FUNDAMENTAL PRINCIPLES OF CRIMINAL LAW

FUNDAMENTAL PRINCIPLES
What is criminal law?
It is that branch of public law which defines criminal

offenses and prescribes specific punishment for them. It is a
branch of public l a w because it treats of acts or omissions of
the citizens which are deemed primarily as wrongs against the
State more than against the offended party.
Penal laws are those acts of the legislature which prohibit

certain acts and establish penalties for their violations; or
those that define crimes, treat of their nature and provide for
their punishment. (Lacson v. Exec. Secretary, G.R. No. 128096,
January 1999)
What are the constitutional limitations on penal laws?
Article I I I (Bill of Rights) of the 1987 Constitution

provides the following limitations on the inherent right of the
State through the Legislature to enact penal laws:
a. " N o person shall be deprived of life, liberty, or property

without due process of law, nor shall any person be denied
the equal protection of the laws." (Section 1) Thus, the
law must be general in application so as not to violate the
equal protection clause.
b. " N o torture, force, violence, threat, intimidation, or any

other means which vitiate the free will shall be used against
him. Secret detention places, solitary, incommunicado, or
other similar forms of detention are prohibited." (Section
12[2]) No law, therefore, must be passed imposing cruel
and unusual punishment or excessive fines.
c. " N o ex post facto law or bill of attainder shall be enacted."

(Section 22)
NOTES A N D CASES ON THE REVISED PENAL CODE
3. Describe due process as applied to penal laws.

Due process, whether substantive or procedural, can be
described as nothing more and nothing less than compliance
with the requirements of fair play, or the right of any person
to be given notice and be heard before he is condemned
for an act or omission defined and punished by law (twin
requirements of notice and hearing). Ynot, 148 SCRA 659,
struck down the executive order ( E O ) which prohibited
the transport of carabao or carabao meat across provincial
boundaries without government clearance for the purpose of
preventing indiscriminate slaughter of carabaos. T h e rationale
was that the EO defined the prohibition, convicted petitioner
and immediately imposed punishment, which was carried
out forthright. T h e measure struck at once and pounced upon
the petitioner without giving him a chance to be heard, thus
denying him "the centuries-old guaranty of elementary fair
play."
4. Who are entitled to the mantle of due process of law?
T h e State, as well as the accused, is entitled to due process

of law. For justice to prevail the scales must be balanced; justice
is not to be dispensed for the accused alone. T h e interests of
society and the offended parties which have been wronged must
be equally considered. A verdict of conviction is not necessarily
a denial of justice; and an acquittal is not necessarily a triumph
of justice, for, to the society offended and the party wronged,
it could also mean injustice. Justice then must be rendered
even-handedly to both the accused, on one hand, and the State
and offended party, on the other. (Dimatulac v. Vilon, G.R. No.
127107, October 12, 1998)
In receiving ex-parte the Department of Foreign Affairs

advice and in motu proprio dismissing the cases without notice
to the prosecution, the latter's right to due process was violated.
Due process is a right of the accused as much as it is of the
prosecution. The needed inquiry in what capacity petitioner
was acting at the time of the alleged utterances requires for its
resolution evidentiary basis that has yet to be presented at the
proper time. (Liang v. People, G.R. No. 125865, January 28,
2000)
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F U N D A M E N T A L PRINCIPLES
5. What is the effect of violation of the due process clause?
In Guevarra u. Sandiganbayan, G.R. No. 138792-804,

March 31, 2005, the Sandiganbayan ordered the dismissal of
13 cases against petitioners over the objection of the Special
Prosecutor. By such order, the court deprived the People of
its right to due process. It acted in excess of its jurisdiction
and committed grave abuse of its discretion in dismissing the
criminal cases. Hence, the order was null and void; it may
thus be rectified despite the lapse of 15 days from notice to the
Special Prosecutor.
A void order or judgment has no legal and binding effect,
force or efficacy for any purpose. In contemplation of law, it is
non-existent. Such judgment or order may be resisted in any
action or proceeding whenever it is involved. It is not even
necessary to take any steps to vacate or avoid a void judgment
or final order; it may simply be ignored.
6. What makes a penalty cruel and unusual?

Punishments are cruel when they involve torture or a
lingering death. It implies something inhuman and barbarous
5(r*^Ml (Harden v. Dir. of Prisons, 81 Phil. 741), or shocking to the
conscience (People v. Dionisio, 22 SCRA 1299) such as cutting
the fingers of thieves, burning at the stake incestuous rapists, or
putting onto the stock and barrel illegal possessors of firearms.
But mere severity of the penalty does not make the same cruel Y'<" '
and unusual punishment. "It takes more than merely being
harsh, excessive, out of proportion, or severe for a penalty to
be obnoxious to the Constitution." To come under the ban, the
punishment must be 'flagrantly and plainly oppressive,' 'wholly
disproportionate to the nature of the offense as to shock the
moral sense of the community.'
When the penalty is wholly disproportionate to the offense
committed, e.g., life imprisonment for jaywalking, it not only is
cruel and unusual but is likewise violative of the due process
clause as that would amount to deprivation of liberty for an
unreasonable length of time.
/ 7. What is an ex post facto law?

An ex post facto law is a penal law which is given
retroactive application to the prejudice of the accused. Hence,
3
even if the penal law is made to apply retroactively, if it is

favorable to the accused the same is not ex post facto, and, thus,
allowed under Article 22.
A law is ex post facto when it makes an act or omission
criminal which when committed was not yet so. In the Revised
Penal Code ( R P C ) , there are provisions which complement the
prohibition against ex post facto law. Article 21 states that "no
felony shall be punishable by any penalty not prescribed by law
prior to its commission." Thus, reclusion perpetua cannot be
imposed for homicide instead of reclusion temporal no matter
how many generic aggravating circumstances are present
because that penalty is not prescribed by law for homicide. Also,
Article 22 provides that penal laws shall have retroactive effect
insofar as they favor the person who is not a habitual criminal.
Therefore, a law which increases the penalty for an act or
omission cannot be given retroactive effect. Consequently, the
court cannot impose a penalty higher than that prescribed by
law for a particular crime, no matter how perverse the offender
may be.
8. Give examples of ex post facto law.
a. Makes an act punishable as a crime when such act was

not an offense when committed.
b. W h i l e not creating new offenses, aggravates the
seriousness of a crime.
c. Prescribes greater punishment for a crime already
committed.
d. Alters the rules of evidence so as to make it substantially
easier to convict a defendant.
e. Alters, in relation to the offense or its consequences, the
situation of a person to his disadvantage.
f. Assumes to regulate civil rights and remedies only but in
effect imposes a penalty or deprivation of a right which
when done was lawful.
g. Deprives the accused of some lawful protection to which

he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.
(Lacson v. Exec. Secretary)
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9. Give examples of laws not covered by the ex post facto clause.
Ex post facto law generally prohibits retrospectivity of

penal laws. R . A . 8249 is not a penal law. It is a substantive
law on jurisdiction which is not penal in character. Penal
laws are those acts of the Legislature which prohibit certain
acts and establish penalties for their violations; or those
that define crimes, treat of their nature and provide for their
punishment. R . A . 7975 which amended P . D . 1606 as regards
the Sandiganbayan's jurisdiction, its mode of appeal and other
procedural matters, is not a penal law, but clearly a procedural
statute, i.e., one which prescribes rules of procedure by which
courts applying laws of all kinds can properly administer
justice. N o t being a penal law, the retroactive application of
R . A . 8249 cannot be challenged as unconstitutional, (id.)
T h e prohibition applies only to criminal legislation which

affects the substantial rights of the accused. This being so,
there is absolutely no merit in the contention that sustaining
the extradition treaty's retroactive application with respect
to offenses committed prior to its coming into force and effect
violates the constitutional prohibition. T h e Treaty is neither a
piece of criminal legislation nor a criminal procedural statute.
It merely provides for the extradition of persons wanted
for prosecution of an offense or a crime which was already
committed or consummated at the time the Treaty was ratified.
(Wright v. CA, No. 113213, August 15, 1994)
Bayot v. Sandiganbayan, G.R. No. L-54645-76, December
18, 1986 upheld the inclusion of public officers and employees
earlier charged for suspension pendente lite under the law
amending R . A . 3019. T h e amendment was not ex post facto
even if applied retroactively because the suspension was not
a form of penalty but merely preventive. It is not a penalty
because it is not imposed after and as a consequence of hearing
on the merits.
y 10. What is a bill of attainder? Why is it constitutionally proscribed?

