Ortega Lecture Notes Criminal Law II

P.J.G.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
TITLE I. CRIMES AGAINST NATIONAL SECURITY AND THE

LAW OF NATIONS
(2)
Inciting to War or Giving Motives for Reprisals,

under Article 118 This can be committed even if
the Philippines is not a participant. Exposing the
Filipinos or their properties because the offender
performed an unauthorized act, like those who
recruit Filipinos to participate in the gulf war. If
they involve themselves to the war, this crime is
committed. Relevant in the cases of Flor
Contemplacion or Abner Afuang, the police officer
who stepped on a Singaporean flag.
(3)
Violation of Neutrality, under Article 119 The

Philippines is not a party to a war but there is a
war going on. This may be committed in the light
of the Middle East war.
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

Article 114. Treason
1.
Inciting to war or giving motives for reprisals (Art.

118);
Elements
2.
Violation of neutrality (Art. 119);
1.
Offender is a Filipino or resident alien;
3.
Corresponding with hostile country (Art. 120);
2.
There is a war in which the Philippines is involved;
4.
Flight to enemy's country (Art. 121); and
3.
Offender either
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.
a.
levies war against the government; or
b.
adheres to the enemies, giving them aid

or comfort within the Philippines or
elsewhere
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
Almost all of these are crimes committed in times of war,

except the following, which can be committed in times of
peace:
4.
Collaboration with foreign enemy or some foreign

sovereign
(1)
Two ways of proving treason
Espionage, under Article 114 This is also covered

by Commonwealth Act No. 616 which punishes
conspiracy to commit espionage. This may be
committed both in times of war and in times of
peace.
1.
Testimony of at least two witnesses to the same

overt act; or
2.
Confession of accused in open court.
P.J.G.
Article 115. Conspiracy and Proposal to Commit Treason

Elements of conspiracy to commit treason
1.
2.
At least two persons come to an agreement to
3.
a.
levy war against the government; or
b.
adhere to the enemies, giving them aid

or comfort;
They decide to commit it.
Elements of proposal to commit treason

1.
2.
At least one person decides to

a.
levy war against the government; or
b.
3.
adhere to the enemies, giving them aid

or comfort;
He proposes its execution to some other persons.
Article 116. Misprision of Treason

Elements
1.
Offender owes allegiance to the government, and

not a foreigner;
2.
He has knowledge of conspiracy to commit

treason against the government;
3.
He conceals or does not disclose and make known

the same as soon as possible to the governor or
fiscal of the province in which he resides, or the
mayor or fiscal of the city in which he resides.
failed to make the necessary report to the government

within the earliest possible time. What is required is to
report it as soon as possible. The criminal liability arises if
the treasonous activity was still at the conspiratorial stage.
Because if the treason already erupted into an overt act,
the implication is that the government is already aware of
it. There is no need to report the same. This is a felony by
omission although committed with dolo, not with culpa.
The persons mentioned in Article 116 are not limited to
mayor, fiscal or governor. Any person in authority having
equivalent jurisdiction, like a provincial commander, will
already negate criminal liability.
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.
In the 1994 bar examination, a problem was given with
respect to misprision of treason. The text of the provision
simply refers to a conspiracy to overthrow the government.
The examiner failed to note that this crime can only be
committed in times of war. The conspiracy adverted to
must be treasonous in character. In the problem given, it
was rebellion. A conspiracy to overthrow the government is
a crime of rebellion because there is no war. Under the
Revised Penal Code, there is no crime of misprision of
rebellion.
Article 117. Espionage

Acts punished
1.
By entering, without authority therefore, a

warship, fort or naval or military establishment or
reservation to obtain any information, plans,
photograph or other data of a confidential nature
relative to the defense of the Philippines;
Elements
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.
The essence of the crime is that there are persons who
conspire to commit treason and the offender knew this and
1.
Offender enters any of the places

mentioned;
2.
He has no authority therefore;
3.
His purpose is to obtain information,

plans, photographs or other data of a
P.J.G.
confidential nature relative to

defense of the Philippines.
2.
the
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 he holds.
b.
Article 119. Violation of Neutrality

Elements
1.
There is a war in which the Philippines is not

involved;
2.
There is a regulation issued by a competent

authority to enforce neutrality;
3.
Offender violates the regulation.
Elements
1.
Offender is a public officer;
2.
He has in his possession the articles, data

or information referred to in paragraph 1
of Article 117, by reason of the public
office he holds;
He discloses their contents to a
representative of a foreign nation.
3.
Commonwealth Act No. 616 An Act to Punish Espionage

and Other Offenses against National Security
Acts punished
exposure of Filipino citizens to reprisals

on their persons or property.
When we say national security, it should be interpreted as

including rebellion, sedition and subversion. The Revised
Penal Code does not treat rebellion, sedition and
subversion as crimes against national security, but more of
crimes against public order because during the time that
the Penal Code was enacted, rebellion was carried out only
with bolos and spears; hence, national security was not
really threatened. Now, the threat of rebellion or internal
wars is serious as a national threat.
1.
Unlawfully obtaining or permitting to be obtained

information affecting national defense;
2.
Unlawful disclosing of information affecting

national defense;
Elements
3.
Disloyal acts or words in times of peace;
1.
It is in time of war in which the Philippines is

involved;
4.
Disloyal acts or words in times of war;

2.
5.
Conspiracy to violate preceding sections; and
Offender makes correspondence with an enemy

country or territory occupied by enemy troops;
6.
Harboring or concealing violators of law.
3.
The correspondence is either
Article 120. Correspondence with Hostile Country
Article 118.
Reprisals
a.
prohibited by the government;
b.
carried on in ciphers or conventional

signs; or
c.
containing notice or information which

might be useful to the enemy.
Inciting to War or Giving Motives for
Elements
1.
Offender performs unlawful or unauthorized acts;
2.
The acts provoke or give occasion for

Article 121.
a.
a war involving or liable to involve the

Philippines; or
Flight to Enemy's Country
Elements
1.
P.J.G.
4.
2.
Offender must be owing allegiance to the

government;
3.
Offender attempts to flee or go to enemy

country;
4.
Going to the enemy country is prohibited by

competent authority.
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 122. Piracy in general and Mutiny on the High

Seas or in Philippine Waters
Acts punished as piracy
1.
Attacking or seizing a vessel on the high seas or in

Philippine waters;
2.
Seizing in the vessel while on the high seas or in

Philippine waters the whole or part of its cargo,
its equipment or personal belongings of its
complement or passengers.
Elements of piracy
1.
The vessel is on the high seas or Philippine

waters;
2.
Offenders are neither members of

complement nor passengers of the vessel;
3.
Offenders either
its
a.
attack or seize a vessel on the high seas

or in Philippine waters; or
b.
seize in the vessel while on the high seas

or in Philippine waters the whole or part
of its cargo, its equipment or personal
belongings of its complement or
passengers;
There is intent to gain.
Originally, the crimes of piracy and mutiny can only be

committed in the high seas, that is, outside Philippine
territorial waters. But in August 1974, Presidential Decree
No. 532 (The Anti-Piracy and Anti-Highway Robbery Law of
1974) was issued, punishing piracy, but not mutiny, in
Philippine territorial waters. Thus came about two kinds of
piracy: (1) that which is punished under the Revised Penal
Code if committed in the high seas; and (2) that which is
punished under Presidential Decree No. 532 if committed
in Philippine territorial waters.
Amending Article 122, Republic Act No. 7659 included
therein piracy in Philippine waters, thus, pro tanto
superseding Presidential Decree No. 532. As amended,
the article now punishes piracy, as well as mutiny, whether
committed in the high seas or in Philippine territorial
waters, and the penalty has been increased to reclusion
perpetua from reclusion temporal.
But while under Presidential Decree No. 532, piracy in
Philippine waters could be committed by any person,
including a passenger or member of the complement of a
vessel, 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.
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.
P.J.G.
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 of force upon things, the crime of
piracy cannot be committed, but only theft.
Questions & Answers

Could theft be committed on board a vessel?
In piracy, the criminal intent is for gain.
Article 123. Qualified Piracy

Elements
1.

waters:
2.
Offenders may or may not be members of its

complement, or passengers of the vessel;
3.
Offenders either
Yes. The essence of piracy is one of robbery.
Elements of mutiny
1.
2.
3.

waters;
Offenders are either members of its complement,
or passengers of the vessel;
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.
b.
seize the whole or part of the cargo, its

equipment., or personal belongings of
the crew or passengers;
The preceding were committed under any of the

following 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; or
c.
whenever the crime is accompanied by

murder, homicide, physical injuries or
rape.
Mutiny is committed by members of the

complement or the passengers of the vessel.
If any of the circumstances in Article123 is present, piracy

is qualified. Take note of the specific crimes involve in
number 4 c (murder, homicide, physical injuries or rape).
When any of these crimes accompany piracy, there is no
complex crime. Instead, there is only one crime committed
qualified piracy. Murder, rape, homicide, physical
injuries are mere circumstances qualifying piracy and
cannot be punished as separate crimes, nor can they be
complexed with piracy.
Piracy is committed by persons who are not

members of the complement or the passengers of
the vessel.
Although in Article 123 merely refers to qualified piracy,

there is also the crime of qualified mutiny. Mutiny is
qualified under the following circumstances:
As to criminal intent
(1)
Distinction between mutiny and piracy
(2)
attack or seize the vessel; or
Offenders either
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.
(1)
4.
a.
As to offenders
In mutiny, there is no criminal intent.
When the offenders abandoned the victims

without means of saving themselves; or
P.J.G.
(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.
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.
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 hi-jacking 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
hi-jacking. 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 pyro-technique 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 hijacking 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 hijacking law will already govern.
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.
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 hijacking. 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.
P.J.G.
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 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.
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?
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 hijacking 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 hi-jacking 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 hijacking 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 hi-jacking
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 II. CRIMES AGAINST THE FUNDAMENTAL LAWS OF

THE STATE
P.J.G.
3.
The detention is without legal grounds.
Crimes against the fundamental laws of the State

1.
Arbitrary detention (Art. 124);
Meaning of absence of legal grounds
2.
Delay in the delivery of detained persons to the

proper judicial authorities (Art. 125);
1.
No crime was committed by the detained;
2.
3.
Delaying release (Art. 126);
There is no violent insanity of the detained

person; and
4.
Expulsion (Art. 127);
3.
The person detained has no ailment which

requires compulsory confinement in a hospital.
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);
Crimes under this title are those which violate the Bill of
Rights accorded to the citizens under the Constitution.
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.
In its counterpart in Title IX (Crimes Against Personal
Liberty and Security), the offenders are private persons.
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.
Article 124. Arbitrary Detention

Elements
1.
Offender is a public officer or employee;
2.
He detains a person;
The crime of arbitrary detention assumes several forms:

(1)
Detaining a person without legal grounds under;
(2)
Having arrested the offended party for legal

grounds but without warrant of arrest, and the
public officer does not deliver the arrested person
to the proper judicial authority within the period
of 12, 18, or 36 hours, as the case may be; or
(3)
Delaying release by competent authority with the

same period mentioned in number 2.
Distinction between arbitrary detention and illegal

detention
1.
In arbitrary detention -The principal offender must be a public officer.

Civilians can 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.
P.J.G.
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.
Note that in the crime of arbitrary detention, although the
offender is a public officer, not any public officer can
commit this crime. 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. A public officer who
is acting outside the scope of his official duties is no better
than a private citizen.
Questions & Answers

1.
A janitor at the Quezon City Hall was
assigned in cleaning the mens room. One day, he noticed
a fellow urinating so carelessly that instead of urinating at
the bowl, he was actually urinating partly on the floor. The
janitor resented this. He stepped out of the mens room
and locked the same. He left. The fellow was able to
come out only after several hours when people from the
outside forcibly opened the door. Is the janitor liable for
arbitrary detention?
No. Even if he is a public officer, he is not
permitted by his official function to arrest and detain
persons. Therefore, he is guilty only of illegal detention.
While the offender is a public officer, his duty does not
include the authority to make arrest; hence, the crime
committed is illegal detention.
2.
A municipal treasurer has been courting
his secretary. However, the latter always turned him
down. Thereafter, she tried to avoid him. One afternoon,
the municipal treasurer locked the secretary inside their
office until she started crying. The treasurer opened the
door and allowed her to go home. What crime was
committed?
Illegal detention. This is because the municipal
treasurer has no authority to detain a person although he
is a public officer.
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.
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.
Question & Answer

The offended party was brought to a place which
he could not leave because he does not know where he is,
although free to move about. Was arbitrary or illegal
detention committed?
Either arbitrary detention or illegal detention was
committed. If a person is brought to a safe house,
blindfolded, even if he is free to move as he pleases, but if
he cannot leave the place, arbitrary detention or illegal
detention is 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.
In unlawful arrest, the purpose is to accuse the
offended party of a crime he did not commit, to
P.J.G.
deliver the person to the proper authority, and 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.
Question & Answer

A had been collecting tong from drivers. B, a
driver, did not want to contribute to the tong. One day, B
was apprehended by A, telling him that he was driving
carelessly. Reckless driving carries with it a penalty of
immediate detention and arrest. B was brought to the
Traffic Bureau and was detained there until the evening.
When A returned, he opened the cell and told B to go
home. Was there a crime of arbitrary detention or
unlawful arrest?
Arbitrary detention. The arrest of B was only
incidental to the criminal intent of the offender to detain
him. But if after putting B inside the cell, he was turned
over to the investigating officer who booked him and filed
a charge of reckless imprudence against him, then the
crime would be unlawful arrest. The detention of the
driver is incidental to the supposed crime he did not
commit. But if there is no supposed crime at all because
the driver was not charged at all, he was not given place
under booking sheet or report arrest, then that means that
the only purpose of the offender is to stop him from driving
his jeepney because he refused to contribute to the tong.
Article 125. Delay in the Delivery of Detained Persons to

the Proper Judicial Authorities
Elements
1.
2.
He detains a person for some legal ground;
3.
He fails to deliver such person to the proper

judicial authorities within
a.
12 hour for light penalties;
b.
18 hours for correctional penalties; and
c.
36 hours
penalties.
for
afflictive
or
capital
This is a form of arbitrary detention. 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.
The period of detention is 12 hours for light offenses, 18
hours for correctional offences and 36 hours for afflictive
offences, where the accused may be detained without
formal charge. But he must cause a formal charge or
application to be filed with the proper court before 12, 18
or 36 hours lapse. Otherwise he has to release the person
arrested.
Note that the period stated herein does not include the
nighttime. It is to be counted only when the prosecutors
office is ready to receive the complaint or information.
This article does not apply if the arrest is with a warrant.
The situation contemplated here is an arrest without a
warrant.
Question & Answer

Within what period should a police officer who
has arrested a person under a warrant of arrest turn over
the arrested person to the judicial authority?
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.
When a person is arrested without a warrant, it means

that there is no case filed in court yet. If the arresting
officer would hold the arrested person there, he is actually
depriving the arrested of his right to bail. As long as there
is no charge in the court yet, the arrested person cannot
obtain bail because bail may only be granted by the court.
The spirit of the law is to have the arrested person
delivered to the jurisdiction of the court.
If the arrest is by virtue of a warrant, it means that there is
already a case filed in court. When an information is filed
in court, the amount of bail recommended is stated. The
accused person is not really denied his right to bail. Even if
he is interrogated in the police precinct, he can already file
bail.
10
P.J.G.
Note that delivery of the arrested person to the proper

authorities does not mean physical delivery or turn over of
arrested person to the court. It simply means putting the
arrested person under the jurisdiction of the court. This is
done by filing the necessary complaint or information
against the person arrested in court within the period
specified in Article 125. The purpose of this is for the court
to determine whether the offense is bailable or not and if
bailable, to allow him the right to bail.
Under the Rule 114 of the Revised Rules of Court, the
arrested person can demand from the arresting officer to
bring him to any judge in the place where he was arrested
and post the bail here. Thereupon, the arresting officer
may release him. The judge who granted the bail will just
forward the litimus of the case to the court trying his case.
The purpose is in order to deprive the arrested person of
his right to post the bail.
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.
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, 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.
Article 126. Delaying Release

Acts punished
1.
Delaying the performance of a judicial or

executive order for the release of a prisoner;
2.
Unduly delaying the service of the notice of such

order to said prisoner;
3.
Unduly delaying the proceedings upon any

petition for the liberation of such person.
Elements
1.
2.
There is a judicial or executive order for the

release of a prisoner or detention prisoner, or
that there is a proceeding upon a petition for the
liberation of such person;
3.
Offender without good reason delays
Question & Answer

The arrest of the suspect was done in Baguio City.
On the way to Manila, where the crime was committed,
there was a typhoon so the suspect could not be brought
to Manila until three days later. Was there a violation of
Article 125?
There was a violation of Article 125. The crime
committed was arbitrary detention in the form of delay in
the delivery of arrested person to the proper judicial
authority. The typhoon or flood is a matter of defense to
be proved by the accused, the arresting officer, as to
whether he is liable. In this situation, he may be exempt
under paragraph 7 of Article 12.
a.
the service of the notice of such order to

the prisoner;
b.
the performance of such judicial or

executive order for the release of the
prisoner; or
c.
the proceedings upon a petition for the

release of such person.
Article 127. Expulsion

Acts punished
1.
Expelling a person from the Philippines;
2.
Compelling a person to change his residence.
11
P.J.G.
3.
Elements
1.
2.
3.

He either
a.
expels any person from the Philippines;

or
b.
compels a person to change residence;
Offender is not authorized to do so by law.
The essence of this crime is coercion but the specific crime

is expulsion when committed by a public officer. If
committed by a private person, the crime is grave coercion.
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.
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?
Yes. Expulsion.
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.
Article 128. Violation of Domicile
Common elements
1.
2.
He is not authorized by judicial order to enter the

dwelling or to make a search therein for papers or
other effects.
Circumstances qualifying the offense

1.
If committed at nighttime; or
2.
If any papers or effects not constituting evidence

of a crime are not returned immediately after the
search made by offender.
Under Title IX (Crimes against Personal Liberty and

Security), the corresponding article is qualified trespass to
dwelling under Article 280. Article 128 is limited to public
officers. The public officers who may be liable for crimes
against the fundamental laws are those who are possessed
of the authority to execute search warrants and warrants
of arrests.
Under Rule 113 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.
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.
(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;
(3)
When the article seized is within plain view of the

officer making the seizure without making a
search therefore.
Acts punished
1.
2.
Entering any dwelling against the will of the

owner thereof;
Searching papers or other effects found therein
without the previous consent of such owner; or
Refusing to leave the premises, after having

surreptitiously entered said dwelling and after
having been required to leave the same
12
P.J.G.
There are three ways of committing the violation of Article

128:
(1)
(2)
(3)
By simply entering the dwelling of another if such

entering is done against the will of the occupant.
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.
Article 129. Search Warrants Maliciously Obtained, and

Abuse in the Service of Those Legally Obtained
Acts punished
1.
Elements
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.
Refusing to leave premises after surreptitious
entry and being told to leave the same. The act
punished is not the entry but the refusal to leave.
If the offender upon being directed to eave,
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 is already committed because
it would fall in number 1.
Procuring a search warrant without just cause;
2.
1.
2.
He procures a search warrant;
3.
There is no just cause.
Exceeding his authority or by using unnecessary

severity in executing a search warrant legally
procured.
Elements
1.
2.
He has legally procured a search

warrant;
3.
He exceeds his authority or uses

unnecessary severity in executing the
same.
Questions & Answers

Article 130. Searching Domicile without Witnesses
1.
It was raining heavily. A policeman took
shelter in one persons house. The owner obliged and had
his daughter serve the police some coffee. The policeman
made a pass at the daughter. The owner of the house
asked him to leave. Does this fall under Article 128?
No. It was the owner of the house who let the
policeman in. The entering is not surreptitious.
2.
A person surreptitiously enters the
dwelling of another. What crime or crimes were possibly
committed?
The crimes committed are (1) qualified trespass to
dwelling under Article 280, if there was an express or
implied prohibition against entering. This is tantamount to
entering against the will of the owner; and (2) violation of
domicile in the third form if he refuses to leave after being
told to.
Elements
1.
2.
He is armed with search warrant legally procured;
3.
He searches the domicile, papers or other

belongings of any person;
4.
The owner, or any members of his family, or two

witnesses residing in the same locality are not
present.
Crimes under Articles 129 and 130 are referred to as

violation of domicile. In these articles, the search is made
by virtue of a valid warrant, but the warrant
notwithstanding, the liability for the crime is still incurred
through the following situations:
13
P.J.G.
(1)
(2)
(3)
(4)
Search warrant was irregularly obtained 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 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.
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.
When the public officer employs unnecessary or
excessive severity in the implementation of the
search warrant. The search warrant is not a
license to commit destruction.
Owner of dwelling or any member of the family
was absent, or two witnesses residing within the
same locality were not present during the search.
Article 131. Prohibition, Interruption, and Dissolution of

Peaceful Meetings
He performs any of the following acts:
prohibiting or by interrupting, without

legal ground, the holding of a peaceful
meeting, or by dissolving the same;
b.
hindering any person from joining any

lawful association, or attending any of its
meetings;
c.
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.
The government has a right to require a permit before any

gathering could be made. Any meeting without a permit is
a proceeding in violation of the law. That being true, a
meeting may be prohibited, interrupted, or dissolved
without violating Article 131 of the Revised Penal Code.
But the requiring of the permit shall be in exercise only of
the governments regulatory powers and not really to
prevent peaceful assemblies as the public may desire.
Permit is only necessary to regulate the peace so as not to
inconvenience the public. The permit should state the day,
time and the place where the gathering may be held. This
requirement is, therefore, legal as long as it is not being
exercised in as a prohibitory power.
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 defeats the
exercise of the right to peaceably assemble, Article 131 is
violated.
At the beginning, it may happen that the assembly is
lawful and peaceful. 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.
There are 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.
Elements
a.
14
P.J.G.
Distinctions between prohibition, interruption, or

dissolution of peaceful meetings under Article 131, and
tumults and other disturbances, under Article 153
(1)
As to the participation of the public officer

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 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.
2.
The acts must be notoriously offensive to the

feelings of the faithful.
There must be deliberate intent to hurt the feelings of the

faithful.
TITLE III. CRIMES AGAINST PUBLIC ORDER
Crimes against public order

1.
Rebellion or insurrection (Art. 134);
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);
Elements
10.
Violation of parliamentary immunity (Art. 145);
1.
11.
Illegal assemblies (Art. 146);
2.
Religious ceremonies or manifestations of any

religious are about to take place or are going on;
12.
Illegal associations (Art. 147);
13.
Direct assaults (Art. 148);
3.
Offender prevents or disturbs the same.

