Title X.
Crimes against Property (8) Article 329 - Other Mischiefs
Chapter I: Robbery in General
(1) Article 293 - Who Are Guilty of Robbery
(2) Article 294 - With Violence or Intimidation
of Persons
3) Article 295- Robbery with Physical Injuries,
in an Uninhabited Place and by a Band
(4) Article 296 - Definition of a Band and Penalty Incurred by the
Members Thereof
(5) Article 297 - Attempted and Frustrated
Robbery with Homicide
(6) Article 298 - Execution of Deeds through
Violence or Intimidation
(7) Article 299 - Robbery in an Inhabited
House or Public Building or Edifice
Devoted to Worship
(8) Article 300 - Robbery in an Uninhabited
Place and by a Band
(9) Article 302 - In an Uninhabited Place or
Private Building
(10) Article 303 - Robbery of Cereals, Fruits or Firewood in an
Inhabited Place or Private Building
(11) Article 304 - Possession of Picklock or
Similar Tools
(12) Article 305 - False Keys
Chapter 2: Brigandage
(1) Article 306 - Who Are Brigands
(2) Article 307 - Aiding and Abetting a Band of Brigands
Chapter 3: Theft
(1) Article 308 - Who Are Liable for Theft
(2) Article 309 Penalties
(3) Article 310 - Qualified Theft
(4) Article 311 - Theft of the Property of the
National Library and National Museum
Chapter 4: Usurpation
(1) Article 312 - Occupation of Real Property or Usurpation of
Real Rights in Property
(2) Article 313 - Altering Boundaries or Landmarks
Chapter 5: Culpable Insolvency
(1) Article 314 - Fraudulent Insolvency
Chapter 6: Swindling
1) Article 315 Estafa
(2) Article 316 - Other Forms of Swindling
(3) Article 317 - Swindling of a Minor
(4) Article 318 - Other Deceits
Chapter 7: Chattel mortgage
(1) Article 319 - Removal, Sale, or Pledge of Mortgaged
Property
Chapter 8: Arson and other Crimes involving Destruction
Chapter 9: Malicious mischief
(6) Article 327 - Who Are Responsible
(7) Article 328 - Special Cases of Malicious
Mischief
(9) Article 330 - Damage and Obstruction to
Means of Communication
(10) Article 331 - Destroying or Damaging
Statues, Public Monuments or Paintings
Chapter 10: Exemption from Criminal Liability
(2) Article 332 - Exemption from Criminal Liability in Crimes
Against Property
CHAPTER I: ROBBERY IN GENERAL
ARTICLE 293 - WHO ARE GUILTY OF ROBBERY
Elements of Robbery in General:
(a) Personalcproperty
(b) Belonging to another
(c) There is unlawful taking
(d) With Intent to gain
(e) Violence against or intimidation of any
person OR force upon anything
The property taken must be personal, if real property/right is
usurped the crime is usurpation (Art. 312).
Prohibitive articles may be the subject of robbery, e.g., opium
From the moment the offender gains possession of the object,
even without the chance to dispose of the same, the unlawful
taking is complete.
Taking depriving the offended party of possession of the
thing taken with the character of permanency.
Intent to gain is presumed from the unlawful taking. It cannot be
established by direct evidence, except in case of confession.
It is not necessary that violence or intimidation is present from
the beginning. If the violence or intimidation at any time before
asportation is complete, the taking of property is qualified to
robbery.
When is UNLAWFUL TAKING complete?
In Robbery with violence against or intimidation of persons, even
if the culprit has had no opportunity to dispose of the same, the
unlawful taking is complete. There is no frustrated stage.
In Robbery with force upon things, the thing must be taken out
of the building to consummate the crime. There is a
FRUSTRATED STAGE. (e.g. when the culprit had already
broken the floor of the bodega, had entered it, and had removed
one sack of sugar from the pile, but was caught in the act of
taking out the sack through the opening of the door, crime
committed is FRUSTRATED ROBBERY)
When is violence committed?
GENERAL RULE: Violence or intimidation must be present
BEFORE the taking of personal property is complete.
EXCEPTION: When violence results in homicide, rape,
intentional mutilation, or any of the serious physical injuries
penalized in par. 1 and 2 of Art. 263, the taking of the personal
property is robbery complexed with any of those crimes under
Art. 294, even if the taking was already complete when violence
was used by the offender.
VIOLENCE AGAINST OR INTIMIDATION OF PERSON
The taking is always robbery.
Value of the thing taken is immaterial. The penalty depends on:
(3) the result of the violence used (homicide, rape, intentional
mutilation, serious physical injuries, less serious or slight
physical injuries resulted) and
(4) the existence of intimidation only
USE OF FORCE UPON THINGS The taking is robbery only if
force is used to:
(4) enter the building
(5) break doors, wardrobes,
chests, or any other kind of locked or sealed furniture or
receptacle inside the building; OR
(6) force them open outside after taking the same from the
building (Art. 299 & 302)
If committed in an inhabited house, public building, or edifice
devoted to religious worship, the penalty is based on:
(3) the value of the thing taken and
(4) whether or not the offenders carry arms;
ARTICLE 294 ROBBERY WITH VIOLENCE AGAINST OR
INTIMIDATION OF PERSONS
Acts punished under Art 294:
(1) When by reason or on occasion of the robbery, Homicide is
committed. (Robbery with Homicide)
(2) When the robbery is accompanied by Rape or Intentional
Mutilation or Arson. (Robbery with Rape, Robbery with
Intentional Mutilation, Robbery with Arson)
(3) When by reason or on occasion of such robbery, any of the
Physical Injuries resulting in insanity, imbecility, impotency, or
blindness is inflicted.
(4) When by reason or on occasion of robbery, any of the
Physical Injuries resulting in the loss of the use of speech or the
power to hear or to smell, or the loss of an eye, a hand, 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.
(5) If the violence or intimidation employed in the commission of
the robbery is carried to a degree clearly unnecessary for the
commission of the crime.
(6) When in the course of its execution, the offender shall have
inflicted upon any person not responsible for the commission of
the robbery any of the Physical Injuries in consequence of which
the person injured becomes deformed or loses any other
member of his body or loses the use thereof or becomes ill or
incapacitated for the performance of the work in which he is
habitually engaged for labor for more than 90 days or the person
injured becomes ill or incapacitated for labor for more than 30
days.
(7) If the violence employed by the offender does not cause any
of the serious physical injuries defined in Art. 263, or if the
offender employs intimidation only.
The crime defined in this article is a special complex crime.
On the occasion and by reason mean that homicide or made with the use of Firearms
serious physical injuries must be committed in the course or
because of the robbery.
The violence must be against the person, not upon the thing
taken. It must be present before the taking of personal property
is complete.
Homicide is used in its generic sense, as to include parricide
and murder. Hence, there is no robbery with murder. The crime
is still robbery with homicide even if, in the course of the robbery,
the person killed was another robber or a bystander.
Even if the rape was committed in another place, it is still
robbery with rape. When the taking of personal property of a
woman is an independent act following defendants failure to
consummate the rape, there are two distinct crimes committed:
attempted rape and theft. Additional rape committed on the
same occasion of robbery will not increase the penalty.
Absence of intent to gain will make the taking of personal
property grave coercion if there is violence used (Art. 286).
If both violence/intimidation of persons (294) and force upon
things (299/302) co-exist, it will be considered as violation of Art
294 because it is more serious than in Art 299/302.
BUT when robbery is under Art 294 par 4 & 5 the penalty is
lower than in Art 299 so the complex crime should be imputed
for the higher penalty to be imposed without sacrificing the
principle that robbery w/ violence against persons is more
severe than that w/ force upon things. [Napolis v. CA (1972)]
When the taking of the victims gun was to prevent the victim
from retaliating, then the crimes committed are theft and
homicide not robbery with homicide. [People v. Millian (2000)]
These offenses are known as SPECIAL COMPLEX CRIMES.
Crimes defined under this article are the following:
(1) Robbery with homicide
(2) Robbery with rape
(3) Robbery with intentional mutilation
(4) Robbery with arson
(5) Robbery with serious physical injuries
ROBBERY WITH HOMICIDE; (Absorption Theory applied)
Attempted homicide or attempted murder committed during or
on the occasion of the robbery, as in this case, is absorbed in
the crime of Robbery with Homicide which is a special complex
crime that remains fundamentally the same regardless of the
number of homicides or injuries committed in connection with
the robbery. [People v. Cabbab, Jr. (2007)]
ROBBERY WITH RAPE
If the intention of the accused was to rob, but rape was
committed even before the asportation, the crime is the special
complex crime of Robbery with Rape. So long as the intent of
the accused is to rob, rape may be committed before, during or
after the robbery. But if the primary intent of the accused was to
rape and his taking away the belongings of the victim was only a
mere afterthought, two separate felonies are committed: Rape
and Theft or Robbery depending upon the circumstances
surrounding the unlawful taking. [People v. Naag, GR No.
1361394, Feb. 15, 2001]
ARTICLE 295 - ROBBERY WITH PHYSICAL INJURIES, IN AN
UNINHABITED PLACE AND BY A BAND
Robbery with violence against or intimidation of persons is
qualified when it is committed:
(1) In an Uninhabited place, or
(2) By a Band, or
(3) By Attacking a moving train, street car,
motor vehicle, or airship, or
(4) By Entering the passengers
compartments in a train, or in any manner taking the passengers
thereof by surprise in the respective conveyances, or
(5) On a Street, road, highway, or alley, AND the intimidation is
Here, the offender shall be punished by the maximum periods of
the proper penalties in Art. 294. The penalty cannot be offset by
a generic mitigating circumstance.
The intimidation with the use of firearm qualifies only robbery on
a street, road, highway, or alley.
Any of these qualifying circumstances must be alleged in the
information and proved during the trial.
ARTICLE 296 ROBBERY BY A BAND
Outline of Art. 296 (Definition of a Band and Penalty Incurred by
the Members Thereof):
(1) When at least 4 armed malefactors take part in the
commission of a robbery, it is deemed committed by a band.
(2) When any of the arms used in the commission of robbery is
not licensed, penalty upon all the malefactors shall be the
maximum of the corresponding penalty provided by law, without
prejudice to the criminal liability for illegal possession of such
firearms.
(3) Any member of a band who was present at the commission
of a robbery by the band, shall be punished as principal of any
of the assaults committed by the band, unless it be shown that
he attempted to prevent the crime.
Requisites for Liability for the acts of the other members:
(1) Member of the band.
(2) Present at the commission of the robbery.
(3) Other members committed an assault.
(4) He did not attempt to prevent assault.
Conspiracy is presumed when robbery is by band.
When the robbery was not committed by a band, the robber who
did not take part in the assault by another is not liable for that
assault.
When the robbery was not by a band and homicide was not
determined by the accused when they plotted the crime, the one
who did not participate in the killing is liable for robbery only. It is
only when the robbery is in band that all those present in the
commission of the robbery may be punished for any of the
assaults which any of its members might commit.
But when there is conspiracy to commit homicide and robbery,
all the conspirators, even if less than 4 armed men, are liable for
the special complex crime of robbery with homicide.
Art 296 is not applicable to principal by inducement, who was
not present at the commission of the robbery, if the agreement
was only to commit robbery.
The article speaks of more than 3 armed malefactors who takes
part in the commission of the robbery and member of a band
who is present at the commission of a robbery by a band.
Thus, a principal by inducement, who did not go with the band at
the place of the commission of the robbery, is not liable for
robbery with homicide, but only for robbery in band, there being
no evidence that he gave instructions to kill the victim or
intended that this should be done.
When there was conspiracy for robbery only but homicide was
also committed on the occasion thereof, all members of the
band are liable for robbery with homicide.
Whenever homicide is committed as a consequence of or on the
occasion of a robbery, all those who took part in the commission
of the robbery are also guilty as principals in the crime of
homicide unless it appears that they endeavored to prevent the
homicide.
Proof of conspiracy is not essential to hold a member of the
band liable for robbery with homicide actually committed by the
other members of the band.
There is no crime as robbery with homicide in band. Band is
only ordinary aggravating circumstance in robbery w/ homicide
In order for special aggravating circumstance of unlicensed
firearm to be appreciated, it is condition sine qua non that
offense charged be robbery by a band under Art 295.
Pursuant to Art 295, circumstance of a band is qualifying only in
robbery under par 3, 4 & 5 of Art 294.
Hence, Art. 295 does not apply to robbery with homicide, or
robbery with rape, or robbery with serious physical injuries under
par. 1 of Art. 263.
Special aggravating circumstance of unlicensed firearm is
inapplicable to robbery w/ homicide, or robbery with rape, or
robbery with physical injuries, committed by a band. [People v.
Apduhan]
ARTICLE 297 - ATTEMPTED AND FRUSTRATED ROBBERY
WITH HOMICIDE
Elements:
(a) There is attempted or frustrated robbery
(b) A homicide is committed on the same
occasion
Homicide includes multiple homicides, murder, parricide, or
even infanticide.
The penalty is the same, whether robbery is attempted or
frustrated.
Robbery with homicide and attempted or frustrated robbery with
homicide are special complex crimes, not governed by Art. 48,
but by the special provisions of Arts. 294 & 297, respectively.
There is only one crime of attempted robbery with homicide
even if slight physical injuries were inflicted on other persons on
the occasion or by reason of the robbery.
ARTICLE 298 - EXECUTION OF DEEDS THROUGH
VIOLENCE OR INTIMIDATION
Elements:
(a) Offender has Intent to defraud another
(b) Offender Compels him to sign, execute, or
deliver any public instrument or document
(c) Compulsion is by means of violence or
intimidation.
If the violence resulted in the death of the person to be
defrauded, crime is robbery with homicide and shall be
penalized under Art 294 par. 1.
Art. 298 applies to private or commercial document, but it does
not apply if document is void.
When the offended party is under obligation to sign, execute or
deliver the document under the law, it is not robbery but
coercion.
By Force Upon Things
(1) Robbery by the use of force upon things is committed only
when either:
(2) Offender entered a house or building by any of the means
specified in Art. 299 or Art. 302, or
(3) Even if there was no entrance by any of those means, he
broke a wardrobe, chest, or any other kind of locked or closed or
sealed furniture or receptacle in the house or building, or he took
it away to be broken or forced open outside.
ARTICLE 299 - ROBBERY IN AN INHABITED HOUSE OR
PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP
Elements of robbery with force upon things under SUBDIVISION
(A):
(a) Offender entered
(1) An inhabited house
(2) Publicbuilding
(3) Edifice devoted to religious worship
(b)Entrance was effected by any of the following means:
(1) Through an opening not intended for entrance or
egress;
(2) By breaking any wall, roof, or floor, or door or
window;
(3) By using False keys, picklocks or similar tools; or
(4) By using any Fictitious name or pretending the
exercise of public authority.
(c) That once inside the building, the offender took personal
property belonging to another with intent to gain.
There must be evidence that accused entered the dwelling
house or building by any of the means enumerated in
subdivision (a). In entering the building, there must be the intent
to take personal property.
Inhabited house any shelter, ship, or vessel constituting the
dwelling of one or more persons even though the inhabitants
thereof are temporarily absent when the robbery is committed.
Public building 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.
Any of the four means described in subdivision (a) must be
resorted to enter a house or building, not to get out otherwise it
is only theft. The whole body of the culprit must be inside the
building to constitute entering.
Illustration: If the culprit had entered the house through an open
door, and the owner, not knowing that the culprit was inside,
closed and locked the door from the outside and left, and the
culprit, after taking personal property in the house, went out
through the window, it is only theft, not robbery.
Breaking means entering the building. The force used must
be actual, as distinguished constructive force.
False keys genuine keys stolen from the owner or any keys
other than those intended for use in the lock forcibly opened by
the offender.
The genuine key must be stolen, not taken by force or with
intimidation, from the owner.
If false key is used to open wardrobe or locked receptacle or
drawer or inside door it is only theft.
Elements of robbery with force upon things under
SUBDIVISION (B) of Art. 299:
(a) Offender is inside a dwelling house, public building, or
edifice devoted to religious worship, regardless of the
circumstances under which he entered it.
(b) Offender takes personal property belonging to another, with
intent to gain, under any of the following circumstances:
(1) Breaking of doors, wardrobes, chests, or any
other kind of locked or sealed furniture or receptacle; or
(2) Taking such furniture or objects away to be broken
or forced open outside the place of the robbery.
Entrance into the building by any of the means mentioned in
subdivision (a) is not required in robbery under subdivision (b)
The term door in par. 1, subdivision (b) of Art. 299, refers only
to doors, lids or opening sheets of furniture or other portable
receptaclesnot to inside doors of house or building.
Breaking the keyhole of the door of a wardrobe, which is locked,
is breaking a locked furniture.
It is theft if the locked or sealed receptacle is not forced open in
the building where it is kept or taken from to be broken outside.
The penalty depends on the value of property taken and on
whether or not offender carries arm. Arms carried must not be
used to intimidate. Liability for carrying arms is extended to all
those who participated in the robbery, including those without
arms.
The provision punishes more severely the robbery in a house
used as a dwelling than that committed in an uninhabited place,
because of the possibility that the inhabitants in the former might
suffer bodily harm during the robbery.
ARTICLE 301 - WHAT IS AN INHABITED HOUSE, PUBLIC
BUILDING DEDICATED TO RELIGIOUS WORSHIP AND
THEIR DEPENDENCIES:
Inhabited house any shelter, ship, or vessel constituting the
dwelling of one or more persons even though the inhabitants
thereof are temporarily absent when the robbery is committed.
Even if the occupant was absent during the robbery, the place is
still inhabited if the place was ordinarily inhabited and intended
as a dwelling.
Public building 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.
Dependencies all interior courts, corrals, warehouses,
granaries or inclosed places contiguous to the building or
edifice, having an interior entrance connected therewith, and
which form part of the whole (Art. 301, par. 2).
Requisites:
(1) Contiguous to the building;
(2) Interior entrance connected therewith;
(3) Form part of the whole.
Orchards and lands used for cultivation or production are not
included in the term dependencies (Art. 301, par. 3).
ARTICLE 300 ROBBERY IN AN UNINHABITED PLACE AND
BY A BAND
Robbery in an inhabited house, public building or edifice
dedicated to religious worship is qualified when committed by a
band and located in an uninhabited place.
See discussion on Art. 296 for definition of band.
To qualify Robbery w/ force upon things (Art 299)
It must be committed in uninhabited place and by a band (Art
300)
To qualify Robbery w/ violence against or intimidation of
persons
It must be committed in an uninhabited place or by a band (Art.
295)
ARTICLE 302 ROBBERY IN AN UNINHABITED PLACE OR
PRIVATE BUILDING
Elements:
(a) 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.
(b) That any of the following circumstances was present: (1)
Entrance was effected through an opening not intended for
entrance or egress;
(2) A wall, roof, floor, or outside door or window was
broken
(3) Entrance was effected through the use of false
keys, picklocks or other similar tools;
(4) A door, wardrobe, chest, or any sealed or closed
furniture or receptacle was broken; or
(5) A closed or sealed receptacle was removed, even
if the same be broken open elsewhere.
(6) With intent to gain, the offender took therefrom
personal property belonging to another.
Building includes any kind of structure used for storage or
safekeeping of personal property, such as (a) freight car and (b)
warehouse.
Entrance through an opening not intended for entrance or
egress is not necessary, if there is breaking of wardrobe, chest,
or sealed or closed furniture or receptacle, or removal thereof to
be broken open elsewhere.
Breaking padlock is use of force upon things.
Use of fictitious name or pretending the exercise of public
authority is not covered under this article.
A receptacle is a container, which must be closed or sealed.
Penalty is based only on value of property taken.
ARTICLE 303 - ROBBERY OF CEREALS, FRUITS OR
FIREWOOD IN AN UNINHABITED PLACE OR PRIVATE
BUILDING
In cases enumerated in Arts. 299 and 302, the penalty is one
degree lower when robbery consists in the taking of cereals,
fruits, or firewood.
Cereals seedlings which are the immediate product of the soil.
The palay must be kept by the owner as seedling or taken for
that purpose by the robbers.
ARTICLE 304 - POSSESSION OF PICKLOCK OR SIMILAR
TOOLS
Elements:
(a) Offender has in his possession picklocks or similar tools;
(b) Such picklock or similar tools are especially adopted to the
commission of robbery;
(c) Offender does not have lawful cause for such possession.
Possession of such tools, without lawful cause, is punished.
Actual use is not necessary. Since picking of locks is one way to
gain entrance to commit robbery, a picklock isper sespecially
adapted to the commission of robbery. [People v Lopez, 1965]
If the person who makes such tools is a locksmith, the penalty is
higher.
ARTICLE 305 - FALSE KEYS
Deemed to include the following:
(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.
CHAPTER 2: BRIGANDAGE
ARTICLE 306 - WHO ARE BRIGANDS
Elements of Brigandage:
(a) There be at least 4 armed persons
(b) They formed a band of robbers
(c) The purpose is any of the following:
(1) To commit robbery in the highway; or
(2) To kidnap for the purpose of extortion
or to obtain ransom; or
(3) To attain by means of force and
violence any other purpose.
Presumption of law as to brigandage: All are presumed highway
robbers or brigands, if any of them carries unlicensed firearm.
The arms carried may be any deadly weapon.
The main object of the law is to prevent the formation of band of
robbers.
The term highway includes city streets.
The following must be proved:
(1) Organization of more than 3 armed persons forming a band
of robbers
(2) Purpose of the band is any of those enumerated in Art. 306.
(3) That they went upon the highway or roamed upon the
country for that purpose.
(4) That the accused is a member of such band.
BRIGANDAGE
Purpose:
Commit robbery, in a highway
(2) Kidnap to extort or get ransom
(3) Any other purpose to be achieved by means of force or
violence
Proof:
Mere formation of a band for any of the above purposes is
sufficient. There is no requirement that the brigands
consummate the crime.
ROBBERY IN BAND
Purpose :
Commit:robbery, and not necessarily in a highway
Proof :
It is necessary to prove that the band actually committed the
robbery. Conspiracy to commit robbery is not punishable.
ARTICLE 307 - AIDING AND ABETTING A BAND OF
BRIGANDS
Elements:
(a) There is a band of brigands
(b) Offender knows the band to be of brigands
(c) Offender does any of the following acts:
(1) He in any manner aids, abets or protects such
band of brigands; or
(2) He gives them information of the movements of
the police or other peace officers; or
(3) He acquires or receives the property taken by such
brigands.
It is presumed that the person performing any of the acts
provided in this article has performed them knowingly, unless the
contrary is proven.
Any person who aids or protects highway robbers or abets the
commission of highway robbery or brigandage shall be
considered as an accomplice.
CHAPTER 3 THEFT
ARTICLE 308 - WHO ARE LIABLE FOR THEFT
Elements:
(a) Taking of personal property
(b) Personal property belongs to another
(c) Taking was done with intent to gain.
(d) Taking was without the consent of the
owner.
(e) Accomplished without the use of violence
against or intimidation of persons or force upon things.
Persons liable:
(1) Those who, with intent to gain, 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, fail 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 object of the
damage caused by them.
(4) Those who enter an inclosed estate or 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.
The theft is consummated & taking completed once the culprit is
able to place the thing taken under his control, and in such a
situation that he could dispose of it at once.
In accordance with the definition in Art 308, there is no frustrated
theft. The offender has either complete control of the property
(consummated) or without (attempted). Intent to gain is
presumed from the unlawful taking of personal property
belonging to another. [Valenzuela v. People (2007)]
If a person takes property of another, believing it to be his own,
presumption of intent to gain is rebutted. Hence, he is not guilty
of theft.
If one takes personal property openly and avowedly under claim
of title made in good faith, he is not guilty of theft even though
claim of ownership is later found to be untenable.
If possession was only material or physical, the crime is THEFT.
If possession was juridical, crime is ESTAFA.
Selling share of a partner or co-owner is not theft. Actual or real
gain is not necessary in theft.
The consent contemplated in this article refers to consent freely
given, and not mere lack of opposition by owner of the property
taken.
It is not robbery when violence is for a reason entirely foreign to
the fact of taking.
Gulinao shot Dr. Chua and left. Then he went back & took Dr.
Chuas diamond ring. The crime was Theft and not robbery.
Circumstances show that the taking was merely an afterthought.
Violence used in killing Dr. Chua had no bearing on the taking of
the ring. [People v. Gulinao, (1989)]
Properties were taken after accused has already carried out his
primary criminal intent of killing the victim. Considering that the
victim was already heavily wounded when his properties were
taken, there was no need to employ violence against or
intimidation upon his person. Hence, accused can only be held
guilty of the separate offense of theft. [People v. Basao (1999)]
One in possession of part of recently stolen property is
presumed to be thief of all.
Lost property embraces loss by stealing or by act of the
owner or by a person other than the owner, or through some
casual occurrence.
It is necessary to prove the following in order to establish theft
by failure to deliver or return lost property:
Theft of any material, spare part, product or article by
employees and laborers is heavily punished under PD 133.
Motor vehicle - all vehicles propelled by power, other than
muscular power. Theft of motor vehicle may now fall under the
Anti-Carnapping law.
When the purpose of taking the car is to destroy it by burning it,
the crime is arson.
If a private individual took a letter containing postal money order,
it is qualified theft. If it was the postmaster, to whom the letter
was delivered, the crime would be infidelity in the custody of
documents.