A bill of attainder is a legislative act which inflicts
punishment without judicial trial (People v. Ferrer, 48 SCRA
382). It offends against the due process clause and has the
features of ex post facto law. Moreover, it is an encroachment of
judicial function by the legislative.
RA %t^K - 5
Ferrer said that the Anti-Subversion Act is not a bill of

attainder because although the law named the Communist
Party of the Philippines ( C P P ) , it did so only for definitional
purposes and applies not only to that organization but also
to any other organizations having the same purpose and its
successors. Were the Act a bill of attainder, it would be totally
unnecessary to charge communists in court, as the law alone,
without more, would suffice to secure their punishment. But the
fact is that, "The Government has yet to prove at the trial that
the accused joined the Party knowingly, willfully and by overt
acts, and that they joined the Party knowing its subversive
character and with specific intent to further its basic objective,
i.e., to overthrow the existing Government by force, deceit, and
other illegal means and place the country under the control
and domination of a foreign power." [The Anti-Subversion A c t
had been expressly repealed.]
What are the characteristics of penal law?
They are generality, territoriality, and prospectivity.

Generality refers to the persons covered by penal laws;
territoriality, the place where the law is applicable; and
prospectivity, the time when the law should be applied.
What is the generality characteristic of penal law?
Penal laws are binding on all persons who reside or

- sojourn in the Philippines whether citizens or not. This is based
on Article 14 of the N e w Civil Code ( N C C ) and on the equal
protection clause in Article I I I ( l ) of the 1987 Constitution,
which provides, respectively, viz.:
"Art. 14. Penal laws and those of public security and

safety shall be obligatory upon all those who live or sojourn in
Philippine territory."
"Section 1. No person shall be deprived of life, liberty or

property without due process of law, nor shall any person be
denied the equal protection of the laws."
Even aliens are covered by the generality principle

because they are also protected by the laws of the Philippines
during all the time that they sojourn within its territory and
the word "person" in the Constitution does not refer only
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to citizens. Excepted w i t h qualification are those covered

by treaties and laws of preferential application such as
ambassadors and heads of State under the principle of par in
parent non habet imperium. , , , * •
As distinguished from the territoriality principle, gener-

ality refers to the persons covered, whereas the former deals
with the situs of the act or the place where the penal law is
applicable.
• 13. Describe the territoriality characteristic of penal law.
T h e law is applicable to all crimes committed within the

limits of Philippine territory. T h e basis of this characteristic
is Article 2 of the R P C . T h e exceptions are preferential laws
and treaties providing for exemption from the coverage of
penal laws for certain classes of persons, on the one hand, and
the expansion of the coverage of the Code outside its territory
for certain acts or omissions listed in Article 2, on the other.
Example of the first is the laws and treaties governing heads of
States and their representatives.
^14. What does prospectivity rule mean?
Prospectivity of penal laws means that laws have

prospective application unless they are favorable to the
offender who is not a habitual delinquent. Conversely, and to
the same effect is irretrospectivity which prescribes that "laws
shall have no retroactive application unless the contrary is
provided." T h e bases of this characteristic are Articles 21 and
yf 22 of the R P C , Article 111(22) of the Constitution on ex post
facto laws and Article 4 of the N C C .
To mete the death penalty reimposed by R . A . 7659 on
December 31, 1993 for a crime committed inl987 would violate
the rule that if the new law imposes a heavier penalty, the law
in force at the time of the commission of the offense shall be
applied. (People v. Bracamonte, G.R. No. 95939, June 17, 1996)
/ 15. Does the prospectivity rule cover only laws?

N o . The prospectivity rule applies also to penal circulars
such as DO J Circular N o . 12 issued on August 8, 1984 which
declared that all checks including guarantee checks are covered
7
by B.P. 22. This Circular cannot be applied retroactively

because petitioners cannot be faulted for relying on the earlier
official pronouncement of the DOJ Secretary that guarantee
checks issued prior thereto are not covered by said Circular. The
principle of prospectivity of statutes, original or amendatory
has been applied to administrative rulings and circulars, and
to judicial decisions which although in themselves are not
laws, are evidence of what the laws mean, this being the reason
why under Article 8 of the N C C , judicial decisions applying or
interpreting the laws or the Constitution shall form part of our
legal system. (Co v. CA, G.R. No. 100776, October 28, 1993)
16. What effect does the court's interpretation upon a written law
have?
The interpretation placed upon a written law by a
competent court has the force of law. W h e n a doctrine
enunciated by the Supreme Court is overruled and a different
view adopted, the new doctrine should be applied prospectively
and should not apply to parties who had relied on the old
doctrine and acted on the faith thereof. This is especially true
in the construction and application of criminal laws, where
it is necessary that the punishability of an act be reasonably
foreseen for the guidance of society, (id.)
17. What is the rationale against retroactivity of laws?
Lex prospicit, non respicit, the law looks forward not

backward. T h e rationale against retroactivity is that a law
„ •-/> It ^ usually derides rights which may have already become
-> vested or impairs the obligations of contract and hence,
is unconstitutional. There is the improvised necessity to
take account of the actual existence of a statute prior to its
nullification as an operative fact negating acceptance of a
"principle of absolute retroactive invalidity." Prior to such
nullification, the statute must have been in force and had to be
complied with. It will deprive the law of its quality of fairness
and justice if there be no recognition of what had transpired
prior to such adjudication, (id.)
i/18. Enumerate the different philosophies underlying the criminal

law system.
There are four schools of thought: a) the classical or

j> juristic; b) the positivist or realistic; c) the ecclectic; and d) the
£ utilitarian.
u
19. Distinguish the classical (juristic) from the positivist (realistic).
•^Classical or juristic.
1. Basis of criminal liability — human free will. The
subscribers to this theory believe that man has the
capacity to choose between right and wrong, good
and evil. Hence, when he does or omits to do an
act, he does so willingly and voluntarily with full
knowledge of the effects and consequences thereof.
2. Purpose of the penalty — retribution — "an eye for an
eye; a tooth for a tooth." In v i e w of the voluntariness
of the act or omission of the offender, he should be
given the penalty that he deserved. Justice is for the
offended party also which requires that the offender
be repaid with commensurate punishment.
3. Determination of penalty — predetermined and
rigid established by a specific and predetermined
penalty for the offense committed. T h e penalty is
mechanically determined in direct proportion to the
crime committed. Thus, homicide is penalized with
reclusion temporal; murder with reclusion perpetua;
kidnapping and serious illegal detention with
reclusion perpetua, and so on.
4. Emphasis of the law — on the offense and not on the
offender.
^ P o s i t i v i s t or realistic.
t, 1. Basis of criminal liability — the proponents are of
the v i e w that man is inherently good but the offender
is socially sick. He is a product, not only of biological
factors, but also of his environment. His thoughts
and actions are influenced by his upbringing, social
environment and associations.
2. Purpose of the penalty — reformation. Since the
offender is not inherently evil but only made so
by his environment, then the penalty should be
9
corrective or curative to reform him or bring him

back to his good nature. (Thus, jails are also called
reformatories.)
3. Determination of the penalty — case to case basis
— arrived at after an individual examination of
the offender. The penalty should be suited to the
individual offender precisely because the purpose is
to reform him.
4. Emphasis of the law — on the offender and not on
the offense.
T h e basic principle in our criminal law is that
a person is criminally liable for a felony committed
by him. Under the classical theory on which the R P C
is mainly based, the basis of criminal liability is
human free will. M a n is essentially a moral creature
with an absolutely free will to choose between good
and evil. W h e n he commits a felonious or criminal
act (delito doloso), the act is presumed to have been
done voluntarily, i.e., with freedom, intelligence
and intent. M a n therefore, should be adjudged or
held accountable for wrongful acts so long as free
will appears unimpaired. (People v. Genosa, G.R.
135981, September 29, 2000)
T h e rigid penalty in Book II under the classical

theory is tempered by factors approximating the
positivist theory, e.g.:
1. Indeterminate Sentence L a w ( I S L ) ;
2. Modifying Circumstances;
3. Extenuating/absolutory circumstances;
4. Probation L a w ;
5. Three-fold rule on multiple penalties;
/ 6. 40-year maximum limit for penalty; and
7. Executive clemency under Articles 5 and 70
and the Constitution.
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/ 20. What is meant by the ecclectic (or mixed) philosophy?
This combines the good features of both the classical and

the positivist theories. Ideally, the classical theory should be
applied to grievous or heinous crimes, whereas, the positivist
is made to apply on economic and social crimes.
/ 21. What does the utilitarian theory believe on the function of