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);
(2)
As to the essence of the crime

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.
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
Qualified if committed by violence or threat.
Article 133. Offending the Religious Feelings

Elements
1.
Acts complained of were performed in a place

devoted to religious worship, or during the
celebration of any religious ceremony;
15
P.J.G.
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).
the exercise of governmental authority with respect to

particular matters of subjects (Reyes, citing 30 Am. Jr. 1).
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.
Article 134. Rebellion or Insurrection

Elements
1.
There is a public uprising and taking arms against

the government;
2.
The purpose of the uprising or movement is

a.
to remove from the allegiance to the

government or its laws Philippine
territory or any part thereof, or any body
of land, naval, or other armed forces;
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.
or
b.
to deprive the Chief Executive or

Congress, wholly or partially, of any of
their powers or prerogatives.
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.
Rebellion and insurrection are not synonymous. Rebellion

is more frequently used where the object of the
movement is completely to overthrow and supersede the
existing government; while insurrection is more commonly
employed in reference to a movement which seeks merely
to effect some change of minor importance, or to prevent
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
16
P.J.G.
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.
In People v. Rodriguez, 107 Phil. 569, it was held that an
accused already convicted of rebellion may not be
prosecuted further for illegal possession of firearm and
ammunition, a violation of Presidential Decree No. 1866,
because this is a necessary element or ingredient of the
crime of rebellion with which the accused was already

convicted.
However, in People v. Tiozon, 198 SCRA 368, it was held
that charging one of illegal possession of firearms in
furtherance of rebellion is proper because this is not a
charge of a complex crime. A crime under the Revised
Penal Code cannot be absorbed by a statutory offense.
In People v. de Gracia, it was ruled that illegal possession
of firearm in furtherance of rebellion under Presidential
Decree No. 1866 is distinct from the crime of rebellion
under the Revised Penal Code and, therefore, Article 135
(2) of the Revised Penal Code should not apply. 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.
In People v. Lobedioro, an NPA cadre killed a policeman
and was convicted for murder. He appealed invoking
rebellion. The Supreme Court found that there was no
evidence shown to further the end of the NPA movement.
It held that there must be evidence shown that the act
furthered the cause of the NPA; it is not enough to say it.
Rebellion may be committed even without a single shot
being fired. No encounter needed. Mere public uprising
with arms enough.
Article 135, as amended, has two penalties: a higher
penalty for the promoters, heads and maintainers of the
rebellion; and a lower penalty for those who are only
followers of the rebellion.
Distinctions between rebellion and sedition
(1)
As to nature
In rebellion, there must be taking up or arms
against the government.
In sedition, it is sufficient that the public uprising
be tumultuous.
(2)
As to purpose
In rebellion, the purpose is always political.
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.
17
P.J.G.
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.
b.
2.
Article 134-A. Coup d' etat
The participants
a.
Any person who participates or executes

the commands of others in rebellion,
insurrection or coup d' etat;
b.
Any person not in the government

service who participates, supports,
finances, abets or aids in undertaking a
coup d' etat.
Elements
1.
Offender is a person or persons belonging to the

military or police or holding any public office or
employment;
2.
It is committed by means of a swift attack

accompanied by violence, intimidation, threat,
strategy or stealth;
3.
4.
The attack is directed against the duly constituted

authorities of the Republic of the Philippines, or
any military camp or installation, communication
networks, public utilities or other facilities needed
for the exercise and continued possession of
power;
The purpose of the attack is to seize or diminish
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 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.
Persons liable for rebellion, insurrection or coup d' etat

under Article 135
1.
Any person who leads, directs or

commands others to undertake a coup d'
etat;
Article 136. Conspiracy and Proposal to Commit Coup d'

etat, Rebellion or Insurrection
Conspiracy and proposal to commit rebellion are two
different crimes, namely:
1.
Conspiracy to commit rebellion; and
2.
Proposal to commit rebellion.
There is conspiracy to commit rebellion when two or more

persons come to an agreement to rise publicly and take
arms against government for any of the purposes of
rebellion and decide to commit it.
There is proposal to commit rebellion when the person
who has decided to rise publicly and take arms against the
government for any of the purposes of rebellion proposes
its execution to some other person or persons.
Article 137. Disloyalty of Public Officers or Employees

Acts punished
1.
By failing to resist a rebellion by all the means in

their power;
2.
By continuing to discharge the duties of their

offices under the control of the rebels; or
3.
By accepting appointment to office under them.
Offender must be a public officer or employee.
The leaders
Article 138. Inciting to Rebellion or Insurrection
a.
Any person who promotes, maintains or

heads a rebellion or insurrection; or
Elements
18
P.J.G.
1.
Offender does not take arms or is not in open

hostility against the government;
2.
He incites others to the execution of any of the

acts of rebellion;
3.
d.
To commit, for any political or social end,

any act of hate or revenge against
private persons or any social classes;
e.
To despoil for any political or social end,

any person, municipality or province, or
the national government of all its
property or any part thereof.
The inciting is done by means of speeches,

proclamations, writings, emblems, banners or
other representations tending to the same end.
Distinction between inciting to rebellion and proposal to

commit rebellion
1.
In both crimes, offender induces another to

commit rebellion.
2.
In proposal, the person who proposes has

decided to commit rebellion; in inciting to
rebellion, it is not required that the offender has
decided to commit rebellion.
3.
In proposal, the person who proposes the

execution of the crime uses secret means; in
inciting to rebellion, the act of inciting is done
publicly.
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 ad
disturbance by way of protest to express 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.
Persons liable for sedition under Article 140

1.
The leader of the sedition; and
2.
Other person participating in the sedition.
Article 139. Sedition

Article 141. Conspiracy to Commit Sedition
Elements
1.
Offenders rise publicly and tumultuously;
In this crime, there must be an agreement and a decision

to rise publicly and tumultuously to attain any of the
objects of sedition.
2.
Offenders employ force, intimidation, or other

means outside of legal methods;
There is no proposal to commit sedition.
3.
Purpose is to attain any of the following objects:

a.
b.
c.
To prevent the promulgation or

execution of any law or the holding of
any popular election;
To prevent the national government or
any provincial or municipal government,
or any public officer from exercising its
or his functions or prevent the execution
of an administrative order;
To inflict any act of hate or revenge upon
the person or property of any public
officer or employee;
Article 142. Inciting to Sedition

Acts punished
1.
Inciting others to the accomplishment of any of

the acts which constitute sedition by means of
speeches, proclamations, writings, emblems, etc.;
2.
Uttering seditious words or speeches which tend

to disturb the public peace;
3.
Writing, publishing, or circulating scurrilous libels

against the government or any of the duly
constituted authorities thereof, which tend to
disturb the public peace.
19
P.J.G.
or of any provincial board or city or municipal

council or board;
Elements
1.
Offender does not take direct part in the crime of

sedition;
2.
He incites others to the accomplishment of any of

the acts which constitute sedition; and
3.
2.
Offender does any of the following acts:

a.
He disturbs any of such meetings;
b.
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.
Inciting is done by means of speeches,

proclamations, writings, emblems, cartoons,
banners, or other representations tending
towards the same end.
Only non-participant in sedition may be liable.

Article 145. Violation of Parliamentary Immunity
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.
Acts punished
1.
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.
Using force, intimidation, threats, or frauds to

prevent any member of Congress from attending
the meetings of Congress or of any of its
committees or subcommittees, constitutional
commissions or committees or divisions thereof,
or from expressing his opinion or casting his vote;
Elements
Article 143. Acts Tending to Prevent the Meeting of the

Congress of the Philippines and Similar Bodies
1.
Offender uses
threats or fraud;
2.
The purpose of the offender is to

prevent any member of Congress from
Elements
1.
2.
There is a projected or actual meeting of Congress

or any of its committees or subcommittees,
constitutional committees or divisions thereof, or
of any provincial board or city or municipal
council or board;
Offender, who may be any person, prevents such
meetings by force or fraud.
Article 144. Disturbance of Proceedings
2.
force,
intimidation,
a.
attending the meetings of the

Congress or of any of its
committees or constitutional
commissions, etc.;
b.
expressing his opinion; or
c.
casting his vote.
Arresting or searching any member thereof while

Congress is in regular or special session, except in
case such member has committed a crime
punishable under the Code by a penalty higher
than prision mayor.
Elements
Elements
1.
There is a meeting of Congress or any of its

committees or subcommittees, constitutional
commissions or committees or divisions thereof,
1.
Offender is a public officer of employee;
20
P.J.G.
2.
He arrests or searches any member of

Congress;
3.
Congress, at the time of arrest or search,

is in regular or special session;
4.
The member arrested or searched has

not committed a crime punishable under
the Code by a penalty higher than prision
mayor.
Under Section 11, Article VI of the Constitution, a public

officer who arrests a member of Congress who has
committed a crime punishable by prision mayor (six years
and one day, to 12 years) is not liable Article 145.
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 146. Illegal Assemblies

Acts punished
1.
Any meeting attended by armed persons for the

purpose of committing any of the crimes
punishable under the Code;
2.
The audience, whether armed or not, is

incited to the commission of the crime of
treason, rebellion or insurrection,
sedition or direct assault.
Persons liable for illegal assembly

1.
The organizer or leaders of the meeting;
2.
Persons merely present at the meeting, who must

have a common intent to commit the felony of
illegal assembly.
If any person present at the meeting carries an unlicensed

firearm, it is presumed that the purpose of the meeting
insofar as he is concerned is to commit acts punishable
under the Revised Penal Code, and he is considered a
leader or organizer of the 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.
Elements
Two forms of illegal assembly
1.
2.
There is a meeting, a gathering or group

of persons, whether in fixed place or
moving;
2.
The meeting is attended by armed

persons;
3.
The purpose of the meeting is to commit

any of the crimes punishable under the
Code.
Any meeting in which the audience, whether

armed or not, is incited to the commission of the
crime of treason, rebellion or insurrection,
sedition, or assault upon person in authority or
his agents.
1.
There is a meeting, a gathering or group

of persons, whether in a fixed place or
moving;
(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
21
P.J.G.
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.
3.
In illegal association, the persons liable are (1) the

founders, directors and president; and (2) the
members.
In illegal assembly, the persons liable are (1) the
organizers or leaders of the meeting and (2) the
persons present at meeting.
Article 148. Direct Assault

Acts punished
Article 147. Illegal Associations
1.
Illegal associations
1.
2.
Associations totally or partially organized for the

purpose of committing any of the crimes
punishable under the Code;
Without public uprising, by employing force or

intimidation for the attainment of any of the
purposes enumerated in defining the crimes of
rebellion and sedition;
Elements
Associations totally or partially organized for

some purpose contrary to public morals.
1.
Offender employs force or intimidation;
2.
The aim of the offender is to attain any

of the purposes of the crime of rebellion
or any of the objects of the crime of
sedition;
3.
There is no public uprising.
Persons liable
1.
Founders, directors
association;
and
president
2.
Mere members of the association.
of
the
2.
Distinction between illegal association and illegal assembly

1.
In illegal association, it is not necessary that there

be an actual meeting.
In illegal assembly, it is necessary that there is an
actual meeting or assembly or armed persons for
the purpose of committing any of the crimes
punishable under the Code, or of individuals who,
although not armed, are incited to the
commission of treason, rebellion, sedition, or
assault upon a person in authority or his agent.
2.
Without public uprising, by attacking, by

employing force or by seriously intimidating or by
seriously resisting any person in authority or any
of his agents, while engaged in the performance
of official duties, or on occasion of such
performance.
Elements
1.
Offender makes an attack, employs

force, makes a serious intimidation, or
makes a serious resistance;
2.
The person assaulted is a person in

authority or his agent;
3.
At the time of the assault, the person in

authority or his agent is engaged in the
actual performance of official duties, or
that he is assaulted by reason of the past
performance of official duties;
4.
Offender knows that the one he is

assaulting is a person in authority or his
agent in the exercise of his duties.
In illegal association, it is the act of forming or

organizing and membership in the association
that are punished.
In illegal assembly, it is the meeting and
attendance at such meeting that are punished.
22
P.J.G.
5.
There is no public uprising.
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.
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.
Person in authority is any person directly vested with
jurisdiction, whether as an individual or as a member of
some court or government corporation, board, or
commission. A barangay chairman is deemed a person in
authority.
Agent of a person in authority is 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, such as a barangay councilman, barrio
policeman, barangay leader and any person who comes to
the aid of a person in authority.
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.
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 party 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.
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.
23
P.J.G.
2.
By refusing to be sworn or placed under

affirmation while being before such legislative or
constitutional body or official;
3.
By refusing to answer any legal inquiry or to

produce any books, papers, documents, or
records in his possession, when required by them
to do so in the exercise of their functions;
Article 149. Indirect Assault

Elements
1.
A person in authority or his agent is the victim of

any of the forms of direct assault defined in
Article 148;
2.
A person comes to the aid of such authority or his

agent;
4.
By restraining another from attending as a

witness in such legislative or constitutional body;
3.
Offender makes use of force or intimidation upon

such person coming to the aid of the authority or
his agent.
5.
By inducing disobedience to a summons or refusal

to be sworn by any such body or official.
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 person in
authority. The victim cannot be the person in authority or
his agent.
Article 151. Resistance and Disobedience to A Person in

Authority or the Agents of Such Person
Elements of resistance and serious disobedience under the
first paragraph
1.
A person in authority or his agent is engaged in

the performance of official duty or gives a lawful
order to the offender;
2.
Offender resists or seriously disobeys such person

in authority or his agent;
3.
The act of the offender is not included in the

provision of Articles 148, 149 and 150.
There is no indirect assault when there is no direct assault.

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.
Due to the amendment of Article 152, without the
corresponding amendment in Article 150, the crime of
indirect assault can only be committed when assault is
upon a civilian giving aid to an agent of the person in
authority. He does not become another agent of the
person in authority.
Article 150.
Disobedience to Summons Issued by
Congress, Its Committees or Subcommittees, by the
Constitutional
Commissions,
Its
Committees,
Subcommittees or Divisions
Elements of simple disobedience under the second

paragraph
1.
An agent of a person in authority is engaged in

the performance of official duty or gives a lawful
order to the offender;
2.
Offender disobeys such agent of a person in

authority;
3.
Such disobedience is not of a serious nature.
Acts punished
1.
By refusing, without legal excuse, to obey

summons of Congress, its special or standing
committees
and
subcommittees,
the
Constitutional Commissions and its committees,
subcommittees or divisions, or by any
commission or committee chairman or member
authorized to summon witnesses;
Distinction between resistance or serious disobedience

and direct assault
1.
In resistance, the person in authority or his agent

must be in actual performance of his duties.
24
P.J.G.
In direct assault, the person in authority or his

agent must be engaged in the performance of
official duties or that he is assaulted by reason
thereof.
2.
3.
Examples of persons in authority

1.
Municipal mayor;
Resistance or serious disobedience is committed

only by resisting or seriously disobeying a person
in authority or his agent.
2.
Division superintendent of schools;
3.
Public and private school teachers;
Direct assault (the second form) is committed in

four ways, that is, (1) by attacking, (2) by
employing force, (3) by seriously intimidating, and
(4) by seriously resisting a persons in authority or
his agent.
4.
Teacher-nurse;
5.
President of sanitary division;
6.
Provincial fiscal;
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.
7.
Justice of the Peace;
8.
Municipal councilor;
9.
Barrio captain and barangay chairman.
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 in Article 151 would entirely
disappear.
Article 153. Tumults and Other Disturbances of Public

Order
Acts punished
1.
Causing any serious disturbance in a public place,

office or establishment;
2.
Interrupting
or
disturbing
performances,
functions or gatherings, or peaceful meetings, if
the act is not included in Articles 131 and 132;
3.
Making any outcry tending to incite rebellion or

sedition in any meeting, association or public
place;
4.
Displaying placards or emblems which provoke a

disturbance of public order in such place;
5.
Burying with pomp the body of a person who has

been legally executed.
But when the one resisted is a person I 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.
Who are deemed persons in authority and agents of

persons in authority under Article 152
A person in authority is one directly vested with
jurisdiction, that is, the power and authority to govern and
execute the laws.
An agent of a person in authority is one charged with (1)
the maintenance of public order and (2) the protection
and security of life and property.
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).
25
P.J.G.
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. 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.
Article 155. Alarms and Scandals

Acts punished
1.
Discharging any firearm, rocket, firecracker, or

other explosive within any town or public place,
calculated to cause (which produces) alarm of
danger;
2.
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.
Instigating or taking an active part in any charivari

or other disorderly meeting offensive to another
or prejudicial to public tranquility;
3.
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.
Disturbing the public peace while wandering

about at night or while engaged in any other
nocturnal amusements;
4.
Causing any disturbance or scandal in public

places while intoxicated or otherwise, provided
Article 153 in not applicable.
Article 154. Unlawful Use of Means of Publication and

Unlawful Utterances
Acts punished
1.
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;
2.
Encouraging disobedience to the law or to the

constituted authorities or praising, justifying or
extolling any act punished by law, by the same
means or by words, utterances or speeches;
3.
Maliciously publishing or causing to be published

any official resolution or document without
proper authority, or before they have been
published officially;
4.
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.
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.
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.
26
P.J.G.
The crime alarms and scandal is only one crime. Do not

think that alarms and scandals are two crimes.
Scandal here does not refer to moral scandal; that one is
grave scandal in Article 200. The essence of the crime is
disturbance of public tranquility and public peace. So, any
kind of disturbance of public order where the circumstance
at the time renders the act offensive to the tranquility
prevailing, the crime is committed.
Charivari is a mock serenade wherein the supposed
serenaders use broken cans, broken pots, bottles or other
utensils thereby creating discordant notes. Actually, it is
producing noise, not music and so it also disturbs public
tranquility. 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.
Even if the persons involved are engaged in
activity like those playing patintero at night,
balut, if they conduct their activity in such a
disturbs public peace, they may commit the
alarms and scandals.
nocturnal
or selling
way that
crime of
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.
1.
There is a person confined in a jail or penal

establishment;
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.
2.
Offender removes therefrom such person, or

helps the escape of such person.
If three persons are involved a stranger, the custodian

and the prisoner three crimes are committed:
Article 156. Delivering Prisoners from Jail

Elements
Penalty of arresto mayor in its maximum period to prision

correccional in its minimum period is imposed if violence,
intimidation or bribery is used.
(1)
Infidelity in the custody of prisoners;
(2)
Delivery of the prisoner from jail; and
Penalty of arresto mayor if other means are used.
(3)
Evasion of service of sentence.
Penalty decreased to the minimum period if the escape of

the prisoner shall take place outside of said establishments
by taking the guards by surprise.
Article 157. Evasion of Service of Sentence

Elements
In relation to infidelity in the custody of prisoners, 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
1.
Offender is a convict by final judgment;
2.
He is serving sentence which consists in the

deprivation of liberty;
3.
He evades service of his sentence by escaping

during the term of his imprisonment.
27
P.J.G.
b.
earthquake;
Qualifying circumstances as to penalty imposed
c.
explosion; or
If such evasion or escape takes place
d.
similar catastrophe; or
1.
By means of unlawful entry (this should be by

scaling - Reyes);
e.
mutiny in which he has not participated;
2.
By breaking doors, windows, gates, walls, roofs or

floors;
3.
By using picklock, false keys, disguise, deceit,

violence or intimidation; or
4.
Through connivance with other convicts or

employees of the penal institution.
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.
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.
Article 158. Evasion of Service of Sentence on the

Occasion of Disorders, Conflagrations, Earthquakes, or
Other Calamities
3.
He 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;
4.
He 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.
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.
Those who did not leave the penal establishment are not
entitled to the 1/5 credit. Only those who left and returned
within the 48-hour period.
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.
Mutiny is one of the causes which may authorize a convict
serving sentence in the penitentiary to leave the jail
provided he has not taken part in the mutiny.
Elements
1.
Offender is a convict by final judgment, who is

confined in a penal institution;
2.
There is disorder, resulting from

a.
conflagration;
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.
If the sentence violated is destierro, the penalty upon the
convict is to be served by way of destierro also, not
28
P.J.G.
imprisonment. This is so because the penalty for the

evasion can not be more severe than the penalty evaded.
Article 159.
Sentence
Other Cases of Evasion of Service of
Question & Answer

Is the violation of conditional pardon a
substantive offense?
Elements of violation of conditional pardon
Under Article 159, there are two situations

provided:
1.
Offender was a convict;
(1)
There is a penalty of prision correccional minimum

for the violation of the conditional pardon;
2.
He was granted pardon by the Chief Executive;

(2)
3.
He violated any of the conditions of such pardon.
There is no new penalty imposed for the violation

of the conditional pardon. Instead, the convict
will be required to serve the unserved portion of
the sentence.
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. As a rule, if
the condition of the pardon is violated when the remaining
unserved portion of the sentence has already lapsed, there
will be no more criminal liability for the violation.
However, the convict maybe required to serve the unserved
portion of the sentence, that is, continue serving original
penalty.
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.
In order that the conditional pardon may be violated, it is
conditional that the pardonee received the conditional
pardon. If he is released without conformity to the
conditional pardon, he will not be liable for the crime of
evasion of service of sentence.
If the remitted portion of the sentence is less than

six years or up to six years, there is an added penalty of
prision correccional minimum for the violation of the
conditional pardon; hence, the violation is a substantive
offense if the remitted portion of the sentence does not
exceed six years because in this case a new penalty is
imposed for the violation of the conditional pardon.
But if the remitted portion of the sentence
exceeds six years, the violation of the conditional pardon is
not a substantive offense because no new penalty is
imposed for the violation.
In other words, you have to qualify your answer.
The Supreme Court, however, has ruled in the
case of Angeles v. Jose that this is not a substantive
offense. This has been highly criticized.
Article 160. Commission of Another Crime During Service

of Penalty Imposed for Another Previous Offense
Elements
1.
Offender was already convicted by final judgment

of one offense;
2.
He committed a new felony before beginning to

serve such sentence or while serving the same.
TITLE IV. CRIMES AGAINST PUBLIC INTEREST
Crimes against public interest
29
P.J.G.
1.
Counterfeiting the great seal of the Government

of the Philippines (Art. 161);
19.
False testimony against a defendant (Art. 180);
2.
Using forged signature or counterfeiting seal or

stamp (Art. 162);
20.
False testimony favorable to the defendant (Art.

181);
3.
Making and importing and uttering false coins

(Art. 163);
21.
False testimony in civil cases (Art. 182);
22.
4.
Mutilation of coins, importation and uttering of

mutilated coins (Art. 164);
False testimony in other cases and perjury (Art.

183);
23.
Offering false testimony in evidence (Art. 184);
5.
Selling of false or mutilated coins, without

connivance (Art. 165);
24.
Machinations in public auction (Art. 185);
25.
Monopolies and combinations in restraint of

trade (Art. 186);
26.
Importation and disposition of falsely marked

articles or merchandise made of gold, silver, or
other precious metals or their alloys (Art. 187);
27.
Substituting and altering trade marks and trade

names or service marks (Art. 188);
28.
Unfair competition and fraudulent registration of

trade mark or trade name, or service mark;
fraudulent designation of origin, and false
description (Art. 189).
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.
Falsification of legislative documents (Art. 170);
10.
Falsification by public officer, employee or notary

(Art. 171);
11.
Falsification by private individuals and use of

falsified documents (Art. 172);
12.
Falsification of wireless, cable, telegraph and

telephone messages and use of said falsified
messages (Art. 173);
13.
False medical certificates, false certificates of

merit or service (Art. 174);
Article 161. Counterfeiting the Great Seal of the

Government of the Philippine Islands, Forging the
Signature or Stamp of the Chief Executive
14.
Using false certificates (Art. 175);
Acts punished
15.
Manufacturing and possession of instruments or

implements for falsification (Art. 176);
1.
Forging the great seal of the Government of the

Philippines;
16.
Usurpation of authority or official functions (Art.