Elements of hunting, fishing or gathering fruits, etc., in
enclosed estate:
(1) That there is an enclosed estate or a field, where trespass is
forbidden or which belongs to another
(2) Offender enters the same
(3) Offender hunts or fishes upon the same or
gathers fruits, cereals or other forest or
farm products in the estate or field; and
(4) That the hunting or fishing or gathering of products is without
the consent of the
owner.
Corpus Delicti:To be caught in possession of the stolen property
is not an element of the corpus delicti in theft. Corpus delicti
means the body or substance of the crime, and, in its primary
sense, refers to the fact that the crime has been actually
committed.
In theft, corpus delicti has two elements, namely:
(1) that the property was lost by the owner, and
(2) that it was lost by felonious taking. [Gan vs. People (2007)]
ARTICLE 309 PENALTIES
The basis of the penalty in theft is
(1) the value of the thing stolen, or
(2) the value and nature of the property taken, or
(3) the circumstances that impelled the culprit to commit the
crime.
Regarding the theft of coconuts and fish, what matters is not the
execution, but the location where it is taken. It should be in the
plantation or in the fishpond.
PD 1612: ANTI-FENCING LAW
Fencing The act ny person who, with intent to gain for himself
or for another, shall buy, receive, keep, acquire, conceal, sell, or
dispose of, or shall buy and sell or in any other manner deal in
any article, item, object, or anything of value which he knows, or
should be known to him, to have been derived from the
proceeds of the crime of robbery or theft.
Elements:
(a) Robbery or theft has been committed.
(b) The accused, who is not a principal or accomplice in the
crime of robbery or theft, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells, or in
any manner deals in any article, item, object, or anything of
value, which has been derived from the proceeds of the
said crime.
(c) The accused knows or should have known
that the said article, item, object or anything of value has been
derived from the proceeds of the crime of robbery or theft.
(d) There is, on the part of the accused, intent to gain for
himself or another.
Mere possession of any good, article, item, object, or anything of
value which has been the subject of robbery or thievery shall be
prima facie evidence of fencing. [People v. Dizon- Pamintuan]

