifest.
Quasi-offenses punished
1. Committing through reckless imprudence any
act which, had it been intentional, would
constitute a grave or less grave felony or light
felony;
2. Committing through simple imprudence or
negligence an act which would otherwise
constitute a grave or a less serious felony;
3. Causing damage to the property of another
through reckless imprudence or simple
imprudence or negligence;
4. Causing through simple imprudence or
negligence some wrong which, if done
maliciously, would have constituted a light
felony.
Distinction between reckless imprudence and
negligence:
The two are distinguished only as to whether the
danger that would be impending is easily
perceivable or not. If the danger that may result
from the criminal negligence is clearly
perceivable, the imprudence is reckless. If it
could hardly be perceived, the criminal
negligence would only be simple.
* There is no more issue on whether culpa is a
crime in itself or only a mode of incurring
criminal liability. It is practically settled that
criminal negligence is only a modality in incurring
criminal liability. This is so because under Article
3, a felony may result from dolo or culpa.
Notes:
Test for determining whether or not a person
is negligent of doing of an act which results in
injury or damages to another person or his
property.

Would a prudent man in the position of the person

to whom negligence is attributed, foresee harm to
the person injured? If so, the law imposes on the
doer, the duty to refrain from the course of
action, or to take precaution against such result.
Failure to do so constitutes negligence.
Reasonable foresight of harm, followed by
ignoring the admonition borne of this provisions,
is the constitutive fact of negligence. (Picart vs.
Smith, 37 Phil. 809, 813)
Test of Negligence.
Did the defendant, in doing the alleged negligent
act, use the reasonable care and caution which an
ordinary prudent person would have used in the
same situation? If not, then he is guilty of
negligence.
The penalties under Article 365
application in the following cases:

has

no

1. When the penalty provided for the offense ifs

equal or lower than that provided in pars.1
and 2 of Article 365. In this case, the
penalty shall be that which is next lower in
degree than that which should be imposed,
in the period which the court may deem
proper to apply.
2. When by imprudence or negligence and with
violation of the Automobile Law, the death of
a person is caused, the penalty is prision
correccional in its medium and maximum
periods.
1) Art.64 on mitigating and aggravating
circumstances not applicable.
2) Failure to lend on the spot assistance to
victim of his negligence: penalty next higher in
degree.
3) Abandoning usually punishable under Art
275, if charged under Art 365 is only
qualifying and if not alleged cannot even be an
aggravating circumstance.
4) Contributory negligencenot a defense, only
mitigating
* The defense of contributory negligence does not
apply in criminal cases committed through
reckless imprudence. It is against public policy to
invoke the negligence of another to escape
criminal liability. (People vs. Quiones, C.A., 44
O.G. 1520)

* The above-mentioned doctrine should be

reconciled with the doctrine of concurrent
proximate cause of two negligent drivers.
* In the case of People vs. Desalis, et al., C.A.,
57 O.G. 8689, the two accused were drivers of
two speeding vehicles which overtook vehicles
ahead of them and even encroached on the
others lane without taking due precaution as
required by the circumstances. The court found
the concurrent or successive negligent act or
omission of the two drivers as the direct and
proximate cause of the injury caused to the
offended party. The court could not determine in
what proportion each driver contributed to the
injury. Both were declared guilty for the injury
suffered by the third person.
* When negligence does not result in any injury
to persons or damage to property, then no crime
is committed. Negligence becomes punishable
when it results in the commission of a crime.
(Lantok, Jr. vs. Hon. Gorgonio, L-37396, April
30, 1979, 75 O.G. 7763)
Last clear chance doctrine> The contributory negligence of the injured
party will not defeat the action if it be shown that
the accused might, by the exercise of reasonable
care
and
prudence,
have
avoided
the
consequences of the negligence of the injured
party
Emergency rule> An automobile driver, who, by the negligence of
another, is suddenly placed in an emergency and
compelled to act instantly to avoid a collision or
injury is not guilty of negligence if he makes a
choice which a person of ordinary prudence
placed in such a position might make even
though he did not make the wisest choice.
Doctrine of Pre-emption
> It is a rule in collision cases which the driver of
a motor vehicle to make a full stop when crossing
a thru-street. Any accident therefore which takes
place in said corner gives to rise to the
presumption of negligence on the part driver of
the motor vehicle running thru-street has already
reached the middle part of the intersection. In
such a case, the other driver who has the right of
way has the duty to stop his motor vehicle in
order to avoid a collision. (People vs. Taradji, 3
C.A. Rep. [25] 460)
P v Cano