177);
2.
Forging the signature of the President;
3.
Forging the stamp of the President.
17.
Using fictitious name and concealing true name

(Art. 178);
18.
Illegal use of uniforms or insignia (Art. 179);
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 162. Using Forged Signature or Counterfeit Seal or

Stamp
30
P.J.G.
Elements
The first acts of falsification or falsity are
1.
(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.
The great seal of the Republic was counterfeited

or the signature or stamp of the Chief Executive
was forged by another person;
2.
Offender knew of the counterfeiting or forgery;
3.
He used the counterfeit seal or forged signature

or stamp.
Offender under this article should not be the forger.
Article 163. Making and Importing and Uttering False

Coins
In so far as coins in circulation are concerned, there are

two crimes that may be committed:
(1)
Elements
1.
There be false or counterfeited coins;
2.
Offender either made, imported or uttered such

coins;
3.
In case of uttering such false or counterfeited

coins, he connived with the counterfeiters or
importers.
Kinds of coins the counterfeiting of which is punished

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.
Article 164. Mutilation of Coins

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.
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.
It is not necessary that the coin counterfeited be legal
tender. So that even if the coin counterfeited is of vintage,
the crime of counterfeiting is committed. The reason is to
bar the counterfeiter from perfecting his craft of
counterfeiting. The law punishes the act in order to
discourage people from ever attempting to gain expertise
in gaining money. This is because if people could
counterfeit money with impunity just because it is no
longer legal tender, people would try to counterfeit nonlegal tender coins. Soon, if they develop the expertise to
make the counterfeiting more or less no longer discernible
or no longer noticeable, they could make use of their
ingenuity to counterfeit coins of legal tender. From that
time on, the government shall have difficulty determining
which coins are counterfeited and those which are not. It
may happen that the counterfeited coins may look better
than the real ones. So, counterfeiting is penalized right at
the very start whether the coin is legal tender or otherwise.
Question & Answer

X has in his possession a coin which was legal
tender at the time of Magellan and is considered a
31
P.J.G.
collectors item. He manufactured several pieces of that

coin. Is the crime committed?
Yes. It is not necessary that the coin be of legal
tender. The provision punishing counterfeiting does not
require that the money be of legal tender and the law
punishes this even if the coin concerned is not of legal
tender in order to discourage people from practicing their
ingenuity of imitating money. If it were otherwise, people
may at the beginning try their ingenuity in imitating money
not of legal tender and once they acquire expertise, they
may then counterfeit money of legal tender.
(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.
In the example, if the offender has collected 1/10 of the P

2.00 coin, the coin is actually worth only P 1.80. He is
paying only P1.80 in effect defrauding the seller of P .20.
Punishment for mutilation is brought about by the fact that
the intrinsic value of the coin is reduced.
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.
Presidential Decree No. 247 (Defacement, Mutilation,

Tearing, Burning or Destroying Central Bank Notes and
Coins)
It shall be unlawful for any person to willfully deface,
mutilate, tear, burn, or destroy in any manner whatsoever,
currency notes and coins issued by the Central Bank.
Requisites of mutilation under the Revised Penal Code

(1)
(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.
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.
Mutilation is being regarded as a crime because the coin,

being of legal tender, it is still in circulation and which
would necessarily prejudice other people who may come
across the coin. For example, X mutilated a P 2.00 coin,
the octagonal one, by converting it into a round one and
extracting 1/10 of the precious metal dust from it. The
coin here is no longer P2.00 but only P 1.80, therefore,
prejudice to the public has resulted.
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?
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, 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.
Mutilation of coins is a crime only if the coin mutilated is

legal tender. If the coin whose metal content has been
depreciated through scraping, scratching, or filing the coin
and the offender collecting the precious metal dust, even if
he would use the coin after its intrinsic value had been
reduced, nobody will accept the same. 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.
2.
When the image of Jose Rizal on a fivepeso bill is transformed into that of Randy Santiago, is
there a violation of Presidential Decree No. 247?
Questions & Answers
Yes. Presidential Decree No. 247 is violated by

such act.
3.
Sometime before martial law was
imposed, the people lost confidence in banks that they
preferred hoarding their money than depositing it in
banks. Former President Ferdinand Marcos declared upon
32
P.J.G.
declaration of martial law that all bills without the Bagong

Lipunan sign on them will no longer be recognized.
Because of this, the people had no choice but to surrender
their money to banks and exchange them with those with
the Bagong Lipunan sign on them. However, people who
came up with a lot of money were also being charged with
hoarding for which reason certain printing presses did the
stamping of the Bagong Lipunan sign themselves to avoid
prosecution. Was there a violation of Presidential Decree
No. 247?
sidewalk, he also defaces and destroys the coin and that is

punishable under Presidential Decree No. 247.
Article 165. Selling of False or Mutilated Coin, without

Connivance
Acts punished
1.
Yes. This act of the printing presses is a violation

of Presidential Decree No. 247.
Possession of coin, counterfeited or mutilated by

another person, with intent to utter the same,
knowing that it is false or mutilated;
Elements
4.
An old woman who was a cigarette
vendor in Quiapo refused to accept one-centavo 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 one-centavo 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?
2.
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.
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
1.
Possession;
2.
With intent to utter; and
3.
Knowledge.
Actually uttering such false or mutilated coin,

knowing the same to be false or mutilated.
Elements
1.
Actually uttering; and
2.
Knowledge.
Article 166. Forging Treasury or Bank Notes or Other

Documents Payable to Bearer; Importing and Uttering
Such False or Forged Notes and Documents
Acts punished
1.
Forging or falsification of treasury or bank notes

or other documents payable to bearer;
2.
Importation of such false or forged obligations or

notes;
3.
Uttering of such false or forged obligations or

notes in connivance with the forgers or importers.
Article 167. Counterfeiting, Importing, and Uttering

Instruments Not Payable to Bearer
Elements
33
P.J.G.
1.
There is an instrument payable to order or other

documents of credit not payable to bearer;
2.
Offender either forged, imported or uttered such

instrument;
3.
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 Instruments of Credit
Elements
1.
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
Any treasury or bank note or certificate or other

obligation and security payable to bearer, or any
instrument payable to order or other document
of credit not payable to bearer is forged or
falsified by another person;
2.
Offender knows that any of those instruments is

forged or falsified;
3.
He either
a.
uses any of such forged or falsified

instruments; or
b.
possesses with intent to use any of such

forged or falsified instruments.
How forgery is committed under Article 169
1.
By giving to a treasury or bank note or any

instrument payable to bearer or to order
mentioned therein, the appearance of a true and
genuine document;
2.
By erasing, substituting, counterfeiting, or altering

by any means the figures, letters, words, or sign
contained therein.
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.
The Revised Penal Code defines forgery under Article 169.
Notice that mere change on a document does not amount
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?
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
34
P.J.G.
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 twentypeso 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?
Five classes of falsification:
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.
Distinction between falsification and forgery:
Article 170. Falsification of Legislative Documents

Elements
1.
(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.
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.
There is a bill, resolution or ordinance enacted or

approved or pending approval by either House of
the Legislature or any provincial board or
municipal council;
Article 171. Falsification by Public Officer, Employee or

Notary or Ecclesiastical Minister
2.
Offender alters the same;
Elements
3.
He has no proper authority therefor;
1.
Offender is a public officer, employee, or notary

public;
4.
The alteration has changed the meaning of the

documents.
2.
He takes advantage of his official position;
3.
He falsifies a document by committing any of the

following acts:
The words "municipal council" should include the city

council or municipal board Reyes.
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.
a.
Counterfeiting
or
imitating
handwriting, signature or rubric;
any
b.
Causing it to appear that persons have

participated in any act or proceeding
when they did not in fact so participate;
c.
Attributing to persons who have

participated in an act or proceeding
statements other than those in fact
made by them;
35
P.J.G.
4.
d.
Making untruthful statements in a

narration of facts;
e.
Altering true dates;
f.
Making any alteration or intercalation in

a genuine document which changes its
meaning;
g.
Issuing in an authenticated form a

document
purporting to be a copy of
an original document when no such
original exists, or including in such a copy
a statement contrary to, or different
from, that of the genuine original; or
h.
Intercalating any instrument or note

relative to the issuance thereof in a
protocol, registry, or official book.
In case the offender is an ecclesiastical minister

who shall commit any of the offenses
enumerated, with respect to any record or
document of such character that its falsification
may affect the civil status of persons.
For example, a customer in a hotel did not write his name

on the registry book, which was intended to be a memorial
of those who got in and out of that hotel. There is no
complete document to speak of. The document may not
extinguish or create rights but it can be an evidence of the
facts stated therein.
Note that a check is not yet a document when it is not
completed yet. If somebody writes on it, he makes a
document out of it.
The document where a crime was committed or the
document subject of the prosecution may be totally false in
the sense that it is entirely spurious. This notwithstanding,
the crime of falsification is committed.
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.
Questions & Answers
1.
A is one of those selling residence
certificates in Quiapo. He was brought to the police
precincts on suspicion that the certificates he was selling
to the public proceed from spurious sources and not from
the Bureau of Treasury. Upon verification, it was found
out that the certificates were indeed printed with a
booklet of supposed residence certificates. What crime
was committed?
Crime committed is violation of Article 176
(manufacturing and possession of instruments or
implements for falsification). A cannot be charged of
falsification because the booklet of residence certificates
found in his possession is not in the nature of document
in the legal sense. They are mere forms which are not to
be completed to be a document in the legal sense. This is
illegal possession with intent to use materials or apparatus
which may be used in counterfeiting/forgery or
falsification.
2.
Public officers found a traffic violation
receipts from a certain person. The receipts were not
issued by the Motor Vehicle Office. For what crime should
he be prosecuted for?
It cannot be a crime of usurpation of official
functions. It may be the intention but no overt act was yet
performed by him. He was not arrested while performing
such overt act. He was apprehended only while he was
standing on the street suspiciously. Neither can he be
prosecuted for falsification because the document is not
completed yet, there being no name of any erring driver.
The document remains to be a mere form. It not being
completed yet, the document does not qualify as a
document in the legal sense.
4.
Can the writing on
considered a document?
the
wall be
Yes. It is capable of speaking of the facts stated

therein. Writing may be on anything as long as it is a
product of the handwriting, it is considered a document.
5.
In a case where a lawyer tried to extract
money from a spinster by typing on a bond paper a
subpoena for estafa. The spinster agreed to pay. The
spinster went to the prosecutors office to verify the exact
amount and found out that there was no charge against
her. The lawyer was prosecuted for falsification. He
contended that only a genuine document could be
falsified. Rule.
As long as any of the acts of falsification is
committed, whether the document is genuine or not, the
36
P.J.G.
crime of falsification may be committed. Even totally false

documents may be falsified.
3.
The falsification was committed in a public,

official, or commercial document or letter of
exchange.
There are four kinds of documents:

Elements under paragraph 2
(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.
1.
Offender committed any of the acts of

falsification except Article 171(7), that is, issuing
in an authenticated form a document purporting
to be a copy of an original document when no
such original exists, or including in such a copy a
statement contrary to, or different from, that of
the genuine original;
2.
Falsification was committed in any private

document;
3.
Falsification causes damage to a third party or at

least the falsification was committed with intent
to cause such damage.
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.
Elements under the last paragraph
1.
Offender knew that the document was falsified by

another person;
Article 172. Falsification by Private Individual and Use of

Falsified Documents
2.
The false document is in Articles 171 or 172 (1 or

2);
Acts punished
3.
He introduced said document in evidence in any

judicial proceeding.
1.
Falsification of public, official or commercial

document by a private individual;
2.
Falsification of private document by any person;
3.
Use of falsified document.
In introducing in a judicial proceeding
In use in any other transaction
1.
Offender knew that a document was falsified by

another person;
2.
The false document is embraced in Articles 171 or

172 (1 or 2);
3.
He used such document;
4.
The use caused damage to another or at least

used with intent to cause damage.

1.
2.
Offender is a private individual or public officer or

employee who did not take advantage of his
official position;
He committed any act of falsification;
37
P.J.G.
Article 173. Falsification of Wireless, Cable, Telegraph

and Telephone Messages, and Use of Said Falsified
Messages
Article 174.
False Medical Certificates,
Certificates of Merits or Service, Etc.
False
Persons liable
Acts punished
1.
1.
Uttering fictitious
telephone message;
wireless,
telegraph
or
Elements
1,
2.
2.
[The crime here is false medical certificate by a

physician.]
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;
2.
wireless,
telegraph
or
telephone
Public officer who issues a false certificate of

merit of service, good conduct or similar
circumstances;
[The crime here is false certificate of merit or
service by a public officer.]
He utters fictitious wireless, cable,

telegraph or telephone message.
Falsifying
message;
Physician or surgeon who, in connection with the

practice of his profession, issues a false certificate
(it must refer to the illness or injury of a person);
3.
Private person who falsifies a certificate falling

within the classes mentioned in the two
preceding subdivisions.
Elements
1,
2.
3.
Offender is an officer or employee of the

He falsifies wireless, cable, telegraph or
telephone message.
Article 175. Using False Certificates

Elements
1.
The following issues a false certificate:

a.
Using such falsified message.
Physician or surgeon, in connection with

the practice of his profession, issues a
false certificate;
b.
Public officer issues a false

certificate of merit of service,
good conduct or similar
circumstances;
c.
Private person falsifies a

certificate falling within the
classes mentioned in the two
preceding subdivisions.
Elements
1.
Offender knew that wireless, cable,

telegraph, or telephone message was
falsified by an officer or employee of the
2.
He used such falsified dispatch;
3.
The use resulted in the prejudice of a

third party or at least there was intent to
cause such prejudice.
2.
Offender knows that the certificate was

false;
3.
He uses the same.
Article 176. Manufacturing and Possession of Instruments

or Implements for Falsification
Acts punished
38
P.J.G.
1.
2.
Making or introducing into the Philippines any

stamps, dies, marks, or other instruments or
implements for counterfeiting or falsification;
Possession with intent to use the instruments or
implements for counterfeiting or falsification
made in or introduced into the Philippines by
another person.
2.
2.
He uses the fictitious name publicly;
3.
Purpose of use is to conceal a crime, to

evade the execution of a judgment or to
cause damage [to public interest
Reyes].
Concealing true name

Elements
Article 177. Usurpation of Authority or Official Functions

1.
Offender conceals his true name and

other personal circumstances;
2.
Purpose is only to conceal his identity.
Acts punished
1.
Usurpation of authority;
Elements
2.
1.
Offender
knowingly
represents himself;
falsely
Commonwealth Act No. 142 (Regulating the Use of

Aliases)
2.
As an officer, agent or representative of

any department or agency of the
Philippine government or of any foreign
government.
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.
and
Usurpation of official functions.

Elements
1.
Offender performs any act;
2.
Pertaining to any person in authority or

public officer of the Philippine
government or any foreign government,
or any agency thereof;
3.
Under pretense of official position;
4.
Without being lawfully entitled to do so.
Article 178. Using Fictitious Name and Concealing True

Name
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 Uniforms or Insignia

Elements
1.
Offender makes use of insignia, uniforms or dress;
2.
The insignia, uniforms or dress pertains to an

office not held by such person or a class of
persons of which he is not a member;
3.
Said insignia, uniform or dress is used publicly and

improperly.
Acts punished
1.
Using fictitious name

Elements
1.
Offender uses a name other than his real

name;
Wearing the uniform of an imaginary office is not

punishable.
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.
39
P.J.G.
Article 180. False Testimony against A Defendant

Elements
Article 183. False Testimony in Other Cases and Perjury in

Solemn Affirmation
1.
There is a criminal proceeding;
Acts punished
2.
Offender testifies falsely under oath against the

defendant therein;
1.
By falsely testifying under oath;
2.
By making a false affidavit.
3.
Offender who gives false testimony knows that it

is false.
4.
Defendant against whom the false testimony is

given is either acquitted or convicted in a final
judgment.
Elements of perjury
1.
Offender makes a statement under oath or

executes an affidavit upon a material matter;
2.
The statement or affidavit is made before a

competent officer, authorized to receive and
administer oaths;
3.
Offender makes a willful and deliberate assertion

of a falsehood in the statement or affidavit;
4.
The sworn statement or affidavit containing the

falsity is required by law, that is, it is made for a
legal purpose.
Three forms of false testimony

1.
False testimony in criminal cases under Article

180 and 181;
2.
False testimony in civil case under Article 182;
3.
False testimony in other cases under Article 183.
Article 181. False Testimony Favorable to the Defendant

Article 184. Offering False Testimony in Evidence
Elements
Elements
1.
A person gives false testimony;
2.
In favor of the defendant;
3.
In a criminal case.
Article 182. False Testimony in Civil Cases
1.
Offender offers in evidence a false witness or

testimony;
He knows that the witness or the testimony was

false;
3.
The offer is made in any judicial or official

proceeding.
Elements
1.
Testimony given in a civil case;
Article 185. Machinations in Public Auctions
2.
Testimony relates to the issues presented in said

case;
Acts punished
3.
Testimony is false;
4.
Offender knows that testimony is false;
5.
Testimony is malicious and given with an intent to

affect the issues presented in said case.
1.
Soliciting any gift or promise as a consideration

for refraining from taking part in any public
auction;
Elements
1.
There is a public auction;
40
P.J.G.
2.
2.
Offender solicits any gift or a promise

from any of the bidders;
3.
Such gift or promise is the consideration

for his refraining from taking part in that
public auction;
4.
Offender has the intent to cause the

reduction of the price of the thing
auctioned.
Attempting to cause bidders to stay away from an

auction by threats, gifts, promises or any other
artifice.
3.
Elements
1.
There is a public auction;
2.
Offender attempts to cause the bidders

to stay away from that public auction;
3.
It is done by threats, gifts, promises or

any other artifice;
4.
Offender has the intent to cause the

reduction of the price of the thing
auctioned.
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;
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
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
merchandise.
Elements
1.
Manufacturer, producer, processor or

importer of any merchandise or object of
commerce;
2.
Combines, conspires or agrees with any

person;
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.
Article 186. Monopolies and Combinations in Restraint

of Trade
Acts punished
1.
Combination to prevent free competition in the

market;
Elements
1.
2.
2.
Entering into any 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 to
prevent by artificial means free
competition in the market.
Article 187. Importation and Disposition of Falsely

Marked Articles or Merchandise Made of Gold, Silver, or
Other Precious Metals of Their Alloys
Elements
1.
Offender imports, sells or disposes articles made

of gold, silver, or other precious metals or their
alloys;
2.
The stamps, brands, or marks of those articles of

merchandise fail to indicate the actual fineness or
quality of said metals or alloys;
3.
Offender knows that the stamps, brands, or

marks fail to indicate the actual fineness or
quality of the metals or alloys.
Monopoly to restrain free competition in the

market;
Elements
41
P.J.G.
2.
Fraudulent
description:
designation
of
origin;
false
Article 188. Substituting and Altering Trademarks, Trade

names, or Service Marks
Elements
Acts punished
1.
By affixing to his goods or using in

connection with his services a false
designation of origin, or any false
description or representation; and
2.
Selling such goods or services.
1.
2.
3.
4.
Substituting the trade name or trademark of

some other manufacturer or dealer, or a
colorable imitation thereof for the trade name or
trademark of the real manufacturer or dealer
upon any article of commerce and selling the
same;
Selling or offering for sale such articles of
commerce knowing that the trade name or
trademark has been fraudulently used;
Using or substituting the service mark of some
other person, or a colorable imitation of such
mark n the sale or advertising of his services;
Printing, lithographing or reproducing trade
name, trademark, or service mark of one person
or a colorable imitation thereof to enable another
person to fraudulently use the same knowing the
fraudulent purpose for which it is to be used.
Article 189. Unfair Competition, Fraudulent Registration

of Trade Name, Trademark, or Service Mark, Fraudulent
Designation of Origin, and False Description
Acts punished
1.
Unfair competition;
Elements
1.
By selling his goods;
2.
Giving them the general appearance of

the goods of another manufacturer or
dealer;
3.
The general appearance is shown in the

goods themselves, or in the wrapping of
their packages, or in the device or words
therein, or in any feature of their
appearance;
4.
There is actual intent to deceive the

public or defraud a competitor.
3.
Fraudulent registration
Elements
1.
By procuring fraudulently from the

patent office;
2.
The registration of trade

trademark or service mark
name,
Republic Act No. 8293 (An Act Prescribing the Intellectual

Property Code and Establishing the Intellectual Property
Office, Providing for Its Power and Functions, and for
Other Purposes)
Section 170. Penalties. Independent of the civil
and administrative sanctions imposed by law, a criminal
penalty of imprisonment from two (2) years to five (5)
years and a fine ranging from Fifty thousand pesos (P
50,000.00) to Two hundred thousand pesos (P
200,000.00), shall be imposed on any person who is found
guilty of committing any of the acts mentioned in Section
155, Section 168 and Subsection 169.1.
Section 155. Remedies; Infringement. Any
person who shall, without the consent of the owner of the
registered mark:
155.1. Use in commerce any reproduction,
counterfeit, copy, or colorable imitation of a registered
mark or the same container or a dominant feature thereof
in connection with the sale, offering for sale, distribution,
advertising of any goods or services including other
preparatory steps necessary to carry out the sale of any
goods or services on or in connection with which such use
is likely to course confusion, or to cause mistake, or to
deceive; or
155.2. Reproduce, counterfeit, copy or colorably
imitate a registered mark or a dominant feature thereof
and apply such reproduction, counterfeit, copy or
42
P.J.G.
colorable imitation to labels, signs, prints, packages,

wrappers, receptacles or advertisement intended to be
used in commerce upon or in connection with the sale,
offering for sale, distribution, or advertising of goods or
services on or in connection with which such use is likely
to cause confusion, or to cause mistake, or to deceive shall
be liable in a civil action for infringement by the registrant
for the remedies hereinafter set forth: Provided, that the
infringement takes place at the moment any of the acts
stated in Subsection 155.1 or this subsection are
committed regardless of whether there is actual sale of
goods or services using the infringing material.
Section 168.
Unfair
Regulation and Remedies.
Competition,
Rights,
168.1. Any person who has identified in the mind

of the public the goods he manufactures or deals in, his
business or services from those of others, whether or not a
registered mark is employed, has a property right in the
goodwill of the said goods, business or service so
identified, which will be protected in the same manner as
other property rights.
168.2. Any person who shall employ deception or
any other means contrary to good faith by which he 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 such goodwill, or who shall commit any
acts calculated to produce said result, shall be guilty of
unfair competition, and shall be subject to an action
therefor.
168.3. In particular, and without in any way
limiting the scope of protection against unfair competition,
the following shall be deemed guilty of unfair competition:
induce the false belief that such person is offering the

services of another who ahs identified such services in the
mind of the public; or
(c)
Any person who shall make any false
statement in the course of trade or who shall commit any
other act contrary to good faith of a nature calculated to
discredit the goods, business or services of another.
168.4. The remedies provided by Section 156,
157 and 161 shall apply mutatis mutandis.
Section 169. False Designation or Origin; False
Description or Representation.
169.1. Any person who, on or in connection with
any goods or services, or any container for goods, uses in
commerce any word, term, name, symbol, or device, or
any combination thereof, or any false designation of
origin, false or misleading description of fact, or false or
misleading representation of fact, which:
(a)
Is likely to cause confusion, or to cause
mistake, or to deceive as to the affiliation, connection, or
association of such person with another person, or as to
the origin, sponsorship, or approval of his or her goods,
services, or commercial activities by another person; or
(b)
In commercial advertising or promotion,
misrepresents the nature, characteristics, qualities, or
geographic origin of his or her or another person's goods,
services or commercial activities, shall be liable to a civil
action for damages and injunction provided in Section 156
and 157 of this Act by any person who believes that he or
she is or likely to be damaged by such act.
(a)
Any person, who is selling his goods and
gives them the general appearance of goods of another
manufacturer or dealer, either as to the goods themselves
or in the wrapping of the packages in which they are
contained, or the devices or words thereon, on in any
other feature or their appearance, which would be likely
to influence purchasers to believe that the goods offered
are those of a manufacturer or dealer, other than the
actual manufacturer or dealer, or who otherwise clothes
the goods with such appearance as shall deceive the public
and defraud another of his legitimate trade, or any
subsequent vendor of such goods or any agent of any
vendor engaged in selling such goods with a like purpose;
or
TITLE V. CRIMES RELATIVE TO OPIUM AND OTHER

PROHIBITED DRUGS
1.
Importation of prohibited drugs;
(b)
Any person who by any artifice, or
device, or who employs any other means calculated to
2.
Sale, administration, delivery, distribution and

transportation of prohibited drugs;
Articles 190, 191, 192, 193 and194 of the Revised Penal

Code have been repealed by Republic Act No. 6425 (The
Dangerous Drugs Act of 1972), as amended by Presidential
Decree No. 1683 and further amended by Republic Act No.
7659.
Acts punished by the Republic Act No. 6425
43
P.J.G.
3.
Maintenance of a den, dive or resort for

prohibited drug users;
5.
Illegal cockfighting (Art. 199);
6.
Grave scandal (Art. 200);
4.
Being employees and visitors of prohibited drug

den;
7.
Immoral doctrines, obscene publications and

exhibitions (Art. 201); and
5.
Manufacture of prohibited drugs;
8.
Vagrancy and prostitution (Art. 202).
6.
Possession or use of prohibited drugs;

Article 195. What Acts Are Punishable in Gambling
7.
8.
Cultivation of plants which are sources of

prohibited drugs;
Failure to comply with the provisions of the Act
relative to the keeping of records of prescriptions,
sales, purchases, acquisitions and/or deliveries of
prohibited drugs;
9.
Unlawful prescription of prohibited drugs;
10.
Unnecessary prescription of prohibited drugs;
11.
Possession of opium pipe and other paraphernalia

for prohibited drugs;
12.
Unauthorized importation, manufacture, sale

administration,
dispensation,
delivery,
transportation, distribution, possession or use of
regulated drugs, failure to comply with the
provisions of the Act relative to the keeping of
records of prescriptions, sales, purchases,
acquisitions
and/or
deliveries,
unlawful
prescription, unnecessary
prescription of
regulated drugs, and maintenance of a den, dive
or resort for regulated drug users.
Acts punished
1.
2.
Importation, sale and possession of lottery tickets

or advertisements (Art. 196);
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
b.
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;
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;
4.
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.
Crimes against public morals

Gambling (Art. 195);
a.
2.
TITLE VI. CRIMES AGAINST PUBLIC MORALS
1.
Taking part directly or indirectly in
Article 196. Importation, Sale and Possession of Lottery

Tickets or Advertisements
Acts punished
3.
Betting in sport contests (Art. 197);
4.
Illegal betting on horse races (Art. 198);
1.
Importing into the Philippines from any foreign

place or port any lottery ticket or advertisement;
or
44
P.J.G.
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
Article 199. Illegal Cockfighting
Selling or distributing the same without

connivance with the importer of the same.
This article has been modified or repealed by Presidential

Decree No. 449 (The Cockfighting Law of 1974):
4.
4.
Holy Thursday and Good Friday (Republic Act No.