If there is no evidence of the value of the property stolen, the
court should impose the minimum penalty corresponding to theft
involving the value of P5.00. The court may also take judicial
notice of its value in the proper cases.
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
(d) motor vehicle
(e) mail matter, or
(f) 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
(6) The property is taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any other calamity,
vehicular accident or civil disturbance.
The penalty for qualified theft is 2 degrees higher.
Theft by domestic servant is always qualified. There is no need
to prove grave abuse of confidence.
The abuse of confidence must be grave. There must be
allegation in the information and proof of a relation, by reason of
dependence, guardianship or vigilance, between the accused
and the offended party that has created a high degree of
confidence between them, which the accused abused.
Robbery/theft and fencing are separate and distinct offenses.
"Fence" includes any person, firm, association, corporation or
partnership or other organization who/which commits the act of
fencing.
Presumption of Fencing Mere possession of any good, article,
item, object, or anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of fencing.
Exception
With Clearance or Permit to Sell
Section 6. Clearance/Permit to Sell/Used Second Hand Articles.
For purposes of this Act, all stores, establishments or entities
dealing in the buy and sell of any good, article, item, object or
anything of value obtained from an unlicensed dealer or supplier
thereof, shall before offering the same for sale to the public,
secure the necessary clearance or permit from the station
commander of the Integrated National Police in the town or city
where such store, establishment or entity is located. The Chief
of Constabulary/Director General, Integrated National Police
shall promulgate such rules and regulations to carry out the
provisions of this section. Any person who fails to secure the
clearance or permit required by this section or who violates any
of the provisions of the rules and regulations promulgated
thereunder shall upon conviction be punished as a fence.
RA 6539: ANTI-CARNAPPING ACT
Registration
Section 3. Registration of motor vehicle engine, engine block
and chassis. Within one year after the approval of this Act, every
owner or possessor of unregistered motor vehicle or parts
thereof in knock down condition shall register with the
Land Transportation Commission the motor vehicle engine,
engine block and chassis in his name or in the name of the
real owner who shall be readily available to answer any
claim over the registered motor vehicle engine, engine
block or chassis. Thereafter, all motor vehicle engines,
engine blocks and chassis not registered with the Land
Transportation Commission shall be considered as untaxed
importation or coming from an illegal source or carnapped,
and shall be confiscated in favor of the Government.
All owners of motor vehicles in all cities and municipalities are
required to register their cars with the local police without paying
any charges.
Section 5. Registration of sale, transfer, conveyance,
substitution or replacement of a motor vehicle engine, engine
block or chassis. Every sale, transfer, conveyance, substitution
or replacement of a motor vehicle engine, engine block or
chassis of a motor vehicle shall be registered with the Land
Transportation Commission. Motor vehicles assembled and
rebuilt or repaired by replacement with motor vehicle engines,
engine blocks and chassis not registered with the Land
Transportation Commission shall not be issued certificates of
registration and shall be considered as untaxed imported motor
vehicles or motor vehicles carnapped or proceeding from illegal
sources.
Section 6. Original Registration of motor vehicles.
Any person seeking the original registration of a motor vehicle,
whether that motor vehicle is newly assembled or rebuilt or
acquired from a registered owner, shall within one week after the
completion of the assembly or rebuilding job or the acquisition
thereof from the registered owner, apply to the Philippine
Constabulary for clearance of the motor vehicle for registration
with the Land Transportation Commission. The Philippine
Constabulary shall, upon receipt of the application, verify if the
motor vehicle or its numbered parts are in the list of carnapped
motor vehicles or stolen motor vehicle parts. If the motor vehicle
or any of its numbered parts is not in that list, the Philippine
Constabulary shall forthwith issue a certificate of clearance.
Upon presentation of the certificate of clearance from the
Philippine Constabulary and after verification of the registration
of the motor vehicle engine, engine block and chassis in the
permanent registry of motor vehicle engines, engine blocks and
chassis, the Land Transportation Commission shall register the
motor vehicle in accordance with existing laws, rules and
regulations.
Who are Liable
Duty of Collector of Customs
Section 7. Duty of Collector of Customs to report arrival of
imported motor vehicle, etc. The Collector of Customs of a
principal port of entry where an imported motor vehicle, motor
vehicle engine, engine block chassis or body is unloaded, shall,
within seven days after the arrival of the imported motor vehicle
or any of its parts enumerated herein, make a report of the
shipment to the Land Transportation Commission, specifying the
make, type and serial numbers, if any, of the motor vehicle
engine, engine block and chassis or body, and stating the
names and addresses of the owner or consignee thereof. If the
motor vehicle engine, engine block, chassis or body does not
bear any serial number, the Collector of Customs concerned
shall hold the motor vehicle engine, engine block, chassis or
body until it is numbered by the Land Transportation
Commission.
Duty of Importers Distributors and Sellers
Section 8. Duty of importers, distributors and sellers of motor
vehicles to keep record of stocks. Any person engaged in the
importation, distribution, and buying and selling of motor
vehicles, motor vehicle engines, engine blocks, chassis or body,
shall keep a permanent record of his stocks, stating therein their
type, make and serial numbers, and the names and addresses
of the persons from whom they were acquired and the names
and addresses of the persons to whom they were sold, and shall
render an accurate monthly report of his transactions in motor
vehicles to the Land Transportation Commission.
Clearance and Permit
Section 10. Clearance and permit required for assembly or
rebuilding of motor vehicles. Any person who shall undertake to
assemble or rebuild or cause the assembly or rebuilding of a
motor vehicle shall first secure a certificate of clearance from the
Philippine Constabulary: Provided, That no such permit shall be
issued unless the applicant shall present a statement under oath
containing the type, make and serial numbers of the engine,
chassis and body, if any, and the complete list of the spare parts
of the motor vehicle to be assembled or rebuilt together with the
names and addresses of the sources thereof.
In the case of motor vehicle engines to be mounted on motor
boats, motor bancas and other light water vessels, the applicant
shall secure a permit from the Philippine Coast Guard, which
office shall in turn furnish the Land Transportation Commission
the pertinent data concerning the motor vehicle engines
including their type, make and serial numbers.
Definition of terms/Punishable Acts
Carnapping is the taking, with intent to gain, of a motor vehicle
belonging to another without the latter's consent, or by means of
violence against or intimidation of persons, or by using force
upon things.
Motor vehicle is any vehicle propelled by any power other than
muscular power using the public highways, but excepting road
rollers, trolley cars, street-sweepers, sprinklers, lawn mowers,
bulldozers, graders, fork-lifts, amphibian trucks, and cranes if
not used on public highways, vehicles, which run only on rails or
tracks, and tractors, trailers and traction engines of all kinds
used exclusively for agricultural purposes. Trailers having any
number of wheels, when propelled or intended to be propelled
by attachment to a motor vehicle, shall be classified as separate
motor vehicle with no power rating.
Defacing or tampering with a serial number is the erasing,
scratching, altering or changing of the original factory-inscribed
serial number on the motor vehicle engine, engine block or
chassis of any motor vehicle. Whenever any motor vehicle is
found to have a serial number on its motor engine, engine block
or chassis which is different from that which is listed in the
records of the Bureau of Customs for motor vehicles imported
into the Philippines, that motor vehicle shall be considered to
have a defaced or tampered with serial number.
Section 12. Defacing or tampering with serial numbers of motor
vehicle engines, engine blocks and chassis. It shall be unlawful
for any person to deface or otherwise tamper with the original or
registered serial number of motor vehicle engines, engine blocks
and chassis.
Section 13. Penal Provisions. Any person who violates any
provisions of this Act shall be punished with imprisonment for
not less than two years nor more than six years and a fine equal
in amount to the acquisition cost of the motor vehicle, motor
vehicle engine or any other part involved in the violation:
Provided, That if the person violating any provision of this Act is
a juridical person, the penalty herein provided shall be imposed
on its president or secretary and/or members of the board of
directors or any of its officers and employees who may have
directly participated in the violation.
Any government official or employee who directly commits the
unlawful acts defined in this Act or is guilty of gross negligence
of duty or connives with or permits the commission of any of the
said unlawful act shall, in addition to the penalty prescribed in
the preceding paragraph, be dismissed from the service with
prejudice to his reinstatement and with disqualification from
voting or being voted for in any election and from appointment to
any public office.
Section 14. Penalty for Carnapping. Any person who is found
guilty of carnapping, as this term is defined in Section two of this
Act, shall, irrespective of the value of motor vehicle taken, be
punished by imprisonment for not less than fourteen years and
eight months and not more than seventeen years and four
months, when the carnapping is committed without violence or
intimidation of persons, or force upon things; and by
imprisonment for not less than seventeen years and four months
and not more than thirty years, when the carnapping is
committed by means of violence against or intimidation of any
person, or force upon things; and the penalty of life
imprisonment to death shall be imposed when the owner, driver
or occupant of the carnapped motor vehicle is killed in the
commission of the carnapping.
ARTICLE 311 - THEFT OF THE PROPERTY OF THE
NATIONAL LIBRARY AND NATIONAL MUSEUM
Theft of property of the National Museum and National Library
has a fixed penalty (arresto mayor of fine of P200-500 or both)
regardless of the property's value. But if it was with grave abuse
of confidence, the penalty for qualified theft shall be imposed.
CHAPTER 4: USURPATION
ARTICLE 312 - OCCUPATION OF REAL PROPERTY OR
USURPATION OF REAL RIGHTS IN PROPERTY
Acts punishable under Art. 312:
(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:
(a) Offender takes possession of any real property OR usurps
any real rights in property
(b) Real property or real rights belong to another
(c) Violence against or intimidation of persons is used by the
offender in occupying real property or usurping real rights in
property.
(d) There is intent to gain.
If no violence or intimidation only civil liability exists. Violence or
intimidation must be the means used in occupying real property
or in usurping real rights.
Art. 312 does not apply when the violence or intimidation took
place subsequent to the entry into the property.
Art. 312 does not apply to a case of open defiance of the writ of
execution issued in the forcible entry case.
Criminal action for usurpation of real property is not a bar to civil
action for forcible entry.
RA 947 punishes entering or occupying public agricultural land
including lands granted to private individuals.
Usurpation
Act: Occupation or Usurpation
What is Taken: Real property or Real Right
Intent: To Gain
Theft or Robbery
Act :Taking or asportation
What is Taken : Personal property Intent: To Gain
ARTICLE 313 - ALTERING BOUNDARIES OR LANDMARKS
Elements:
(a) There are boundary marks or monuments of towns,
provinces, or estates, or any other marks intended to designate
the boundaries of the same.
(b) The offender alters said boundary marks.
Provision does not require intent to gain.
The word alter may include:
(1) destruction of stone monument
(2) taking it to another place
(3) removing a fence
CHAPTER 5: CULPABLE INSOLVENCY
ART. 314 - FRAUDULENT INSOLVENCY
Elements:
(a) The offender is a debtor, and he has obligations due and
payable
(b) He absconds with his property
(c) There is prejudice to his creditors
Actual prejudice, not intention alone, is required. Even if the
debtor disposes of his property, unless it is shown that it has
actually prejudiced his creditor, conviction will not lie.
Fraudulent concealment of property is not sufficient if the debtor
has some property with which to satisfy his obligation.
Abscond does not require that the debtor should depart and
physically conceal his property. Real property could be the
subject matter of Art. 314.
The person prejudiced must be creditor of the offender.
Art 314
No need for insolvency proceedings.
No need to be adjudged bankrupt or insolvent
Insolvency law
Crime should be committed after the institution of insolvency
proceedings
CHAPTER 6: SWINDLING AND OTHER DECEITS
ARTICLE 315 - ESTAFA
Elements of Estafa in General:
(a) The accused defrauded another (3) by abuse of confidence;
or (4) by means of deceit;and
(b) The damage or prejudice capable of pecuniary estimation is
caused to the offended party or third person.
With Unfaithfulness or Abuse of Confidence (315 par. 1(a) (b)
(c))
Par 1(a): Altering substance, quantity or quality of object
subject of obligation to deliver
Elements of estafa with unfaithfulness
(a) Offender has an onerous obligation to deliver something of
value.
(b) He alters its substance, quantity, or quality
(c) Damage or prejudice is caused to another
Deceit is NOT an essential element of estafa with abuse of
confidence.
Damage or prejudice must be capable of estimation, because it
is the basis of the penalty.
Delivery of anything of value must be by virtue of an onerous
obligation to do so.
It is not estafa if the thing delivered is not acceptable to the
complainant when there is no agreement as to its quality.
Estafa may arise even if thing delivered is not subject of lawful
commerce, such as opium.
Par.1(b): Misappropriation and Conversion
Elements of estafa with abuse of confidence
(a) Money, goods, or other personal property is received by the
offender in trust, or in commission, or for administration, or
under any other obligation involving the duty to make delivery of,
or to return, the
same;
(b) There is misappropriation or conversion of
such money or property by the offender, or
denial on his part of such receipt;
(c) Such misappropriation or conversion or
denial is to the prejudice of another; and
(d) There is a demand made by the offended
party to the offender
The 4th element is not necessary when there is evidence of
misappropriation of goods by the defendant.
Check is included in the word money.
Money, goods or other personal property must be received by
the offender under certain kinds of transaction transferring
juridical possession to him.
The offender acquires both physical possession and juridical
possession when the thing is received by the offender from the
offended party
(1) in trust, or
(2) on commission, or
(3) for administration,
Juridical possession means a possession which gives the
transferee a right over the thing which he may invoke even as
against the owner.
When the delivery of a chattel does not transfer juridical
possession/title, it is presumed that the possession/title of the
thing remain w/ owner.
Failure to turn over to the bank the proceeds of sale of goods
covered by trust receipts is estafa.
The phrase or under any obligation involving the duty to make
delivery of, or to return the same, includes quasi-contracts and
certain contracts of bailment. The obligation to return the thing
must be contractual but without transferring to accused
ownership of the thing.
When ownership is transferred to recipient, his failure to return it
results in civil liability only.
Applicable Civil Code provisions:
(1) Art. 1477. The ownership of the thing sold
shall be transferred to the vendee upon
actual or constructive delivery thereof.
(2) Art. 1482. Whenever earnest money is given in a contract of
sale, it shall be considered as part of the price and as proof of
the perfection of the contract.
In estafa with abuse of confidence under par. (b), subdivision 1
of Art. 315, the thing received must be returned if there is an
obligation to return it.
If no obligation to return there is only civil liability.
No estafa when:
(4) Transaction sale fails. There is no estafa if the accused
refused to return the advance payment.
(5) The money or personal property received by accused is not
to be used for a particular purpose or to be returned.
(6) Thing received under a contract of sale on credit
Payment by students to the school for the value of materials
broken is not mere deposit.
Novation of contract of agency to one of sale, or to one of loan,
relieves defendant from incipient criminal liability under the first
contract.
He exerted all efforts to retrieve dump truck, albeit belatedly and
to no avail. His ineptitude should not be confused with criminal
intent. Criminal intent is required for the conviction of estafa.
Earnest effort to comply with obligation is a defense against
estafa. [Manahan vs CA (1996)]
3 Ways of Committing Estafa With Abuse Of Confidence
Under Art. 315 Par. (B):
(1) Misappropriating the thing received.
(2) Converting the thing received.
(3) Denying that the thing was received.
Misappropriating means to own, to take something for one's
own benefit.
Converting Using or disposing of anothers property as if it
were ones own.
Conversion presupposes that the thing has been devoted to
a purpose or use different from that agreed upon.
The fact that an agent sold the thing received on commission for
a lower price than the one fixed, does not constitute estafa (US
v Torres).
The law does not distinguish between temporary and permanent
misappropriations.
No estafa under Art. 315 par (b) when there is neither
misappropriation nor conversion.
Right of agent to deduct commission from amounts
(1) If agent is authorized to retain his commission out of the
amounts he collected, there is no estafa.
(2) Otherwise he is guilty of estafa, because his right to
commission does not make the agent a co-owner of money
3rd element of estafa with abuse of confidence is that the
conversion, or denial by offender resulted in the prejudice of the
offended party.
To the prejudice of another not necessarily of the owner of
the property.
General rule: Partners are not liable for estafa of money or
property received for the partnership when the business
commenced and profits accrued. Failure of partner to account
for partnership funds may give rise to civil obligation only, not
estafa.
Exception: When a partner misappropriates the share of another
partner in the profits, the act constitutes estafa.
A co-owner is not liable for estafa, but he is liable if, after the
termination of the co- ownership, he misappropriates the thing
which has become the exclusive property of the other.
Estafa with abuse of confidence
With juridical possession of thing misappropriated
Offender receives the thing from the victim
Theft
Only with physical / material possession of thing
misappropriated Offender takes the thing
But when the money or property had been received by a partner
for specific purpose and he misappropriated it, there is estafa.
Under the 4th element of estafa with abuse of confidence
demand may be required.
In estafa by means of deceit, demand is not needed, because
the offender obtains the thing wrongfully from the start. In estafa
with abuse of confidence, the offender receives the thing under
a lawful transaction.
Demand is not required by law, but it may be necessary,
because failure to account upon demand is circumstantial
evidence of misappropriation. Presumption arises only when the
explanation of the accused is absolutely devoid of merit.
The mere failure to return the thing received for safekeeping or
under any other obligation w/ the duty to return the same or
deliver the value thereof to the owner could only give rise to a
civil action and does not constitute the crime of estafa.
There is no estafa through negligence.
The gravity of the crime of estafa is based on the amount not
returned before the institution of the criminal action.
Test to distinguish theft from estafa:
In theft, upon the delivery of the thing to the offender, the owner
expects a return of the thing to him.
General rule: When the owner does not expect the immediate
return of the thing he delivered to the accused, the
misappropriation of the same is estafa.
Exception: When the offender received the thing from the
offended party, with the obligation to deliver it to a third person
and, instead of doing so, misappropriated it to the prejudice of
the owner, the crime committed is qualified theft.
Sale of thing received to be pledged for owner is theft, when the
intent to appropriate existed at the time it was received.
Estafa with abuse of confidence
Entrusted with funds or property
Both are continuing offenses
Funds or property are always private
Offender is a private individual or public officer accountable for
officer not public funds or property funds or property
Committed by misappropriating, converting or denying having
received money, other personal property
There is no estafa through negligence
Malversation
Funds or property usually public
Offender is a public officer accountable for public funds or
property
Committed by misappropriating, or thru abandonment or
negligence, letting other person to take the public funds or
property
There can be no malversation through abandonment or
negligence.
When in prosecution for malversation the public officer is
acquitted, the private individual in conspiracy w/ him may be
held liable for estafa, depending on the nature of the funds.
Misappropriation of firearms received by a police
(1) ESTAFA: if it is not involved in the commission of a crime
(2) MALVERSATION: if it is involved in the commission of a
crime.
Par.1(c): Taking advantage of signature in blank
Elements:
(a) Paper with the signature of the offended
party is in blank.
(b) Offended party delivered it to the offender.
(c) Above the signature of the offended party
a document is written by the offender
without authority to do so.
(d) The document so written creates a liability
of, or causes damage to, the offended party or any third person.
Estafa by Means of False Pretenses or Fraudulent Acts (315
par. 2(a) (b) (c) (d) (e); BP22):
Elements of estafa by means of deceit:
(a) There is a false pretense, fraudulent act or
fraudulent means.
(b) Such false pretense, fraudulent act or
fraudulent means was made or executed prior to or
simultaneously with the commission of the fraud.
(c) Offendedpartyreliedonthefalsepretense, fraudulent act, or
fraudulent means, that is, he was induced to part with his money
or property because of such
(d) As a result thereof, the offended party suffered damage.
The acts must be fraudulent. Acts must be founded on deceit,
trick, or cheat, and such must be made prior to or
simultaneously with the commission of the fraud.