punishment?
T h e primary function of punishment in criminal law is

v / t o protect society from potential and actual wrongdoers. The
retributive aspect of penal laws should be directed against them.
Thus, in applying the punishment imposed upon the accused,
the objective of the retribution of a wronged society should be
directed against the 'actual and potential wrongdoers.' M M ' s
four checks w e r e used to collateralize an accommodation, and
not cover the actual 'account or credit for value' as this was
absent, and therefore, petitioner should not be punished for the
mere issuance of the checks in question. Following this theory,
in M M ' s stead, the 'potential wrongdoer' whose operation could
be a menace to society, should not be glorified by convicting
M M . " (Magno v. CA, G.R. No. 96132, June 26, 1992) Since the
machineries guaranteed by the check were already foreclosed,
the payee had no more right over the checks and should not
have deposited them in the first place. By doing so, he was the
menace to society. , , ^ , . ,„ _ .
22. When an act is perverse, but there is no law that punishes it, is
there a crime committed?
Nullum crimen nulla poena sine lege — there is no
crime when there is no law that defines and punishes it. The
Philippines is a civil law country (as against a common law
country where laws are evolved.) Penal laws are enacted
hence, no matter how heinous an act, it is not considered a
crime unless there is a law that punishes it (Article 5). Since
a penalty cannot be imposed if not previously prescribed for a
specific crime, then, when there is no law yet defining that act
as a crime and prescribing that penalty, it cannot be imposed.
(Article 21) This is also covered by the rule on ex post facto
law.
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What is the rule in the interpretation of penal laws in relation to

the accused's culpability?
In dubio pro reo, all laws must be interpreted liberally in
favor of the accused and strictly against the State. This is so
because it is the State which drafted and prescribed the law,
hence in case of ambiguity, the law must be read, interpreted
and construed against the State.
Thus, whenever a situation obtains where two interpreta-
tions are possible, one exculpatory and the other inculpatory,
the former shall prevail, consistent with the rule on presump-
tion of innocence.
Stated otherwise, where a penal law is susceptible of two

interpretations, one consistent with acquittal, and the other
with conviction, the offender is entitled to acquittal as a matter
of right. Or, where the evidence is equipoised, the balance of
justice should be tilted in favor of the accused because the
State should prove the guilt of the accused beyond reasonable
doubt and should rely on the strength of its own evidence, not
on the weakness of the evidence of the accused.
C A . 142 being a penal statute should be construed

strictly against the State and in favor of the accused. T h e
reason for this principle is the tenderness of the law for the
rights of the individuals and the object is to establish a certain
rule by conformity by which mankind would be safe and the
discretion of the court limited. "Our mind cannot rest easy on
the proposition that the petitioner should be convicted on a law
that does not clearly penalize the act done by him. T h e r e exists
a valid presumption that undesirable consequences w e r e never
intended by a legislative measure and that a construction for
which will avoid all objectionable, mischievous, indefensible,
wrongful, evil and injurious consequences." (Ursua v. CA, G.R.
No. 112170, April 10, 1996)
What is the equipoise rule?
T h e equipoise rule — that if the inculpatory facts and

circumstances are capable of two or more explanations, one of
which is consistent with the innocence of the accused and the
other consistent with his guilt, then the evidence does not fulfill
the test of ^rioral certainty, and does not suffice to produce a
12
conviction the same must be denied. (Abarquez v. People, G R

No. 150762, January 20, 2006)
W h e r e the evidence of the prosecution and of the defense

are equally balanced, the scale should be tilted in favor of the
accused in v i e w of the constitutional presumption of innocence.
(Corpuz v. People, G.R. No. 74259, February 14, 1991) Where
the State fails to meet the quantum of proof required to
overcome such constitutional presumption, the accused is
entitled to acquittal, regardless of the weakness or even the
absence of his defense. For any conviction must rest on the
strength of the prosecution's case and not on the weakness of
the defense. In every criminal prosecution, if the State fails to
discharge its burden of proving the guilt of the accused beyond
reasonable doubt, it fails utterly. Accordingly, when the guilt
of the accused has not been proven with moral certainty, it is
the policy of long standing that the presumption of innocence
of the accused must be favored and his exoneration granted as
a matter of right. (Cosep v. People, G.R. No. 110353, May 21,
1998)
Conviction must rest on hard evidence showing that the

accused is guilty beyond reasonable doubt of the crime charged.
In criminal cases, moral certainty — not mere possibility —
determines the guilt or the innocence of the accused. Even
when the evidence for the defense is weak, the accused must
be acquitted when the prosecution has not proven guilt with
the requisite quantum of proof required in all criminal cases.
(Ladonga v. People, G.R. No. 141066, February 17, 2005)
What is the relationship of presumption of law and prima facie

evidence on the constitutional presumption of innocence?
A " p r e s u m p t i o n of l a w " is sanctioned by a statute
prescribing that "a certain inference must be made whenever
facts appear which furnish the basis of the interference."
This is to be set apart from a " p r e s u m p t i o n of fact" which
is a "[conclusion] drawn from particular circumstances, the
connection between them and the sought for fact having received
such a sanction in experience as to have become recognized
as justifying the assumption." When there is a presumption
of law, the onus probandi (burden of proof), generally imposed
upon the State, is now shifted to the party against whom the
13
interference is made to adduce satisfactory evidence to rebut

the presumption and hence, to demolish the prima facie case.
Article 217 no longer requires proof by the State that
accused actually appropriated, took, or misappropriated public
funds or property. Instead, a presumption, though disputable
and rebuttable, was installed that upon demand by any duly
authorized officer, the failure of a public officer to have duly
forthcoming any public funds or property — with which said
officer is accountable — should be prima facie evidence that he
had put such missing funds or property to personal use. W h e n
these circumstances are present, a "presumption of law" arises
that there was malversation of public funds or property.
Prima facie e v i d e n c e is evidence good and sufficient on
its face; such evidence, in the judgment of the law, is sufficient
to establish a given fact, or the group or chain of facts consti-
tuting the party's claim or defense, and which if not rebutted
or contradicted will remain sufficient. Evidence which if unex-
plained or uncontradicted is sufficient to sustain a judgment in
favor of the issue it supports, but which may be contradicted by
other evidence.
The establishment of a prima facie case does not take
away the presumption of innocence which may be such as to
rebut and control it. Such prima facie evidence, if unexplained
or uncontradicted can counterbalance the presumption of
innocence to warrant a conviction. (Wa-acon v. People, G.R. No.
164575, December 6, 2006)
26. Cite some provisions of the Revised Penal Code which apply the
liberality of the law on the accused.
This liberal disposition in favor of the accused is
manifested in the three-fold rule, the rules on mitigation of
crimes, the requirement that qualifying circumstance should
be proved by the same quantum of evidence necessary to
establish guilt, the analogous circumstances in Article 13 on
mitigating circumstances without the corresponding analogous
circumstances on aggravating circumstances, among others.
What does actus non facit reum, nisi mens sit rea mean?
T h e act cannot be criminal unless the mind is criminal.
Since intent is an essential element of intentional felony
14
(dolo), when the accused acted in good faith, there is no crime

committed. This maxim therefore applies to dolo and not to
culpa. T h e error of the accused may be one of the heart and not
of the mind that would render them criminally liable. (Llamoso
v. Sandiganbayan, G.R. Nos. L-63408 & 64026, August 7, 1985;
People v. Pepito, G.R. Nos. 112761-65, February 3, 1997)
v/ 28. How are crimes variously classified?

A. As to commission (Article 3) —
1. Dolo or felonies committed with deliberate intent;

and
2. Culpa or those committed by means of fault.

B. As to stage of execution (Article 6) —
^ 1. Attempted;
* 2. Frustrated; and
O
3. Consummated.
C. Related to this is the classification of felonies as to —
Formal felonies or those which are always consum-