946).
Only allows one cockpit per municipality, unless

the population exceeds 100,000 in which case
two cockpits may be established;
Cockfights can only be held in licensed cockpits on

Sundays and legal holidays and local fiestas for
not more than three days;
This article has been repealed by Presidential Decree No.

483 (Betting, Game-fixing or Point-shaving and
Machinations in Sport Contests):
Also allowed during provincial, municipal, city,

industrial, agricultural fairs, carnivals, or
exposition not more than three days;
Section 2. Betting, game-fixing, point-shaving or

game machination unlawful. Game-fixing, point-shaving,
game machination, as defined in the preceding section, in
connection with the games of basketball, volleyball,
softball, baseball; chess, boxing bouts, jai-alia, sipa, pelota
and all other sports contests, games or races; as well as
betting therein except as may be authorized by law, is
hereby declared unlawful.
Cockfighting not allowed on December 30, June

12, November 30, Holy Thursday, Good Friday,
Election or Referendum Day, and registration
days for referendums and elections;
Only municipal and city mayors are allowed to

issue licenses for such.
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.
Article 197. Betting in Sport Contests
Article 198. Illegal Betting on Horse Race
Presidential Decree No. 1602 (Simplifying and Providing

Stiffer Penalties for Violations of Philippine Gambling
Laws)
Acts punished
1.
Betting on horse races during periods not allowed

by law;
2.
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
1.
July 4 (Republic Act No. 137);
2.
December 30 (Republic Act No. 229);
3.
Any registration or voting days (Republic Act No.

180, Revised Election Code); and
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 (jai- alai 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
45
P.J.G.
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.
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.
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 habit-forming 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.
46
P.J.G.
There are two criteria as to when the lottery is in fact

becomes a gambling game:
1.
2.
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.
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)
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.
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.
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.
If without the lottery or raffle, the public does not

patronize the product and starts 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.
Article 200. Grave Scandal

Elements
1.
Offender performs an act or acts;
2.
Such act or acts be highly scandalous as offending

against decency or good customs;
3.
The highly scandalous conduct is not expressly

falling within any other article of this Code; and
47
P.J.G.
4.
The act or acts complained of be committed in a

public place or within the public knowledge or
view.
This is grave scandal.

(3)
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.
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.
It is no defense that she is doing it in her private

home. It is still open to the public view.
(4)
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)
(2)
This is an act which even though done in a private

place is nonetheless open to public view.
When act offensive to decency is done in a private

place, public view or public knowledge is required.
Article 201. Immoral Doctrines, Obscene Publications and

Exhibitions and Indecent Shows
Illustrations:
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 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)
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 twopiece 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.
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.
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.
(1)
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.
A man and a woman went to Luneta and slept

there. They covered themselves their blanket and
made the grass their conjugal bed.
Acts punished
1.
Those who shall publicly expound or proclaim

doctrines openly contrary to public morals;
2.
a.
The authors of obscene literature,
published with their knowledge in any form, the
editors publishing such literature; and the
owners/operators of the establishment selling the
same;
b.
Those
who, in theaters, fairs,
cinematographs, or any other place, exhibit
indecent or immoral plays, scenes, acts, or shows,
it being understood that the obscene literature or
indecent or immoral plays, scenes, acts or shows,
whether live or in film, which are proscribed by
virtue hereof, shall include those which: (1)
glorify criminals or condone crimes; (2) serve no
other purpose but to satisfy the market for
violence, lust or pornography; (3) offend
any
race, or religion; (4) tend to abet traffic in and use
48
P.J.G.
3.
of prohibited drugs; and (5) are contrary to law,

public order, morals, good customs, established
policies, lawful orders, decrees and edicts; and
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.
Those who shall sell, give away, or exhibit films,

prints, engravings, sculptures, or literature which
are offensive to morals.
Because there is a government body which deliberates

whether a certain exhibition, movies and plays is
pornographic or not, if such body approves the work the
same should not be charged under this title. Because of
this, the test of obscenity may be obsolete already. If
allowed by the Movies and Television Review and
Classification Board (MTRCB), the question is moot and
academic.
Article 202. Vagrants and Prostitutes; Penalty

Vagrants
1.
Any person having no apparent means of

subsistence, who has the physical ability to work
and who neglects to apply himself or herself to
some lawful calling;
2.
Any person found loitering about public or semipublic buildings or places or trampling or
wandering about the country or the streets
without visible means of support;
3.
Any idle or dissolute person who ledges in houses

of ill fame;
4.
Ruffians or pimps and those who habitually

associate with prostitutes;
5.
Any person who, not being included in the

provisions of other articles of this Code, shall be
found loitering in any inhabited or uninhabited
place belonging to another without any lawful or
justifiable purpose;
6.
Prostitutes, who are women who, for money or

profit, habitually indulge in sexual intercourse or
lascivious conduct.
Prostitutes are women who, for money or profit, habitually

indulge in sexual intercourse or lascivious conduct, are
deemed to be prostitutes.
Test of Obscenity: Whether or not the material charged as
obscene has the tendency to deprave and corrupt the
minds of those open to the influence thereof, or into whose
hands such material may come to (Kottinger Rule).
The test is objective. It is more on the effect upon the
viewer and not alone on the conduct of the performer.
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. Third party is there. Performance of one
to another is not.
Illustration:
A sexy dancing performed for a 90 year old is not obscene
anymore even if the dancer strips naked. But if performed
for a 15 year old kid, then it will corrupt the kids mind.
(Apply Kottinger Rule here.)
In some instances though, the Supreme Court did not stick
to this test. It also considered the intention of the
performer.
In People v. Aparici, the accused was a performer in the
defunct Pacific Theatre, a movie house which opens only at
midnight. She was arrested because she was dancing in a
different kind of way. She was not really nude. She was
wearing some sort of an abbreviated bikini with a flimsy
cloth over it. However, on her waist hung a string with a
ball reaching down to her private part so that every time
she gyrates, it arouses the audience when the ball would
actually touch her private part. The defense set up by
Aparici was that she should not be criminally liable for as a
matter of fact, she is better dressed than the other
dancers. The Supreme Court ruled that it is not only the
display of the body that gives it a depraved meaning but
rather the movement of the body coupled with the tomtom drums as background. Nudity alone is not the real
scale. (Reaction Test)
Illustration:
A sidewalk vendor was arrested and prosecuted for
violation of Article 201. It appears that the fellow was
selling a ballpen where one who buys the ballpen can peep
into the top of the pen and see a girl dancing in it. He put
49
P.J.G.
up the defense that he is not the manufacturer and that he

was merely selling it to earn a living. The fact of selling the
ballpen was being done at the expense of public morals.
One does not have to be the manufacturer to be criminally
liable. This holds true for those printing or selling Playboy
Magazines.
The common concept of a vagrant is a person who loiters n
public places without any visible means of livelihood and
without any lawful purpose.
While this may be the most common form of vagrancy, yet
even millionaires or one who has more that enough for his
livelihood can commit vagrancy by habitually associating
with prostitutes, pimps, ruffians, or by habitually lodging in
houses of ill-repute.
Vagrancy is not only a crime of the privileged or the poor.
The law punishes the act involved here as a stepping stone
to the commission of other crimes. Without this article,
law enforcers would have no way of checking a person
loitering in the wrong place in the wrong time. The
purpose of the law is not simply to punish a person
because he has no means of livelihood; it is to prevent
further criminality. Use this when someone loiters in front
of your house every night.
Any person found wandering in an estate belonging to
another whether public or private without any lawful
purpose also commits vagrancy, unless his acts constitutes
some other crime in the Revised Penal Code.
therein or to gather any farm products therein

without the consent of the owner or overseer
thereof;
(3)
Vagrancy under Article 202 if the estate is not

fenced or there is no clear prohibition against
entering.
Prostitution and vagrancy are both punished by the same

article, but prostitution can only be committed by a
woman.
The term prostitution is applicable to a woman who for
profit or money habitually engages in sexual or lascivious
conduct. A man if he engages in the same conduct sex
for money is not a prostitute, but a vagrant.
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; is 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 VII. CRIMES COMMITTED BY PUBLIC OFFICERS

Question & Answer
If a person is found wandering in an estate
belonging to another, whether public or private, without
any lawful purpose, what other crimes may be committed?
When a person is apprehended loitering inside an
estate belonging to another, the following crimes may be
committed:
(1)
(2)
Trespass to property under Article 281 if the

estate is fenced and there is a clear prohibition
against entering, but the offender entered
without the consent of the owner or overseer
thereof. What is referred to here is estate, not
dwelling.
Attempted theft under Article 308, paragraph 3, if
the estate is fenced and the offender entered the
same to hunt therein or fish from any waters
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);
50
P.J.G.
9.
Qualified bribery (Art. 211-A);
30.
Refusal of assistance (Art. 233);
10.
Corruption of public officials (Art. 212);
31.
Refusal to discharge elective office (Art. 234);
11.
Frauds against the public treasury and similar

offenses (Art. 213);
32.
Maltreatment of prisoners (Art. 235);
33.
Anticipation of duties of a public office (Art. 236);
12.
Other frauds (Art. 214);

34.
13.
Prohibited transactions (Art. 215);
Prolonging performance of duties and powers

(Art. 237);
14.
Possession of prohibited interest by a public

officer (Art. 216);
35.
Abandonment of office or position (Art. 238);
36.
Usurpation of legislative powers (Art. 239);
15.
Malversation of public funds or property

Presumption of malversation (Art. 217)
37.
Usurpation of executive functions (Art. 240);
38.
Usurpation of judicial functions (Art. 241);
39.
Disobeying request for disqualification (Art. 242);
40.
Orders or requests by executive officers to any

judicial authority (Art. 243);
41.
Unlawful appointments (Art. 244); and
42.
Abuses against chastity (Art. 245).
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);
The designation of the title is misleading. Crimes under

this title can be committed by public officers or a nonpublic 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.
21.
Evasion through negligence (Art. 224);
22.
Escape of prisoner under the custody of a person

not a public officer (Art. 225);
23.
Removal, concealment
documents (Art. 226);
24.
Officer breaking seal (Art. 227);
25.
Opening of closed documents (Art. 228);
Requsites to be a public officer under Article 203
26.
Revelation of secrets by an officer (Art. 229);
1.
27.
Public officer revealing

individual (Art. 230);
or
destruction
secrets
of
of
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).
Taking part in the performance of public functions

in the government;
private
28.
Open disobedience (Art. 231);
29.
Disobedience to order of superior officer when

said order was suspended by inferior officer (Art.
232);
or
Performing in said government or in any of its
branches public duties as an employee, agent or
subordinate official, or any rank or class;
51
P.J.G.
2.
His authority to take part in the performance of

public functions or to perform public duties must
be
a.
By direct provision of the law;
b.
By popular election; or
c.
By appointment by competent authority.
Originally, Title VII used the phrase public officer or

employee but the latter word has been held meaningless
and useless because in criminal law, public officer covers
all public servants, whether an official or an employee,
from the highest to the lowest position regardless of rank
or class; whether appointed by competent authority or by
popular election or by direct provision of law.
Article 205. Judgment Rendered through Negligence
1.
Offender is a judge;
2.
He renders a judgment in a case submitted to him

for decision;
3.
The judgment is manifestly unjust;
4.
It is due to his inexcusable negligence or

ignorance.
Article 206. Unjust Interlocutory Order
1.
2.
He performs any of the following acts:
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.
Knowingly
rendering
an
interlocutory order or decree; or
unjust
b.
Rendering
a
manifestly
unjust
interlocutory order or decree through
inexcusable negligence or ignorance.
Breach of oath of office partakes of three forms:

(1)
Malfeasance - when a public officer performs in

his public office an act prohibited by law.
Example: bribery.
(2)
Misfeasance - when a public officer performs

official acts in the manner not in accordance with
what the law prescribes.
(3)
Nonfeasance - when a public officer willfully

refrains or refuses to perform an official duty
which his office requires him to perform.
Article 204. Knowingly Rendering Unjust Judgment
1.
2.
He renders a judgment in a case submitted to him

for decision;
3.
Judgment is unjust;
4.
The judge knows that his judgment is unjust .
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.
There is more injustice done in cases of judgment than
mere interlocutory order that is why the penalty is higher
in the first case.
Article 207. Malicious Delay in the Administration of

Justice
1.
2.
There is a proceeding in his court;
52
P.J.G.
1.
He delays in the administration of justice;
peace officer cannot be prosecuted for this crime but they

can be prosecuted as:
2.
The delay is malicious, that is, with deliberate

intent to inflict damage on either party in the
case.
(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.
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.
Article 208.
Tolerance
Prosecution of Offenses; Negligence and
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 in the prosecution of

offenses
1.
Offender is a public officer or officer of the law

who has a duty to cause the prosecution of, or to
prosecute, offenses;
2.
There is a dereliction of the duties of his office,

that is, knowing the commission of the crime, he
does not cause the prosecution of the criminal, or
knowing that a crime is about to be committed,
he tolerates its commission;
3.
Offender acts with malice and deliberate intent to

favor the violator of the law.
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.
When a policeman tolerates the commission of a crime or
otherwise refrains from apprehending the offender, such
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.
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.
Prevaricacion
This used to be a crime under the Spanish Codigo Penal,
wherein a public officer regardless of his duty violates the
oath of his office by not carrying out the duties of his office
for which he was sworn to office, thus, amounting to
dereliction of duty.
But the term prevaricacion is not limited to dereliction of
duty in the prosecution of offenders. It covers any
dereliction of duty whereby the public officer involved
violates his oath of office. The thrust of prevaricacion is
the breach of the oath of office by the public officer who
does an act in relation to his official duties.
While in Article 208, dereliction of duty refers only to
prosecuting officers, the term prevaricacion applies to
public officers in general who is remiss or who is
maliciously refraining from exercising the duties of his
office.
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.
53
P.J.G.
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, he is considered an offender
under the Anti-Fencing Law.
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.
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

Revelation of Secrets
Acts punished
1.
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.
Causing damage to his client, either

a.
By any malicious breach of professional

duty;
b.
By inexcusable negligence or ignorance.
Note: When the attorney acts with malicious

abuse of his employment or inexcusable
negligence or ignorance, there must be damage
to his client.
2.
Revealing any of the secrets of his client learned

by him in his professional capacity;
3.
Undertaking the defense of the opposing party in

the same case, without the consent of his first
client, after having undertaken the defense of
said first client of after having received
confidential information from said client.
54
P.J.G.
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.
(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, causing damage to the

client;
(3)
Inexcusable negligence;
(4)
Revelation of secrets learned in his 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.
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 clientlawyer 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.
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 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.
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:
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
55
P.J.G.
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 consideration
which was granted, and the case was continued, the
lawyer is not liable, because the client did not suffer
damage.
Elements
1.
Offender is a public officer within the scope of

Article 203;
2.
Offender accepts an offer or a promise or

receives a gift or present by himself or through
another;
3.
Such offer or promise be accepted, or gift or

present received by the public officer
a.
With a view to committing some crime;

or
b.
In consideration of the execution of an

act which does not constitute a crime,
but the act must be unjust; or
c.
To refrain from doing something which it

is his official duty to do.
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.
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.
4.
The act which offender agrees to perform or

which he executes be connected with the
performance of his official duties.
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.
It is a common notion that when you talk of bribery, you

refer to the one corrupting the public officer. Invariably,
the act refers to the giver, but this is wrong. Bribery refers
to the act of the receiver and the act of the giver is
corruption of public official.
Article 210. Direct Bribery
Distinction between direct bribery and indirect bribery
Acts punished
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.
1.
Agreeing to perform, or performing, in

consideration of any offer, promise, gift or
present an act constituting a crime, in
connection with the performance of his official
duties;
2.
Accepting a gift in consideration of the execution

of an act which does not constitute a crime, in
connection with the performance of his official
duty;
3.
Agreeing to refrain, or by refraining, from doing

something which it is his official duty to do, in
consideration of gift or promise.
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:
56
P.J.G.
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.
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
57
P.J.G.
done is not a crime. So, without the acceptance, the crime

is not committed.
Article 211. Indirect Bribery
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.
Elements
1.
2.
He accepts gifts;
3.
The gifts are offered to him by reason of his

office.
The public official does not undertake to perform an act or

abstain from doing an official duty from what he received.
Instead, the official simply receives or accepts gifts or
presents delivered to him with no other reason except his
office or public position.
This is always in the
consummated stage. There is no attempted much less
frustrated stage in indirect bribery.
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.
Article 211-A. Qualified Bribery

Elements
1.
Offender is a public officer entrusted with law

enforcement;
2.
He refrains from arresting or prosecuting an

offender who has committed a crime;
3.
Offender has committed a crime punishable by

reclusion perpetua and/or death;
4.
Offender refrains from arresting or prosecuting in

consideration of any offer, promise, gift, or
present.
Note that the penalty is qualified if the public officer is the

one who asks or demands such present.
58
P.J.G.
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:
(5)
That the information 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.
(1)
Information must refer to consummated bribery;
Under the law on plunder, the prescriptive period is 20

years commencing from the time of the last overt act.
(2)
Information is necessary for the proper conviction

of the public officer involved;
Plunder is committed through a combination or series of

overt acts:
(3)
That the information or testimony to be given is

not yet in the possession of the government or
known to the government;
(1)
Through misappropriation, conversion, misuse, or

malversation of public funds or raids on the public
treasury;
(4)
That the information can be corroborated in its

material points;
(2)
By receiving, directly or indirectly, any

commission, gift, share, percentage, kickbacks or
59
P.J.G.
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;
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, SubSection A.
(3)
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;
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.
(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)
(6)
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
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.
Republic Act No. 3019 (Anti-Graft and Corrupt Practices

Act)
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.
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:
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-Graft and Corrupt Practices Act. His only course of
60
P.J.G.
action to avoid prosecution under the Anti-graft 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.
Illustration:
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.
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.
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.
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.
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.
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.
Where the public officer is still incumbent, the prosecution

shall be with the Ombudsman.
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.
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P.J.G.
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.
authorized by law, in collection of taxes, licenses,

fees, and other imposts;
3.
Failing voluntarily to issue a receipt, as provided

by law, for any sum of money collected by him
officially, in the collection of taxes, licenses, fees,
and other imposts;
4.
Collecting or receiving, directly or indirectly, by

way of payment or otherwise, things or objects of
a nature different from that provided by law, in
the collection of taxes, licenses, fees, and other
imposts.
Elements of frauds against public treasury under

paragraph 1
1.
2.
He has taken advantage of his office, that is, he

intervened in the transaction in his official
capacity;
3.
He entered into an agreement with any

interested party or speculator or made use of any
other scheme with regard to furnishing supplies,
the making of contracts, or the adjustment or
settlement of accounts relating to public property
or funds;
4.
He had intent to defraud the government.
Article 212. Corruption of Public Officials

Elements
1.
Offender makes offers or promises or gives gifts

or presents to a public officer;
2.
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.
Article 213. Frauds against the Public Treasury and

Similar Offenses
Acts punished
1.
2.
Entering into an agreement with any interested

party or speculator or making use of any other
scheme, to defraud the government, in dealing
with any person with regard to furnishing
supplies, the making of contracts, or the
adjustment or settlement of accounts relating to
public property or funds;
Demanding, directly or indirectly, the payment of
sums different from or larger than those
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.
Illustrations:
(1)
A public official who is in charge of procuring

supplies for the government obtained funds for
the first class materials and buys inferior quality
products and pockets the excess of the funds. This
is usually committed by the officials of the
Department of Public Works and Highways.
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P.J.G.
(2)
Poorest quality of ink paid as if it were of superior

quality.
(3)
One thousand pieces of blanket for certain unit of

the Armed Forces of the Philippines were paid for
but actually, only 100 pieces were bought.
(4)
The Quezon City government ordered 10,000 but

what was delivered was only 1,000 T-shirts, the
public treasury is defrauded because the
government is made to pay that which is not due
or for a higher price.
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 the 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.
Be sure to determine whether fraud is against public
treasury or one under Article 214.
b.
Failing voluntarily to issue a receipt, as

provided by law, for any sum of money
collected by him officially; or
c.
Collecting or receiving, directly or

indirectly, by way of payment or
otherwise, things or objects of a nature
different from that provided by law.
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.
Also, public officers with such functions but are in the
service of the Bureau of Internal Revenue and the Bureau
of Customs are not to be prosecuted under the Revised
Penal Code but under the Revised Administrative Code.
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.
This provision of the Revised Penal Code was provided
before the Bureau of Internal Revenue and the Tariff and
Customs Code. Now, we have specific Code which will
apply to them. In the absence of any provision applicable,
the Revised Administrative Code will apply.
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.
On the first form of illegal exaction
Elements of illegal exactions under paragraph 2

1.
Offender is a public officer entrusted with the

collection of taxes, licenses, fees and other
imposts;
2.
He is guilty of any of the following acts or

omissions:
a.
Demanding, directly or indirectly, the

payment of sums different from or larger
than those authorized by law; or
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.
Note that this is often committed with malversation or
estafa because when a public officer shall demand an
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P.J.G.
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.
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P.J.G.
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.
The following crimes were committed:
(a)
Illegal exaction for demanding a

different amount;
(b)
Estafa for deceiving the taxpayer; and
(c)
Malversation for getting the P100.00

from the vault.
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
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.
Illustration:
A taxpayer pays his obligation with a check not his own but
pertaining to another. Because of that, the check bounced
later on.
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.
Article 214. Other Frauds
65
P.J.G.
Elements
1.
2.
He takes advantage of his official
3.
He commits any of the frauds or deceits

enumerated in Article 315 to 318.
position;
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

Article 215. Prohibited Transactions
Elements
1.
Offender is an appointive public officer;
2.
He becomes interested, directly or indirectly, in

any transaction of exchange or speculation;
3.
The transaction takes place within the territory

subject to his jurisdiction;
4.
He becomes interested in the transaction during

his incumbency.
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
government-owned 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

Article 216. Possession of Prohibited Interest By A Public
Officer
Persons liable
1.
Public officer who, directly or indirectly, became

interested in any contracts or business in which it
was his official duty to intervene;
2.
Experts, arbitrators, and private accountants who,

in like manner, took part in any contract or
transaction connected with the estate or property
in the appraisal, distribution or adjudication of
which they had acted;
3.
Guardians and executors with respect to the

property belonging to their wards or the estate.
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 government-owned or
controlled corporations or their subsidiaries.
Article 217. Malversation of Public Funds or Property