In false pretenses the deceit consists in the use of deceitful
words, in fraudulent acts the deceit consists principally in
deceitful acts. The fraudulent acts must be performed prior to or
simultaneously with the commission of the fraud.
The offender must be able to obtain something from the
offended party because of the fraudulent acts.
Knowledge of criminal intent of the principal is essential to be
convicted as an accomplice in estafa through falsification of
commercial document. There must be knowing assistance in the
execution of the offense. [Abejuela vs People (1991)]
In a tenant-landowner relationship, it was incumbent upon the
tenant to hold in trust and, eventually, account for the share in
the harvest appertaining to the landowner, failing which the
tenant could be held liable for misappropriation.
In [People v. Vanzuela (2008)], it was ruled that share tenancy
has been outlawed for being contrary to public policy as early as
1963, with the passage of R.A. 3844. What prevails today, under
R.A. 6657, is agricultural leasehold tenancy relationship, and all
instances of share tenancy have been automatically converted
into leasehold tenancy. In such a relationship, the tenants
obligation is simply to pay rentals, not to deliver the landowners
share. Given this dispensation, the petitioners allegation that
the respondents misappropriated the landowners share of the
harvest is untenable. Accordingly, the respondents cannot be
held liable under Article 315, paragraph 4, No. 1(b) of the RPC.
It is well established in jurisprudence that a person may be
convicted of both illegal recruitment and estafa. The reason,
therefore, is not hard to discern: illegal recruitment is malum
prohibitum, while estafa is malum in se. [Lapasaran v. People
(2009)]
Par 2(a): Using fictitious name or false pretenses at power,
influence... or other similar deceits
Ways of committing the offense:
(1) By using fictitious name;
(2) By falsely pretending to possess:
(a) power,
(b) influence,
(c) qualifications,
(d) property,
(e) credit,
(f) agency,
(g) business or imaginary transactions;
(4) By means of other similar deceits.
For estafa under Art. 315 par. 2(a), it is indispensable that the
false statement or fraudulent representation of the accused,
(1) be made prior to, or, at least simultaneously with,
(2) the delivery of the thing by the complainant.
It is essential that such false statement or fraudulent
representation constitutes the cause or only motive which
induced the complainant to part with the thing. If there be no
such prior or simultaneous false statement or fraudulent
representation, any subsequent act of the accused, however
fraudulent and suspicious it may appear, cannot serve as a
basis for prosecution for this class of estafa.
A creditor who deceived his debtor is liable for estafa.
In estafa by means of deceit under Art. 315 2(a), there must be
evidence that the pretense of the accused is false. Without such
proof, criminal intent to deceive cannot be inferred. Fraud must
be proved with clear and positive evidence.
Estafa through false pretenses made in writing is only a simple
crime of estafa, not a complex crime of estafa through
falsification.
Par 2(b): by altering the quality, fineness or weight of
anything pertaining to art or business
Par. 2(c): by pretending to have bribed any government
employee
Manipulation of scale is punished under the Revised
Administrative Code.
Person would ask money from another for the alleged purpose
of bribing a government employee but just pocketed the money.
Par 2(d): By postdating a check or issuing a bouncing
check
Elements:
(a) Offender postdated a check, or issued a
check in payment of an obligation;
(b) 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.
The check must be genuine, and not falsified.
The check must be postdated or for an obligation contracted at
the time of the issuance and delivery of the check and not for
pre-existing obligation.
Exception:
(1) When postdated checks are issued and intended by the
parties only as promissory notes
(2) When the check is issued by a guarantor
The accused must be able to obtain something from the
offended party by means of the check he issues and delivers.
The mere fact that the drawer had insufficient or no funds in the
bank to cover the check at the
time he postdated or issued a check is sufficient to make him
liable for estafa.
RA 4885 deleted the phrase the offender knowing at the time he
had no funds in the bank:
(1) The failure of the drawer to deposit the amount needed to
cover his check
(2) Within 3 days from receipt of notice of dishonor of check for
lack or insufficiency of funds
(3) Shall be prima facie evidence of deceit constituting false
pretense or fraudulent act.
Good faith is a defense in a charge of estafa by postdating or
issuing a check. One who got hold of a check issued by another,
knowing that the drawer had no sufficient funds in the bank, and
used the same in the purchase of goods, is guilty of estafa.
[People v. Isleta]
PD 818, which increases the penalty for estafa committed by
means of bouncing checks, applies only to estafa under par 2(d)
of Art. 315, and does not apply to other forms of estafa. [People
v Villaraza, 81 SCRA 95] Hence, the penalty prescribed in PD
818, not the penalty provided for in Art. 315, should be imposed
when the estafa committed is covered by par 2(d) of Art. 315.
Estafa by issuing a bad check is a continuing crime.
BP 22 (ANTI-BOUNCING CHECKS LAW)
Punishable Acts
(1)
(a) A person makes or draws and issues any check to apply on
account or for value;
(b) He knows at the time of issuance 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; and
(c)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.
2.
(a) A person has sufficient funds in or credit with the drawee
bank when he makes or draws and issues a check;
(b) He fails to keep sufficient funds or to maintain a credit to
cover the full amount of the check if presented within a period of
ninety (90) days from the date appearing thereon;
(c) For which reason, the check is dishonored by the drawee
bank
Where the check is drawn by a corporation, company or entity,
the person or persons who actually signed the check in behalf of
such drawer shall be liable.
Evidence of Knowledge of Insufficient Funds
The making, drawing and issuance of a check payment of which
is refused by the drawee because of insufficient funds in or
credit with such bank, when presented within ninety (90) days
from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such
maker or drawer pays the holder thereof the amount due
thereon, or makes arrangements for payment in full by the
drawee of such check within (5) banking days after receiving
notice that such check has not been paid by the drawee.
Preference of Imposition of Fine
The decision by Supreme Court in Vaca vs. CA modified the
sentence imposed for violation of B.P. Blg. 22 by deleting the
penalty of imprisonment and imposing only the penalty of fine in
an amount double the amount of the check. In justification
thereof, the Court said: Petitioner are first-time offenders. In Lim
vs. People of the Philippines, the Court deleted the penalty of
imprisonment and sentenced the drawer of the bounced check
to the maximum of the fine allowed by B.P. Blg. 22, i.e.,
P200,000, and concluded that such would best serve the ends
of criminal justice. (A.C. 12- 2000 Re: Penalty for Violation of
B.P. 22)
In a subsequent Administrative Circular (Administrative Circular
No. 13-2001 Re Clarification for Admin. Circular 12-2000), the
Court clarified that:
(1) A.C. 12-2000 does not remove imprisonment as an
alternative penalty for violations of B.P. Blg. 22;
(2) The Judges concerned may, in the exercise of sound
discretion, and taking into consideration the peculiar
circumstances of each case, determine whether the imposition
of a fine alone would best serve the interests of justice or
whether forbearing to impose imprisonment would depreciate
the seriousness of the offense, work violence on the social
order, or otherwise be contrary to the imperatives of justice;
(3) Should only a fine be imposed and the accused be unable to
pay the fine, there is no legal obstacle to the application of the
Revised Penal Code provisions on subsidiary imprisonment.
Double jeopardy does not apply because estafa in RPC is a
distinct crime from BP 22. Deceit and damage are essential
elements of RPC, which are not required in BP 22. [Nierras vs
Dacuycuy (1990)]
ESTAFA THROUGH OTHER FRAUDULENT MEANS (315 PAR
3 (A) (B) (C))
Par 3 (a): By inducing another, through deceit, to sign any
document
Elements:
(a) Offender induced the offended party to sign
a document.
(b) Deceit was employed to make offended party
sign the document.
(c) Offended party personally signed the
document.
(d) Prejudice was caused.
Offender must induce the offended party to sign the document. If
offended party is willing from the start to sign the document,
because the contents are different from those which the
offended told the accused to state in the document, the crime is
falsification.
There can be no conviction for estafa in the absence of proof
that defendant made statements tending to mislead
complainant.
Par.3 (b): By resorting to some fraudulent practice to
ensure success in a gambling game
Par.3 (c): By removing, concealing or destroying any court
record, office files, document or any other papers
Elements:
(a) There are court record, office files, documents or any other
papers.
(b) The offender removed, concealed or destroyed any of them.
(c) The offender had Intent to defraud another.
If there is no malicious intent to defraud, the destruction of court
record is malicious mischief.
Elements of deceit and abuse of confidence may co-exist.
If there is neither deceit nor abuse of confidence, it is not estafa,
even if there is damage. There is only civil liability.
Deceit through Fraudulent Means
Offender is a private person OR a public person not entrusted w/
documents
There is intent to defraud
Infidelity in Custody of Documents
Offender is a public person entrusted with the documents
Intent to defraud is not required
The element of damage or prejudice capable of pecuniary
estimation may consist in:
(1) The offended party being deprived of his money or property,
as result of the fraud;
(2) Disturbance in property right;or
(3) Temporary prejudice
Payment subsequent to the commission of estafa does not
extinguish criminal liability or reduce the penalty.
The crime of estafa is not obliterated by acceptance of
promissory note.
A private person who procures a loan by means of deceit
through a falsified public document of mortgage, but paid loan
within the period agreed upon, is not guilty of estafa but only
falsification of a public document.
Accused cannot be convicted of estafa with abuse of confidence
if charged w/ estafa by means of deceit
ARTICLE 316 - OTHER FORMS OF SWINDLING AND
DECEITS
Par 1. By conveying, selling, encumbering, or mortgaging
any real property, pretending to be the owner of the same
Elements:
(a) The thing is immovable, such as a parcel of land or a
building.
(b) Offender who is not the owner of said property represents
that he is the owner thereof.
(c) Offender executed an act of ownership (selling,
encumbering or mortgaging the real property).
(d) The act was made to the prejudice of the owner or a third
person.
The thing disposed of must be real property. If it is chattel, crime
is Estafa.
There must be existing real property.
Even if the deceit is practiced against the second purchaser but
damage is incurred by the first purchaser, there is violation of
par.1 of Art. 316.
Since the penalty is based on the value of the damage there
must be actual damage caused.
Par. 2. By disposing of real property as free from
encumbrance, although such encumbrance be not recorded
Elements:
(a) The thing disposed of is real property.
(b) Offender knew that the real property was encumbered,
whether the encumbrance is
recorded or not.
(c) There was express representation by the
offender that the real property is free from
encumbrance.
(d) Act of disposing of the real property was
made to the damage of another.
Act constituting the offense is disposing of the real property
representing that it is free from encumbrance.
Dispose includes encumbering or mortgaging.
Encumbrance includes every right or interest in the land
which exists in favor of third persons.
The offended party would not have granted the loan had he
known that the property was already encumbered. When the
loan had already been granted when defendant offered the
property as security for the loan, Art. 316 par. 2 is not applicable.
Usurious loan with equitable mortgage is not an encumbrance
on the property.
If 3rd element not established, there is no crime.
There must be damage caused. It is not necessary that act
prejudice the owner of the land.
The omitted phrase as free from encumbrance in par 2 of Art.
316 is the basis of the ruling that silence as to such
encumbrance does not involve a crime.
Par. 3. By wrongfully taking by the owner of his personal
property from its lawful possessor
Elements:
(a) Offender is the owner of personal property.
(b) Said property is in the lawful possession of
another.
(c) Offender wrong fully takes it from it slawful
possessor.
(d) Prejudice is thereby caused to the lawful
possessor or third person.
Offender must wrongfully take the personal property from the
lawful possessor. Wrongfully take does not include the use of
violence or intimidation.
If the thing is taken by means of violence, without intent to gain,
it is not estafa, but grave coercion.
If the owner took the personal property from its lawful possessor
without the latters knowledge and later charged him with the
value of the property, the crime is theft. If there is intent to
charge the bailee with its value, the crime is robbery. [US v
Albao]
Par. 4. By executing any fictitious contract to the prejudice
of another
Elements:
(a) Offender executes a contract
(b) Contract is fictitious
(c) Prejudice is caused.
Illustration: A person who simulates a conveyance of his
property to another to defraud his creditors. If the conveyance is
real and not simulated, the crime is fraudulent insolvency.
Par. 5. By accepting any compensation for services not
rendered or for labor not performed
Elements:
(a) Offender accepts any compensation for services or labor
(b) He did not render any service or perform any labor
There must be fraud. Otherwise, it will only be solutio indebiti,
with civil obligation to return the wrong payment.
If the money in payment of a debt was delivered to a wrong
person, Art. 316 par 5 is not applicable.
In case the person who received it later refused or failed to
return it to the owner of the money, Art. 315 subdivision 1(b) is
applicable.
Par. 6. By selling, mortgaging or encumbering real property
or properties with which the offender guaranteed the
fulfilment of his obligation as surety
Elements:
(a) Offender is a surety in a bond given in a criminal or civil
action.
(b) He guaranteed the fulfillment of such obligation with his real
property or properties.
(c) He sells, mortgages, or, in any other manner encumbers said
real property.
(d) That such sale, mortgage, or encumbrance is
(1) Without express authority from the court, or
(2) Made before the cancellation of his bond, or
(3) Before being relieved from the obligation
contracted by him.
There must be damage caused under Art. 316.
Estafa under PD 1689: Increasing the Penalty for Certain
Forms of Swindling or Estafa
Syndicated estafa
(1) Estafa or other forms of swindling as
defined by Art. 315 and 316 RPC was
committed;
(2) The swindling is committed by a syndicate
consisting of five or more persons formed with the intention of
carrying the unlawful or illegal act/transaction/enterprise/
scheme; and
(3) The defraudation results in the misappropriation of money
contributed by stockholders, or members of rural banks,
cooperative, samahang nayon(s), or farmers association, or of
funds solicited by corporations/associations from the general
public.
Penalty: Life imprisonment to death
Large-scale Estafa
(1) Estafa or other forms of swindling as
defined by Art. 315 and 316 RPC was
committed;
(2) The swindling is NOT committed by a
syndicate as defined above;
(3) The defraudation results in the
misappropriation of money contributed by stockholders, or
members of rural banks, cooperative, samahang nayon(s), or
farmers association, or of funds solicited by corporations/
associations from the general public; and
(4) Amount of fraud exceeds Php. 100,000
Penalty: Reclusion temporal to reclusion perpetua
ARTICLE 317 - SWINDLING OF A MINOR
Elements:
(a) Offender takes advantage of the inexperience or emotions
or feelings of a minor.
(b) He induces such minor
(1) to Assume an obligation, or
(2) to Give release, or
(3) to Execute a transfer of any property
right.
(d) That the consideration is
(1) some loan of money,
(2) Credit, or
(3) Other personal property.
(e) That the transaction is to the detriment
of such minor.
Real property is not included because only money, credit and
personal property are enumerated, and because a minor cannot
convey real property without judicial authority.
ARTICLE 318 - OTHER DECEITS
Acts punished:
(1) By defrauding or damaging another by any other deceit not
mentioned in the preceding articles.
(2) By interpreting dreams, by making forecasts, by telling
fortunes, or by taking advantage of the credulity of the public in
any other manner, for profit or gain.
Any other kind of conceivable deceit may fall under this article.
As in other cases of estafa, damage to the offended party is
required.
The deceits in this article include false pretenses and fraudulent
acts.
Chattel Mortgage
The object of the Chattel Mortgage Law is to give the necessary
sanction to the statute, so that mortgage debtors may be
deterred from violating its provisions and mortgage creditors
may be protected against loss or inconvenience from wrongful
removal or sale of mortgaged property.
CHAPTER 7: CHATTEL MORTGAGE
ARTICLE 319 - REMOVAL, SALE, OR PLEDGE OF
MORTGAGED PROPERTY
Acts punishable under Art. 319:
(3) By 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.
(4) By 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.
Chattel mortgage must be valid and subsisting. If chattel
mortgage does not contain an affidavit of good faith and is not
registered, it is void and cannot be prosecuted under Art 319
Elements of knowingly removing mortgaged personal property:
(a) Personal property is mortgaged under the Chatter
Mortgage Law.
(b) Offender knows that such property is so
mortgaged.
(c) He 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.
(d) The removal is permanent.
(e) There is no written consent of the
mortgagee or his executors, administrators or assigns to such
removal.
A person other than the mortgagor who removed the property to
another province, knowing it to be mortgaged, may be liable.
The removal of the mortgaged personal property must be
coupled with intent to defraud.
No felonious intent if transfer of personal property is due to
change of residence.
If the mortgagee opted to file for collection, not foreclosure,
abandoning the mortgage as basis for relief, the removal of
property to another province is not a violation of Art 319 par1.
In estafa, the property involved is real property. In sale of
mortgaged property, it is personal property.
Elements of selling or pledging personal property already
pledged:
(a) Personal property is already pledged under the terms of the
Chattel Mortgage Law.
(b) The offender, who is the mortgagor of such property, sells or
pledges the same or any part thereof.
(c) 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.
The consent of the mortgagee must be
(1) in writing,
(2) on the back of the mortgage, and
(3) noted on the record thereof in the office of
the register of deeds.
Damage is NOT essential.
Chattel mortgage may give rise to estafa by means of deceit.
Art 319
In both there is selling of a mortgaged property.
Personal property
Committed by the mere failure to obtain consent of the
mortgagee in writing, even if offender should inform the
purchaser that the thing sold is mortgaged
Purpose: to protect the mortgagee
Art 316 Estafa
Property involved is real property(Art. 316 par 2)
Committed by selling real property mortgaged as free, even
though the vendor may have obtained the consent of the
mortgagee in writing.
Purpose: to protect the purchaser (1st or 2nd)
CHAPTER 8: ARSON AND OTHER CRIMES INVOLVING
DESTRUCTION
Articles 320-326-B have been repealed by PD 1613
(Amending the Law on Arson)
KINDS OF ARSON:
(1) Arson (PD 1613, Sec. 1)
(2) Destructive arson (Art. 320, as amended by RA 7659)
(3) Other cases of arson (Sec. 3, PD 1613)
PD 1613, 1. ARSON
Section 1. Arson. Any person who burns or sets fire to the
property of another shall be punished by Prision Mayor.
The same penalty shall be imposed when a person sets fire to
his own property under circumstances which expose to danger
the life or property of another.
Attempted, Frustrated, and Consummated Arson
Attempted arson A person, intending to burn a wooden
structure, collects some rags, soaks them in gasoline and places
them beside the wooden wall of the building. When he was
about to light a match to set fire to the rags, he is discovered by
another who chases him away. In attempted arson, it is not
necessary that there be a fire.
Frustrated arson If that person is able to light or set fire to the
rags, but the fire was put out before any part of the building was
burned.
Consummated arson If before the fire was put out, it had
burned a part of the building.
If the property burned is an inhabited house or dwelling, it is not
required that the house be
occupied by one or more persons and the offender knew it when
the house was burned.
No complex crime of arson with homicide. If by reason of or on
the occasion of arson death results, the penalty of reclusion
perpetua to death shall be imposed. Homicide is absorbed.
Any of 7 circumstances in Sec. 6 of PD 1613 is sufficient to
establish fact of arson if unexplained.
How is the crime of Arson proved?
In the prosecution for Arson, proof of the crime charged is
complete where the evidence establishes:
(1) the corpus delicti, i.e., a fire because of criminal agency; and
(2) the identity of the defendant as the one responsible for the
crime.
In Arson, the corpus delicti rule is satisfied by proof of the bare
fact of the fire and of it having been intentionally caused.
[Gonzales, Jr. v. People, 2007]
PD 1613, 2. DESTRUCTIVE ARSON
SEC. 2. Destructive ArsonThe penalty of Reclusion Temporal
in its maximum period to Reclusion Perpetua shall be imposed if
the property burned is any of the following:
(1) Any ammunition factory and other establishment where
explosives, inflammable or combustible materials are stored.
(2) Any archive, museum, whether public or private, or any
edifice devoted to culture, education or social services.
(3) Any church or place of worship or other building where
people usually assemble.
(4) Any train, airplane or any aircraft, vessel or watercraft, or
conveyance for transportation of persons or property.
(5) Any building where evidence is kept for use in any
legislative, judicial, or administrative or other official proceeding.
(6) Any hospital, hotel, dormitory, lodging house, housing
tenement, shopping center, public or private market, theater or
movie house or any similar place or building.
(7) Any building, whether used as a dwelling or not, situated in a
populated or congested area.
SEC. 3. Other Cases of ArsonThe penalty of Reclusion
Temporal to Reclusion Perpetua shall be imposed if the property
burned is any of the following:
(1) Any building used as offices of the government or any of its
agencies
(2) Any inhabited house or dwelling
(3) Any industrial establishment, shipyard, oil
well or mine shaft, platform or tunnel
(4) Any plantation, farm, pasture land, growing crop, grain field,
orchard, bamboo
grove or forest;
(5) Any rice mill, sugar mill, cane mill or mill
central
(6) Any railway or bus station, airport, wharf or
warehouse
Article 320, RPC, as amended, with respect to destructive