^ mated because the offender cannot perform the acts
j. necessary for their execution without consummating
the offense. Examples are crimes punished on the
basis of the result or gravity such as physical inju-
ries. Physical injuries are punished as to whether
they are serious, less serious, or slight. The degree of
injury cannot be determined without first consum-
mating the offense.
i / /
2. Material felonies or those which can be committed in
any of the three stages of execution.
3. Felonies which cannot be committed in the frustrated
stage, such as rape which can be either attempted
or consummated because the essence of rape is
carnal knowledge. Hence, even slight penetration
of the female organ consummates the crime of rape
because then there is already carnal knowledge;
(People v. Clopino, G.R. No. 117322, May 21, 1998)
or theft which cannot be frustrated because its
15
element of unlawful taking is deemed complete from

the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the
same. (Valenzuela v. People, G.R. No. 160188, June
21, 2007)
D. As to gravity (Article 9) —
1. Grave felonies;
2. Less grave felonies; and
3. Light felonies.
E. As to count — compound, complex, composite or special
complex crimes, continued, and continuing crimes.
Usurpation of real property or real interest therein
under Article 312 is the sixth classification for unlike the
above which are deemed one crime composed of several
distinct crimes with one penalty, usurpation is one crime
with two penalties - fine for the usurpation plus the
penalty for the means to commit the usurpation.
F. As to nature — mala in se (singular — malum in se) and

mala prohibita (singular — malum prohibitum.)
What are crimes mala in se?
Crimes mala in se are acts or omissions which are

inherently evil (mala — evil; in se — by itself.) Generally,
crimes mala in se are felonies punished under the R P C . T h e r e
are however crimes which although punished under special
laws are deemed mala in se, such as those which are mere
modification of the provisions of the Code like cattle rustling
which modifies Articles 308, 309 and 310 on qualified theft.
Thus, P . D . 533 is not a malum prohibitum but a modification of
theft and malicious mischief. Therefore, the rules and system
on penalties under the R P C apply. (People v. Macatanda,
infra). (However, the anti-carnapping law which modifies the
same Article was declared as malum prohibitum.)
What are crimes mala prohibita?
T h e y are acts which are made evil because there is a law

prohibiting the same. These would not be wrong but for the fact
16
that positive law forbids them. In this case, the only question
asked is, has the law been violated? W h e n the act is illegal,
intent of the offender is immaterial. (Dunlao, Sr. v. CA, G.R
No. 111342, August 22, 1996)
W h e n a check is presented for payment, the bank will

generally accept the same whether or not it was issued in
payment of an obligation or merely to guarantee the said ob-
ligation. W h a t the law punishes is the issuance of a bouncing
check not the purpose for which it was issued nor the term and
conditions relating to its issuance. T h e mere act of issuing a
worthless check is malum prohibitum. (Cruz v. CA, G.R. No.
108738, June 17, 1992) H o w e v e r , Magno following the utilitar-
ian school of thought acquitted the accused as it considered the
purpose for the issuance of the bouncing check in relation to
the payee's conduct which manifested her ba,d faith.
31. If a special law uses the nomenclatures of penalties in the

Revised Penal Code, what is the effect on the nature of the
crime covered by the special law?
T h e fact alone that a special l a w uses the terms of penalties

in the R P C will not make the act or omission malum in se.
T h e law may only intend to make the R P C apply suppletorily
thereto. For instance, R . A . 6425, as amended by R . A . 7659
employed the penalties used in the R P C but its violations were
still deemed as malum prohibitum. Nevertheless, the system
of penalties under the R P C was applied to violations involving
dangerous drugs under that law. Likewise, the penalty
imposable pursuant to the Indeterminate Sentence L a w ( I S L )
was also determined following the rules under the R P C .
( R . A . 9165 further amended R . A . 6425 and reverted back
to the "non-RPC" penalties, e.g., life imprisonment thus, R.A.
9165 now is a purely special law.)
V( 32. Which between malum in se and malum prohibitum involves

moral turpitude?
In determining whether a criminal act involves moral
turpitude, the Court is guided by the general rule that crimes
mala in se involve moral turpitude while crimes mala prohibita
do not. T h e rationale was set forth in Zari vs. Flores, November
21, 1979: "It implies something immoral in itself, regardless
n MIX 17
of the fact that it (moral turpitude) is punishable by law or

not. It must not be merely mala prohibita, but the act itself
must be inherently immoral. The doing of the act itself, and
not its prohibition by statutes fixes the moral turpitude. Moral
turpitude does not, however, include such acts as are not of
themselves immoral but whose illegality lies in its positively
being prohibited." (Dela Torre v. COMELEC, G.R. No. 121592,
July 5, 1996)
Compare mala in se and mala prohibita.
In mala in se:
1. The basis of criminal liability is the offender's moral
trait, hence, good faith or lack of criminal intent is a
defense.
2. Modifying circumstances are taken into account
in imposing the penalty on the offender precisely
because his moral trait is the basis of this crime.
Thus, if the offender is perverse, Article 14 on
aggravating circumstances shall apply, whereas, if
the offender shows remorse or the like, his penalty
shall be mitigated pursuant to Article 13.
3. T h e degree of participation determines the penalty
imposable so that it is computed on the basis of
whether he is a principal offender, or merely an
accomplice or accessory.
4. T h e stage of accomplishment affects the penalty
imposed thus the penalty depends on whether the
crime is consummated, frustrated, or attempted.
5. Generally, crimes mala in se involve moral turpitude.
6. Generally, crimes mala in se are punishable under
the R P C .
In mala prohibita:
1. T h e basis of criminal liability is the offender's

voluntariness, hence, good faith or lack of criminal
intent is not accepted as a defense, unless this is
an element of the crime such as in Section 3(e) of
R . A . 3019, the Anti-Graft and Corrupt Practices A c t
(evident bad faith).
18
2. Modifying circumstances are not considered because

the law intends to discourage the commission of
the act specially prohibited. Moreover, the act
prohibited is not inherently evil but made evil only
by the prohibition of the statute, hence, does not
involve perversity or lack of it by the offender which
is the basis for the aggravation or mitigation of the
penalty.
3. T h e degree of participation of the offenders does
not affect their liability, hence, the penalty on all of
them are the same whether they are principals or
merely accomplices or accessories.
4. T h e stage of accomplishment considered is only
when the crime is accomplished or consummated.
T h e r e is no attempted or frustrated stage because it
is the commission of the act itself that is prohibited
and also since intent which is inherent in attempted/
frustrated stage is not an element. Thus, just like
culpa, mala prohibita is always consummated.
5. Generally, crimes mala prohibita do not involve
moral turpitude.
6. Generally, crimes mala prohibita cover violations of
special penal laws.
Can a malum in se absorb or be complexed with a malum
prohibitum?
N o . A malum in se felony, such as reckless imprudence
resulting in damage to property, cannot absorb malum
prohibitum offense, such as violations of P.D. 1067, P . D . 984
and R . A . 7942. W h a t makes the former a felony is criminal
intent (dolo) or negligence (culpa); what makes the latter
crimes are the special laws enacting them. (Loney v. People,
G.R. No. 152644, February 10, 2006)
As to the relationship of rape and sexual abuse, Abay, G.R.
N o . 177752, February 24, 2009 explains that per Section 5(b),
Article I I I of R . A . 7610 in relation to R . A . 8353, if the victim
of sexual abuse is below 12 years of age, the offender should
not be prosecuted for sexual abuse but for statutory rape and
penalized with reclusion perpetua. If the victim is 12 years or
older, the offender should be charged with either sexual abuse
19
under Section 5(b) or rape under Article 266-A. However,

offender cannot be accused of both crimes for the same act
because his right against double jeopardy will be prejudiced.
A person cannot be subjected twice to criminal liability for a
single criminal act. Likewise, rape cannot be complexed with
sexual abuse. Article 48 of the R P C does not allow a felony to
be complexed with an offense penalized by a special law.
35. Violation of what species of special laws is not deemed malum

prohibitum?
Laws that merely amend provisions of the R P C , such
as P . D . 533 which amended Articles 308, 309, and 310 do
not convert their violations into mala prohibita. Thus, cattle-
rustling is still malum in se. (Taer v. CA, infra)
i 36. What is a heinous crime?

It is a grievous, odious and hateful offense which by rea-
son of its inherent or manifest wickedness, viciousness, atroc-
ity and perversity, is regarded as seriously outrageous to the
common standards or norms of decency and morality in a just,
civilized and orderly society. (Whereas clause, R . A . N o . 7659.)
T h e fact that R . A . 9346 killed the death penalty does not

declassify heinous crimes as such. T h e y remain heinous for
purposes of the award of civil liabilities. (People v. Bon, infra.)
37. What is the effect of the repeal of penal law on the accused?
T h e effect depends upon the nature of the repeal. Thus:
a. In absolute or total or express repeal, the act or omission

is decriminalized so that if a case is pending, it shall be
dismissed whether the accused is a habitual delinquent
or not because there is no more crime for which he should
be tried. If he w e r e already convicted and/or serving
sentence, he shall be released if he is not a habitual
delinquent or unless the law provides that detention is to
continue.
b. In partial or relative or implied repeal or repeal by re-

enactment, the first law will govern if the accused is
a habitual delinquent or if the favorable second law
20
prohibits retroactivity. W h i l e the second law will govern if

favorable to the offender who is not a habitual delinquent
or the law is silent as to its retroactivity.
T h e beneficent provisions of R . A . 7659 can be applied
retroactively to judgments which have become final and
executory prior to December 31, 1993 and even to those
who are already serving sentences. (People v. Velasco,
G.R. No. 135231-33, February 28, 2001)
To impose upon the accused the death penalty
reimposed by R . A . 7659 for a crime committed way back
in 1987 would violate the basic rule that if the new law
imposes a heavier penalty, the law in force at the time of
the commission of the offense shall be applied. (People v.
Bracamonte, G.R. No. 95939, June 17, 1996)
In case of conflict between the Spanish text and the English