Presumption of Malversation
Acts punished
1.
Appropriating public funds or property;
Section 14, Article VI of the Constitution
2.
Taking or misappropriating the same;
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
3.
Consenting, or through abandonment or

negligence, permitting any other person to take
such public funds or property; and
4.
Being otherwise guilty of the misappropriation or

malversation of such funds or property.
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P.J.G.
Elements common to all acts of malversation under Article

217
1.
2.
He had the custody or control of funds or

property by reason of the duties of his office;
3.
Those funds or property were public funds or

property for which he was accountable;
4.
He appropriated, took, misappropriated or

consented or, through abandonment or
negligence, permitted another person to take
them.
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.
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.
There is no malversation through simple negligence or
reckless imprudence, whether deliberately or negligently.
This is one crime in the Revised Penal Code where the
penalty is the same whether committed with dolo or culpa.
Question & Answer

What crime under the Revised Penal Code carries
the same penalty whether committed intentionally or
through negligence?
Malversation under Article 217. 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.
The crime of malversation can be committed only by an

officer accountable for the funds or property which is
appropriated. This crime, therefore, bears a relation
between the offender and the funds or property involved.
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.
Questions & Answers

1.
An unlicensed firearm was confiscated
by a policeman. Instead of turning over the firearm to the
property custodian for the prosecution of the offender,
the policeman sold the firearm.
What crime was
committed?
The crime committed is malversation because
that firearm is subject to his accountability. Having taken
custody of the firearm, he is supposed to account for it as
evidence for the prosecution of the offender.
2.
fencing law?
Can the buyer be liable under the Anti-
No. The crime is neither theft nor robbery, but

malversation.
3.
A member of the Philippine National
Police went on absence without leave. He was charged
with malversation of the firearm issued to him. After two
years, he came out of hiding and surrendered the firearm.
What crime was committed?
The crime committed was malversation. Payment
of the amount misappropriated or restitution of property
misappropriated does not erase criminal liability but only
civil liability.
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P.J.G.
When private property is attached or seized by public

authority and the public officer accountable therefor
misappropriates the same, malversation is committed also.
(1)
Conspiracy with a public officer in committing

malversation;
(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.
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.
Illustration:
Question & Answer
There was a long line of payors on the last day of
payment for residence certificates. Employee A of the
municipality placed all his collections inside his table and
requested his employee B to watch over his table while he
goes to the restroom. B took advantage of As absence
and took P50.00 out of the collections. A returned and
found his money short.
What crimes have been
committed?
A is guilty of malversation through negligence
because he did not exercise due diligence in the
safekeeping of the funds when he did not lock the drawer
of his table. Insofar as B is concerned, the crime is
qualified theft.
Municipal treasurer connives with outsiders to make it

appear that the office of the treasurer was robbed. He
worked overtime and the co-conspirators barged in, hogtied the treasurer and made it appear that there was a
robbery. Crime committed is malversation because the
municipal treasurer was an accountable officer.
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.
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.
Illustration:
Under jurisprudence, when the public officer leaves his post

without locking his drawer, there is negligence. Thus, he is
liable for the loss.
Illustration:
A government cashier did not bother to put the public fund
in the public safe/vault but just left it in the drawer of his
table which has no lock. The next morning when he came
back, the money was already gone. He was held liable for
malversation through negligence because in effect, he has
abandoned the fund or property without any safety.
A private person may also commit malversation under the
following situations:
(1)
It is a common practice of government cashiers to

change the checks of their friends with cash in
their custody, sometimes at a discount. The
public officer knows that the check is good
because the issuer thereof is a man of name. So
he changed the same with cash. The check turned
out to be good.
With that act of changing the cash of the
government with the check of a private person,
even though the check is good, malversation is
committed. The reason is that a check is cleared
only after three days. During that period of three
days, the government is being denied the use of
the public fund. With more reason if that check
bounce because the government suffers.
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P.J.G.
(2)
An accountable public officer, out of laziness,

declares that the payment was made to him after
he had cleaned his table and locked his safe for
the collection of the day. A taxpayer came and he
insisted that he pay the amount so that he will not
return the next day. So he accepted the payment
but is too lazy to open the combination of the
public safe. He just pocketed the money. When
he came home, the money was still in his pocket.
The next day, when he went back to the office, he
changed clothes and he claims that he forgot to
put the money in the new funds that he would
collect the next day. Government auditors came
and subjected him to inspection. He was found
short of that amount. He claimed that it is in his
house -- with that alone, he was charged with
malversation and was convicted.
Any overage or excess in the collection of an accountable

public officer should not be extracted by him once it is
commingled with the public funds.
Illustration:
When taxpayers pay their accountabilities to the
government by way of taxes or licenses like registration of
motor vehicles, the taxpayer does not bother to collect
loose change. So the government cashier accumulates the
loose change until this amounts to a sizable sum. In order
to avoid malversation, the cashier did not separate what is
due the government which was left to her by way of loose
change. Instead, he gets all of these and keeps it in the
public vault/safe. After the payment of the taxes and
licenses is through, he gets all the official receipts and
takes the sum total of the payment. He then opens the
public vault and counts the cash. Whatever will be the
excess or the overage, he gets. In this case, malversation is
committed.
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.
When does presumption of misappropriation arise?
When a demand is made upon an accountable officer and
he cannot produce the fund or property involved, there is a
prima facie presumption that he had converted the same
to his own use. There must be indubitable proof that thing
unaccounted for exists.

Audit should be made to
determine if there was shortage. Audit must be complete
and trustworthy. If there is doubt, presumption does not
arise.
Presumption arises only if at the time the demand to
produce the public funds was made, the accountability of
the accused is already determined and liquidated. A
demand upon the accused to produce the funds in his
possession and a failure on his part to produce the same
will not bring about this presumption unless and until the
amount of his accountability is already known.
In Dumagat v. Sandiganbayan, 160 SCRA 483, it was held
that the prima facie presumption under the Revised Penal
Code arises only if there is no issue as to the accuracy,
correctness and regularity of the audit findings and if the
fact that public funds are missing is indubitably
established. The audit must be thorough and complete
down to the last detail, establishing with absolute certainty
the fact that the funds are indeed missing.
In De Guzman v. People, 119 SCRA 337, it was held that in
malversation, all that is necessary to prove is that the
defendant received in his possession the public funds and
that he could not account for them and that he could not
give a reasonable excuse for their disappearance. An
accountable public officer may be convicted of
malversation even if there is no direct evidence of
misappropriation and the only evidence is the shortage in
the accounts which he has not been able to explain
satisfactorily.
In Cabello v. Sandiganbaya, 197 SCRA 94, it was held it
was held that malversation may be committed
intentionally or by negligence. The dolo or culpa bringing
about the offences is only a modality in the perpetration of
the offense. The same offense of malversation is involved,
whether the mode charged differs from the mode
established in the commission of the crime. An accused
charged with willful malversation may be convicted of
Malversation through her negligee.
In Quizo v. Sandiganbayan, the accused incurred shortage
(P1.74) mainly because the auditor disallowed certain cash
advances the accused granted to employees. But on the
same date that the audit was made, he partly reimbursed
the amount and paid it in full three days later. The
Supreme Court considered the circumstances as negative
of criminal intent. The cash advances were made in good
faith and out of good will to co-employees which was a
practice tolerated in the office. The actual cash shortage
was only P1.74 and together with the disallowed advances
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P.J.G.
were fully reimbursed within a reasonable time. There was

no negligence, malice, nor intent to defraud.
In Ciamfranca Jr. v. Sandiganbayan, where the accused in
malversation could not give reasonable and satisfactory
explanation or excuse for the missing funds or property
accountable by him, it was held that the return of the
funds or property is not a defense and does not extinguish
criminal liability.
In Parungao v. Sandiganbayan, 197 SCRA 173, it was held
that a public officer charged with malversation cannot be
convicted of technical malversation (illegal use of public
funds under Article 220). To do so would violate accuseds
right to be informed of nature of accusation against him.
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 Officer to Render

Accounts
1.
2.
He is an accountable officer for public funds or

property;
3.
He unlawfully leaves or attempts to leave the

Philippine Islands without securing a certificate
from the Commission on Audit showing that his
accounts have been finally settled.
When an accountable officer leaves the country without

first settling his accountability or otherwise securing a
clearance from the Commission on Audit regarding such
accountability, the implication is that he left the country
because he has misappropriated the funds under his
accountability.
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.
The purpose of the law is to discourage responsible or
accountable officers from leaving without first liquidating
their accountability.
Mere leaving without securing clearance constitutes
violation of the Revised Penal Code. It is not necessary that
they really misappropriated public funds.
Elements
1.
2.
Offender is public officer, whether in the service

or separated therefrom by resignation or any
other cause;
He is an accountable officer for public funds or
property;
3.
He is required by law or regulation to render

account to the Commission on Audit, or to a
provincial auditor;
4.
He fails to do so for a period of two months after

such accounts should be rendered.
Article 219. Failure of A Responsible Public Officer to

Render Accounts before Leaving the Country
Elements
Article 220. Illegal use of public funds or property

Elements
1.
2.
There are public funds or property under his

administration;
3.
Such fund or property were appropriated by law

or ordinance;
4.
He applies such public fund or property to any

public use other than for which it was
appropriated for.
Illegal use of public funds or property is also known as

technical malversation. The term technical malversation is
used because in this crime, the fund or property involved is
70
P.J.G.
already appropriated or earmarked for a certain public

purpose.
property, and he misappropriates the same, the crime of

malversation is also committed. See Article 222.
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.
Illustration:
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.
This crime can also be committed by a private person.
Illustration:
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
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.
Question & Answer

The sheriff, after having levied on the property
subject of a judgment, conducted a public auction sale. He
received the proceeds of the public auction. Actually, the
proceeds are to be delivered to the plaintiff. The sheriff,
after deducting the sheriffs fees due to the office, spent
part of that amount. He gave the balance to the plaintiff
and executed a promissory note to pay the plaintiff the
amount spent by him. Is there a crime committed?
The Supreme Court ruled that the sheriff
committed the crime of malversation because the proceeds
of the auction sale was turned over to the plaintiff, such
proceeds is impressed with the characteristic of being part
of public funds. The sheriff is accountable therefore
because he is not supposed to use any part of such
proceeds.
Article 221. Failure to Make Delivery of Public Funds of

Property
Acts punished
1.
Failing to make payment by a public officer who is

under obligation to make such payment from
government funds in his possession;
2.
Refusing to make delivery by a public officer who

has been ordered by competent authority to
deliver any property in his custody or under his
administration.
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P.J.G.
2.
The conveyance or custody of a prisoner or

person under arrest is confided to him;
3.
The prisoner or person under arrest escapes;
4.
Offender consents to the escape, or that the

escape takes place through his negligence.
Elements of failure to make payment

1.
Public officer has government funds in his

possession;
2.
He is under obligation to make payment from

such funds;
3.
He fails to make the payment maliciously.
Article 223. Conniving with or Consenting to Evasion

1.
2.
He had in his custody or charge a prisoner, either

detention prisoner or prisoner by final judgment;
3.
Such prisoner escaped from his custody;
4.
He was in connivance with the prisoner in the

latters escape.
Classes of prisoners involved

1.
If the fugitive has been sentenced by final

judgment to any penalty;
2.
If the fugitive is held only as detention prisoner

for any crime or violation of law or municipal
ordinance.
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 a 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

Article 224. Evasion through Negligence
Elements
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?
1.
2.
He is charged with the conveyance or custody of a

prisoner or prisoner by final judgment;
3.
Such prisoner escapes through negligence.
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.
Article 225. Escape of Prisoner under the Custody of a

Person not a Public Officer
This crime can be committed also by a private person if the

custody of the prisoner has been confided to a private
person.
Elements
Illustration:
1.
A policeman escorted a prisoner to court. After the court

hearing, this policeman was shot at with a view to liberate
Offender is a private person;
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P.J.G.
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?
room is a case of negligence and therefore the custodian is

liable for infidelity in the custody of prisoner.
1.
Under Article 225, the crime can be committed by a private

person to whom the custody of a prisoner has been
confided.
2.
He abstracts, destroys or conceals a document or

papers;
3.
Said document or papers should have been

entrusted to such public officer by reason of his
office;
4.
Damage, whether serious or not, to a third party

or to the public interest has been caused.
Where such private person, while performing a private

function by virtue of a provision of law, shall accept any
consideration or gift for the non-performance 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.
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.
Illustration:
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.
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 prisoner in the comfort
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.
Article 226. Removal, Concealment, or Destruction of

Documents
Elements
Crimes falling under the section on infidelity in the custody

of public documents can only be committed by the public
officer who is made the custodian of the document in his
official capacity. If the officer was placed in possession of
the document but it is not his duty to be the custodian
thereof, this crime is not committed.
Illustration:
A letter is entrusted to a postmaster for transmission of a
registered letter to another. The postmaster opened the
letter and finding the money, extracted the same. The
crime committed is infidelity in the custody of the public
document because under Article 226, the law refers also to
papers entrusted to public officer involved and currency
note is considered to be within the term paper although it
is not a document.
With respect to official documents, infidelity is committed
by destroying the document, or removing the document or
concealing the document.
Damage to public interest is necessary. However, material
damage is not necessary.
Illustration:
If any citizen goes to a public office, desiring to go over
public records and the custodian of the records had
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P.J.G.
concealed the same so that this citizen is required to go

back for the record to be taken out, the crime of infidelity is
already committed by the custodian who removed the
records and kept it in a place where it is not supposed to be
kept. Here, it is again the breach of public trust which is
punished.
Although there is no material damage caused, mere delay
in rendering public service is considered damage.
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.
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.
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 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.
Article 227. Officer Breaking Seal

Elements
1.
2.
He is charged with the custody of papers or

property;
3.
These papers or property are sealed by proper

authority;
4.
He breaks the seal or permits them to be broken.
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.
The act is punished because if a document is entrusted to
the custody of a public officer in a sealed or closed
envelope, such public officer is supposed not to know what
is inside the same. If he would break the seal or open the
closed envelop, indications would be that he tried to find
out the contents of the document. For that act, he violates
the confidence or trust reposed on him.
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 he 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.
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P.J.G.
Article 228. Opening of Closed Documents

Elements
Article 230. Public Officer Revealing Secrets of Private

individual
1.
Elements
2.
Any closed papers, documents, or object are

entrusted to his custody;
1.
2.
3.
He opens or permits to be opened said closed

papers, documents or objects;
He knows of the secrets of a private individual by

reason of his office;
3.
4.
He does not have proper authority.
He reveals such secrets without authority or

justifiable reason.
Article 229. Revelation of Secrets by An Officer
Article 231.
Acts punished
Elements
1.
1.
Officer is a judicial or executive officer;
2.
There is a judgment, decision or order of a

superior authority;
3.
Such judgment, decision or order was made

within the scope of the jurisdiction of the superior
authority and issued with all the legal formalities;
4.
He, without any legal justification, openly refuses

to execute the said judgment, decision or order,
which he is duty bound to obey.
Revealing any secrets known to the offending

public officer by reason of his official capacity;
Elements
2.
1.
2.
He knows of a secret by reason of his

official capacity;
3.
He reveals such secret without authority

or justifiable reasons;
4.
Damage, great or small, is caused to the

public interest.
Delivering wrongfully papers or copies of papers

of which he may have charge and which should
not be published.
Open Disobedience
Article 232. Disobedience to Order of Superior Officer

When Said Order Was Suspended by Inferior Officer
Elements
1.
2.
An order is issued by his superior for execution;
3.
He has for any reason suspended the execution of

such order;
Elements
1.
2.
He has charge of papers;
3.
Those papers should not be published;
4.
His superior disapproves the suspension of the

execution of the order;
4.
He delivers those papers or copies

thereof to a third person;
5.
Offender disobeys his superior despite the

disapproval of the suspension.
5.
The delivery is wrongful;
6.
Damage is caused to public interest.
Article 233. Refusal of Assistance
75
P.J.G.
1.
2.
A competent authority demands from the

offender that he lend his cooperation towards the
administration of justice or other public service;
3.
Offender fails to do so maliciously.
Any public officer who, upon being requested to render

public assistance within his official duty to render and he
refuses to render the same when it is necessary in the
administration of justice or for public service, may be
prosecuted for refusal of assistance.
It was held that the crime is not refusal of assistance

because the request did not come from a public authority.
But if the fireman was ordered by the authority to put out
the fire and he refused, the crime is refusal of assistance.
If he receives consideration therefore, bribery is
committed.
But mere demand will fall under the
prohibition under the provision of Republic Act No. 3019
(Anti-Graft and Corrupt Practices Act).
Article 234. Refusal to Discharge Elective Office

Elements
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.
1.
Offender is elected by popular election to a public

office;
2.
He refuses to be sworn in or to discharge the

duties of said office;
3.
There is no legal motive for such refusal to be

sworn in or to discharge the duties of said office.
Illustration:
Article 235. Maltreatment of Prisoners
A government physician, who had been subpoenaed to

appear in court to testify in connection with physical injury
cases or cases involving human lives, does not want to
appear in court to testify. He may be charged for refusal of
assistance. As long as they have been properly notified by
subpoena and they disobeyed the subpoena, they can be
charged always if it can be shown that they are
deliberately refusing to appear in court.
Elements
It is not always a case or in connection with the

appearance in court that this crime may be committed.
Any refusal by the public officer to render assistance when
demanded by competent public authority, as long as the
assistance requested from them is within their duty to
render and that assistance is needed for public service, the
public officers who are refusing deliberately may be
charged with refusal of assistance.
1.
2.
He has under his charge a prisoner or detention

prisoner;
3.
He maltreats such prisoner in either of the

following manners:
a.
Note that the request must come from one public officer to
another.
By overdoing himself in the correction or

handling of a prisoner or detention
prisoner under his charge either
(1)
By
the
imposition
of
punishment not authorized by
the regulations; or
(2)
By inflicting such punishments

(those authorized) in a cruel and
humiliating manner; or
Illustration:
b.
A fireman was asked by a private person for services but
was refused by the former for lack of consideration.
By maltreating such prisoners to extort a

confession or to obtain some
information from the prisoner.
76
P.J.G.
This is committed only by such public officer charged with

direct custody of the prisoner. Not all public officer can
commit this offense.
If the public officer is not the custodian of the prisoner, and
he manhandles the latter, the crime is physical injuries.
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.
Illustration:
Make him drink dirty water, sit on ice, eat on a can, make
him strip, hang a sign on his neck saying snatcher.
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 a prisoner who had already been booked was make to

strip his clothes before he was put in the detention cell so
that when he was placed inside the detention cell, he was
already naked and he used both of his hands to cover his
private part, the crime of maltreatment of prisoner had
already been committed.
After having been booked, the prisoner was made to show
any sign on his arm, hand or his neck; Do not follow my
footsteps, I am a thief. That is maltreatment of prisoner if
the offended party had already been booked and
incarcerated no matter how short, as a prisoner.
Before this point in time, when he is not yet a prisoner, the
act of hanging a sign on his neck will only amount to
slander because the idea is to cast dishonor. Any injury
inflicted upon him will only give rise to the crime of
physical injuries.
Article 236. Anticipation of Duties of A Public Office
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.
Elements
1.
Offender is entitled to hold a public office or

employment, either by election or appointment;
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.
2.
The law requires that he should first be sworn in

and/or should first give a bond;
3.
He assumes the performance of the duties and

powers of such office;
Illustration:
4.
He has not taken his oath of office and/or given

the bond required by law.
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.
Article 237.
Powers
Prolonging Performance of Duties and
Elements
1.
Offender is holding a public office;
2.
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.
The period provided by law, regulations or special

provision for holding such office, has already
expired;
3.
He continues to exercise the duties and powers of

such office.
But if it is the custodian who effected the maltreatment,

the crime will be maltreatment of prisoners plus a separate
charge for physical injuries.
Article 238. Abandonment of Office or Position
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P.J.G.
Elements
1.
2.
He formally resigns from his position;
3.
His resignation has not yet been accepted;
4.
He abandons his office to the detriment of the

public service.
2.
A proceeding is pending before such public

officer;
3.
There is a question brought before the proper

authority regarding his jurisdiction, which is not
yet decided;
4.
He has been lawfully required to refrain form

continuing the proceeding;
5.
He continues the proceeding.
Article 239. Usurpation of Legislative Powers

Elements
Article 243. Orders or Request by Executive Officers to

Any Judicial Authority
1.
Offender is an executive or judicial officer;
Elements
2.
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.
1.
Offender is an executive officer;
2.
He addresses any order or suggestion to any

judicial authority;
3.
The order or suggestion relates to any case or

business coming within the exclusive jurisdiction
of the courts of justice.
Article 240. Usurpation of Executive Functions

Elements
1.
Article 244. Unlawful Appointments
2.
He (a) assumes a power pertaining to the

executive authorities, or (b) obstructs the
executive authorities in the lawful exercise of
their powers.
Elements
1.
2.
He nominates or appoints a person to a public

office;
3.
Such person
therefore;
4.
Offender knows that his nominee or appointee

lacks the qualification at the time he made the
nomination or appointment.
Article 241. Usurpation of Judicial Functions

Elements
1.
Offender is an officer of the executive branch of

the government;
2.
He (a) assumes judicial powers, or (b) obstructs

the execution of any order or decision rendered
by any judge within his jurisdiction.
lacks the
legal qualifications
Article 245. Abuses against Chastity

Acts punished
Article 242. Disobeying Request for Disqualification

1.
Elements
1.
Soliciting or making immoral or indecent

advances to a woman interested in matters
pending before the offending officer for decision,
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P.J.G.
or with respect to which he is required to submit

a report to or consult with a superior officer;
2.

advances to a woman under the offenders
custody;
immoral solicitations upon the wife, sister, daughter, or

relative by affinity within the same degree of the prisoner
involved.
Three instances when this crime may arise:
(1)
3.

advances to the wife, daughter, sister or relative
within the same degree by affinity of any person
in the custody of the offending warden or officer.
Elements:
1.
2.
He solicits or makes immoral or indecent

advances to a woman;
3.
Such woman is
a.
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
b.
under the custody of the offender who is

a warden or other public officer directly
charged with the care and custody of
prisoners or persons under arrest; or
c.
the wife, daughter, sister or relative

within the same degree by affinity of the
person in the custody of the offender.
The name of the crime is misleading. It implies that the

chastity of the offended party is abused but this is not
really the essence of the crime because the essence of the
crime is mere making of immoral or indecent solicitation or
advances.
Illustration:
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
The woman, who is the offended party, is the

party in interest in a case where the offended is
the investigator or he is required to render a
report or he is required to consult with a superior
officer.
This does not include any casual or incidental

interest. This refers to interest in the subject of
the case under investigation.
If the public officer charged with the investigation
or with the rendering of the report or with the
giving of advice by way of consultation with a
superior, made some immoral or indecent
solicitation upon such woman, he is taking
advantage of his position over the case. For that
immoral or indecent solicitation, a crime is
already committed even if the woman did not
accede to the solicitation.
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.
(2)
The woman who is the offended party in the crime

is a prisoner under the custody of a warden or the
jailer who is the offender.
If the warden or jailer of the woman should make
immoral or indecent advances to such prisoner,
this crime is committed.
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
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P.J.G.
the law does not require that the custodian be a

man but requires that the offended be a woman.
prisoner under the custody of the offender who

made the indecent or immoral solicitation.
Immoral or indecent advances contemplated here

must be persistent. It must be determined. A
mere joke would not suffice.
The mother is not included so that any immoral or

indecent solicitation upon the mother of the
prisoner does not give rise to this crime, but the
offender may be prosecuted under the Section 28
of Republic Act No. 3019 (Anti-graft and Corrupt
Practices Act).
Illustrations:
(1)
(2)
An investigating prosecutor where the

woman is charged with estafa as the
respondent, made a remark to the
woman, thus: You know, the way of
deciding this case depends on me. I can
just say this is civil in character. I want to
see a movie tonight and I want a
companion. Such a remark, which is not
discerned if not persistent will not give
rise to this crime. However, if the
prosecutor kept on calling the woman
and inviting her, that makes the act
determined and the crime is committed.
A jailer was prosecuted for abuse against
chastity. The jailer said, It was mutual
on their part. I did not really force my
way upon the woman. The woman fell in
love with me, I fell in love with the
woman. The woman became pregnant.
The woman admitted that she was not
forced. Just the same, the jailer was
convicted of abuse against chastity.
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.
Being responsible for the pregnancy is itself taking
advantage the prisoner.
If he forced himself against the will of the woman,
another crime is committed, that is, rape aside
from abuse against chastity.
(3)
Why is the mother left out? Because it is the

mother who easily succumbs to protect her child.
If the offender were not the custodian, then crime
would fall under Republic Act No. 3019 (The AntiGraft and Corrupt Practices Act).
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.
You cannot consider the abuse against chastity as

absorbed in the rape because the basis of
penalizing the acts is different from each other.
TITLE VIII. CRIMES AGAINST PERSONS
The crime is committed upon a female relative of

a prisoner under the custody of the offender,
where the woman is the daughter, sister or
relative by affinity in the same line as of the
1.
Parricide (Art. 246);
2.
Murder (Art. 248);
3.
Homicide (Art. 249);
Crimes against persons
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P.J.G.
(5)
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);
Giving assistance to suicide.
Note that parricide is premised on the relationship

between the offender and the offended. The victim is three
days old or older. A stranger who conspires with the
parent is guilty of murder.
In infanticide, the victim is younger than three days or 72
hours old; can be committed by a stranger. If a stranger
who conspires with parent, both commit the crime of
infanticide.
Article 246. Parricide