arson, and the provisions of PD 1613 respecting other cases of
arson provide only one penalty for the commission of arson,
whether destructive or otherwise, where death results therefrom.
The raison detre is that arson is itself the end and death is
simply the consequence.
In cases where both burning and death occur, in order to
determine what crime/crimes was/were perpetrated whether
arson, murder, or arson and homicide/murder, it is de rigueur to
ascertain the main objective of the malefactor:
(a) if the main objective is the burning of the building or edifice,
but death results by reason or on the occasion of arson, the
crime is simply Arson, and the resulting homicide is absorbed;
(b) if, on the other hand, the main objective is to kill a particular
person who may be in a building or edifice, when fire
is resorted to as the means to accomplish such goal,
the crime committed is Murder only; and lastly, (c) if
the objective is, likewise, to kill a particular person,
and in fact the offender has already done so, but fire is
resorted to as means to cover up the killing, then
there are two separate and distinct crimes committed
Homicide/Murder and Arson
CHAPTER 9 MALICIOUS MISCHIEF
Malicious Mischief It is the willful causing of damage to
anothers property for the sake of causing damage because of
hate, revenge or other evil motive.
ARTICLE 327 - WHO ARE RESPONSIBLE
Elements of malicious mischief:
(a) Offender deliberately caused damage to the property of
another.
(b) Such act does not constitute arson or other crimes involving
destruction
(c) The act of damaging anothers property was committed
merely for the sake of damaging it.
If there is no malice in causing damage, the obligation to pay for
the damages is only civil (Art. 2176)
Damage means not only loss but also diminution of what is a
mans own. Thus, damage to anothers house includes defacing
it. [People v Asido]
ARTICLE 328 - SPECIAL CASES OF MALICIOUS MISCHIEF
Special cases of malicious mischief: (qualified malicious
mischief)
(1) Causing damage to obstruct the performance of public
functions
(2) Using any poisonous or corrosive substance
(3) Spreading infection or contagion among
cattle
(4) Causing damage to property of the
National Museum or National Library, or to any archive or
registry, waterworks, road, promenade, or any other thing used
in common by the public.
ARTICLE 329 - OTHER MISCHIEFS
Other mischiefs not included in Art. 328 are punished based on
value of the damage caused.
If the amount involved cannot be estimated, the penalty of
arresto menor or fine not exceeding P200 is fixed by law.
When several persons scattered coconut remnants which
contained human excrement on the stairs and floor of the
municipal building, including its interior, the crime committed is
malicious mischief under Art. 329. [People v Dumlao]
ARTICLE 330 - OBSTRUCTION TO COMMUNICATION
DAMAGE AND MEANS OF
Committed by damaging any railway, telegraph, or telephone
lines. If the damage shall result in any derailment of cars,
collision, or other accident, a higher penalty shall be imposed.
(Qualifying Circumstance)
Telegraph/phone lines must pertain to railways.
Q: What is the crime when, as a result of the damage caused to
railway, certain passengers of the train are killed?
A: It depends. Art. 330 says without prejudice to the criminal
liability of the offender for other consequences of his criminal
act.
If there is no intent to kill, the crime is damages to means of
communication with homicide because of the first paragraph of
Art. 4 and Art. 48.
If there is intent to kill, and damaging the railways was the
means to accomplish the criminal purpose, the crime is murder
ARTICLE 331 DESTROYING OR DAMAGING STATUES,
PUBLIC MONUMENTS OR PAINTINGS
Acts punished:
(1) Destroying or damaging statues or any other useful or
ornamental public monument
(2) Destroying or damaging any useful or ornamental painting of
a public nature.
The penalty is lower if the thing destroyed is a public painting,
rather than a public monument.
CHAPTER 10: EXEMPTION FROM CRIMINAL LIABILITY
ARTICLE 332 - EXEMPTION FROM CRIMINAL LIABILITY IN
CRIMES AGAINST PROPERTY
Crimes involved in the exemption:
(1) Theft
(2) Swindling(estafa)
(3) Malicious mischief
If the crime is robbery, exemption does not lie.
Persons exempt from criminal liability:
(1) Spouses, ascendants and descendants, or relatives by
affinity in the same line.
(2) The 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.
The law recognizes the presumed co-ownership of the property
between the offender and the offended party. There is no
criminal, but only civil liability.
Art. 332 does not apply to a stranger who participates in the
commission of the crime.
Stepfather and stepmother are included as ascendants by
affinity. [People v Alvarez; People v Adame]
Guevarra: An adopted or natural child should also be considered
as included in the term descendants and a concubine or
paramour within the term spouses.
Art. 332 also applies to common-law spouses.
[Art. 144, CC; People v Constantino]
See again: RA 9372: Human Security Act on Punishable Acts of
Terrorism, supra
Title XI. Crimes against Chastity
. (1) Art. 333: Adultery
. (2) Art. 334: Concubinage
. (3) Art. 336: Acts of Lasciviousness
. (4) Art.337:QualifiedSeduction
 . (5) Art. 338: Simple Seduction
. (6) Art. 339: Acts of Lasciviousness with the
consent of the offended party
. (7) Art. 340: Corruption of minors
. (8) Art. 341: White Slave Trade
. (9) Art. 342: Forcible Abduction
(10) Art. 343: Consented Abduction
(11) Art. 344: Prosecution of the crimes of
Adultery
(12) Art. 345: Civil Liability
(13) Art. 346: Liability of ascendants, guardians,
teachers, or other persons entrusted with custody of the
offended party
ARTICLE 333 - ADULTERY
Elements:
(a) The woman is married;
(b) She has sexual intercourse with a man not
her husband;
(c) As regards the man with whom she has
sexual intercourse: he knows her to be married.
LEGENDS:
H husband; W wife; M - marriage
Offenders: Married woman and/or the man who has carnal
knowledge of her, knowing her to be married, even if the M be
subsequently declared void. It is not necessary that there be a
valid M (i.e. void ab initio)
Essence of adultery: violation of the marital vow
Gist of the crime: the danger of introducing spurious heirs into
the family, where the rights of the real heirs may be impaired
and a man may be charged with the maintenance of a family not
his own. (US v. Mata)
The offended party must be legally married to the offender at the
time of the filing of the complaint, even if the marriage be
subsequently declared void.
Each sexual intercourse constitutes a crime of adultery.
Abandonment without justification is not exempting, but only
mitigating. Both defendants are entitled to this mitigating
circumstance.
The man, to be guilty of adultery, must have knowledge of the
married status of the woman.
A married man who is not liable for adultery, because he did not
know that the woman is married, may be held liable for
concubinage.
Acquittal of one of the defendants does not operate as a cause
of acquittal of the other.
Under the law, there is no accomplice in adultery.
Direct proof of carnal knowledge is not necessary.
Circumstantial evidence is sufficient. (i.e. love letters signed by
the paramour, photos showing intimate relations, testimony of
witnesses)
Pardon by the H does not exempt the adulterous W and her
paramour from criminal liability for adulterous acts committed
subsequent to such pardon, because the pardon refers to
previous and not to subsequent adulterous acts
Effect of Pardon - applies to Concubinage as well:
(1) The pardon must come before the
institution of the criminal prosecution; and
(2) Both the offenders must be pardoned by the offended party.
Act of sexual intercourse subsequent to adulterous conduct is
considered as an implied pardon.
(3) Pardon of the offenders by the offended party is a bar to
prosecution for adultery or
concubinage.
(4) Delay in the filing of complaint, if
satisfactorily explained, does not indicate pardon.
Effect of consent:
The husband, knowing that his wife, after serving sentence for
adultery, resumed living with her co-defendant, did nothing to
interfere with their relations or to assert his rights as husband.
The second charge of adultery should be dismissed because of
consent. [People v. Sensano and Ramos]
Agreement to separate may be used as evidence to show
consent by the husband to the infidelity of his wife.
Effect of death of paramour: Offending wife may still be
prosecuted. The requirement that both offenders should be
included in the complaint is absolute only when the two
offenders are alive.
Effect of death of offended party: The proceedings may
continue. Art. 353 seeks to protect the honor and reputation not
only of the living but of dead persons as well.
ARTICLE 334 - CONCUBINAGE
Elements:
(1) The man is married;
(2) He is either:
(a) keeping a mistress in the conjugal dwelling;
(b) Having sexual intercourse under scandalous
circumstance with a woman not his wife;
(c) Cohabiting with her in any other place;
(3) As regards the woman,she knows him to be married.
Offenders: married man and the woman who knows him to be
married.
The woman only becomes liable if she knew him to be married
prior to the commission of the crime.
rd
In the 3 way of committing the crime, mere cohabitation is
sufficient; Proof of scandalous circumstances not necessary.
[People v. Pitoc, et. al.]
A married man is not liable for concubinage for mere sexual
relations with a woman not his wife. A man would only be guilty
of concubinage if he appeared to be guilty of any of the acts
punished in Art. 334.
A married man who is not liable for adultery because he did not
know that the woman was married, may be held liable for
concubinage. If the woman knew that the man was married, she
may be held liable for concubinage as well.
Mistress a woman taken by the accused to live with him in the
conjugal dwelling as his mistress/concubine. [People v. Bacon
and People v. Hilao]
Keeping a mistress in the conjugal dwelling no positive proof
of sexual intercourse is necessary
Conjugal Dwelling the home of the H and the W even if the
wife appears to be temporarily absent on any account.
The dwelling of the spouses was constructed from the proceeds
of the sale of their conjugal properties.
The fact that W never had a chance to reside therein and that H
used it with his mistress instead, does not detract from its
nature. [People v. Cordova (1959)]
Cohabit to dwell together as H and W for a period of time (i.e.
A week, a month, year or longer)
Scandalous circumstances Scandal consists in any
reprehensible word or deed that offends public conscience,
redounds to the detriment of the feelings of honest persons, and
gives
occasion to the neighbors spiritual damage or ruin. [People v.
Santos]
It is only when the mistress is kept elsewhere (outside the
conjugal dwelling) that scandalous circumstances become an
element of the crime. [US v. Macabagbag]
Qualifying expression: Sexual act which may be proved by
circumstantial evidence
Scandal produced by the concubinage of H:
(1) H and mistress live in the same room of a
house
(2) They appear together in public,
(3) Perform acts in sight of the community
which give rise to criticism and general protest among the
neighbors.
When spies are employed for the purpose of watching the
conduct of the accused and it appearing that none of the people
living in the vicinity has observed any suspicious conduct, there
is no evidence of scandalous circumstances. [US v. Campos
Rueda]
Reason: Adultery is punished more severely than concubinage
because adultery makes possible the introduction of another
mans offspring into the family so that the offended H may have
another mans son bearing Hs name and receiving support from
him.
ARTICLE 336 - ACTS OF LASCIVIOUSNESS
Elements:
(a) The offender commits any act of lasciviousness or
lewdness;
(b) The act is committed against a person of either sex;
(c) It is done under any of the ff. circumstances:
(1) By using force or intimidation; or
(2) When the offended party is deprived of reason or
otherwise unconscious;
(3) By means of fraudulent machination or grave
abuse of authority
(4) When the offended party is under 12 years of age
or is demented.
Lewd obscene, lustful, indecent, lecherous; signifies form of
immorality which has relation to moral impurity or that which is
carried in wanton manner
Motive of lascivious acts is not important because the essence
of lewdness is in the very act itself.
Example: If the kissing etc. was done inside church (which is a
public place), absence of lewd designs may be proven, and the
crime is unjust vexation only. But if the kissing was done in the
house of a woman when she was alone, the circumstances may
prove the accuseds lewd designs.
rd
Absent any of the circumstances of rape under the 3 element,
the crime is UNJUST VEXATION. (e.g. touching of breast)
Lascivious intent is implied from the nature of the act and the
surrounding circumstances.
Consider the act and the environment to distinguish between
Acts of Lasciviousness and Attempted Rape. Desistance in the
commission of attempted rape may constitute acts of
lasciviousness.
No attempted and frustrated acts of lasciviousness.
Acts of Lasciviousness
Compulsion or force is included in the constructive element of
force
Must be accompanied by acts of lasciviousness or lewdness.
Grave Coercion
Compulsion or force is the very act constituting the offense of
grave coercion.
Moral compulsion amounting intimidation is sufficient.
Acts of Lasciviousness
Same means of committing the crime:
(1) Force, threat, or intimidation is employed; or ( 2 )
By means of fraudulent machination or grave abuse of authority;
or
(3) The offended party is deprived of reason or
otherwise unconscious; or
(4) Victim is under 12 yrs. of age or is demented
Offended party is a person of either sex.
The performance of acts of lascivious character
Acts performed do not indicate that the accused was to lie w/ the
offended party.
Lascivious acts are the final objective sought by the offender
Attempted Rape
Acts performed clearly indicate that the accuseds purpose was
to lie w/ the offended woman.
Lascivious acts are only the preparatory acts to the commission
of rape.
Abuses against chastity (Art. 245) v Acts of lasciviousness
(Art. 336)
Offenses against Chastity
Committed by a private individual, in most cases
Some act of lasciviousness should have been executed by the
offender.
Abuses against chastity
Committed by a public officer only
Mere immoral or indecent proposal made earnestly and
persistently is sufficient.
The accused followed the victim, held her, embraced her, tore
her dress, and tried to touch her breast. When a complaint for
acts of lasciviousness was filed against him, accused claimed
that he had no intention of having sexual intercourse with her
and that he did the acts only as revenge. TC found the accused
guilty of FRUSTRATED ACTS OF LASCIVIOUSNESS. SC held
that there is no frustrated crime against chastity which includes
acts of lasciviousness, adultery, and rape. [People v.
Famularcano]
From the moment the offender performs all the elements
necessary for the existence of the felony, he actually attains his
purpose.
Motive of revenge is of no consequence since the element of
lewdness is in the very act itself. Example: Compelling a girl to
dance naked before a man is an act of lasciviousness, even if
the dominant motive is revenge, for her failure to pay a debt.
TWO KINDS OF SEDUCTION:
(1) Qualified seduction (Art. 337)
(2) Simple seduction (Art. 338)
Lascivious Conduct under RA 7610
to the elements of acts of lasciviousness are as follows:
(1) The accused commits the act of sexual intercourse or
lascivious conduct.
(2) The said act is performed with a child exploited in
prostitution or subjected to other sexual abuse.
(3) The child, whether male or female, is below 18 years of age.
[Navarrete vs. People (2007)]
Lascivious conduct is defined under Section 2 (h) of the
rules and regulations of RA 7610 as:
(1) The intentional touching, either directly or through clothing,
of the genitalia, anus, groin, breast, inner thigh, or buttocks, OR
the introduction of any object into the genitalia, anus or mouth,
of any person,
(2) whether of the same or opposite sex,
(3) with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual
desire of any person,
(4) bestiality, masturbation, lascivious
exhibition of the genitals or pubic area of a person
Comparison with art. 366, RPC
Acts of lasciviousness is punished under RA 7610 when
performed on a child below 18 years of age exploited in
prostitution or subjected to other sexual abuse.
See discussion above for other acts of abuse
The sweetheart theory applies in acts of lasciviousness and
rape, felonies committed against or without the consent of the
victim. It operates on the theory that the sexual act was
consensual. It requires proof that the accused and the victim
were lovers and that she consented to the sexual relations.
For purposes of sexual intercourse and lascivious conduct in
child abuse cases under RA 7610, the sweetheart defense is
unacceptable. A child exploited in prostitution or subjected to
other sexual abuse cannot validly give consent to sexual
intercourse with another person. [Malto v. People (2007)]
ARTICLE 337 - QUALIFIED SEDUCTION
Seduction - enticing a woman to unlawful sexual intercourse by
promise of marriage or other means of persuasion without use
of force. It applies when there is abuse of authority (qualified
seduction) or deceit (simple seduction).
Two classes of Qualified Seduction and their elements:
(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 or any person who, in any capacity shall be
entrusted with the education or custody of the woman
seduced.
Elements:
(a) Offended party is a virgin, which is presumed if she is
unmarried and of good reputation;
(b) She is over 12 and under 18 yrs. of age;
(13-17 years 11 months 29 days)
(c) Offender has sexual intercourse with her;
(d) There is abuse of authority, confidence, or
relationship on the part of the offender.
(3) Seduction of a sister by her brother, or descendant by
her ascendant, regardless of her age or reputation.
Elements :
(a) Offended party need not be a virgin or she
may be over 18 years old
(b) Offender has sexual intercourse with her
(c) Offender is her brother or ascendant by
consanguinity, whether legitimate or illegitimate.
Virgin - a woman of chaste character and of good reputation.
The offended party need not be physically a virgin.
If there is no sexual intercourse and only acts of lewdness are
performed, the crime is acts of lasciviousness. If any of the
circumstances in the crime of rape is present, the crime is not to
be punished under Art. 337.
The accused charged with rape cannot be convicted of qualified
seduction under the same information.
Offenders in Qualified Seduction:
(1) Those who abused their authority:
(a) Person in public authority;
(b) Guardian;
(c) Teacher;
(2) Person who, in any capacity, is entrusted with the education
or custody of the woman seduced.
(a) Those who abused confidence reposed in them:
(b) Priest;
(c) House servant;
(d) Domestic
(3) Those who abused their relationship:
(a) Brother who seduced his sister;
(b) Ascendant who seduced his descendant.
Domestic - a person usually living under the same roof,
pertaining to the same house.
Not necessary that the offender be the teacher of the offended
party; it is sufficient that he is a teacher in the same school.
Qualified seduction may also be committed by a master to his
servant, or a head of the family to any of its members.
Qualified seduction of a sister or descendant, also known as
INCEST, is punished by a penalty next higher in degree.
The age, reputation, or virginity of the sister or descendant is
irrelevant. The relationship need not be legitimate.
A 15-year old virgin, who was brought by her mother to the
house of the accused and his wife to serve as a helper,
repeatedly yielded to the carnal desires of the accused, as she
was induced by his promises of marriage and frightened by his
acts of intimidation.
HELD: DECEIT, although an essential element of ordinary or
simple seduction, does not need to be proved or established in a
charge of qualified seduction. It is replaced by ABUSE OF
CONFIDENCE. [People v. Fontanilla]
The accused, a policeman, brought a 13-year old girl with low
mentality, to the ABC Hall where he succeeded in having sexual
intercourse with her. The complaint did not allege that the girl
was a virgin. The accused was charged with RAPE but
convicted of QUALIFIED SEDUCTION.
HELD: Though it is true that virginity is presumed if the girl is
over 12 but under 18, unmarried and of good reputation, virginity
is still an essential element of the crime of qualified seduction
and must be alleged in the complaint. Accused is guilty of
RAPE, considering the victims age, mental abnormality and
deficiency. There was also intimidation with the accused wearing
his uniform. [Babanto v. Zosa]
Perez succeeded in having sexual intercourse with Mendoza
after he promised to marry her. As he did not make good on said
promise, Mendoza filed a complaint for Consented Abduction.
Trial Court found that the acts constituted seduction, acquitting
him on the
charge of Consented Abduction. Mendoza then filed a complaint
for Qualified Seduction. Perez moved to dismiss the case on the
grounds of double jeopardy.
HELD: There are similar elements between consented abduction
and qualified seduction, namely:
(1) the offended party is a virgin, and
(2) over 12 but under 18 yrs. of age
However, an acquittal for CONSENTED ABDUCTION will not
preclude the filing of a charge for QUALIFIED SEDUCTION
because the elements of the two crimes are different. [Perez v.
CA]
NOTE: The fact that the girl gave consent to the sexual
intercourse is not a defense.
ARTICLE 338 - SIMPLE SEDUCTION
Elements:
(a) Offended party is over 12 and under 18 years of age;
(b) She is of good reputation, single or widow;
c) Offender has sexual intercourse with her;
(d) It is committed by means of deceit.
Purpose of the law - To punish the seducer who by means of
promise of marriage, destroys the chastity of an unmarried
female of previous chaste character
Virginity of offended party is not essential, good reputation is
sufficient.
Virginity of offended party is not required.
Deceit generally takes the form of unfulfilled promise of
marriage.
Promise of marriage must be the inducement and the woman
must yield because of the promise or other inducement.
What about unfulfilled promise of material things, as when the
woman agrees to sexual intercourse in exchange for jewelry?
This is not seduction because she is a woman of loose morals.
Promise of marriage after sexual intercourse does not constitute
deceit. Promise of marriage by a married man is not a deceit, if
the woman knew him to be married.
Seduction is not a continuing offense.
ARTICLE 339 - ACTS OF LASCIVIOUSNESS WITH THE
CONSENT OF THE OFFENDED PARTY
Elements:
(a) Offender commits acts of lasciviousness or lewdness;
(b) The acts are committed upon a woman who is a virgin or
single or widow of good reputation, under 18 yrs. of age but over
12 yrs., or a sister or descendant, regardless of her reputation or
age;
(c) The offender accomplishes the acts by abuse of authority,
confidence, relationship, or deceit.
It is necessary that it be committed under circumstances which
would make it qualified or simple seduction had there been
sexual intercourse, instead of acts of lewdness only.
When the victim is under 12 yrs., the penalty shall be one
degree higher than that imposed by law. (sec. 10 of R.A. 7610)
Males cannot be the offended party.
ARTICLE 340 - CORRUPTION OF MINORS
Elements:
(a) Offender promotes or facilitates the prostitution or corruption
of persons under age (minors),
(b) Purpose is to satisfy the lust of another
Habituality or abuse of authority or confidence is not necessary.
It is not necessary that the unchaste acts shall have been done.
Mere proposal will consummate the offense.
The victim must be of good reputation, not a prostitute or