version of the Revised Penal Code, which should prevail?
T h e Spanish text is controlling as provided in Section 15

of the Revised Administrative Code ( R A C ) since the R P C was
originally approved and enacted in Spanish. Thus:
"SEC. 15. Language that should prevail in the interpreta-
tions of laws. — In the interpretation of a law officially promul-
gated in English and Spanish, the English text shall govern,
but in case of ambiguity, omission, or mistake, the Spanish may
be consulted to explain the English text. The converse rule shall,
however, be applied if so provided in the particular statute: Pro-
vided, however, That in the interpretation of laws enacted by
the Philippine legislature after October sixteenth, nineteen hun-
dred and sixteen, the language of the text used by the house that
finally passed the same shall prevail, and in case of ambiguity,
omission, or mistake, the official translation filed in the office of
the Secretary of said House may be consulted."
For instance, the Spanish version of Article 267 uses the
term "lockup" (encerrar) rather than "kidnap" (secuestrar or
raptar). Lockup is included in the broader term of "detention,"
which refers not only to the placing of a person in an enclosure
which he cannot leave, but also to any other deprivation of
liberty which does not necessarily involve locking up. (People
v. Astorga, G.R. No. 110097, December 22. 1997)
21
The word "immediate" is an incorrect translation into

English of the controlling Spanish text for the word "proximo."
The Spanish text allows for a lapse of time between the grave
offense and the actual vindication. However, the lapse of
two weeks from the discovery of the wife's infidelity and the
killing of the alleged paramour could no longer be considered
proximate. There can be no immediate vindication of a grave
offense when accused had sufficient time to recover his sanity.
(People v. Ignas, G.R. No. 140514-15, September 30, 2003)
What is the finality-of-acquittal rule? Give its rationale and legal

basis.
"The fundamental philosophy highlighting the finality of
an acquittal by the trial court cuts deep into the 'humanity
of the laws and in a jealous watchfulness over the rights of
the citizen, when brought in unequal contest with the State.'
Thus Green expressed the concern that the underlying idea,
one that is deeply ingrained in at least the Anglo-American
system of jurisprudence, is that the State with all its resources
and power should not be allowed to make repeated attempts to
convict an individual for an alleged offense, thereby subjecting
him to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though innocent, he
may be found guilty." (People v. Velasco, 340 SCRA 207)
It is axiomatic that on the basis of humanity, fairness

and justice, an acquitted defendant is entitled to the right of
repose as a direct consequence of the finality of his acquittal.
The philosophy underlying this rule establishing the absolute
nature of acquittals is part of the paramount importance
criminal justice system attaches to the protection of the innocent
against wrongful conviction. T h e interest in the finality-of-
acquittal rule, confined exclusively to verdicts of not guilty, is
easy to understand: it is a need for 'repose,' a desire to know
the exact extent of one's liability. W i t h this right of repose, the
criminal justice system had built in a protection to insure that
the innocent, even those whose innocence rests upon a jury's
leniency, will not be found guilty in a subsequent proceeding.
(People v. Sandiganbayan, February 2001)
22
BOOK ONE
General Provisions Regarding the Date
of Enforcement and Application of the
Provisions of this Code, and Regarding
the Offenses, the Persons Liable
and the Penalties
24
Preliminary Title
Date of Effectiveness and Application
of the Provisions of this Code
t/d& A r t i c l e 1. Time when Act takes effect. — T h i s C o d e shall

take effect on the F i r s t d a y of J a n u a r y , 1932.
T h e people w e r e given two years from its publication before

the R P C was made to take effect for a fuller understanding thereof.
Logically so for penal laws involve the life, liberty and property of
a person, especially since the N C C excuses no one from compliance
with the law due to ignorance.
A r t . 2. Application of its provisions. — E x c e p t as p r o v i d e d

in the treaties a n d l a w s of p r e f e r e n t i a l application, the
p r o v i s i o n s of this C o d e shall be e n f o r c e d not only w i t h i n
the P h i l i p p i n e A r c h i p e l a g o , i n c l u d i n g its a t m o s p h e r e , its
interior w a t e r s a n d m a r i t i m e zone, b u t also outside of its
j u r i s d i c t i o n , a g a i n s t those w h o :
1. S h o u l d commit an offense w h i l e on a P h i l i p p i n e
ship o r a i r s h i p ;
2. S h o u l d f o r g e or counterfeit any coin or c u r r e n c y
note of the P h i l i p p i n e I s l a n d s or obligations a n d securities
issued by the G o v e r n m e n t of the P h i l i p p i n e Islands;
3. S h o u l d be l i a b l e for acts connected with the

introduction into these islands of the obligations and
securities mentioned in the p r e c e d i n g n u m b e r ;
4. W h i l e b e i n g p u b l i c officers or employees, should
commit an offense in the exercise of their functions; or
5. S h o u l d commit any of the crimes against national
security a n d the l a w of nations, defined in Title One of Book
T w o of this C o d e .
25
• How should the Government and the country be referred to

today?
The Philippine Government should be called Government
of the Republic of the Philippines, not Government of the
Philippine Islands pursuant to Section 2, Introductory
Provisions, E.O. 292, the "Administrative Code of 1987," which
partly defines that term as the corporate governmental entity
through which the functions of government are exercised
throughout the Philippines.
The country should be referred to as the Republic of the

Philippines not Philippine Islands which impresses in the mind
scattered islands implying the lack of oneness or singularity of
this nation.
• What are the two scopes of application of the Revised Penal

Code?
They are the intra-territorial and the extra-territorial

applications. T h e intra-territorial application is found in the
first paragraph of Article 2 - the R P C shall be enforced, except
as provided in the treaties and laws of preferential application,
within the Philippine Archipelago, including its atmosphere,
its interior waters and maritime zone.
Its extraterritorial application is enumerated in the

second paragraph to be enforced outside of its jurisdiction
against those who:
1. Should commit an offense while on a Philippine ship

or airship;
2. Should forge or counterfeit any coin or currency note

of the Republic of the Philippines or obligations and
securities issued by the Government of the Republic
of the Philippines;
3. Should be liable for acts connected with the

introduction into the Philippines of the obligations
and securities mentioned in the preceding number;
4. While being public officers or employees, should

commit an offense in the exercise of their functions;
or
26
DATE OF EFFECTIVENESS A N D APPLICATION
OF THE P R O V I S I O N S OF THIS C O D E
5. Should commit any of the crimes against national

security and the law of nations, defined in Title One
of Book T w o of the Code.
Outside of these five cases, Philippine courts cannot

take jurisdiction over a crime committed outside the country.
For instance, R . A . 8491, the "Flag and Heraldic Code of the
Philippines" provides: "Sec. 37. T h e rendition of the National
Anthem, whether played or sung, shall be in accordance with
the musical arrangement and composition of Julian Felipe."
A Filipino artist who sings the Philippine national anthem
in L a s Vegas, U . S . A . during the fights of Filipino boxers in
contravention of said provision cannot be prosecuted before
Philippine courts because such offense is not among the
exceptions in Article 2.
What does the phrase, "except as provided in treaties and laws

of preferential application," mean?
That phrase means that the treaties and laws of

preferential application shall be given preference over the
provisions of the R P C . Thus, R . A . 75 which gives immunity
to diplomatic representatives of foreign countries. Under
international laws, sovereigns and heads of states and their
official representatives enjoy immunity from suits. In the
Constitution, members of Congress enjoy parliamentary
immunity in connection with any speech delivered in Congress.
W h o comprises the different heads and staff of diplomatic

missions?
T h e Vienna Convention on Diplomatic Relations lists the
classes of heads of diplomatic missions to include:
(a) ambassadors or nuncios accredited to the heads of
^ State;
(b) envoys, ministers or internuncios accredited to the
heads of States; and
(c) charges d' affairs accredited to the ministers of
foreign affairs.
Comprising the staff of the (diplomatic) mission are the
diplomatic staff, the administrative staff and the technical
and service staff. Only the heads of missions, as well as
27
members of the diplomatic staff, excluding the members of the

administrative, technical and service staff of the mission, are
accorded diplomatic rank. (Minucher v. CA, G.R. No. 142396,
February 11, 2003)
Who among the heads and staff of diplomatic missions are