10.
Unintentional abortion (Art. 257);
11.
Abortion practiced by the woman herself or by

her parents (Art. 258);
Elements
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).
The essence of crime here involves the taking of human

life, destruction of the fetus or inflicting injuries.
1.
A person is killed;
2.
The deceased is killed by the accused;
3.
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.
This is a crime committed between people who are related

by blood. Between spouses, even though they are not
related by blood, it is also parricide.
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.
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.
As to the taking of human life, you have:

(1)
Parricide;
(2)
Murder;
(3)
Homicide;
The only illegitimate relationship that can bring about

parricide is that between parents and illegitimate children
as the offender and the offended parties.
Illustration:
(4)
Infanticide; and
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
81
P.J.G.
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.
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.
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.
Article 247. Death or Physical Injuries Inflicted under

Exceptional Circumstances
Elements
1.
A legally married person, or a parent, surprises his

spouse or his daughter, the latter under 18 years
of age and living with him, in the act of
committing sexual intercourse with another
person;
2.
He or she kills any or both of them, or inflicts

upon any or both of them any serious physical
injury in the act or immediately thereafter;
3.
He has not promoted or facilitated the

prostitution of his wife or daughter, or that he or
she has not consented to the infidelity of the
other spouse.
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.
Two stages contemplated before the article will apply:

(1)
When the offender surprised the other spouse

with a paramour or mistress. The attack must
take place while the sexual intercourse is going
on. If the surprise was before or after the
intercourse, no matter how immediate it may be,
Article 247 does not apply. The offender in this
situation only gets the benefit of a mitigating
circumstance, that is, sufficient provocation
immediately preceding the act.
(2)
When the offender kills or inflicts serious physical

injury upon the other spouse and/or paramour
while in the act of intercourse, or immediately
thereafter, that is, after surprising.
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.
That the mother killed her child in order to conceal her
dishonor is not mitigating. This is immaterial to the crime
You have to divide the stages because as far as the first

stage is concerned, it does not admit of any situation less
than sexual intercourse.
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.
If the surprising took place after the actual sexual
intercourse was finished, even if the act being performed
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P.J.G.
indicates no other conclusion but that sexual intercourse

was had, the article does not apply.
As long as the surprising took place while the sexual
intercourse was going on, the second stage becomes
immaterial.
It is either killing or inflicting physical injuries while in that
act or immediately thereafter. If the killing was done while
in that act, no problem. If the killing was done when
sexual intercourse is finished, a problem arises. First, were
they surprised in actual sexual intercourse? Second, were
they killed immediately thereafter?
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.
The article presumes that a legally married person who
surprises his or her better half in actual sexual intercourse
would be overcome by the obfuscation he felt when he saw
them in the act that he lost his head. The law, thus,
affords protection to a spouse who is considered to have
acted in a justified outburst of passion or a state of mental
disequilibrium. The offended spouse has no time to regain
his self-control.
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.
As long as the act is continuous, the article still applies.
Where the accused surprised his wife and his paramour in
the act of illicit intercourse, as a result of which he went
out to kill the paramour in a fit of passionate outburst.
Although about one hour had passed between the time the
accused discovered his wife having sexual intercourse with
the victim and the time the latter was actually killed, it was
held in People v. Abarca, 153 SCRA 735, that Article 247
was applicable, as the shooting was a continuation of the
pursuit of the victim by the accused. Here, the accused,
after the discovery of the act of infidelity of his wife, looked
for a firearm in Tacloban City.
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.
Illustration:
A upon coming home, surprised his wife, B, together with
C. The paramour was fast enough to jump out of the
window. A got the bolo and chased C but he disappeared
among the neighborhood. So A started looking around for
about an hour but he could not find the paramour. A gave
up and was on his way home. Unfortunately, the
paramour, thinking that A was no longer around, came out
of hiding and at that moment, A saw him and hacked him
to death. There was a break of time and Article 247 does
not apply anymore because when he gave up the search, it
is a circumstance showing that his anger had already died
down.
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.
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
83
P.J.G.
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.
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.
Article 248. Murder

Elements
1.
A person was killed;
2.
Accused killed him;
3.
The killing was attended by any of the following

qualifying circumstances
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.
a.
With treachery, taking advantage of

superior strength, with the aid or armed
men, or employing means to waken the
defense, or of means or persons to
insure or afford impunity;
b.
In consideration of a price, reward or

promise;
c.
By means of inundation, fire, poison,

explosion, shipwreck, stranding of a
vessel, derailment or assault upon a
railroad, fall of an airship, by means of
motor vehicles, or with the use of any
other means involving great waste and
ruin;
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

inhumanly augmenting the suffering of
the victim, or outraging or scoffing at his
person or corpse.
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.
The article is also made available to parents who shall
surprise their daughter below 18 years of age in actual
sexual intercourse while living with them. The act should
have been committed by the daughter with a seducer. The
two stages also apply. The parents cannot invoke this
provision if, in a way, they have encouraged the
prostitution of the daughter.
The phrase living with them is understood to be in their
own dwelling, because of the embarrassment and
humiliation done not only to the parent but also to the
parental abode.
If it was done in a motel, the article does not apply.
Illustration:
A abandoned his wife B for two years. To support their
children, A had to accept a relationship with another man.
A learned of this, and surprised them in the act of sexual
intercourse and killed B. A is not entitled to Article 248.
Having abandoned his family for two years, it was natural
for her to feel some affection for others, more so of a man
who could help her.
4.
Homicide committed under exceptional circumstances,
although punished with destierro, is within the jurisdiction
of the Regional Trial Court and not the MTC because the
crime charged is homicide or murder. The exceptional
circumstances, not being elements of the crime but a
matter of defense, are not pleaded. It practically grants a
privilege amounting to an exemption for adequate
punishment.
The killing is not parricide or infanticide.
Homicide is qualified to murder if any of the qualifying

circumstances under Article 248 is present. It is the
unlawful killing of a person not constituting murder,
parricide or infanticide.
In murder, any of the following qualifying circumstances is
present:
84
P.J.G.
(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
85
P.J.G.
branches of gumamela until the victim fell

unconscious. The accused left not knowing that
the victim died.
the mind of the offender. He intended only to

destroy property. However, a higher penalty will
be applied.
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.
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.
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.
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.
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
(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
(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.
86
P.J.G.
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.
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.
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 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.
The following are holdings of the Supreme Court with

respect to the crime of murder:
Article 249. Homicide
(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.
Elements
1.
A person was killed;
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.
2.
Offender killed him without any justifying

circumstances;
3.
Offender had the intention to kill, which is

presumed;
(3
Abuse of superior strength is inherent in and

comprehended by the circumstance of treachery
or forms part of treachery.
4.
The killing was not attended by any of the

qualifying circumstances of murder, or by that of
parricide or infanticide.
(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.
(2)
Homicide is the unlawful killing of a person not constituting

murder, parricide or infanticide.
Distinction between homicide and physical injuries:
In attempted or frustrated homicide, there is intent to kill.
(6)
Killing of the victims hit by hand grenade thrown

at them is murder qualified by explosion not by
treachery.
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.
(7)
Where the accused housemaid gagged a three

year old boy, son of her master, with stockings,

respect to the crime of homicide:
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P.J.G.
(1)
(2)
Physical injuries are included as one of the

essential elements of frustrated homicide.
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.
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.
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:
Article 251. Death Caused in A Tumultuous Affray

(1)
The persons who inflicted serious physical injury

upon the victim;
Elements
1.
There are several persons;
(2)
2.
They do not compose groups organized for the

common purpose of assaulting and attacking each
other reciprocally;
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.
3.
These several persons quarreled and assaulted

one another in a confused and tumultuous
manner;
4.
Someone was killed in the course of the affray;
5.
It can not be ascertained who actually killed the

deceased;
6.
The person or persons who inflicted serious

physical injuries or who used violence can be
identified.
The fight must be tumultuous. The participants must not

be members of an organized group. This is different from a
rumble which involves organized groups composed of
persons who are to attack others. If the fight is between
such groups, even if you cannot identify who, in particular,
committed the killing, the adverse party composing the
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P.J.G.
organized group will be collectively charged for the death

of that person.
1.
Assisting another to commit suicide, whether the

suicide is consummated or not;
Illustration:
2.
Lending his assistance to another to commit

suicide to the extent of doing the killing himself.
If a fight ensued between 20 Sigue-Sigue Gang men and 20

Bahala-Na- Gang men, and in the course thereof, one from
each group was killed, the crime would be homicide or
murder; there will be collective responsibility on both sides.
Note that the person killed need not be a participant in the
fight.
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.).
Article 252. Physical Injuries Inflicted in A Tumultuous

Affray
Elements
1.
There is a tumultuous affray;
2.
A participant or some participants thereof

suffered serious physical injuries or physical
injuries of a less serious nature only;
3.
The person responsible thereof can not be

identified;
4.
All those who appear to have used violence upon

the person of the offended party are known.
If in the course of the tumultuous affray, only serious or

less serious physical injuries are inflicted upon a
participant, those who used violence upon the person of
the offended party shall be held liable.
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.
Article 253. Giving Assistance to Suicide

Acts punished
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.
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
homicide (if without consent; with consent, covered by
Article 253).

respect to this crime:
(1)
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.
(2)
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.
In other penal codes, if the person who wanted to die did

not die, there is liability on his part because there is public
disturbance committed by him. Our Revised Penal Code is
silent but there is no bar against accusing the person of
disturbance of public order if indeed serious disturbance of
public peace occurred due to his attempt to commit
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P.J.G.
suicide. If he is not prosecuted, this is out of pity and not

because he has not violated the Revised Penal Code.
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. If there is only slight persuasion to end his
life, and the offender readily assented thereto.
Article 254. Discharge of Firearms
1.
2.
Offender discharges a firearm against or at

another person;
Offender had no intention to kill that person.
This crime cannot be committed through imprudence

because it requires that the discharge must be directed at
another.
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.
respect to this crime:
(1)
(2)
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.
Firing a gun at a person even if merely to frighten
him constitutes illegal discharge of firearm.
2.
The deceased child was less than 72 hours

old.
This is a crime based on the age of the victim. The victim

should be less than three days old.
The offender may actually be the parent of the child. But
you call the crime infanticide, not parricide, if the age of
the victim is less than three days old. If the victim is three
days old or above, the crime is 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 coconspirator 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.
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.
Article 255. Infanticide

Elements
1.
A child was killed by the accused;
If the child is born dead, or if the child is already dead,

infanticide is not committed.
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P.J.G.
Article 256. Intentional Abortion

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.
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.
Elements
1.
There is a pregnant woman;
2.
Violence is exerted, or drugs or beverages

administered, or that the accused otherwise acts
upon such pregnant woman;
3.
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;
But even though the umbilical cord has been cut, Article 41
of the Civil Code provides that if the fetus had an intrauterine 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:
4.
The abortion is intended.
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.
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
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P.J.G.
dishonor, the penalty is the same as that imposed upon the

woman who practiced the abortion upon herself .
with a soft drink bottle on the hip. Abortion resulted and B

died.
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.
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.
One who persuades her sister to abort is a co-principal,

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.
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.
Article 257. Unintentional Abortion

1.
There is a pregnant woman;
2.
Violence is used upon such pregnant woman

without intending an abortion;
3.
The violence is intentionally exerted;
Criticism:
If the act of violence is not felonious, that is, act of selfdefense, 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:
4.
As a result of the violence, the fetus dies, either in

the womb or after having been expelled
therefrom.
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.
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,
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.
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
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P.J.G.
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.
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

Article 258. Abortion Practiced by the Woman Herself or
by Her Parents
What is the liability of a physician who aborts the

fetus to save the life of the mother?
Elements
1.
There is a pregnant woman who has suffered an

abortion;
2.
The abortion is intended;
3.
Abortion is caused by
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.
a.
The pregnant woman herself;
Article 260. Responsibility of Participants in A Duel
b.
Any other person, with her consent; or
Acts punished
c.
Any of her parents, with her consent for

the purpose of concealing her dishonor.
1.
Killing ones adversary in a duel;
2.
Inflicting upon such adversary physical injuries;
3.
Making a combat although no physical injuries

have been inflicted.
Article 259. Abortion Practiced by A Physician or Midwife

and Dispensing of Abortives
Elements
Persons liable
1.
There is a pregnant woman who has suffered an

abortion;
1.
The person who killed or inflicted physical injuries

upon his adversary, or both combatants in any
other case, as principals.
The seconds, as accomplices.
2.
The abortion is intended;
3.
Offender, who must be a physician or midwife,

caused or assisted in causing the abortion;
2.
4.
Said physician or midwife took advantage of his or

her scientific knowledge or skill.
There is no such crime nowadays because people hit each

other even without entering into any pre-conceived
agreement. This is an obsolete provision.
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.
A duel may be defined as a formal or regular combat

previously consented to by two parties in the presence of
two or more seconds of lawful age on each side, who make
the selection of arms and fix all the other conditions of the
fight to settle some antecedent quarrel.
Illustration:
If these are not the conditions of the fight, it is not a duel in

the sense contemplated in the Revised Penal Code. It will
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P.J.G.
be a quarrel and anyone who killed the other will be liable

for homicide or murder, as the case may be.
The concept of duel under the Revised Penal Code is a
classical one.
Article 261. Challenging to A Duel
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.
Acts punished
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.
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.
Illustration:
Article 263. Serious Physical Injuries
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.
How committed
1.
By wounding;
2.
By beating;
3.
By assaulting; or
4.
By administering injurious substance.
Article 262. Mutilation

Acts punished
1.
Intentionally mutilating another by depriving him,

either totally or partially, of some essential organ
for reproduction;
Elements
1.
2.
2.
There be a castration, that is, mutilation

of organs necessary for generation, such
as the penis or ovarium;
The mutilation is caused purposely and
deliberately, that is, to deprive the
offended party of some essential organ
for reproduction
Intentionally making other mutilation, that is, by

lopping or 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 his
body.
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.
Serious physical injuries

1.
When the injured person becomes insane,

imbecile, impotent or blind in consequence of the
physical injuries inflicted;
2.
When the injured person

a.
Loses the use of speech or the power to

hear or to smell, or loses an eye, a hand,
afoot, an arm, or a leg;
b.
Loses the use of any such member; or
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P.J.G.
c.
3.
4.
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.
Becomes incapacitated for the work in

which he was theretofore habitually
engaged, in consequence of the physical
injuries inflicted;
When the person injured

a.
Becomes deformed; or
b.
Loses any other member of his body; or
c.
Loses the use thereof; or
d.
Becomes ill or incapacitated for the

performance of the work in which he
was habitually engaged for more than 90
days in consequence of the physical
injuries inflicted;
(2)
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.
When the injured person becomes ill or

incapacitated for labor for more than 30 days (but
must not be more than 90 days), as a result of the
physical injuries inflicted.
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, notwithstanding the opinion of Spanish
commentators like Cuello Calon, Viada, etc., that it can be
committed in the attempted or frustrated stage.
If the act does not give rise to injuries, you will not be able
to say whether it is attempted slight physical injuries,
attempted less serious physical injuries, or attempted
serious physical injuries unless the result is there.
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.
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.
(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 must produce ugliness;
Classification of physical injuries:
(2)
It must be visible;
(1)
(3)
The ugliness will not disappear through

natural healing process.
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
Illustration:
Loss of molar tooth This is not deformity as it is
not visible.
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P.J.G.
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
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.
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?
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.
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.
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.
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)
(2)
If it is committed against any of the persons

referred to in the crime of parricide under Article
246;
If any of the circumstances qualifying murder
attended its commission.
Section 3 requires supervision by head of the school or the

organization of the rites.
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.
Beverages
Elements
1.
Offender inflicted upon another any serious

physical injury;
2.
It was done by knowingly administering to him

any injurious substance or beverages or by taking
advantage of his weakness of mind or credulity;
3.
He had no intent to kill.
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
Administering Injurious Substances or
Article 265. Less Serious Physical Injuries
96
P.J.G.
Acts punished
Matters to be noted in this crime
1.
2.
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;
1.
Physical injuries incapacitated the offended party

for labor from one to nine days, or required
medical attendance during the same period;
2.
Physical injuries which did not prevent the

offended party from engaging in his habitual work
or which did not require medical attendance;
3.
Ill-treatment of another by deed without causing

any injury.
The physical injuries must not be those described

in the preceding articles.
Qualified as to penalty
1.
A fine not exceeding P 500.00, in addition to

arresto mayor, shall be imposed for less serious
physical injuries when
a.
b.
2.
There is a manifest intent to insult or

offend the injured person; or
There
are
circumstances
ignominy to the offense.
adding
A higher penalty is imposed when the victim is

either
This involves even ill-treatment where there is no sign of

injury requiring medical treatment.
Slapping the offended party is a form of ill-treatment
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.
Illustration:
a.
The offenders parents, ascendants,

guardians, curators or teachers; or
Persons of rank or person in authority,
provided the crime is not direct assault.
If Hillary slaps Monica and told her You choose your

seconds . Let us meet behind the Quirino Grandstand and
see who is the better and more beautiful between the two
of us, the crime is not ill-treatment, slight physical injuries
or slander by deed; it is a form of challenging to a duel. The
criminal intent is to challenge a person to a duel.
If the physical injuries do not incapacitate the offended

party nor necessitate medical attendance, slight physical
injuries is committed. But if the physical injuries heal after
30 days, serious physical injuries is committed under Article
263, paragraph 4.
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.
b.
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 and Maltreatment
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
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.
97
P.J.G.
2.
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.
3.
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.
Article 266-A. Rape, When and How Committed

1.
Offender is a man;
2.
Offender had carnal knowledge of a woman;
3.
Such act is accomplished under any of the

The act of sexual assault is committed by any of

the following means:
a.
By inserting his penis into another

person's mouth or anal orifice; or
b.
By inserting any instrument or object

into the genital or anal orifice of another
person;
The act of sexual assault is accomplished under

any of the following circumstances:
a.
By using force or intimidation; or
b.
When the woman is deprived of reason

or otherwise unconscious; or
c.
By means of fraudulent machination or

grave abuse of authority; or
d.
When the woman is under 12 years of

age or demented.
Republic Act No. 8353 (An Act Expanding the Definition of

the Crime of Rape, Reclassifying the Same as A Crime
against Persons, Amending for the Purpose the Revised
Penal Code) repealed Article335 on rape and added a
chapter on Rape under Title 8.
Classification of rape
(1)
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)
a.
By using force or intimidation;
b.
When the woman is deprived of reason

or otherwise unconscious;
c.
By means of fraudulent machination or

grave abuse of authority; or
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.
d.
When the woman is under 12 years of

age or demented.
Rape is committed when a man has carnal knowledge of a

woman under the following circumstances:
(1)
Where intimidation or violence is employed with

a view to have carnal knowledge of a woman;
(2)
Where the victim is deprived of reason or

otherwise unconscious;

1.
Offender commits an act of sexual assault;
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P.J.G.
(3)
Where the rape was made possible because of

fraudulent machination or abuse of authority; or
(b)
Where the victim was under the custody

of the police or military authorities, or
other law enforcement agency;
(4)
Where the victim is under 12 years of age, or

demented, even though no intimidation nor
violence is employed.
(c)
Where the rape is committed in full view

of the victims husband, the parents, any
of the children or relatives by
consanguinity within the 3rd civil degree;
(d)
Where the victim is a religious, that is, a

member of a legitimate religious
vocation and the offender knows the
victim as such before or at the time of
the commission of the offense;
(e)
Where the victim is a child under 7 yrs of

age;
(f)
Where the offender is a member of the

AFP, its paramilitary arm, the PNP, or any
law enforcement agency and the
offender took advantage of his position;
(g)
Where the offender is afflicted with AIDS

or other sexually transmissible diseases,
and he is aware thereof when he
committed the rape, and the disease was
transmitted;
Reclusion perpetua to death/ reclusion temporal -
(h)
Where the victim has suffered

permanent physical mutilation;
(a)
Where the victim of the rape has

become insane; or
(i)
Where the pregnancy of the offended

party is known to the rapist at the time
of the rape; or
(b)
Where the rape is attempted but a killing

was committed by the offender on the
occasion or by reason of the rape.
(j)
Where the rapist is aware of the victims

mental disability, emotional disturbance
or physical handicap.
Sexual assault is committed under the following

circumstances:
(1)
Where the penis is inserted into the anal or oral

orifice; or
(2)
Where an instrument or object is inserted into

the genital or oral orifice.
If the crime of rape / sexual assault is committed with the

following circumstances, the following penalties are
imposed:
(1)
(2)
(3)
Reclusion perpetua to death/ prision mayor to

reclusion temporal -(a)
Where rape is perpetrated by the

accused with a deadly weapon; or
(b)
Where it is committed by two or more

persons.
Death / reclusion perpetua -Where homicide is committed by reason or on

occasion of a consummated rape.
(4)
Death/reclusion temporal -(a)
Where the victim is under 18 years of

age and the offender is her ascendant,
stepfather, guardian, or relative by
affinity or consanguinity within the 3rd
civil degree, or the common law husband
of the victims mother; or
Prior to the amendment of the law on rape, a complaint

must be filed by the offended woman. The persons who
may file the same in behalf of the offended woman if she is
a minor or if she was incapacitated to file, were as follows:
a parent; in default of parents, a grandparent; in default or
grandparent, the judicial guardian.
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
99
P.J.G.
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 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.
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.
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 30,000.00, with or without evidence of any moral
damage. But there are some cases where the court
awarded only P 20,000.00.
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.
Illustration:
Daughter accuses her own father of having raped her.
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
100
P.J.G.
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.
10.
Grave coercions (Art. 286);
11.
Light coercions (Art. 287);
12.
Other similar coercions (Art. 288);
13.
Formation, maintenance and prohibition of

combination of capital or labor through violence
or threats (Art. 289);
14.
Discovering secrets through

correspondence (Art. 290);
Kidnapping and serious illegal detention (Art.

267);
15.
Revealing secrets with abus of office (Art. 291);
2.
Slight illegal detention (Art. 268);
16.
Revealing of industrial secrets (Art. 292).
3.
Unlawful arrest (Art. 269);
4.
Kidnapping and failure to return a minor (Art.