> Negligence is a quasi-offense. What is

punished is not the effect of the negligence but
the recklessness of the accused.
P v Carillo
> 13 yr old girl dies 3 days after surgery due to
an overdose of Nubain which triggered a heart
attack that caused brain damage. HELD: Guilty
of simple negligence resulting to homicide. Carillo
was the anesthesiologist, he and his co-accused
failed to monitor and provide close patient care,
to inform the parents of the childs true
condition, to prove that they exercised necessary
and appropriate degree of care and diligence to
prevent the condition.

turned turtle, throwing off two of the passengers

who boarded the truck without his knowledge. As
a consequence, one of them died. Cuadra was
acquitted of the crime of reckless imprudence
resulting in homicide and physical injuries.
* Overtaking of another vehicle is a normal
occurrence in driving. But when the overtaking is
done from right, it shows recklessness and
disregard of traffic laws and regulations. It is
likewise so when the overtaking is done while
another vehicle is approaching from the opposite
direction. This is a violation of Section 59(b) of
the Motor Vehicle Law (People vs. Songalla,
C.A., 67 O.G. 8330)

Buearano v CA
> Conviction of the accused in the charge of
slight and less serious physical injuries through
reckless imprudence constitutes double jeopardy
to the charge of the crime of damage to property
through reckless imprudence.
* Since this is the mode of incurring criminal
liability, if there is only one carelessness, even if
there are several results, the accused may only be
prosecuted under one count for the criminal
negligence.
So there would only be one
information to be filed, even if the negligence may
bring about resulting injuries which are slight.

* Driving within the speed limit is not a guaranty

of due care. Speed limits impose the maximum
speed which should not be exceeded. The degree
of care required of a motorist is not governed by
speed limits but by the circumstances and
conditions obtaining in the place at the
particular time. So, if the maximum speed limit
is 80 kilometers per hour and the vehicle driven
at 30 kilometers per hour, but because of the
very slow pace of the vehicle, an accident occurs,
the observation of the speed limit will not be
acceptable evidence of due care. (people vs.
Caluza, C.A., 58 O.G. 8060)

* Do not separate the accusation from the slight

physical injuries from the other material result of
the negligence.

Force majeure in relation to negligence.

> Force majeure has reference to an event which
cannot be foreseen or which being foreseen, is
inevitable.
It
implies
an
extraordinary
circumstance independent of the will of the actor
or perpetrator. In negligence, the immediate
personal harm or damage to property is
perceivable and can be prevented by the exercise
of reasonable care. As the event is foreseeable,
the failure of the actor to use reasonable care to
prevent harm or damage constitutes reckless
imprudence or simple negligence. (People vs.
Eleazar )

* If the criminal negligence resulted, for example,

in homicide, serious physical injuries and slight
physical injuries, do not join only the homicide
and serious physical injuries in one information
for the slight physical injuries.
You are not
complexing slight when you join it in the same
information. It is just that you are not splitting the
criminal negligence because the real basis of the
criminal liability is the negligence.
* If you split the criminal negligence, that is where
double jeopardy would arise.
* Accused is not criminally liable for the death or
injuries caused by his negligence to trespassers
whose presence in the premises he was not aware
of. In the case of People vs. Cuadra, C.A., 53
O.G. 7265, accused was a truck driver. Unknown
to him, several persons boarded his truck and
while driving along a slippery road which has a
declinations of 25 degrees, the left front wheel of
the truck fell into a ditch. In his effort to return
the truck to the center of the road, the truck