entitled to immunity in the host sovereign and on what basis?
Even while the Vienna Convention on Diplomatic
Relations provides for immunity to the members of diplomatic
missions, it does so, nevertheless, with an understanding
that the same be restrictively applied. Only "diplomatic
agents," under the terms of the Convention, are vested with
blanket diplomatic immunity from civil and criminal suits.
The Convention defines "diplomatic agents" as the heads of
missions or members of the diplomatic staff, thus impliedly
withholding the same privileges from all others. Even consuls,
who represent their respective states in concerns of commerce
and navigation and perform certain administrative and
notarial duties, such as the issuance of passports and visas,
authentication of documents, and administration of oaths, do
not ordinarily enjoy the traditional diplomatic immunities and
privileges accorded diplomats, mainly for the reason that they
are not charged with the duty of representing their states in
political matters.
T h e main yardstick in ascertaining whether a person is a

diplomat entitled to immunity is the determination of whether
or not he performs duties of diplomatic nature, (id.)
Vesting a person with diplomatic immunity is a prerogative

of the executive branch of the government. WHO v. Aquino, 48
SCRA 242 said that in such matters, the hands of the courts
are virtually tied. A m i d s t apprehensions of indiscriminate
and incautious grant of immunity, designed to gain exemption
from the jurisdiction of courts, it should behoove the Philippine
government, specifically its D F A , to be most circumspect, that
should particularly be no less than compelling, in its post
litem motam issuances. T h e privilege is not an immunity from
the observance of the law of the territorial sovereign or from
ensuing legal liability; it is, rather, an immunity from the
exercise of territorial jurisdiction, (id.)
28
• What international principle forms the basis for granting

immunity for diplomatic heads?
T h e precept that a State cannot be sued in the courts of a

foreign State is a long-standing rule of customary international
law. Suing a representative of a State is suing the State itself.
T h e proscription is not accorded for the benefit of an individual
but for the State, in whose service he is, under the maxim —par
in parem, non habet imperium — that all States are sovereign
equals and cannot assert jurisdiction over one another. T h e
implication, in broad terms, is that if the judgment against an
official would require the State to perform an affirmative act
to satisfy the award, such as the appropriation of the amount
needed to pay the damages decreed against him, the suit must
be regarded as being against the State itself, although it has
not been formally impleaded, (id.)
USA v. Guinto, 182 SCRA 644, involving officers of the

US A i r Force and A i r Force Office of Special Investigators
charged with preventing the distribution, possession and use
of prohibited drugs, ruled that the doctrine of State immunity
is also applicable to complaints filed against officials of the
State for acts allegedly performed by them in the discharge
of their duties. It follows that for discharging their duties as
agents of the U S , they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to
be sued. As they have acted on behalf of the government, and
within the scope of their authority, it is that government, and
not the petitioners personally, who were responsible for their
acts.
• What are the limitations to the immunity principle?

Director v. Aligaen, 33 SCRA 368, explains the limitations,
thus: "Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers
are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by
such acts, for the protection of his rights, is not a suit against
the State within the rule of immunity of the State from suit.
In the same tenor, it has been said that an action at law or
suit in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the
29
State, he violates or invades the personal and property rights

of the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not a suit
against the State within the constitutional provision that the
State may not be sued without its consent. The rationale for
this ruling is that the doctrine of State immunity cannot be
used as an instrument for perpetrating an injustice."
The doctrine of immunity from suit will not apply and
may not be invoked where the public official is being sued in his
private and personal capacity as an ordinary citizen. T h e cloak
of protection afforded the officers and agents of the government
is removed the moment they are sued in their individual
capacity. This situation usually arises where the public official
acts without authority or in excess of the powers vested in him.
A public official may be liable in his personal private capacity
for whatever damage he may have caused by his act done with
malice and in bad faith or beyond the scope of his authority and
jurisdiction. (Shaufv. CA, 191 SCRA 713)
A foreign agent, operating within a territory, can be

cloaked with immunity from suit but only as long as it can
be established that he is acting within the directives of the
sending State. T h e consent of the host State is an indispensable
requirement of basic courtesy between the two sovereigns.
Guinto and Shauf both involve officers and personnel of the
U S , stationed within Philippine territory, under the R P -
US Military Bases A g r e e m e n t . W h i l e evidence is wanting to
show any similar agreement between the governments of the
Philippines and of the US (for the latter to send its agents
and to conduct surveillance and related activities of suspected
drug dealers in the Philippines), the consent or imprimatur .
of the Philippine government to the activities of the US Drug
Enforcement Agency ( U S D E A ) , however, is evident. T h e
official exchanges of communication between agencies of the
government of the two countries, certifications from officials of
both the Philippine D F A and the US Embassy, as well as the
participation of members of the Philippine Narcotics Command
in the "buy-bust operation" conducted at the residence of MM at
the behest of SS, may be inadequate to support the "diplomatic
status" of the latter but they give enough indication that
the Philippine government has given its imprimatur, if not
30
OF THE P R O V I S I O N S OF THIS CODE
consent, to the activities of SS within Philippine territory. The

job description of SS has tasked him to conduct surveillance
on suspected drug suppliers and, after having ascertained the
target, to inform local law enforcers who would then make
the arrest. In conducting surveillance activities on M M , later
acting as the poseur-buyer during the buy-bust operation, and
then becoming a principal witness in the criminal case against
M M , SS hardly can be said to have acted beyond the scope of
his official function or duties. SS, as an agent of the U S D E A
allowed by the Philippine government to conduct activities in
the country to help contain the problem on the drug traffic, is
entitled to the defense of State immunity from suit. (Minucher
v. CA, February 11, 2003)
Does immunity from suit of officers of international bodies

include that for defamation?
T h e immunity of officers of international bodies is not

plenary. Liang discussed this principle hereunder.
Petitioner is an economist working with the Asian

Development Bank ( A D B ) . For allegedly uttering defamatory
words against a fellow A D B worker, he was charged before
the M T C with two counts of grave oral defamation. T h e judge
received an "offer of protocol" from the D F A stating that LL
is covered by immunity from legal processes under Section 45
of the A g r e e m e n t between A D B and the Philippines. Based
on said protocol, the judge without notice to the prosecution
dismissed the two cases. In rebuking the action of the court a
quo the Supreme Court held that:
First, courts cannot blindly adhere and take on its face

the communication from the D F A that petitioner is covered by
any immunity. T h e D F A ' s determination that a certain person
is covered by immunity is only preliminary which has no
binding effect in courts. In receiving ex-parte the DFA's advice
and in motu proprio dismissing the cases without notice to
the prosecution, the latter's right to due process was violated.
T h e needed inquiry in what capacity petitioner was acting at
the time of the alleged utterances requires for its resolution
evidentiary basis that has yet to be presented at the proper
time. At any rate, mere invocation of the immunity clause does
not ipso facto result in the dropping of the charges.
31
Second, under Section 45 of the Agreement, the immunity

therein is not absolute but subject to the exception that the
act was done in "official capacity." It is therefore necessary to
determine if petitioner's case falls within the ambit of Section
45(a). Thus, the prosecution should have been given the chance
to rebut the D F A protocol and it must be accorded the opportu-
nity to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by
the immunity agreement because Philippine laws do not allow
the commission of a crime, such as defamation, in the name of
official duty. The imputation of theft is ultra vires and cannot
be part of official functions. A public official may be liable in his
personal capacity for whatever damage he may have caused by
his act done with malice or in bad faith or beyond the scope of
his authority or jurisdiction.
Fourth, under the Vienna Convention, a diplomatic
agent, assuming LL is such, enjoys immunity from criminal
jurisdiction of the receiving State except in an action relating
to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside of his official
functions. T h e commission of a crime is not part of official duty.
What comprises the Philippine Archipelago?
T h e national territory comprises the Philippine Archi-

pelago, with all the islands and waters embraced therein, and
all other territories over which the Philippines has sovereignty
or jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. T h e waters
around, between, and connecting the islands of the archipelago
regardless of their breadth and dimensions, form part of the in-
ternal waters of the Philippines (Archipelagic Doctrine; Article
1, 1987 Constitution).
What is a Philippine ship or airship? How is jurisdiction over

crimes committed therein determined?
A Philippine ship or airship is one that is duly registered

in the Philippines and under Philippine laws.
When a ^ e r c h a n t ship of Philippine nationality is in
the Philippines and a crime is committed therein, there is no
32
question as to the jurisdiction over the crime, it being within

the Philippine territory. If it is in the high seas where no
country has jurisdiction, the Philippines still has jurisdiction.
But if it is within the territory of another country, the
jurisdiction is generally with that foreign State because penal
laws are primarily territorial in application. But if that foreign
country w i l l not take cognizance the Philippines can assume
jurisdiction.
But Philippine warship and the official vessel of the
President of the Philippines, wherever they are, are extensions
of the Philippines and its sovereignty.
What are the two recognized rules on jurisdiction oveprnerchant

vessels?
These are the French Rule ( F R ) and the English Rule

( E R ) . These rules refer to the jurisdiction of one country (flag)
over its merchant vessels situated in another country (host). It
does not apply to war vessels over which a country always has
jurisdiction.
Compare the English Rule and the French Rule on jurisdiction.
Under the ER, the host country has jurisdiction over

crimes committed in the vessel unless they involve the
internal management of the vessel. T h e FR, on the other hand,
recognizes the jurisdiction of the flag country over crimes
committed within the vessel except if the crime disturbs the
peace and order of the host country.
T h e ER is strictly territorial, unlike the FR. But the effect
on jurisdiction over the crime is about the same because the
general rule of one is the exception on the other. For instance,
if drug trafficking is committed in the vessel, under the FR, the
^ / l i o s t country will have jurisdiction because that act disturbs
the peace of the host country. Same with the ER, because the
crime does not relate to the internal management of the vessel.
W h o are public officers and employees within the purview of