270);
Elements
5.
Inducing a minor to abandon his home (Art. 271);
1.
Offender is a private individual;
6.
Slavery (Art. 272);
2.
He kidnaps or detains another, or in any other

manner deprives the latter of his liberty;
7.
Exploitation of child labor (Art. 273);

3.
8.
Services rendered under compulsion in payment

of debts (Art. 274).
The act of detention or kidnapping must be

illegal;
4.
In the commission of the offense, any of the

following circumstances is present:
Is there a complex crime under Article 48 of kidnapping

with rape? Read kidnapping.
TITLE IX.
SECURITY
CRIMES AGAINST PERSONAL LIBERTY AND
Crimes against liberty

1.
seizure
of
Article 267. Kidnapping and Serious Illegal Detention
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.
Other forms of trespass (Art. 281);
7.
Grave threats (Art. 282);
8.
Light threats (Art. 283);
9.
Other light threats (Art. 285);
a.
The kidnapping lasts for more than 3

days;
b.
It is committed
authority;
c.
Any serious physical injuries are inflicted

upon the person kidnapped or detained
or threats to kill him are made; or
d.
The person kidnapped or detained is a

minor, female, or a public officer.
simulating
public
If there is any crime under Title IX which has no

corresponding provision with crimes under Title II, then,
the offender may be a public officer or a private person. If
there is a corresponding crime under Title II, the offender
under Title IX for such similar crime is a private person.
101
P.J.G.
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.
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.
If a woman is carried against her will but without lewd
design on the part of the offender, the crime is grave
coercion.
Illustration:
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.
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.
Circumstances which make illegal detention serious
(1)
When the illegal detention lasted for three days,

regardless of who the offended party is;
(2)
Serious illegal detention If a woman is transported just to
restrain her of her liberty. There is no lewd design or lewd
intent.
When the offended party is a female, even if the

detention lasted only for minutes;
(3)
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.
If the offended party is a minor or a public officer,

no matter how long or how short the detention
is;
(4)
When threats to kill are made or serious physical

injuries have been inflicted; and
(5)
If it shall have been committed simulating public

authority.
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
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.
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P.J.G.
Arbitrary detention is committed by a public officer who

detains a person without legal grounds.
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:
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.
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P.J.G.
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.
Article 268. Slight Illegal Detention

Elements
is no criminal prosecution yet, such voluntary release will

not mitigate 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.
1.
Offender is a private individual;
Before, in People v. Saliente, if the offended party

subjected to serious illegal detention was voluntarily
released by the accused in accordance with the provisions
of Article 268 (3), the crime, which would have been
serious illegal detention, became slight illegal detention
only.
2.
He kidnaps or detains another, or in any other

manner deprives him of his liberty.
3.
The act of kidnapping or detention is illegal;
4.
The crime is committed without the attendance

of any of the circumstances enumerated in Article
267.
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.
This felony is committed if any of the five circumstances in

the commission of kidnapping or detention enumerated in
Article 267 is not present.
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.
The penalty is lowered if

(1)
The offended party is voluntarily released within

three days from the start of illegal detention;
(2)
Without attaining the purpose;
(3)
Before the institution of the criminal action.
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.
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.
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
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.
Article 269. Unlawful Arrest
104
P.J.G.
Elements
2.
He deliberately fails to restore the said minor to

his parents or guardians.
1.
Offender arrests or detains another person;
2.
The purpose of the offender is to deliver him to

the proper authorities;
If any of the foregoing elements is absent, the kidnapping

of the minor will then fall under Article 267.
3.
The arrest or detention is not authorized by law

or there is no reasonable ground therefor.
If the accused is any of the parents, Article 267 does not

apply; Articles 270 and 271 apply.
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.
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

If the arrest is made without a warrant and under
circumstances not allowing a warrantless arrest, the crime
would be unlawful arrest.
Elements
1.
A minor (whether over or under seven years of

age) is living in the home of his parents or
guardians or the person entrusted with his
custody;
2.
Offender induces said minor to abandon such

home.
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.
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.
Article 272. Slavery

Elements
Note that this felony may also be committed by public

officers.
1.
Offender purchases, sells, kidnaps or detains a

human being;
Article 270. Kidnapping and Failure to Return A Minor
2.
The purpose of the offender is to enslave such

human being.
Elements
1.
Offender is entrusted with the custody of a minor

person (whether over or under seven years but
less than 21 years of age);
This is committed if anyone shall purchase, kidnap, or

detain a human being for the purpose of enslaving him.
105
P.J.G.
The penalty is increased if the purpose of the offender is to

assign the offended party to some immoral traffic.
Elements
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. Exploitation of Child Labor
Offender retains a minor in his services;
2.
It is against the will of the minor;
3.
It is under the pretext of reimbursing himself of a

debt incurred by an ascendant, guardian or
person entrusted with the custody of such minor.
Article 274. Services Rendered under Compulsion in

Payment of Debt
Elements
1.
Offender compel a debtor to work for him, either

as household servant or farm laborer;
2.
It is against the debtors will;
3.
The purpose is to require or enforce the payment

of a debt.
Article 275. Abandonment of Persons in Danger and

Abandonment of Ones Own Victim
Acts punished
The place is not inhabited;
2.
Accused found there a person wounded

or in danger of dying;
3.
Accused can render assistance without

detriment to himself;
4.
Accused fails to render assistance.
2.
Failing to help or render assistance to another

whom the offender has accidentally wounded or
injured;
3.
By failing to deliver a child, under seven years of

age, whom the offender has found abandoned, to
the authorities or to his family, or by failing to
take him to a safe place.
Elements
1.
1.
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.
If what happened was an accident at first, there would be
no liability pursuant to Article 12 (4) of the Civil Code
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.
Article 276. Abandoning A Minor

1.
Failing to render assistance to any person whom

the offender finds in an uninhabited place
wounded or in danger of dying when he can
render such assistance without detriment to
himself, unless such omission shall constitute a
more serious offense.
Elements
1.
Offender has the custody of a child;
2.
The child is under seven years of age;
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P.J.G.
3.
He abandons such child;
4.
He has no intent to kill the child when the latter is

abandoned.
Article 278. Exploitation of Minors

Acts punished
1.
Causing any boy or girl under 16 years of age to

perform any dangerous feat of balancing, physical
strength or contortion, the offender being any
person;
2.
Employing children under 16 years of age who are

not the children or descendants of the offender in
exhibitions of acrobat, gymnast, rope-walker,
diver, or wild-animal tamer, the offender being an
acrobat, etc., or circus manager or engaged in a
similar calling;
3.
Employing any descendant under 12 years of age

in dangerous exhibitions enumerated in the next
preceding paragraph, the offender being engaged
in any of the said callings;
4.
Delivering a child under 16 years of age

gratuitously to any person following any of the
callings enumerated in paragraph 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; and
5.
Inducing any child under 16 years of age to

abandon the home of its ascendants, guardians,
curators or teachers to follow any person
engaged in any of the callings mentioned in
paragraph 2 or to accompany any habitual
vagrant or beggar, the offender being any person.
Circumstances qualifying the offense

1.
When the death of the minor resulted from such

abandonment; or
2.
If the life of the minor was in danger because of

the abandonment.
Article 277. Abandonment of Minor by Person Entrusted

with His Custody; Indifference of Parents
Acts punished
1.
Delivering a minor to a public institution or other

persons without the 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
1.
2.
Offender has charge of the rearing or

education of a minor;
2.
He delivers said minor to a public

institution or other persons;
3.
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.
Neglecting his (offenders) children by not giving

them the education which their station in life
requires and financial condition permits.
Elements:
1.
Offender is a parent;
2.
He neglects his children by not giving

them education;
3.
His station in life requires such education

and his financial condition permits it.
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
107
P.J.G.
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.
Illustration:
The owner of a circus employed a child under 16 years of
age to do a balancing act on the tightrope. The crime
committed is exploitation of minors (unless the employer is
the ascendant of the minor who is not below 12 years of
age). If the child fell and suffered physical injuries while
working, the employer shall be liable for said physical
injuries in addition to his liability for exploitation of minors.
2.
Trespass to property - Offender enters the closed

premises or fenced estate of another; such close
premises or fenced estate is uninhabited; there is
a manifest prohibition against entering such
closed premises or fenced estate; and offender
has not secured the permission of the owner or
caretaker thereof (Article 281).
(See also Presidential Decree No. 1227 regarding unlawful

entry into any military base in the Philippines.)
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.
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.
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.
Article 280. Qualified Trespass to Dwelling

Elements
1.
Offender is a private person;
2.
He enters the dwelling of another;
3.
Such entrance is against the latters will.
Two forms of trespass

1.
Qualified trespass to dwelling This may be

committed by any private person who shall enter
the dwelling of another against the latters will.
The house must be inhabited at the time of the
trespass although the occupants are out. Or
offender breaks in with force and violence (Article
280).
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.
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
108
P.J.G.
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.
Acts punished:
1.
Threatening another with the infliction upon his

person, honor or property or that of this family of
any wrong amounting to a crime and demanding
money or imposing any other condition, even
though not unlawful, and the offender attained
his purpose;
2.
Making such threat

attaining his purpose;
3.
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.
Distinction between qualified trespass to dwelling and

violation of domicile
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.
Cases when Article 280 does not apply:
(1)
When the purpose of the entrance is to prevent

serious harm to himself, the occupant or third
persons;
(2)
When the purpose of the offender in entering is to

render some service to humanity or justice;
(3)
Anyone who shall enter cafes, taverns, inns and

other public houses while they are open .
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.
Article 281. Other forms of trespass
Elements
1.
Offender enters the closed premises or the

fenced estate of another;
2.
The entrance is made while either of them is

uninhabited;
3.
The prohibition to enter is manifest;
4.
The trespasser has not secured the permission of

the owner or the caretaker thereof.
Article 282. Grave Threats
without the offender
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.
(2)
Light threats if it does not amount to a crime.

The case falls under Article 283.
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.
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:
109
P.J.G.
The essence of coercion is violence or intimidation. There

is no condition involved; hence, there is no futurity in the
harm or wrong done.
Question & Answer

Blackmailing constitutes what crime?
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.
(3)
As to subject matter Robbery refers to personal

property; threat may refer to the person, honor or
property.
(4)
As to intent to gain In robbery, there is intent to

gain; in threats, intent to gain is not an essential
element.
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.
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.
Article 285. Other Light Threats

Acts punished
(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.
Article 283. Light Threats
1.
Threatening another with a weapon, or by

drawing such weapon in a quarrel, unless it be in
lawful self-defense;
2.
Orally threatening another, in the heat of anger,

with some harm constituting a crime, without
persisting in the idea involved in his threat;
3.
Orally threatening to do another any harm not

constituting a felony.
Elements
1.
Offender makes a threat to commit a wrong;
Article 286. Grave Coercions
2.
The wrong does not constitute a crime;
Acts punished
3.
There is a demand for money or that other

condition is imposed, even though not unlawful;
1.
Preventing another, by means of violence, threats

or intimidation, from doing something not
prohibited by law;
4.
Offender has attained his purpose or, that he has

not attained his purpose.
2.
Compelling another, by means of violence,

threats or intimidation, to do something against
his will, whether it be right or wrong.
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.
Elements
1.
A person prevented another from doing

something not prohibited by law, or that he
110
P.J.G.
compelled him to do something against his will;

be it right or wrong;
real properties because it is the means of committing the

crime.
2.
The prevention or compulsion be effected by

violence, threats or intimidation; and
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.
3.
The person that restrained the will and liberty of

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.
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.
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
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
1.
Offender must be a creditor;
2.
He seizes anything belonging to his debtor:
3.
The seizure of the thing be accomplished by

means of violence or a display of material force
producing intimidation;
4.
The purpose of the offender is to apply the same

to the payment of the debt.
The first paragraph deals with light coercions wherein

violence is employed by the offender who is a creditor in
seizing anything belonging to his debtor for the purpose of
applying the same to the payment of the debt.
In the other light coercions or unjust vexation embraced in
the second paragraph, violence is absent.
In unjust vexation, any act committed without violence, but
which unjustifiably annoys or vexes an innocent person
amounts to light coercion.
111
P.J.G.
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.
1.
Offender pays the wages due a laborer

or employee employed by him by means
of tokens or object;
1.
Those tokens or objects are other than

the legal tender currency of the
Philippines;
3.
Such employee or laborer does not

expressly request that he be paid by
means of tokens or objects.
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 289. Formation, Maintenance, and Prohibition of

Combination of Capital or Labor through Violence or
Threats
Elements
1.
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.
The purpose is to organize, maintain or prevent

coalitions of capital or labor, strike of laborers or
lockout of employers.
Article 288. Other Similar Coercions

Acts punished:
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;
Article 290. Discovering Secrets through Seizure of

Correspondence
Elements:
Elements
1.
2.
3.
2.
Offender is any person, agent or officer

of any association or corporation;
1.
Offender is a private individual or even a public

officer not in the exercise of his official function;
He or such firm or corporation has

employed laborers or employees;
2.
He seizes the papers or letters of another;
3.
The purpose is to discover the secrets of such

another person;
4.
Offender is informed of the contents of the

papers or letters seized.
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 him or from said firm or
corporation.
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.
Elements:
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.
According to Ortega, it is not necessary that the offender

should actually discover the contents of the letter. Reyes,
112
P.J.G.
citing People v. Singh, CA, 40 OG, Suppl. 5, 35, believes

otherwise.
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.
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.
Offender is a person in charge, employee or

workman of a manufacturing or industrial
establishment;
2.
The manufacturing or industrial establishment

has a secret of the industry which the offender
has learned;
3.
Offender reveals such secrets;
4.
Prejudice is caused to the owner.
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.
Revelation of secrets discovered not an element of the
crime but only increases the penalty.
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.
Article 291. Revealing Secrets with Abuse of Office

Elements
TITLE X. CRIMES AGAINST PROPERTY
1.
Offender is a manager, employee or servant;
Crimes against property
2.
He learns the secrets of his principal or master in

such capacity;
1.
Robbery with violence against or intimidation of

persons (Art. 294);
3.
He reveals such secrets.
2.
Attempted and frustrated robbery committed

under certain circumstances (Art. 297);
3.
Execution of deeds by means of violence or

intimidation (Art. 298);
An employee, manager, or servant who came to know of

the secret of his master or principal in such capacity and
113
P.J.G.
4.
5.
Robbery in an inhabited house or public building

or edifice devoted to worship (Art. 299);
28.
Damage and obstruction

communication (Art. 330);
Robbery in an inhabited place or in a private

building (Art. 302);
29.
Destroying or damaging statues,

monuments or paintings (Art. 331).
to
means
of
public
6.
Possession of picklocks or similar tools (Art. 304);
7.
Brigandage (Art. 306);
Article 293. Who Are Guilty of Robbery
8.
Aiding and abetting a band of brigands (Art. 307);
9.
Theft (Art. 308);
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.
10.
Qualified theft (Art. 310);
11.
Theft of the property of the National Library and

National Museum (Art. 311);
Elements of robbery in general

1.
There is personal property belonging to another;
2.
There is unlawful taking of that property;
3.
The taking must be with intent to gain; and
4.
There is violence against or intimidation of any

person, or force upon anything.
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);
Article 294.
Robbery with Violence against or
Intimidation of Persons
17.
Swindling a minor (Art. 317);
Acts punished
18.
Other deceits (Art. 318);
1.
19.
Removal, sale or pledge of mortgaged property

(Art. 319);
When by reason or on occasion of the robbery

(taking of personal property belonging to another
with intent to gain), the crime of homicide is
committed;
20.
Destructive arson (Art. 320);
2.
When the robbery is accompanied by rape or

intentional mutilation or arson;
21.
Other forms of arson (Art. 321);

3.
22.
Arson of property of small value (Art. 323);
When by reason of on occasion of such robbery,

any of the physical injuries resulting in insanity,
imbecility, impotency or blindness is inflicted;
23.
Crimes involving destruction (Art. 324);

4.
24.
Burning ones own property as means to commit

arson (Art. 325);
25.
Setting fire to property exclusively owned by the

offender (Art. 326);
26.
Malicious mischief (Art. 327);
When by reason or on occasion of robbery, any of

the physical injuries resulting in the loss of the
use of speech or the power to hear or to smell, or
the loss of an eye, a hand, a foot, an arm, or a leg
or the loss of the use of any such member or
incapacity for the work in which the injured
person is theretofore habitually engaged is
inflicted;
27.
Special case of malicious mischief (Art. 328);
114
P.J.G.
5.
6.
7.
If the violence or intimidation employed in the

commission of the robbery is carried to a degree
unnecessary for the commission of the crime;
When in the course of its execution, the offender
shall have inflicted upon any person not
responsible for the commission of the robbery
any of the physical injuries in consequence of
which the person injured becomes deformed or
loses any other member of his body or loses the
sue thereof or becomes ill or incapacitated for the
performance of the work in which he is habitually
engaged for more than 90 days or the person
injured becomes ill or incapacitated for labor for
more than 30 days;
If the violence employed by the offender does not
cause any of the serious physical injuries defined
in Article 263, or if the offender employs
intimidation only.
Violence or intimidation upon persons may result in death

or mutilation or rape or serious physical injuries.
If death results or even accompanies a robbery, the crime
will be robbery with homicide provided that the robbery is
consummated.
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.
In robbery with violence of intimidation, the taking is

complete when the offender has already the possession of
the thing even if he has no opportunity to dispose of it.
In robbery with force upon things, the things must be
brought outside the building for consummated robbery to
be committed.
On robbery with homicide

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:
In Napolis v. CA, it was held that when violence or

intimidation and force upon things are both present in the
robbery, the crime is complex under Article 48.
Robbers decided to commit robbery in a house, which

turned out to be a boarding house. Thus, there were
115
P.J.G.
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.
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.
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
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:
116
P.J.G.
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.
On robbery with rape

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.
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.
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
117
P.J.G.
robbery with rape. In the latter, the criminal intent to gain

must precede the intent to rape.
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.
118
P.J.G.
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.
Article 295. Robbery with Physical Injuries, Committed in

An Uninhabited Place and by A Band
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.
1.
In an uninhabited place;
2.
By a band;
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.
3.
By attacking a moving train, street car, motor

vehicle, or airship;
4.
By entering the passengers compartments in a

train, or in any manner taking the passengers
thereof by surprise in the respective conveyances;
or
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.
5.
On a street, road, highway or alley, and the

intimidation is made with the use of firearms, the
offender shall be punished by the maximum
periods of the proper penalties prescribed in
Article 294.
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 robber 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.
Robbery with violence against or intimidation of person

qualified is qualified if it is committed
Article 296 defines a robbery by a band as follows: when

at least four armed malefactors take part in the
commission of a robbery.
Requisites for liability for the acts of the other members of

the band
1.
He was a member of the band;
2.
He was present at the commission of a robbery by

that band;
3.
The other members of the band committed an

assault;
4.
He did not attempt to prevent the assault.
Article 298. Execution of Deeds by Means of Violence or

intimidation
Elements
1.
Offender has intent to defraud another;
2.
Offender compels him to sign, execute, or deliver

any public instrument or document.
119
P.J.G.
3.
The compulsion is by means of violence or

intimidation.
Elements under subdivision (a)
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.
1.
Offender entered an inhabited house, public

building
Two predicates that will give rise to the crime as robbery:
2.
The entrance was effected by any of the following

means:
Article 299. Robbery in An Inhabited House or Public

Building or Edifice Devoted to Worship
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.
3.
By using any fictitious

pretending the exercise
authority.
name or
of public
Once inside the building, offender took personal

property belonging to another with intent to gain.
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.
Elements under subdivision (b):
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).
1.
Illustration:
2.
Offender is inside a dwelling house, public

building, or edifice devoted to religious worship,
regardless of the circumstances under which he
entered it;
Offender takes personal property belonging to
another, with intent to gain, under any of the
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.
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:
"Force upon things" has a technical meaning in law. Not

any kind of force upon things will characterize the taking
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.
120
P.J.G.
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.
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.
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.
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.
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.
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.
(2)
public buildings;
(3)
a place devoted to religious worship.
The law also considers robbery committed not in an

inhabited house or in a private building.
Note that the manner of committing the robbery with force
upon things is not the same.
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.
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.
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.
Those means must be employed in entering. If the
offender had already entered when these means were
employed, anything taken inside, without breaking of any
sealed or closed receptacle, will not give rise to robbery.
The law classifies robbery with force upon things as those

committed in:
Illustration:
(1)
A found B inside his (As) house. He asked B what the

latter was doping there. B claimed he is an inspector from
an inhabited place;
121
P.J.G.
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.
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
Article 301 defines an inhabited house, public building, or

building dedicated to religious worship and their
dependencies, thus:
e.
A closed or sealed receptacle was

removed, even if the same be broken
open elsewhere.
Inhabited house Any shelter, ship, or vessel constituting

the dwelling of one or more persons, even though the
inhabitants thereof shall temporarily be absent therefrom
when the robbery is committed.
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.
3.
Offender took therefrom personal property

belonging to another with intent to gain.
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.
Article 304. Possession of Picklock or Similar Tools

Dependencies of an inhabited house, public building, or
building dedicated to religious worship All interior
courts,
corrals,
warehouses,
granaries,
barns,
coachhouses, stables, or other departments, or enclosed
interior entrance connected therewith and which form
part of the whole. Orchards and other lands used for
cultivation or production are not included, even if closed,
contiguous to the building, and having direct connection
therewith.
Elements
1.
Offender has in his possession picklocks or similar

tools;
2.
Such picklock or similar tools are especially

adopted to the commission of robbery;
3.
Offender does not have lawful cause for such

possession.
Article 302. Robbery in An Uninhabited Place or in A

Private Building
Article 305 defines false keys to include the following:
Elements
1.
2.
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;
Any of the following circumstances was present:
a.
b.
The entrance was effected through an

opening not intended for entrance or
egress;
A wall, roof, floor, or outside door or
window was broken;
1.
Tools mentioned in Article 304;
2.
Genuine keys stolen from the owner;
3.
Any key other than those intended by the owner

for use in the lock forcibly opened by the
offender.
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
122
P.J.G.
(2)
Elements of brigandage
1.
There are least four armed persons;
2.
They formed a band of robbers;
2.
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.
Article 307. Aiding and Abetting A Band of Brigands

Elements
1.
There is a band of brigands;
2.
Offender knows the band to be of brigands;
3.
Offender does any of the following acts:

a.
He in any manner aids, abets or protects

such band of brigands;
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.
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.
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
123
P.J.G.
against any and all prospective victims anywhere on the

highway and whoever they may potentially be.
robbery or theft was possessed, bought, kept, or dealt

with. The place where the theft or robbery was committed
was inconsequential.
Article 308. Who Are Liable for Theft
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.
Persons liable
1.
Those who with intent to gain, but without

violence against or intimidation of persons nor
force upon things, take personal property of
another without the latters consent;
2.
Those who having found lost property, fails to

deliver the same to the local authorities or to its
owner;
3.
Those who, after having maliciously damaged the

property of another, remove or make use of the
fruits or objects of the damage caused by them;
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.
4.
Those who enter an enclosed estate or a field

where trespass is forbidden or which belongs to
another and, without the consent of its owner,
hunt or fish upon the same or gather fruits,
cereals or other forest or farm products.
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.
Elements
1.
There is taking of personal property;
2.
The property taken belongs to another;
3.
The taking was done with intent to gain;
4.
The taking was done without the consent of the

owner;
5.
The taking is accomplished without the use of

violence against or intimidation of persons of
force upon things.
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
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 cattlerustling.
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 cattle-rustling 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.
124
P.J.G.
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 cattle-rustling 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)
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.
Offender takes possession of any real property or

usurps any real rights in property;
2.
The real property or real rights belong to another;
3.
Violence against or intimidation of persons is

used by the offender in occupying real property
or usurping real rights in property;
4.
There is intent to gain.
Article 310. Qualified Theft

Theft is qualified if
1.
Committed by a domestic servant;
2.
Committed with grave abuse of confidence;
3.
The property stolen is a motor vehicle, mail

matter, or large cattle;
4.
The property stolen consists of coconuts taken

from the premises of a plantation;
5.
The property stolen is fish taken from a fishpond

or fishery; or
6.
If property is taken on the occasion of fire,

earthquake, typhoon, volcanic eruption, or any
other calamity, vehicular accident, or civil
disturbance.
Article 311. Theft of the Property of the National Library

or National Museum
If the property stolen is any property of the National
Library or of the National Museum
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)
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.
Therefore, it is not correct to state that the threat
employed in usurping real property is absorbed in the
crime; otherwise, the additional penalty would be
meaningless.
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
125
P.J.G.
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.
Article 314. Fraudulent Insolvency