corrupted person.
There is a crime of Attempted Child Prostitution. (Sec. 6, RA
7610)
See again: RA 7610: Special Protection of Children against
Child Abuse, Exploitation and Discrimination (supra)
ARTICLE 341 - WHITE SLAVE TRADE
Acts punishable:
(1) Engaging in business of prostitution
(2) Profiting by prostitution
(3) Enlisting the services of women for the purpose of
prostitution.
Habituality is not a necessary element of white slave trade.
Under any pretext one who engaged the services of a woman
allegedly as a maid, but in reality for prostitution, is guilty under
this article.
Victim is under 12 yrs., penalty shall be one degree higher.
Offender need not be the owner of the house.
Maintainer or manager of house of ill-repute need not be present
therein at the time of raid or arrest.
Corruption of Minors
Minority of victims essential
Victims may be male or female
May not necessarily be for profit
Committed by a single act
White Slave Trade
Minority is not required
Applies only to female
Generally for profit
Generally committed habitually
TWO KINDS OF ABDUCTION:
(1) Forcible abduction (Art. 342)
(2) Consented abduction(Art.343)
ARTICLE 342 - FORCIBLE ABDUCTION
Elements:
(a) The person abducted is any woman,
regardless of her age, civil status or
reputation;
(b) The abduction is against her will;
(c) The abduction is with lewd designs.
Abduction the taking away of a woman from her house or the
place where she may be for the purpose of carrying her to
another place with the intent to marry or to corrupt her.
Crimes against chastity where age and reputation are
immaterial:
(1) Acts of lasciviousness against the will or without
the consent of the offended party
(2) Qualified seduction of sister or descendant
(3) Forcible abduction
The taking away of the woman must be against her will.
The taking away of the woman may be accomplished by means
of deceit first and then by means of violence and intimidation.
If the female abducted is under 12, the crime is forcible
abduction, even if she voluntarily goes with her abductor.
When the victim was abducted by the accused without lewd
designs, but for the purpose of lending her to illicit intercourse
with others, the crime is not abduction but corruption of minors.
Rape may absorb forcible abduction, if the main objective was to
rape the victim.
Sexual intercourse is not necessary in forcible abduction.
Lewd designs may be shown by the conduct of the accused.
When there are several defendants, it is enough that one of
them had lewd designs. Husband is not liable for abduction of
his wife, as lewd design is wanting.
Attempt to rape is absorbed in the crime of forcible abduction,
thus there is no complex crime of forcible abduction with
attempted rape.
Nature of the crime - The act of the offender is violative of the
individual liberty of the abducted, her honor and reputation, and
public order.
Forcible Abduction
There is violence or intimidation by the offender
The offended party is compelled to do something against her
will.
Abduction is characterized by lewd design
Grave Coercion
No lewd design, provided that there is no deprivation of liberty
for an appreciable length of time.
Forcible Abduction
Purpose is to effect his lewd designs on the victim.
Corruption of Minors
Purpose is to lend the victim to illicit intercourse with others.
Forcible Abduction
There is deprivation of liberty and lewd designs
Serious Illegal Detention
There is deprivation of liberty and no lewd designs
Forcible Abduction with Rape
The violent taking of the woman is motivated by lewd designs.
Crime against chastity
Kidnapping with Rape
Not so motivated
Crime against liberty
Forcible Abduction with Rape - a complex crime under Art. 48,
and not a special complex crime
The victim was abducted by the accused and was brought to a
hotel where the latter succeeded in having sexual intercourse
with her.
HELD: The elements of both rape and forcible abduction are
proven. The presence of lewd designs in forcible abduction is
manifested by the subsequent rape of the victim. [People v.
Sunpongco]
Maggie was abducted and brought to a hotel, where the 4
accused took turns in raping her.
HELD: While the first act of rape was being performed, the crime
of forcible abduction had already been consummated, hence,
forcible abduction can only be attached to the first act of rape,
detached from the 3 subsequent acts of rape. The effect
therefore would be one count of forcible abduction with rape and
4 counts of rape for each of the accused. [People v. Jose]
The accused and 2 other men raped the victim. The victim was a
jeepney passenger who was prevented from leaving the
jeepney. She was taken to a remote place where she was raped.
HELD: The accused is guilty of FORCIBLE ABDUCTION WITH
RAPE. It was proven that the victim was taken against her will
and with lewd design, and was subsequently forced to submit to
the accuseds lust, rendering her unconscious in the process.
[People v. Alburo]
There can only be one complex crime of forcible abduction with
rape.
The victim witnessed the killing of another by the 2 accused.
Upon seeing her, the accused dragged her to a vacant lot where
they took turns in raping her. TC convicted them of rape.
HELD: FORCIBLE ABDUCTION is absorbed in the crime of
RAPE if the main objective is to rape the victim. Conviction of
acts of lasciviousness is not a bar to conviction of forcible
abduction. [People v. Godines]
ARTICLE 343 - CONSENTED ABDUCTION
Elements:
(a) Offended party is a virgin;
(b) She is over 12 and under 18 yrs. of age;
(c) Offender takes her away with her consent,
after solicitation or cajolery from the
offender;
(d) The taking away is with lewd designs.
Purpose of the law - Not to punish the wrong done to the girl
because she consents to it, but to prescribe punishment for the
disgrace to her family and the alarm caused by the
disappearance of one who is, by her age and sex, susceptible to
cajolery and deceit.
If the virgin is under 12 or is deprived of reason, the crime is
forcible abduction because such is incapable of giving a valid
consent.
The taking away of the girl need not be with some character of
permanence. Offended party need not be taken from her house.
When there was no solicitation or cajolery and no deceit and the
girl voluntarily went with the man, there is no crime committed
even if they had sexual intercourse.
ARTICLE 344 - PROSECUTION OF PRIVATE OFFENSES
(1) Adultery
(2) Concubinage
(3) Seduction
(4) Abduction
(5) Acts of lasciviousness
Nature of the complaint: The complaint must be filed in court, not
with the fiscal. In case of complex crimes, where one of the
component offenses is a public crime, the criminal prosecution
may be instituted by the fiscal.
The court motu proprio can dismiss the case for failure of the
aggrieved party to file the proper complaint even if the accused
never raised the question on appeal.
Crimes against chastity cannot be prosecuted de oficio.
ADULTERY AND CONCUBINAGE
Who may file the complaint: Adultery and Concubinage must
be prosecuted upon complaint signed by the offended spouse.
The offended party cannot institute criminal prosecution without
including BOTH the guilty parties if they are alive. Both parties
must be included in the complaint even if one of them is not
guilty.
Consent and pardon bar the filing of a criminal complaint.
The imputation of a crime of prostitution against a woman can
be prosecuted de oficio, but crimes against chastity cannot.
Prosecution of rape may be made upon complaint by any
person.
Effect of Pardon:
(1) Effect of Pardon in Adultery applies also to
Concubinage
(2) Condonation or forgiveness of one act of
adultery or concubinage is not a bar to prosecution of similar
acts that may be committed by the offender in the future.
Consent:
(1) May be express or implied
(2) Given before the adultery or concubinage was committed
(3) Agreement to live separately may be evidence of consent.
(4) Affidavit showing consent may be a basis for new trial.
SEDUCTION, ABDUCTION, ACTS OF LASCIVIOUSNESS
Seduction, abduction, or acts of lasciviousness must be
prosecuted upon complaint signed by
(1) Offended party - When the offended party is a minor, her
parents may
file the complaint.
(2) When the offended party is of age
and is in complete possession of her mental and physical
faculties, she alone can file the complaint.
(3) Parents, Grandparents or Guardian in that order
When the offended is a minor or incapacitated and refuses to file
the complaint, any of the persons mentioned could file.
The term guardian refers to legal guardian. He must be legally
appointed by the Court.
The State may also file the complaint as parens patriae when
the offended party dies or becomes incapacitated before she
could file the complaint and has no known parents,
grandparents, or guardians
Effect of Pardon:
(1) Offended party cannot institute criminal
proceedings if the offender has been EXPRESSLY pardoned by
the offended party, or her parents, grandparents or guardian.
(2) Pardon by the parent, grandparent, or guardian must be
accompanied by the express pardon of the offended woman.
(3) The right to file action of the parents, grandparents and
guardian shall be EXCLUSIVE of other persons and shall be
exercised successively in the order provided.
(4) Pardon by the offended party who is a minor must have the
concurrence of parents, EXCEPT when the offended party has
no parents.
Rape complexed with another crime against chastity need NOT
be signed by the offended woman, since rape is a public crime.
When the evidence fails to prove a complex crime of rape with
another crime, and there is no complaint signed by the offended
woman, the accused CANNOT be convicted of rape.
Marriage of the offender with the offended party in seduction,
abduction, acts of lasciviousness and rape, extinguishes
criminal action or remits the penalty already imposed.
Marriage (in cases of seduction, abduction, and acts of
lasciviousness) extinguishes the criminal action even as to co-
principals, accomplices, and accessories.
Marriage must be entered into in good faith.
Marriage may take place AFTER criminal proceedings have
commenced, or even after conviction (extinguishes criminal
action and remits penalty).
ARTICLE 345: CIVIL LIABILITY OF PERSONS GUILTY OF
CRIMES AGAINST CHASTITY
Those guilty of rape, seduction or abduction:
(1) Indemnify the offended woman
(2) Acknowledge the offspring, unless the law
should prevent him from doing so
(3) In every case to support the offspring,
EXCEPT:
(a) in cases of adultery and concubinage
(b) where either of the offended party or
accused is married
(c) when paternity cannot be determined, such as in multiple
rape
(d) other instances where the law prevents such
The adulterer and the concubine can be sentenced only to
indemnify for damages caused to the offended spouse.
Acknowledgment of offsrpring is not legally possible, because
only children born of parents who could marry at the time of
conception may be acknowledged. Support of the offspring is
also not included, because the person who gives birth is one of
the offenders.
In rape of a married woman, only indemnity is allowed.
ARTICLE 346- LIABILITY ASCENDANTS, GUARDIANS,
TEACHERS AND OTHER PERSONS ENTRUSTED WITH THE
CUSTODY OF THE OFFENDED PARTY
(5) Persons who cooperate as accomplices but are punished as
principals in rape, seduction, abduction, etc.
(e) Ascendants
(f) Guardians
(g) Curators
(h) Teachers, and
(6) any other person, who cooperate as accomplice with abuse
of authority or confidential relationship
(7) The teachers or persons entrusted with education and
guidance of the youth shall also be penalized with
disqualification.
(8) Any person falling within the terms of this article, and any
other person guilty of corruption of minors for the benefit of
another, shall be punished by special disqualification from filling
the office of guardian.
SPECIAL LAWS
RA 9995: ANTI-PHOTO AND VIDEO VOYEURISM ACT OF
2009
Punishable Acts
Section 4. Prohibited Acts. - It is prohibited and declared
unlawful for any person:
(e) To take photo or video coverage of a person or group of
persons performing sexual act or any similar activity or to
capture an image of the private area of a person/s such as the
naked or undergarment clad genitals, public area, buttocks or
female breast without the consent of the person/s involved and
under circumstances in which the person/s has/have a
reasonable expectation of privacy;
(f) To copy or reproduce, or to cause to be copied or
reproduced, such photo or video or recording of sexual act or
any similar activity with or without consideration;
(g) To sell or distribute, or cause to be sold or distributed, such
photo or video or recording of sexual act, whether it be the
original copy or reproduction thereof; or
(h) To publish or broadcast, or cause to be published or
broadcast, whether in print or broadcast media, or show or
exhibit the photo or video coverage or recordings of such sexual
act or any similar activity through VCD/DVD, internet, cellular
phones and other similar means or device.
See again: RA 9208: Anti-Trafficking in Persons Act of 2003:
Punishable acts (supra)
See again: RA 9262 Anti-Violence Against Women and Their
Children Act of 2004: Punishable acts (supra)
Title XII. Crimes against the Civil Status of Persons
Chapter I: Simulation of Births and Usurpation of Civil
Status
(1) Art 347: Simulation of births, substitution of one child for
another and concealment or abandonment of a legitimate child
(2) Art348:Usurpation of civil status
Chapter II: Illegal Marriages
(1) Art 349: Bigamy
(2) Art 350: Marriage contracted against
provisions of law
(3) Art 351: Premature marriages
(4) Art 352: Performance of illegal marriage
ceremony
CHAPTER I: SIMULATION OF BIRTHS AND USURPATION
OF CIVIL STATUS
ARTICLE 347 - SIMULATION OF BIRTHS, SUBSTITUTION OF
ONE CHILD FOR ANOTHER, AND CONCEALMENT OR
ABANDONMENT OF A LEGITIMATE CHILD
Mode 1. Simulation of births;
Mode 2. Substitution of one child for another;
Mode 3. Concealing or abandoning any legitimate child with
intent to cause such child to lose its civil status.
The object of the crime under Art. 347 is the creation of false, or
the causing of loss of, civil status.
Simulation of birth
Takes place when the woman pretends to be pregnant when in
fact she is not, and on the day of the supposed delivery, takes
the child of another as her own.
The simulation of birth which is a crime is that which alters the
civil status of a person.
The fact that the child will be benefited by the simulation of its
birth is not a defense.
Substitution of one child for another
This is committed when a child of a couple is exchanged with a
child of another couple without the knowledge of the respective
parents.
The substitution can also happen by placing a live child of a
woman in place of anothers dead child.
Concealing or abandoning any legitimate child
Requisites:
(4) The child must be legitimate
(5) The offender conceals or abandons such
child; and
(6) The offender has the intent to cause such
child to lose its civil status.
The unlawful sale of a child by his father is not a crime under
this article.
Abandon as used in Art. 347 - The practice of abandoning
newly born infants and very young child at the door of hospitals
and churches.
Art. 347
Offender: Any person
Purpose: To cause the child to lose his civil status
Art. 246
Offender: The one who has the custody of the child
Purpose: To avoid obligation of rearing and caring for the child.
A physician or surgeon or public officer, who cooperates in the
execution of these crimes, is also liable if he acts in violation of
the duties of his profession or office.
ARTICLE 348 - USURPATION OF CIVIL STATUS
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.
Usurpation of profession may be punished under Art. 348.
There must be an intent to enjoy the rights arising from the civil
status of another.
The purpose of defrauding the offended party or his heirs
qualifies the crime.
CHAPTER II: ILLEGAL MARRIAGES
ARTICLE 349 BIGAMY
Elements:
(a) Offender has been legall ymarried;
(b) 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
(c) He contracts a second or subsequent
marriage
(d) The second or subsequent marriage has all
the essential requisites for validity.
The first marriage must be valid.
Nullity of marriage, not a defense in bigamy. The fact that the
first marriage is void from the beginning is not a defense. As with
voidable marriage, there must be a judicial declaration of nullity
of marriage before contracting the second marriage.
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.
One who contracted a subsequent marriage before the
declaration of presumptive death of the absent spouse is guilty
of bigamy.
The second marriage must have all the essential requisites for
validity.
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.
The second spouse is not necessarily liable for bigamy.
Whether the second spouse should be included in the
information is a question of fact that was to be determined by
the fiscal who conducted the preliminary investigation. (People v.
Nepomuceno, Jr., 64 SCRA 518)
The second husband or wife who knew of first marriage is an
accomplice.
The witness who falsely vouched for the capacity of either of the
contracting parties is also an accomplice.
Bigamy is not a private crime.
Jurisprudence
In Marbella-Bobis v. Bobis, we laid down the elements of bigamy
thus:
(1) The offender has been legally married;
(2) The first marriage has not been legally
dissolved, or in case his or her spouse is absent, the absent
spouse has not been judicially declared presumptively dead;
(3) He contracts a subsequent marriage; and
(4) The subsequent marriage would have been valid had it not
been for the existence of the
first.
Applying the foregoing test to the instant case, we note that the
trial court found that there was no actual marriage ceremony
performed between Lucio and Lucia by a solemnizing officer.
Instead, what transpired was a mere signing of the marriage
contract by the two, without the presence of a solemnizing
officer.
The first element of bigamy as a crime requires that the accused
must have been legally married. But in this case, legally
speaking, the petitioner was never married to Lucia Barrete.
Thus, there is no first marriage to speak of.
Under the principle of retroactivity of a marriage being declared
void ab initio, the two were never married from the beginning.
The contract of marriage is null; it bears no legal effect.
Taking this argument to its logical conclusion, for legal purposes,
petitioner was not married to Lucia at the time he contracted the
marriage with Maria Jececha. The existence and the validity of
the first marriage being an essential element of the crime of
bigamy, it is but logical that a conviction for said offense cannot
be sustained where there is no first marriage to speak of. The
petitioner, must, perforce be acquitted of the instant charge.
[Lucio Morigo v. People (2002)]
The subsequent judicial declaration of the nullity of the first
marriage was immaterial because prior to the declaration of
nullity, the crime had already been consummated. Moreover,
petitioner's assertion would only delay the prosecution of bigamy
cases considering that an accused could simply file a petition to
declare his previous marriage void and invoke the pendency of
that action as a prejudicial question in the criminal case. We
cannot allow that.
The outcome of the civil case for annulment of petitioner's
marriage to Narcisa had no bearing upon the determination of
petitioner's innocence or guilt in the criminal case for bigamy,
because all that is required for the charge of bigamy to prosper
is that the first marriage be subsisting at the time the second
marriage is contracted. Thus, under the law, a marriage, even
one which is void or voidable, shall be deemed valid until
declared otherwise in a judicial proceeding.
In this case, even if petitioner eventually obtained a declaration
that his first marriage was void ab initio, the point is, both the
first and the second marriage were subsisting before the first
marriage was annulled. [Abunado v. People (2004)]
A careful study of the disputed decision reveals that respondent
Judge had been less than circumspect in his study of the law
and jurisprudence applicable to the bigamy case. In his
comment, respondent Judge stated: That the accused married
Manuel P. Diego in the honest belief that she was free to do so
by virtue of the decree of divorce is a mistake of fact.
This Court, in People v. Bitdu, carefully distinguished between a
mistake of fact, which could be a basis for the defense of good
faith in a bigamy case, from a mistake of law, which does not
excuse a person, even a lay person, from liability. Bitdu held that
even if the accused, who had obtained a divorce under the
Mohammedan custom, honestly believed that in contracting her
second marriage she was not committing any violation of the
law, and that she had no criminal intent, the same does not
justify her act.
This Court further stated therein that with respect to the
contention that the accused acted in good faith in contracting the
second marriage, believing that she had been validly divorced
from her first husband, it is sufficient to say that everyone is
presumed to know the law, and the fact that one does not know
that his act constitutes a violation of the law does not exempt
him from the consequences thereof.
Moreover, squarely applicable to the criminal case for bigamy, is
People v. Schneckenburger, where it was held that the accused
who secured a foreign divorce, and later remarried in the
Philippines, in the belief that the foreign divorce was valid, is
liable for bigamy. [Diego v. Castillo (2004)]
ARTICLE 350 - MARRIAGE CONTRACTED AGAINST
PROVISIONS OF LAWS
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.
Bigamy is a form of illegal marriage.
Illegal marriage includes also such other marriages which are
performed without complying with the requirements of law, or
marriages where the consent of the other is vitiated, or such
marriage which was solemnized by one who is not authorized to
solemnize the same.
Conviction of a violation of Art. 350 involves a crime of moral
turpitude. (Villasanta v. Peralta)
ARTICLE 351 - PREMATURE MARRIAGE
This provision has been repealed on 13 March 2015 when
President Benigno Aquino III signed into law RA 10655. Said law
reads: Without prejudice to the provisions of the Family Code
on paternity and filiation, Article 351 of the Revised Penal Code,
punishing the crime of premature marriage committed by a
woman, is hereby repealed.
The author of RA 10655 explained that the law on premature
marriages is discriminatory for it curtails the right of a woman to
marry under the stated circumstances when no such penalty is
imposed on the man who does the same. Similarly, the effect of
the provision is an enforced mourning period on the part of the
woman although none is imposed on the man.
BEFORE REPEAL: Persons liable:
(1) 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;
(2) 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 purpose of the law punishing premature marriages is to
prevent doubtful paternity. (People v. Rosal, 49 Phil. 509)
ARTICLE 352 - PERFORMANCE OF ILLEGAL MARRIAGE
CEREMONY
PERSONS LIABLE: Priests or ministers of any religious
denomination or sect, or civil authorities who shall perform or
authorize any illegal marriage ceremony
The offender must be authorized to solemnize marriages.
Title XIII. Crimes against Honor
Chapter I: Libel (
1) Art 353: Definition of Libel
(2) Art 354: Privileged communication
(3) Art 355: Libel by means of writings or
similar means
(4) Art 356: Threatening to publish and offer
to prevent such publication for a
compensation
(5) Art. 357: Prohibited Publication of Acts
Referred to in the course of Official
Proceedings
(6) Art358:Slander
(7) Art 359: Slander by Deed
Chapter II: Incriminatory Machinations
(1) Art 363: Incriminating innocent person
(2) Art 364: Intriguing against honor
CHAPTER I LIBEL
ARTICLE 353 - DEFINITION OF LIBEL
Elements:
(a) There must be an imputation of
1) a crime,
(2) a vice or defect, real or imaginary, OR