Article 2, Revised Penal Code?
They are the public officers and employees of the Philippine
Government when the crime is related to the exercise of their
office. Without this intimate relation between the office and
33
the crime committed, the officers are acting in their private

capacity and hence, bound by the law of the host country.
What are included in the crimes against national security and

the law of nations?
They include Treason, Espionage, Provoking W a r and
Disloyalty in case of War, and Piracy and Mutiny. Rebellion
is not included because it is a crime against Public Order.
Hence, if rebellion is planned abroad and acts of rebellion were
committed there, there is no criminal liability over which the
Philippine courts can assume jurisdiction because rebellion is
not one of those in Title I of Book I I .
TITLE ONE
FELONIES AND CIRCUMSTANCES

WHICH AFFECT CRIMINAL LIABILITY
Chapter One
FELONIES
A r t . 3. Definitions. — A c t s a n d omissions p u n i s h a b l e by
l a w a r e felonies (delitos).
F e l o n i e s a r e committed not only by m e a n s of deceit

(dolo) b u t also by m e a n s of fault (culpa).
T h e r e is deceit w h e n the act is p e r f o r m e d w i t h deliberate

intent; a n d t h e r e is fault w h e n the w r o n g f u l act results from
i m p r u d e n c e , n e g l i g e n c e , lack of foresight, or lack of skill.
• What are felonies?

Felonies (delitos) are acts or omissions punishable under
the R P C . Felonies are classified on the basis of how they are
committed either as dolo or culpa which are the classifications of
crimes thereunder. Crimes involving special laws are properly
called offenses; violations of ordinances are infractions.
• How are felonies committed?

Felonies are committed either by means of deceit or fault.
There is deceit when the act is performed with deliberate intent.
There is fault when the wrongful act results from imprudence,
negligence, lack of foresight or lack of skills. In both cases it is
necessary that there is voluntariness which is presumed from
the elements of freedom of action and intelligence.
35
• What are the elements of intentional felonies and of culpable

felonies?
DOLO CULPA
1. Freedom of action; 1. Freedom of action;
2. Intelligence; and 2. Intelligence; and
3. Intent. 3. Negligence, imprudence,
lack of foresight, lack of
skill.
Felonies in general have all the foregoing elements
whereas specific felonies in Book II such as homicide have their
own elements, which should be alleged in the Information. T h e
elements under Article 3 appertain to the actor. T h e elements
of specific felonies relate to the act or acts constituting the
felony.
• To which kind of felony is the principle that "the act cannot be

criminal unless the mind is criminal" relevant?
Strictly to intentional felonies because in culpable felonies

and in crimes mala prohibita, good faith and lack of intent are
not material. This is why both culpa and mala prohibita are
in the consummated stage only because intent is inherent in
attempted and frustrated felonies.
Under the maxim "actus non facit reum, nisi mens sit rea,"
a crime is not committed if the mind of the person performing
the act complained of is innocent. Thus, to constitute a crime,
except for culpa and crimes mala prohibita, the act must be
accompanied by a criminal intent. Though criminal intent is -
presumed disputably, the act from which such presumption
is grounded must be a criminal or unlawful act. (Abdulla v.
People, G.R. No. 150129, April 6, 2005)
• What is intent?
Intent refers to the use of a particular means to bring

about the desired result. T h e use of a lethal weapon shows the
criminal intent to kill although death may not result therefrom.
Intent is a mental state, the existence of which is demonstrated
by the overt acts of a person. T h e only w a y to know what is in
36
FELONIES
the mind of a person is to look at the external manifestation

thereof demonstrated by the overt acts or means employed.
What is the rule on the existence of intent?
As a general rule, criminal intent is presumed (general

intent). But where intent is an element of the crime (specific
criminal intent), the intent cannot be presumed but must be
established. In attempted or frustrated homicide, intent to kill
is a specific criminal intent because if not established only
physical injuries will be charged. Inference of intent to kill
should not be drawn in the absence of circumstances sufficient
to prove the fact beyond reasonable doubt. When such intent is
lacking but wounds were inflicted, the crime is physical injuries
only. (People v. Paganor, G.R. Nos. 140006-10, April 20, 2001)
Between acts of lasciviousness and attempted rape,

intent to rape must be shown otherwise the felony is only
acts of lasciviousness. W h e n the act is equivocal or capable of
giving rise to different felonies, specific criminal intent must be
proved.
Abdulla stated that Section 5(b) of Rule 131 of the Revised

Rules on Criminal Procedures ( R R C P ) presumes disputably
that an unlawful act was done with an unlawful intent:
"Indeed, clear it is from its v e r y language that the disputable
presumption of the existence of unlawful or criminal intent
presupposes the commission of an unlawful act." Therefore,
the intent to kill is presumed when the victim dies because the
act of killing clearly constitutes an unlawful act. Gemoya, G.R.
No. 132633, October 4, 2000, held: "The intent to kill is likewise
presumed from the fact of death, unless the accused proves by
convincing evidence that any of the justifying circumstances in
Article 12, xxx is present." Delim, G.R. No. 142773, January
28, 2003 was more emphatic when it categorically stated that:
"If the victim dies because of a deliberate act of the malefactor,
intent to kill is conclusively presumed."
How is intent manifested?

Intent is a mental state which cannot be seen and
therefore its existence can only be demonstrated by the o v e r t /
acts of a person. The choice of a particular means will show the
true intent of the actor.
37
Animus furandi is presumed from the commission of an

unlawful act in bringing out from the bodega of the petitioner
the tires which were loaded on his pick-up. Dolo is not required
in crimes punished by a special statute because it is the act
alone, irrespective of the motive which constitutes the offense.
When it was proved that petitioner committed the unlawful acts
alleged in the information, it was properly presumed that they
were committed with full knowledge and with criminal intent,
and it was incumbent upon him to rebut such a presumption.
Moreover, Section 5, P . D . 1612 provides for the presumption
from the mere possession of anything of value which has been
the subject of robbery or thievery as prima facie evidence
of fencing. This presumption must be upheld in the light of
petitioner's shallow demurrer premised on a denial and alibi,
since a disputable presumption is sufficient until overcome by
contrary evidence. (Lim v. CA, G.R. No. 100311, May 18, 1993)
May a crime be committed without criminal intent?
Yes, in two instances: in crimes mala prohibita and in

culpable felonies. For instance, intent to gain need not be
proved in crimes punishable by a special law such as the Anti-
Fencing L a w . T h e law has long divided crimes into acts wrong
in themselves called acts mala in se, and acts which would
not be wrong but for the fact that positive l a w forbids them,
called acts mala prohibita. This distinction is important with
reference to the intent with which a wrongful act is done. T h e
rule is that in acts mala in se, the intent governs, but in acts
mala prohibita, the only inquiry is, has the law been violated?
When an act is illegal, the intent of the offender is immaterial.
(id.)
What is motive? Is it determinative of criminal liability?
Motive is the moving power or force which impels a

person to commit acts toward a desired result. Generally,
motive is immaterial in incurring criminal liability; it is intent
which is material. M o t i v e may be illustrated in this manner:
in homicide, the intent to kill is demonstrated by the use of
a lethal weapon by the offender. M o t i v e , on the other hand,
may be vengeance or the desire to vindicate a wrong committed
against the accused which moved him to kill the victim.
38
FELONIES
When is motive material in determining the criminal agency?