Elements
1.
Offender is a debtor, that is, he has obligations

due and payable;
2.
He absconds with his property;
3.
There is prejudice to his creditors.
On carnapping and theft of motor vehicle

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.
Article 315. Swindling (Estafa)

Elements in general
1.
Accused defrauded another by abuse

confidence or by means of deceit; and
This covers the three different ways of

committing estafa under Article 315; thus, estafa
is committed
a.
With unfaithfulness
confidence;
On squatting
b.
By means of false
fraudulents acts; or
According to the Urban Development and Housing Act,

the following are squatters:
c.
Through fraudulent means.
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.
of
or
abuse
of
pretenses
or
(The first form under subdivision 1 is known as

estafa with abuse of confidence; and the second
and third forms under subdivisions 2 and 3 cover
cover estafa by means of deceit.)
2.
Intruders of lands reserved for socialized housing,

pre-empting possession by occupying the same.
Damage or prejudice capable of pecuniary

estimation is caused to the offended party or
third person.
Article 313. Altering Boundaries or Landmarks
Elements of estafa with unfaithfulness of abuse of

confidence under Article 315 (1)
Elements
Under paragraph (a)
1.
There are boundary marks or monuments of

towns, provinces, or estates, or any other marks
intended to designate the boundaries of the
same;
1.
Offender has an onerous obligation to deliver

something of value;
2.
He alters its substance, quantity, or quality;
Offender alters said boundary marks.
3.
Damage or prejudice is caused to another.
2.
Under paragraph (b)
126
P.J.G.
1.
2.
Money, goods, or other personal property is

received by the offender is trust, or on
commission, or for administration, or under any
other obligation involving the duty to make
delivery of, or to return, the same;
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.
There is misappropriation or conversion of such

money or property by the offender, or denial on
his part of such receipt;
Under paragraph (b)
3.
Such misappropriation or conversion or denial is

to the prejudice of another; and
Altering the quality, fineness, or weight of anything

pertaining to his art or business.
4.
There is a demand made by the offended party to

the offender.
Under paragraph (c)
(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] ).
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.
Under Presidential Decree No. 115, the failure of the

entrustee to turn over the proceeds of the sale of the
goods, documents, or instruments covered by a trust
receipt, to the extent of the amount owing to the
entruster, or as appearing in the trust receipt; or the failure
to return said goods, documents, or instruments if they
were not sold or disposed of in accordance with the terms
of the trust receipt constitute estafa.
Under paragraph (d)

1.
Offender postdated a check, or issued a check in

payment of an obligation;
2.
Such postdating 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.
Under paragraph (c)

Note that this only applies if
1.
The paper with the signature of the offended

party is in blank;
(1)
The obligation is not pre-existing;
2.
Offended party delivered it to the offender;
(2)
The check is drawn to enter into an obligation;
3.
Above the signature of the offended party, a

document is written by the offender without
authority to do so;
4.
The document so written creates a liability of, or

causes damage to, the offended party or any third
person.
(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)
Elements of estafa by means of false pretenses or

fraudulent acts under Article 315 (2)
Acts punished under paragraph (a)
It does not cover checks where the purpose of

drawing the check is to guarantee a loan as this is
not an obligation contemplated in this paragraph
127
P.J.G.
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.
B.
1.
A person has sufficient funds in or credit

with the drawee bank when he makes or
draws and issues a check;
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.
2.
He fails to keep sufficient funds or to

maintain a credit to cover the full
amount of the check if presented within
90 days from the date appearing;
It must not be promissory notes, or guaranties.
3.
The check is dishonored by the drawee

bank.
Good faith is a defense.

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.
Distinction between estafa under Article 315 (2) (d) of the

Revised Penal Code and violation of Batas Pambansa Blg.
22:
(1)
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.
Under both Article 315 (2) (d) and Batas

Pambansa Blg. 22, there is criminal liability if the
check is drawn for non-pre-existing obligation.
If the check is drawn for a pre-existing obligation,
there is criminal liability only under Batas
Pambansa Blg. 22.
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 required.
How violated
A.
1.
A person makes or draws and issues any

check;
2.
The check is made or drawn and issued

to apply on account or for value;
Thus, it can apply to pre-existing
obligations, too.
3.
3.
The person who makes or draws and

issued 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;
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 drawer, without any valid reason,
ordered the bank to stop payment.
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;
128
P.J.G.
When the maker or drawer --
Estafa through any of the following fraudulent means

under Article 315 (3)
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;
Under paragraph (a)

1.
Offender induced the offended party to sign a

document;
Makes arrangements for payment in full

by the drawee of such check within five
banking days after notice of nonpayment
2.
Deceit was employed to make him sign the

document;
3.
Offended party personally signed the document;
The drawee must cause to be written or stamped in plain

language the reason for the dishonor.
4.
Prejudice was caused.
If the drawee bank received an order of stop-payment

from the drawer with no reason, it must be stated that the
funds are insufficient to be prosecuted here.
Under paragraph (b)
2.
b.
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.
Resorting to some fraudulent practice to insure success in

a gambling game;
Under paragraph (c)

1.
Offender removed, concealed or destroyed;
2.
Any court record, office files, documents or any

other papers;
3.
With intent to defraud another.
Acts punished under paragraph (e)

1.
2.
3.
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.
a.
Obtaining credit at
any of the establishments;
b.
Using false pretense;
a.
Abandoning or
surreptitiously removing any part of his
baggage in the establishment;
b.
After
obtaining
credit,
refreshment, accommodation;
c.
Without paying.
food,
In Kim v. People, 193 SCRA 344, it was held that if an

employee receives cash advance from his employer to
defray his travel expenses, his failure to return unspent
amount is not estafa through misappropriation or
conversion because ownership of the money was
transferred to employee and no fiduciary relation was
created in respect to such advance. The money is a loan.
The employee has no legal obligation to return the same
money, that is, the same bills and coins received.
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.
In Allied Bank Corporation v. Secretary Ordonez, 192
SCRA 246, it was held that under Section 13 of Presidential
129
P.J.G.
Decree No. 115, the failure of an entrustee to turn over the

proceeds of sale of the goods covered by the Trust Receipt,
or to return said goods if they are not sold, is punishable as
estafa Article 315 (1) (b).
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 RevisedPenal 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.
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.
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)
Article 316. Other Forms of Swindling

Under paragraph 1 By conveying, selling, encumbering,
or mortgaging any real property, pretending to be the
owner of the same
Elements
130
P.J.G.
1.
There is an immovable, such as a parcel of land or

a building;
2.
Offender who is not the owner represents himself

as the owner thereof;
3.
Offender executes an act of ownership such as

selling, leasing, encumbering or mortgaging the
real property;
4.
The act is made to the prejudice to the owner or a

third person.
Under paragraph 5 by accepting any compensation for

services not rendered or for labor not performed
Under paragraph 6 by selling, mortgaging or

encumbering real property or properties with which the
offender guaranteed the fulfillment of his obligation as
surety
Elements
1.
Offender is a surety in a bond given in a criminal

or civil action;
Under paragraph 2 by disposing of real property as free

from encumbrance, although such encumbrance be not
recorded
2.
He guaranteed the fulfillment of such obligation

with his real property or properties;
Elements
3.
He sells, mortgages, or in any manner encumbers

said real property;
4.
Such sale, mortgage or encumbrance is without

express authority from the court, or made before
the cancellation of his bond, or before being
relieved from the obligation contracted by him.
1.
The thing disposed is a real property:
2.
Offender knew that the real property was

encumbered, whether the encumbrance is
recorded or not;
3.
There must be express representation by

offender that the real property is free from
encumbrance;
Article 317. Swindling A Minor

Elements
4.
The act of disposing of the real property is made

to the damage of another.
Under paragraph 3 by wrongfully taking by the owner of

his personal property from its lawful possessor
1.
Offender takes advantage of the inexperience or

emotions or feelings of a minor;
2.
He induces such minor to assume an obligation or

to give release or to execute a transfer of any
property right;
3.
The consideration is some loan of money, credit

or other personal property;
The transaction is to the detriment of such minor.
Elements
1.
Offender is the owner of personal property;
2.
Said personal property is in the lawful possession

of another;
4.
3.
Offender wrongfully takes it from its lawful

possessor;
Article 318. Other deceits
4.
Prejudice is thereby caused to the possessor or

third person.
Acts punished
Under paragraph 4 by executing any fictitious contract to

the prejudice of another
1.
Defrauding or damaging another by any other

deceit not mentioned in the preceding articles;
2.
Interpreting dreams, by making forecasts, by

telling fortunes, or by taking advantage or the
131
P.J.G.
credulity of the public in any other similar

manner, for profit or gain.
Article 319.
Property
Removal, Sale or Pledge of Mortgaged
2.
Offender, who is the mortgagor of such

property, sells or pledges the same or
any part thereof;
3.
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.
Acts punished
1.
Knowingly removing any personal property

mortgaged under the Chattel Mortgage law to
any province or city other than the one in which it
was located at the time of execution of the
mortgage, without the written consent of the
mortgagee or his executors, administrators or
assigns;
Elements:
1.
Personal property is mortgaged under

the Chattel Mortgage Law;
2.
Offender knows that such property is so

mortgaged;
3.
Offender removes such mortgaged

personal property to any province or city
other than the one in which it was
located at the time of the execution of
the mortgage;
4.
5.
2.
Kinds of arson
1.
Arson, under Section 1 of Presidential Decree No.

1613;
2.
Destructive arson, under Article 320 of the

Revised Penal Code, as amended by Republic Act
No. 7659;
3.
Other cases of arson, under Section 3 of

Presidential Decree No. 1613.
Article 327. Who Are Liable for Malicious Mischief

Elements
1.
Offender deliberately caused damage to the

property of another;
2.
Such act does not constitute arson or other

crimes involving destruction;
3.
The act of damaging anothers property was

committed merely for the sake of damaging it;
The removal is permanent;

There is no written consent of the
mortgagee
or
his
executors,
administrators or assigns to such
removal.
Selling or pledging personal property already

pledged, or any part thereof, under the terms of
the Chattel Mortgage Law, without the consent of
the mortgagee written on the back of the
mortgage and noted on the record thereof in the
office of the register of deeds of the province
where such property is located.
Elements:
1.
Arson
Personal property is already pledged

under the terms of the Chattel Mortgage
Law;
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.
132
P.J.G.
2.
Widowed spouse with respect to the property

which 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.
Article 328. Special Case of Malicious Mischief

Acts punished
1.
Causing damage to obstruct the performance of

public functions;
2.
Using any poisonous or corrosive substance;
3.
Spreading any infection or contagion among

cattle;
4.
Causing damage to the property of the National

Museum or National Library, or to any archive or
registry, waterworks, road, promenade, or any
other thing used is common by the pubic.
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.
Article 329. Other Mischiefs
TITLE XI. CRIMES AGAINST CHASTITY
All other mischiefs not included in the next preceding

article
Crimes against chastity
Article 330. Damage and Obstruction to Means of

Communication
This is committed by damaging any railway, telegraph or
telephone lines.
1.
Adultery (Art. 333);
2.
Concubinage (Art. 334);
3.
Acts of lasciviousness (Art. 336);
4.
Qualified seduction (Art. 337);
5.
Simple seduction (Art. 338);
Article 331. Destroying or Damaging Statues, Public

Monuments, or Paintings
6.
Acts of lasciviousness with the consent of the

offended party (Art. 339);
Article 332. Persons Exempt from Criminal Liability
7.
Corruption of minors (Art. 340);
Crimes involved in the exemption
8.
White slave trade (Art. 34);
1.
Theft;
9.
Forcible abduction (Art. 342);
2.
Estafa; and
10.
Consented abduction (Art. 343).
3.
Malicious mischief.
Persons exempted from criminal liability

1.
Spouse, ascendants and descendants, or relatives

by affinity in the same line;
The crimes of adultery, concubinage, seduction, abduction

and acts of lasciviousness are the so-called 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
133
P.J.G.
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.
There is no frustrated adultery because of the nature of the

offense.
Article 333. Who Are Guilty of Adultery
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.
Elements
1.
The woman is married;
2.
She has sexual intercourse with a man not her

husband;
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.
Illustration:
3.
As regards the man with whom she has sexual

intercourse, he must know her to be married.
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.
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.
Article 334. Concubinage

Acts punished
1.
Keeping a mistress in the conjugal dwelling;
The acquittal of the woman does not necessarily result in

the acquittal of her co-accused.
2.
Having sexual intercourse, under scandalous

circumstances;
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.
3.
Cohabiting with her in any other place.
A husband committing concubinage may be required to

support his wife committing adultery under the rule in pari
delicto.
Elements
1.
The man is married;
2.
He is either
a.
Keeping a mistress in the conjugal

dwelling;
b.
Having sexual intercourse under

scandalous circumstances with a woman
who is not his wife; or
134
P.J.G.
c.
3.
Cohabiting with a woman who is not his

wife in any other place;
As regards the woman, she knows that the man is

married.
Note that there are two kinds of acts of lasciviousness

under the Revised Penal Code: (1) under Article 336, and
(2) under Article 339.
1.
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
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.
Article 336. Acts of Lasciviousness
2.
(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.
Article 339. Acts of Lasciviousness with the

Consent of the Offended Party:
Article 336. Acts of Lasciviousness
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.
Elements
See Article 339.
Article 335. Rape

This has been repealed by Republic Act No. 8353 or the
Anti-Rape Law of 1997. See Article 266-A.
1.
Offender commits any act of lasciviousness or

lewdness;
2.
It is done under
circumstances:
any
of
the
following
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.
a.
By using force or intimidation;
b.
When the offended party is deprived or

reason of otherwise unconscious; or
Intent to rape is not a necessary element of the crime of

acts of lasciviousness. Otherwise, there would be no crime
of attempted rape.
c.
When the offended party is another

person of either sex.
Article 337. Qualified Seduction

Acts punished
135
P.J.G.
1.
Seduction of a virgin over 12 years and under 18

years of age by certain persons, such as a person
in authority, priest, teacher; and
Elements
1.
Offended party is a virgin, which is

presumed if she is unmarried and of
good reputation;
2.
She is over 12 and under 18 years of age;
3.
Offender has sexual intercourse with

her;
4.
There is abuse of authority, confidence

or relationship on the part of the
offender.
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.
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:
2.
Seduction of a sister by her brother, or

descendant by her ascendant, regardless of her
age or reputation.
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.
Person liable
1.
2.
3.
Those who abused their authority

a.
Person in public authority;
b.
Guardian;
c.
Teacher;
d.
Person who, in any capacity, is entrusted

with the education or custody of the
woman seduced;
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.
Those who abused confidence reposed in them

a.
Priest;
Article 338.
Simple Seduction
b.
House servant;
Elements
c.
Domestic;
1.
Offender party is over 12 and under 18 years of

age;
2.
She is of good reputation, single or widow;
3.
Offender has sexual intercourse with her;
4.
It is committed by means of deceit.
Those who abused their relationship

a.
Brother who seduced his sister;
b.
Ascendant who seduced his descendant.
136
P.J.G.
Acts punished
This crime is committed if the offended woman is single or
a widow of good reputation, over 12 and under 18 years of
age, the offender has carnal knowledge of her, and the
offender resorted to deceit to be able to consummate the
sexual intercourse with her.
1.
Engaging in the business of prostitution;
2.
Profiting by prostitution;
3.
Enlisting the services of women for the purpose

of prostitution.
The offended woman must be under 18 but not less than

12 years old; otherwise, the crime is statutory rape.
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.
The failure to comply with the promise of marriage
constitutes the deceit mentioned in the law.
Article 342. Forcible Abduction

Elements
1.
The person abducted is any woman, regardless or

her age, civil status, or reputation;
2.
The abduction is against her will;
3.
The abduction is with lewd designs.
Article 339. Acts of Lasciviousness with the Consent of

the Offender Party
Elements
1.
Offender commits acts of lasciviousness or

lewdness;
2.
The acts are committed upon a woman who is a

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.
Offender accomplishes the acts by abuse of

authority, confidence, relationship, or deceit.
A woman is carried against her will or brought from one

place to another against her will with lewd design.
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.
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.
Article 340. Corruption of Minors

This punishes any person who shall promote or facilitate
the prostitution or corruption of persons under age 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.
Article 341. White Slave Trade
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.
137
P.J.G.
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.
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
detention:
between
forcible
abduction
and
illegal
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.
Article 343. Consented Abduction

Elements
1.
Offended party is a virgin;
2.
She is over 12 and under 18 years of age;
3.
Offender takes her away with her consent, after

solicitation or cajolery;
4.
The taking away is with lewd designs.
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.
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. While
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.
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 till 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.
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
138
P.J.G.
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.
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

TITLE XII.
PERSONS
CRIMES AGAINST THE CIVIL STATUS OF
Crimes against the civil status of persons

1.
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 of 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 intent to cause such child to lose its civil
status.
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.
Article 349. Usurpation of Civil Status
Illustration:
People who have no child and who buy and adopt the child
without going through legal adoption.
This crime is committed when a person represents himself

to be another and assumes the filiation or the parental or
conjugal rights of such another person.
Thus, where a person impersonates another and assumes

the latter's right as the son of wealthy parents, the former
commits a violation of this article.
The term "civil status" includes one's public station, or the
rights, duties, capacities and incapacities which determine
139
P.J.G.
a person to a given class. It seems that the term "civil

status" includes one's profession.
Article 349. Bigamy

Elements
1.
Offender has been legally married;
2.
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.
He contracts a second or subsequent marriage;
4.
The second or subsequent marriage has all the

essential requisites for validity.
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.
For bigamy to be committed, the second marriage must
have all the attributes of a valid marriage.
Article 350. Illegal Marriage
The crime of bigamy does not fall within the category of

private crimes that can be prosecuted only at the instance
of the offended party. The offense is committed not only
against the first and second wife but also against the state.
Elements
1.
Offender contracted marriage;
2.
He knew at the time that

a.
The requirements of the law were not

complied with; or
b.
The marriage was in disregard of a legal

impediment.
Good faith is a defense in bigamy.

Failure to exercise due diligence to ascertain the
whereabouts of the first wife is bigamy through reckless
imprudence.
Marriages contracted against the provisions of laws

The second marriage must have all the essential requisites
for validity were it not for the existence of the first
marriage.
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.
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.
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.
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.
5.
Marriage solemnized by a minister or priest who

does not have the required authority to
solemnize marriages.
Distinction between bigamy and illegal marriage:
Article 351. Premature Marriage
A judicial declaration of the nullity of a marriage, that is,

that the marriage was void ab initio, is now required.
140
P.J.G.
Persons liable
dishonor, discredit, or contempt of a natural or juridical

person, or to blacken the memory of one who is dead.
1.
Elements:
2.
A widow who is married within 301 days from the

date of the death of her husband, or before
having delivered if she is pregnant at the time of
his death;
A woman who, her marriage having been
annulled or dissolved, married before her delivery
or before the expiration of the period of 301 days
after the date of 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.
TITLE XIII. 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. Definition of Libel

A libel is a public and malicious imputation of a crime, or of
a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstances tending to cause the
1.
There must be an imputation of a crime, or of a

vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance;
2.
The imputation must be made publicly;
3.
It must be malicious;
4.
The imputation must be directed at a natural or

juridical person, or one who is dead;
5.
The imputation must tend to cause the dishonor,

discredit or contempt of the person defamed.
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:
141
P.J.G.
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.
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.
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.
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.
Requisites of defense in defamation

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.
The crime is libel is the defamation is in writing or printed
media.
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.
Article 355. Libel by Means of Writings or Similar Means

A libel may be committed by means of
1.
Writing;
2.
Printing;
3.
Lithography;
4.
Engraving;
5.
Radio;
6.
Photograph;
7.
Painting;
8.
Theatrical exhibition;
The crime is slander or oral defamation if it is not printed.

Even if what was imputed is true, the crime of libel is
committed unless one acted with good motives or
142
P.J.G.
(2)
9.
Cinematographic exhibition; or
10.
Any similar means.
Grave slander, when it is of a serious and insulting

nature.
Article 359. Slander by Deed

Article 356. Threatening to Publish and Offer to Prevent
Such Publication for A Compensation
Elements
1.
Offender performs any act not included in any

other crime against honor;
2.
Such act is performed in the presence of other

person or persons;
3.
Such act casts dishonor, discredit or contempt

upon the offended party.
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.
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.
Offender is a reporter, editor or manager of a

newspaper, daily or magazine;
2.
He publishes facts connected with the private life

of another;
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.
Article 363. Incriminating Innocent Persons
3.
Such facts are offensive to the honor, virtue and

reputation of said person.
The provisions of Article 357 constitute the so-called "Gag

Law."
Article 358. Slander

Slander is oral defamation. There are tow kinds of oral
defamation:
(1)
Simple slander; and
Elements
1.
Offender performs an act;
2.
By such an act, he incriminates or imputes to an

innocent person the commission of a crime;
3.
Such act does not constitute perjury.
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.
143
P.J.G.
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.
Article 365. Imprudence and Negligence
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.
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.
Quasi-offenses punished
As far as this crime is concerned, this has been interpreted

to be possible only in the so-called planting of evidence.
Article 364. Intriguing against Honor

This crime is committed by any person who shall make any
intrigue which has for its principal purpose to blemish the
honor or reputation of another person.
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.
Distinction between intriguing against honor and slander:
When the source of the defamatory utterance is unknown
and the offender simply repeats or passes the same, the
crime is intriguing against honor.
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
incriminating an innocent person:
against
honor
and
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.
TITLE XVI. CRIMINAL NEGLIGENCE
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.
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.
Do not separate the accusation from the slight physical
injuries from the other material result of the negligence.
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
144
P.J.G.
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.
145

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P.J.G.

REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW

TITLE I. CRIMES AGAINST NATIONAL SECURITY AND THE

Inciting to War or Giving Motives for Reprisals,

Violation of Neutrality, under Article 119 The

Crimes against national security

Treason (Art. 114);

Conspiracy and proposal to commit treason (Art.

Misprision of treason (Art. 116); and

Espionage (Art. 117).

Crimes against the law of nations

Inciting to war or giving motives for reprisals (Art.

Violation of neutrality (Art. 119);

Offender is a Filipino or resident alien;

Corresponding with hostile country (Art. 120);

There is a war in which the Philippines is involved;

Flight to enemy's country (Art. 121); and

Piracy in general and mutiny on the high seas

The crimes under this title can be prosecuted even if the

levies war against the government; or

adheres to the enemies, giving them aid

Requirements of levying war

Actual assembling of men;

To execute a treasonable design by force;

Intent is to deliver the country in whole or in part

Almost all of these are crimes committed in times of war,

Collaboration with foreign enemy or some foreign

Two ways of proving treason

Espionage, under Article 114 This is also covered

Testimony of at least two witnesses to the same

Confession of accused in open court.

Article 115. Conspiracy and Proposal to Commit Treason

There is a war in which the Philippines is involved;

At least two persons come to an agreement to

levy war against the government; or

adhere to the enemies, giving them aid

They decide to commit it.

Elements of proposal to commit treason

There is a war in which the Philippines is involved;

At least one person decides to

levy war against the government; or

adhere to the enemies, giving them aid

Article 116. Misprision of Treason

Offender owes allegiance to the government, and

He has knowledge of conspiracy to commit

He conceals or does not disclose and make known

failed to make the necessary report to the government

Article 117. Espionage

By entering, without authority therefore, a

While in treason, even aliens can commit said crime

Offender enters any of the places

He has no authority therefore;

His purpose is to obtain information,

confidential nature relative to

By disclosing to the representative of a foreign

Article 119. Violation of Neutrality

There is a war in which the Philippines is not

There is a regulation issued by a competent

Offender violates the regulation.