(3) any act, omission, condition, status, or
circumstance;
(b) The imputation must be made publicly;
(c) It must be malicious;
(d) The imputation must be directed at a natural or juridical
person, or one who is dead; and
(e) The imputation must tend to cause dishonor, discredit or
contempt of the offended party.
Defamation is composed of:
(1) Libel written defamation
(2) Slander-oral defamation
3) Slander by deed defamation through acts
Test of the defamatory character of words used: Whether they
are calculated to induce the hearers to suppose and understand
that the person against whom they (i.e. the defamatory words)
were uttered was guilty of certain offenses; OR are sufficient to
impeach his honesty, virtue or reputation, or to hold him up to
public ridicule. (U.S. vs. OConnell)
First element: There must be an imputation of a crime, a vice or
defect, real or imaginary, OR any act, omission, condition,
status, or circumstance;
Imputation of a criminal act may be implied from the acts and
statements of the accused.
Imputation of criminal intention is not libelous.
An expression of opinion by one affected by the act of another
and based on actual fact is not libelous.
Second element: The imputation must be made publicly.
Publication: communication of the defamatory matter to some
third person or persons. There is no crime if the defamatory
imputation is not published.
Sending an unsealed libelous letter to the offended party
constitutes publication. [Magno vs. People (2006)]
In libel, publication means making the defamatory matter, after it
is written, known to someone other than the person against
whom it has been written.
Petitioners subject letter-reply itself states that the same was
copy furnished to all concerned. Also, petitioner had dictated the
letter to his secretary. It is enough that the author of the libel
complained of has communicated it to a third person.
Furthermore, the letter, when found in the mailbox, was open,
not contained in an envelope thus, open to public. [Buatis vs.
People (2006)]
Third element: The publication must be malicious.
Malice in fact may be shown by proof of ill-will, hatred or
purpose to injure.
Malice in law presumed from a defamatory imputation. Proof
of malice is not required. (Art. 354, par.1)
But where the communication is privileged, malice is not
presumed from the defamatory words.
Malice in law is not necessarily inconsistent with honest or
laudable purpose. Even if the publication is injurious, the
presumption of malice disappears upon proof of good intentions
and justifiable motive.
But where malice in fact is present, justifiable motive cannot
exist, and the imputations become actionable.
Fourth element: The imputation must be directed at a natural or
juridical person, or one who is dead.
In order to maintain a libel suit, it is essential that the victim be
identifiable, although it is not necessary that the person be
named. It is enough if by intrinsic reference the allusion is
apparent or if the publication contains matters of description or
reference to facts and circumstances from which others reading
the article may know the person alluded to, or if the latter is
pointed out by extraneous circumstances so that those knowing
such person could and did understand that he was the person
referred to.
Kunkle v. Cablenews-American and Lyons laid the rule that this
requirement is complied with where a third person recognized or
could identify the party vilified in the article. [People vs. Ogie
Diaz (2007)]
Defamatory remarks directed at a group of persons is not
actionable unless the statements are all-embracing or
sufficiently specific for the victim to be identifiable.
Libel published in different places may be taken together to
establish the identification of the offended party.
While it is true that a publication's libelous nature depends on its
scope, spirit and motive taken in their entirety, the article in
question as a whole explicitly makes mention of private
complainant Rivera all throughout. It cannot be said that the
article was a mere general commentary on the alleged existing
state of affairs at the aforementioned public market. Rivera was
not only specifically pointed out several times therein but was
even tagged with derogatory names. Indubitably, this name-
calling was, as correctly found by the two courts below, directed
at the very person of Rivera himself. [Figueroa vs. People
(2006)]
Fifth element: The imputation must tend to cause dishonor,
discredit or contempt of the offended party.
Dishonor disgrace, shame or ignominy Discredit loss of
credit of reputation; disesteem
Contempt state of being despised
For a statement to be considered malicious, it must be shown
that it was written or published with the knowledge that they are
false OR in reckless disregard of WON they were false.
Reckless disregard the defendant entertains serious doubt as
to the truth of the publication, OR that he possesses a high
degree of awareness of their probable falsity.
To avoid self-censorship that would necessarily accompany
strict liability for erroneous statements, rules governing liability
for injury to reputation are required to allow an adequate margin
of error by protecting some inaccuracies. [Borjal v. CA (1999)]
Fine preferred penalty in libel cases Administrative Circular No.
08-2008 stated the rule of preference of fine only rather than
imprisonment in libel cases, having in mind the ff. principles:
1) The circular does not remove imprisonment as an alternative
penalty
2) Judges may, in the exercise of their discretion, determine
whether the imposition of fine alone would best serve the
interest of justice.
3) Should only a fine be imposed and the accused unable to pay
the fine, there is no legal obstacle to the application of the RPC
on subsidiary imprisonment.
ARTICLE 354 - REQUIREMENT FOR PUBLICITY
General rule: MALICE IS PRESUMED in every defamatory
imputation, even if it be true, if no good intention and justifiable
motive for making it is shown.
Exceptions: In privileged communications, namely:
(1) A private communication made by any person to another in
the performance of any legal, moral, or social duty;
(2) A fair and true report, made in good faith, without any
comments or remarks, of
(a) any judicial, legislative or other official
proceedings which are not of confidential nature, OR
(b) any statement, report or speech delivered in said
proceedings, OR
(c) any other act performed by public officers in the exercise of
their functions.
Defamatory remarks are PRESUMED malicious. The
presumption of malice is REBUTTED, if it is shown by the
accused that (see discussion of Art. 361)
(1) The defamatory imputation is true, IN CASE the
law allows proof of the truth of the imputation;
(2) It is published with good intention;AND
(3) There is justifiable motive for making it
Privileged communication is NOT PRESUMED malicious.
Kinds of Privilege:
ABSOLUTE
NOT actionable. Narrow and few:
(1) Privileged speeches in Congress
(2) Statements made in judicial proceedings as long as they are
relevant to the issue
(3) Military affairs
QUALIFIED
Actionable IF Malice or Bad faith is proven (malice in fact)
Based on par 1 and 2 of Art 354, although the list is not
exclusive
Art 354 does not cover absolute privilege because character of
communications mentioned therein is lost upon proof of malice
in fact.
MALICE IN LAW
Presumed from defamatory character of statement
Statement is presented to court, and the latter will decide
whether it is defamatory or not
MALICE IN FACT
To be proved by prosecution ONLY IF malice in law has been
rebutted
Can be negated by evidence of:
(1) Good motives AND Justifiable ends; or (2) Privileged
character
Requisites of privileged communication under par. 1 of art. 354:
(1) That the person who made the communication had a legal,
moral or social duty to make the communication, or, at least, he
had an interest to be upheld;
(2) That the communication is addressed to an officer or board,
or superior, having some interest or duty in the matter.
(3) That the statements in the communication are made in good
faith without malice in fact.
Applying to the wrong person due to honest mistake does not
take the case out of privilege. (US v. Bustos)
Unnecessary publicity destroys good faith.
The privileged character simply does away with the presumption
of malice.
The rule is that a communication loses its privileged character
and is actionable on proof of actual malice.
That the statement is a privileged communication is a matter of
defense. To overcome the defense of privileged communication
under par. 1 of Art. 354, it must be shown that:
1) The defendant acted with malice in fact; or
2) There is no reasonable ground for believing the charge to be
true.
Fair and true report of official proceedings
Official proceedings refer to proceedings of the 3 branches of
the government: judiciary, legislative, and executive.
Requisites:
(1) That it is a fair and true report of a judicial,
legislative, or other official proceedings which are not
confidential in nature, or of a statement, report, or speech
delivered in said proceedings, or of any other act performed by a
public officer in the exercise of his functions.
(2) That it is made in good faith; and
(3) That it is without comments or remarks
The communication must be pertinent and material to the
subject matter.
Doctrine of fair comment: Fair commentaries on matters of
public interest are privileged and constitute a valid defense in an
action for libel or slander.
In order that a discreditable imputation to a public official may be
actionable, it must either be:
(1) A false allegation of fact; OR
(2) A comment based on a false supposition.
[People v. Velasco (2000)]
PUBLIC FIGURE one who, by his accomplishments, fame,
mode of living, OR by adopting a profession or calling which
gives the public a legitimate interest in his doings, his affairs and
his character, has become a public personage [Ayer
Productions v. Capulong (1988)]
Based on the ruling in US v. Ocampo, proof of knowledge of and
participation in the publication of the offending article is not
required, if the accused has been specifically identified as
author, editor, or proprietor or printer/publisher of the
publication.
ARTICLE 355 - LIBEL BY WRITING OR SIMILAR MEANS
Libel may be committed by means of: (1) Writing;
(2) Printing;
(3) Lithography;
(4) Engraving;
(5) Radio;
(6) Photograph;
(7) Painting;
(8) Theatrical exhibition;
(9) Cinematographic exhibition;or
(10) Any similar means. (e.g. video broadcast)
Common characteristic of written libel: their permanent nature
as a means of publication.
Use of amplifier system is not libel but oral defamation (slander).
But the defamation made in the television program is libel.
ARTICLE 356 - THREATENING TO PUBLISH AND OFFER TO
PREVENT SUCH PUBLICATION FOR A COMPENSATION
Acts Punished:
(1) Threatening another to publish a libel concerning him, his
parents, spouse, child or other members of his family
(2) Offering to prevent the publication of such libel for
compensation or money consideration.
The essence of this crime is blackmail, which is defined as any
unlawful extortion of money by threats of accusation or
exposure.
Blackmail can also be in the form of light threats, which is
punished under ARTICLE 283.
ARTICLE 357 - PROHIBITED PUBLICATION OF ACTS
REFERRED TO IN THE COURSE OF OFFICIAL
PROCEEDINGS (GAG LAW)
Elements:
(a) Offender is a reporter, editor or manager of a newspaper,
daily or magazine;
(b) He publishes facts connected with the private life of another;
(c) Such facts are offensive to the honor, virtue and reputation of
said person.
Requisites of violation:
(1) That the article published contains facts connected with the
private life of an individual; and
(2) That such facts are offensive to the honor, virtue and
reputation of said person.
This article is referred to as the Gag Law.
Prohibition applies even if the facts are involved in official
proceedings.
Newspaper reports on cases pertaining to adultery, divorce,
legitimacy of children, etc. are barred from publication.
Under RA 1477, a newspaper reporter cannot be compelled to
reveal the source of the news report he made, UNLESS the
court or a House or committee of Congress finds that such
revelation is demanded by the security of the state.
ARTICLE 358 - SLANDER
Slander, or oral defamation is composed of two kinds:
(1) Simple slander
(2) Grave slander, when it is of serious and insulting nature
Factors that determine the gravity of the oral defamation:
(1) Expressions used
(2) Personal relations of the accused and the offended party.
(3) The surrounding circumstances.
Illustration of grave slander:
A woman of violent temper hurled at a respectable married lady
with young daughters offensive and scurrilous epithets including
words imputing unchastity to the mother and tending to injure
the character of the daughters [U.S. vs. Toloso]
Illustration of simple slander:
(1) Calling a person a gangster
(2) Uttering defamatory words in the heat of
anger with some provocation on the part of the offended party
The Court does not condone the vilification or use of scurrilous
language on the part of petitioner, but following the rule that all
possible circumstances favorable to the accused must be taken
in his favor, it is our considered view that the slander committed
by petitioner can be characterized as slight slander following the
doctrine that: uttering defamatory words in the heat of anger,
with some provocation on the part of the offended party,
constitutes only a light felony. [Villanueva vs. People (2006)]
(3) The word putang ina mo is a common expression in the
dialect that is often employed not really to slander but rather to
express anger or displeasure. It is seldom, if ever taken in its
literal sense by the hearer, that is, as a reflection on the virtue of
a mother. [Reyes vs. People]
The slander need not be heard by the offended party.
ARTICLE 359 - SLANDER BY DEED
Elements
(a) Offender performs any act not included in any other crime
against honor;
(b) Such act is performed in the presence of other person/s;
and
(c) Such act casts dishonor, discredit or contempt upon the
offended party.
Slander by deed is a crime against honor which is committed by
performing any act which casts dishonor, discredit, or contempt
upon another person.
Slander by deed is of two kinds
(1) Simple slander by deed
(2) Grave slander by deed
There is no fixed standard in determining whether a slander is
serious or not; hence the courts have sufficient discretion to
determine the same, basing the finding on the attendant
circumstances and matters relevant thereto.
Slapping the face of another is slander by deed if the intention of
the accused is to cause shame or humiliation.
Fighting the offended party with intention to insult him is slander
by deed.
Pointing a dirty finger constitutes simple slander by deed.
Slander by deed and acts of lasciviousness distinguished by
presence of lewd designs. If such is present, it is an act of
lasciviousness.
Slander by deed and maltreatment the nature and effect of
maltreatment determines the crime committed. If the offended
party suffered from shame or humiliation caused by the
maltreatment, it is slander by deed.
Slander by deed and unjust vexation If it merely annoys and
irritates, without any other concurring factor, it is unjust vexation.
If the irritation or annoyance was attended by publicity and
dishonor, it is slander by deed.
ARTICLE 360 - PERSONS RESPONSIBLE FOR LIBEL
(1) The person who publishes, exhibits or causes the publication
or exhibition of any defamation in writing or similar means.
(2) The author or editor of a book or pamphlet.
(3) The editor or business manager of a daily
newspaper, magazine or serial publication.
(4) The owner of the printing plant which publishes a libelous
article with his consent and all other persons who in any way
participate in or have connection with its
publication.
Liability of the editor is the same as that of the author.
Lack of participation in the preparation of libelous articles does
not shield the persons responsible from liability.
Under Republic Act 8792, otherwise known as the Electronic
Commerce Act, a party or person acting as a service provider
incurs NO civil or criminal liability in the making, publication,
dissemination or distribution of libelous material if:
(1) The service provider does not have actual
knowledge, or is not aware of the facts or circumstances from
which it is apparent that making, publication, dissemination or
distribution of such material is unlawful or infringes any rights;
(2) The service provider does not knowingly receive a
financial benefit directly attributable to the infringing activity;
(3) The service provider does:
(a) not directly commit any infringement
or other unlawful act and
(b) does not induce or cause another
person or party to commit any infringement or other unlawful act
(c) and/or does not benefit financially from
the infringing activity or unlawful act of another person or party
(Section 30, in relation to Section 5, E- Commerce Law).
Where to file the criminal action? It depends on who the
offended party is.
If he is a public officer, the criminal action can only be instituted
in either: (1) RTC of the province or city where the libelous
article is printed and first published, OR
(2) RTC of the province or city where he held office at
the time of the commission of the offense
If he is a private person, the criminal action may be brought in:
(3) RTC of the province or city where the libelous
article is printed and first published, OR
(4) RTC of the province or city where he actually
resided at the time of the commission of the offense
In order to obviate controversies as to the venue of the criminal
action for written defamation, the complaint or information
should contain allegations as to whether, at the time the offense
was committed, the offended party was a public officer or a
private individual and where he was actually residing at that
time.
Whenever possible, the place where the written defamation was
printed and first published should likewise be alleged. That
allegation would be a sine qua non if the circumstance as to
where the libel was printed and first published is used as the
basis of the venue of the action. [Macasaet v. People (2005)]
Civil and criminal action must be filed with the same court.
Offended party must file the complaint for defamation imputing a
crime which cannot be prosecuted de officio.
Libel imputing a vice or defect, not being an imputation of a
crime, is always prosecuted upon information signed and filed
by the fiscal.
ARTICLE 361 - PROOF OF TRUTH
When 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 imputation does not constitute a crime, provided it is related
to the discharge of his official duties.
Rule of actual malice [or malice in fact]: Even if the defamatory
statement is false, NO liability can attach IF it relates to official
conduct, UNLESS the public official concerned proves that the
statement was made with actual malice, i.e., with knowledge
that it was false or with reckless disregard of WON it was false.
That the publication of the article was an honest mistake is not a
complete defense but serves only to mitigate damages where
article is libelous per se.
Libel against a public official
An open letter addressed to the stockholders of OPMC was the
subject of a full-page advertisement published in 5 major daily
newspapers. Coyiuto, Jr., wrote in his capacity as Chairman of
the Board and President of OPMC, that there was a sweetheart
deal between Commissioner Mario Jalandoni of the PCGG and
Rizal Commercial Banking Corp. (RCBC) to the prejudice of the
Government.
In the recent case of Vasquez v. Court of Appeals, et. al., the
Court ruled that: "The question is whether from the fact that the
statements were defamatory, malice can be presumed so that it
was incumbent upon petitioner to overcome such presumption.
Under Art. 361 of the Revised Penal Code, if the defamatory
statement is made against a public official with respect to the
discharge of his official duties and functions and the truth of the
allegation is shown, the accused will be entitled to an acquittal
even though he does not prove that the imputation was
published with good motives and for justifiable ends."
Moreover, the Court has ruled in a plethora of cases that in libel
cases against public officials which relate to official conduct
liability will attach only if the public official concerned proves that
the statement was made with actual malice, that is, with
knowledge that it was false.
Imputations regarding official conduct do not carry the
presumption of malice, hence even if the defamatory statement
is false, if malice was not proven, there is no libel. Here
petitioner failed to prove actual malice on the part of the private
respondents. Nor was the Court of the opinion that the open
letter was written to cast aspersion on the good name of the
petitioner.
The paid advertisement merely served as a vehicle to inform the
stockholders of the goings- on in the business world and only
exposed the irregularities surrounding the PCGG and RCBC
deal and the parties involved. [Mario C.V Jalandoni v Secretary
of Justice (2000)]
Truth is a legitimate defense but only under the condition that
the accused has been prompted in making the statement by
good motives and for justifiable ends. [Disini v. Secretary of
Justice (2014)]
There must be sufficient evidence to permit the conclusion that
the accused in fact entertained serious doubts as to the truth of
the statement he published. Gross/extreme negligence is not
sufficient to establish actual malice. The prosecution bears the
burden of proving the presence of actual malice in instances
where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to
be false, is available where the offended party is a public official
or public figure.
Malice is presumed, however, when the offended party is a
private individual. The law presumes its existence (RPC Art 354)
and the accused has the burden of proof to show that he has a
justifiable reason for the defamatory statement.
ARTICLE 362 - LIBELOUS REMARKS
(1) Libelous remarks or comments
(2) connected with the matter privileged under
the provisions of Art. 354,
(3) if made with malice,
(4) shall NOT exempt the author thereof nor
the editor or managing editor of a newspaper from criminal
liability.
Libelous remarks or comments on matters privileged, if made
with malice in fact, do not exempt the author and editor.
CHAPTER II: MACHINATIONS
ARTICLE 363 - INNOCENT PERSON
Elements:
(1) Offender performs an act
(2) By such an act, he incriminates or imputes
to an innocent person the commision of a
crime
(3) Such act does not constitute perjury.
INTRIGUING AGAINST HONOR
The source of the defamatory utterance is unknown and the
offender simply repeats or passes the same to blemish the
honor or reputation of another
SLANDER
Offender made the utterance, where the source of the
defamatory nature of the utterance is known, and offender
makes a republication thereof
INCRIMINATING INNOCENT PERSON
Offender performs an act by which he directly incriminates or
imputes to an innocent person the commission of a crime
As far as this crime is concerned, this has been interpreted to be
possible only in the so-called planting of evidence. If this act is
resorted to, to enable officers to arrest the subject, the crime is
unlawful arrest through incriminating innocent persons.
This crime cannot be committed through verbal incriminatory
statements.
INCRIMINATING INNOCENT PERSON
Act of planting evidence and the like in order to incriminate an
innocent person
PERJURY MAKING FALSE ACCUSATIONS
Giving of false statement under oath or making a false affidavit,
imputing to the person the commission of a crime
DEFAMATION
Public and malicious imputation calculated to cause dishonor,
discredit, or contempt upon the offended party
ARTICLE 364 - INTRIGUING AGAINST HONOR
Elements:
(c) Offender disseminates any intrigue
(d) Its principal purpose is to blemish the honor or reputation of
 (b) The doing of or the failure to do the act is
a person.
voluntary

Intriguing against honor is referred to as gossiping: the offender,

without ascertaining the truth of a defamatory utterance, repeats (c) It is without malice
the same and pass it on to another, to the damage of the
offended party
(d) Material damage results
Administrative Circular 08-2008 Re: Guidelines in the
Observance of a Rule of Preference in the Imposition of
Penalties in Libel Cases
(e) There is inexcusable lack of precaution on the part of the
(1) This Administrative Circular does not remove imprisonment
offender, taking into consideration:
as an alternative penalty for the crime libel under Article 355 of
(1) His employment/occupation
the RPC
(2) Physical condition
(2) The Judges concerned may, in the exercise of sound
(3) Degree of intelligence
discretion, and taking into consideration the peculiar
(4) Other circumstances regarding the
circumstances of each case, determine whether the imposition
persons, time and place
of a fine alone would best serve the interests of justice or

whether forbearing to impose imprisonment would depreciate
NOTE:
the seriousness of the offense, work violence on the social
(1) Reckless Imprudence Resulting in Homicide
order, or otherwise be contrary to the imperative of justice;
(2) Resulting in Physical Injuries
(3) Should only a fine be imposed and the accused be unable to
pay the fine, there is no legal obstacle to the application of the
RPC provision on subsidiary imprisonment. Inexcusable lack of precaution
Factors to be considered in determining inexcusable lack of
precaution:
Title XIV. Quasi-Offenses
(1) Employment or occupation
Article 365 - Imprudence and Negligence
(2) Degree of intelligence and physical
Quasi-offenses punished:
condition of the offender; and
(1) Committing through reckless imprudence any act which, had
(3) Other circumstances regarding persons,
it been intentional, would constitute a grave or less grave felony
time, and place.
or light felony;
(2) Committing through simple imprudence or negligence an act
which would otherwise constitute a grave or a less serious Force majeure is an event which cannot be foreseen, or which
felony; being foreseen is inevitable; it implies an extraordinary
(3) Causing damage to the property of another through reckless circumstance independent of the will of the actor.
imprudence or simple imprudence or negligence;
(4) Causing through simple imprudence or negligence some Once malice is proven, recklessness disappears. [People v.
wrong which, if done maliciously, would have constituted a light Agliday (2001)}
felony.

Elements of Simple Imprudence

IMPRUDENCE
(c) There is lack of precaution on the part of the offender
Lack of skill
(d) The damage impending to be caused is not immediate or the
Deficiency of action
danger is not clearly manifest.
Failure in precaution
NEGLIGENCE
Lack of foresight Test of negligence: Would a prudent man, in the position of the
Deficiency of perception person to whom negligence is attributed, foresee harm as a
Failure in advertence result of the course actually pursued? If so, it was the duty of the
actor to refrain from that course or to take precautions against
its mischievous results, and the failure to do so constitutes
Imprudence or negligence is not a crime itself; it is simply a way
negligence.
of committing a crime. It becomes punishable only when it
The measure of the damage should be the difference in value of
results in a crime.
property immediately before the incident and immediately after
the repair.
The rules for graduating penalties (under Art. 64) based on
mitigating and aggravating circumstances are NOT applicable to
Art. 64 relative to mitigating and aggravating circumstances is
offenses punishable thru criminal negligence.
not applicable to crimes committed through negligence.

QUALIFYING CIRCUMSTANCE: failure to render immediate

assistance to the injured party. This qualifying circumstance
must be distinguished from the punishable OMISSION under
Article 275.
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.
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. THEREFORE, even if there are several
results arising from ONLY ONE CARELESSNESS, the accused
may only be prosecuted under one count for the criminal
negligence. Otherwise, double jeopardy would arise.
The penalties provided in Art. 365 are not applicable in the ff.
cases:
(1) When the penalty provided for the offense is equal
to or lower than those provided in the first two paragraphs of Art.
365, in which case the courts shall impose the penalty next
lower in degree that that which should be imposed, in the period
which they may deem proper to apply.
(2) When, by imprudence or negligence and with
violation of the Automobile Law, the death of a person shall be
caused, in which case the defendant shall be punished by
prision correccional in its medium and maximum periods.
When death or serious bodily injury to any person has resulted,
the motor vehicle driver at fault shall be punished under the
Penal Code.

Elements of Reckless Imprudence: Contributory negligence is not a defense. It only mitigates

(a) The offender does or fails to do an act criminal liability.

Sec. 59 of Act 3992 (Revised Motor Vehicle Law) gives the right
of way to the driver coming from the right of another, when both
are travelling on intersecting streets of the same class. The
grant of right of way does not relieve the motorist from the duty
of keeping a lookout for motorists entering the intersection from
his left or right.
Doctrine of last clear chance
The contributory negligence of the party injured will not defeat
the action if it be shown that the accused might, by exercise of
reasonable care and prudence, have avoided the consequences
of the negligence of the injured party.
Emergency rule
An automobile driver who, by negligence of another and not by
his own negligence, is suddenly placed in an emergency and
compelled to act instantly to avoid collision or injury is not guilty
of negligence if he makes such a choice which a person of
ordinary prudence placed in such situation might make even
though he did not make the wisest choice.
One who suddenly finds himself in a place of danger, and is
required to act without time to consider the best means that may
be adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and upon
reflection may appear to have been a better method, unless the
emergency in which he finds himself is brought about by his own
negligence. [Gan v. CA (1988)]
Violation of a rule or regulation or law is proof of negligence. But
negligence cannot be predicated upon the mere fact of minority
or lack of an operators license.
The penalty next higher in degree is imposed if the offender fails
to lend on the spot to the injured parties such help as may be in
his hands to give.
Carillo v. People (1994): The gravamen of SIMPLE
NEGLIGENCE is the failure to exercise the diligence
necessitated or called for by the situation which was NOT
immediately life- destructive BUT which culminated, as in the
present case, in the death of a human being 3 days later.
Medical malpractice, which is a form of negligence, consists in
the failure of a physician or surgeon to apply to his practice of
medicine that degree of care and skill which is ordinarily
employed by the profession generally, under similar conditions,
and in like surrounding circumstances. [Garcia-Rueda v.
Pascasio (1997)]
Res ipsa loquitur the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a plaintiffs prima
facie case, and present a question of fact for the defendant to
meet with an explanation. [Ramos v. CA (1999)]
Requisites for the application of res ipsa loquitur
(1) The accident was of a kind which does NOT ordinarily occur
UNLESS someone is negligent;
(2) The instrumentality or agency which caused the injury was
under the exclusive control of the person in charge; and
(3) The injury suffered must NOT have been due to any
voluntary action or contribution of the person injured.
procedure resulted in the death of the boy. Thus, accused-
appellants had no criminal intent to kill the boy.
Their liability arises from their reckless imprudence because
they ought that to know their actions would not bring about the
cure. They are, therefore, guilty of reckless imprudence resulting
in homicide and not of murder.
Art. 365 of the Revised Penal Code, as amended, states that
reckless imprudence consists in voluntarily, but without malice,
doing or failing to do an act from which material damage results
by reason of inexcusable lack of precaution on the part of the
person performing such act.
Compared to intentional felonies, such as homicide or murder,
what takes the place of the element of malice or intention to
commit a wrong or evil i: the failure of the offender to take
precautions due to lack of skill taking into account his
employment, or occupation, degree of intelligence, physical
condition, and other circumstances regarding persons, time and
place.
The elements of reckless imprudence are apparent in the acts
done by accused- appellants which, because of their lack of
medical skill in treating the victim of his alleged ailment, resulted
in the latter's death. As already stated, accused-appellants, none
of whom is a medical practitioner, belong to a religious group,
known as the Missionaries of Our Lady of Fatima, which is
engaged in faith healing.
Ivler v. Modesto-San Pedro (2010): The accused got involved in
a car accident for which he was charged with two separate
offenses (RI resulting to slight physical injuries and RI resulting
to homicide and damage to property). He was convicted of the
first offense and he wanted the second information quashed on
the ground of double jeopardy. The Court held that the Reckless
Imprudence is a single crime and the consequences on persons
and property are material only to determine the penalty. The
conviction or acquittal of such quasi-offense bars subsequent
prosecution for the same quasi-offense, regardless of its various
resulting acts. The law penalizes the negligent act and not its
result.
Rafael Reyes Trucking v. People (2000): Much of the confusion
has arisen from the common use of such descriptive phrase as
'homicide through reckless imprudence', and the like; when the
strict technical sense is, more accurately, 'reckless imprudence
resulting in homicide'; or 'simple imprudence causing damages
to property'."

Ordinarily, only physicians and surgeons of skill and experience

are competent to testify as to whether a patient has been treated
or operated upon with a reasonable degree of skill and care.

HOWEVER, testimony as to the statements and acts of

physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by
non- expert witnesses. [Reyes v. Sis. of Mercy Hospital (2000)]

Illustration:
People v. Carmen (2001): It would appear that accused-
appellants are members of a cult and that the bizarre ritual
performed over the victim was consented to by the victim's
parents. With the permission of the victim's parents, accused-
appellant Carmen, together with the other accused-appellants,
proceeded to subject the boy to a "treatment" calculated to drive
the "bad spirit" from the boy's body. Unfortunately, the strange