M o t i v e becomes material when:
a. T h e act brings about variant crimes (People v. Puno,

February 1993);
b. There is doubt whether the accused committed the

crime, or the identity of the accused is doubtful
(People v. Salamat, August 1993, 44 SCAD);
c. T h e evidence on the commission of the crime is

purely circumstantial; or
d. T h e evidence of guilt of the accused is inconclusive.
M o t i v e alone w i l l not give rise to criminal liability

because under the R P C , there must be an overt act or an
omission. No matter how evil the internal thought is, as
long as there are no overt acts, no crime is committed.
T h e rule is that proof of motive is unnecessary to impute
a crime on the accused if the evidence concerning his
identification is convincing. A converso, if the evidence of
identification is unclear, then the jurisprudential doctrine
is that proof of motive is a paramount necessity. (People v.
Bautista, G.R. Nos. 120898-99, May 14, 1998)
W h e r e the identity of the assailant is in dispute,

motive becomes relevant, and when it is supported with
sufficient evidence for a conclusion of guilt, a conviction is
sustainable. (People v. Macoy, G.R. Nos. 96649-50, July
1, 1997) M o t i v e becomes important when the evidence on
the commission of the crime is purely circumstantial or
inconclusive. (People v. Crisostomo)
What factors affect intent and consequently the criminal liability

of the actor or offender?
a. Mistake of fact — negatives criminal liability akin to
justifying circumstance under Article 11;
b. Aberratio ictus (mistake in the victim of the blow) —
generally increases criminal liability;
c. Error in personae (mistake in the identity) — may or may
not lower criminal liability depending upon whether the
39
actual crime committed and the intended crime are of

equal or different gravity (Article 49);
d. Praeter intentionem (so grave a wrong caused than that
intended) — lowers criminal liability under Article 13;
e. Proximate cause (the cause of the cause is the cause of the
evil caused) — gives rise to criminal liability by analogy
to Article 4, paragraph 1.
„/ • What is mistake of fact?

That mistake which had the facts been true to the belief
of the offender, can justify his act. It is such mistake that will
negative criminal liability (ignorantia facti excusat) because of
the absence of the element of intent. However, if the offender is
negligent in ascertaining the true state of facts, he may be free
from dolo but not from culpa. /
This is the teaching in Ah Chong, G.R. No. 5272, March

19, 1910. Defendant was a cook and the deceased was a house
boy, and both were employed in the same place and usually
slept in the same room. One night, after the defendant had gone
to bed, he was awakened by someone trying to open the door,
and called out twice, "who is there?" He received no answer,
and fearing that the intruder was a robber, leaped from the
bed and again called out: " I f you enter the room I w i l l kill
you." At that moment he was struck by a chair which had been
placed against the door. Believing that he was being attacked,
he seized a kitchen knife and struck and fatally wounded the
intruder, who turned out to be his roommate. AC was charged
with murder.
While there can be no doubt of defendant's exemption from

liability if the intruder had really been a robber, the question
presented is whether one can be held criminally responsible
when, by reason of a mistake of facts, he does an act for which
he would be exempt if the facts w e r e as he supposed them to be,
but would be murder if he had known the true state of facts at
the time.
There had been several robberies in the area not long prior
to the date of the incident, one of which took place in a house
in which the defendant was employed as cook; and because
FELONIES
of these repeated robberies he kept a knife under his pillow

for his personal protection. There was no offer of reasonable
explanation of the remarkable conduct of the deceased, unless
it be that the boy in a spirit of mischief was playing a trick on
his Chinese roommate, and sought to frighten him by forcing
his w a y into the room, refusing to give his name or say who he
was, in order to make AC believe that he was being attacked
by a robber. U n d e r such circumstances, there is no criminal
liability, provided that the ignorance or mistake of fact was not
due to negligence or bad faith. In other words, if such ignorance
or mistake of fact is sufficient to negative a particular intent
which, under the law, is a necessary ingredient of the offense
charged it destroys the presumption of intent and works an
acquittal; except in those cases where the circumstances
demand a conviction under the penal provisions governing
negligence, and in cases where, under the provisions of the
then Penal Code, a person voluntarily committing an act
incurs criminal liability even though the act be different
from that which he intended to commit. No one, under such
circumstances, would doubt the right of the defendant to resist
and repel such an intrusion, and the thief having forced open
the door notwithstanding defendant's thrice-repeated warning
to desist, and his threat that he would kill the intruder if
he persisted in his attempt, it will not be questioned that in
the darkness of the night, in a small room, with no means of
escape, with the thief advancing upon him despite his warning,
defendant would have been wholly justified in using any
available weapon to defend himself from such an assault, and
in striking promptly, without waiting for the thief to discover
his whereabouts and deliver the first blow.
• What is aberratio ictus? How does it affect criminal liability?

In aberratio ictus or error in the victim of the blow, the
offender intends the injury on one person but the harm fell
on another. There are three persons present: the offender,
the intended victim and the actual victim. Consequently,
the act may result in a complex crime (Article 48) or in two
or more separate felonies, but there is only one intent that
characterized the crimes. Thus, aberratio ictus may result to a
greater penalty to the offender.
41
May treachery be appreciated in aberratio ictus?

Yes. When the offender fired at his adversary but missed,
the victims were helpless to defend themselves. Their deaths
were murders not simply homicide since the acts were qualified
by treachery. (People v. Flora, G.R. No. 125909, June 23, 2000)
Define error in personae. What is its effect on the liability of the

offender?
In error in personae or mistake in the identity, the offender
committed a mistake in ascertaining the identity of the victim.
The classical example is: " A " shot "B" who turned out to be
his father whom he thought was "B." [The intended crime is
homicide but the actual crime committed is parricide.] Unlike
in aberratio ictus, there are only two persons present here: the
actual but unintended victim and the offender.
The fact that the victims were different from the one the
appellants intended to injure cannot save them from conviction.
Mistake in the identity of the victim carries the same gravity
as when the accused zeroes in on his intended victim. T h e main
reason is that the accused had acted with such a disregard for
the life of the victims without checking carefully the latter's
identity as to place himself on the same legal plain as one who
kills another willfully, unlawfully and feloniously. Neither may
the fact that the accused made a mistake in killing one man
instead of another be considered a mitigating circumstance.
(People v. Pinto, G.R. No. 39519, November 21, 1991) T h e same
intent to kill is present whether offender killed one or the other.
This is true if the intended and the actual crimes
committed are of the same severity or classification e.g., both
are homicide. If the crimes are different, as when the intended
crime is homicide but the actual crime committed is parricide,
or vice-versa the rule is different — Article 49 shall govern.
Error in personae becomes extenuating or mitigating.
Distinguish mistake of fact from mistake in identity.
Mistake of fact refers to the situation itself, not the

identity of the persons involved. If the offenders had the
intention to commit a felonious act, but committed a mistake
in ascertaining the identity of the victim, the criminal liability
42
FELONIES
is not negatived, because intent is present. It is the mistake of

fact, not merely of identity, that will negative criminal liability.
(People v. Oanis, 74 Phil. 257)
• Compare aberratio ictus and error in personae.
In error in personae, two persons are present, the offender

and the actual victim. In aberratio ictus three persons are
involved, the offender, the actual victim and the intended
victim. Error in personae may or may not be mitigating but
aberratio ictus generally aggravates the liability for a complex
crime or two separate felonies may be committed because there
could be two victims.
• What is praeter intentionem? How does it affect the offender's

liability?
In praeter intentionem, the injury is on the intended

victim but the resulting consequence is so grave a wrong than
what was intended. T h e r e should be a great disparity between
the intended felony and the actual felony committed.
Praeter intentionem is a mitigating circumstance. (Article
13[3]) But if the means used to commit the desired crime
would also logically and naturally bring about the actual felony
committed, praeter intentionem w i l l not be appreciated. If the
intended wrong is to injure but the means used is kicking the
victim violently resulting to the death of the victim, it is not
praeter intentionem because the means used would naturally
and logically result to the actual killing caused. This is because
intent is a mental state which is shown by overt acts.
Praeter intentionem is not available in violations of the

hazing l a w as expressly provided therein.
• What is proximate cause? How does it affect the intent and

consequently, the criminal liability of the offender?
Proximate cause is that cause which, in its natural and
continuous sequence, unbroken by an efficient intervening
cause, produces the injury, and without which the result
would not have occurred. That acting first and producing the
injury, either immediately or setting other events in motion,
all constituting a natural and continuous chain of events, each
43
having a close causal connection with its immediate predecessor,

the final event in the chain immediately effecting the injury as
a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for
the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to expect at the moment of his
act or default that an injury to some person might probably
result therefrom (Mckee v. IAC, 211 SCRA 517). Simply stated,
the cause of the cause is the cause of the evil caused.
• Summarize the effect of the five factors on intent and criminal

liability of the offenders.
FACTOR Effect on Intent Effect on Criminal

Liability
Mistake of fact negative criminal negative criminal liability
intent
Aberratio Ictus intended result falls increases criminal
on another person or liability which generally
may be in addition to result to complex crime
the injury on the (Article 48)
intended victim
Error in intended result falls extenuating if the
Personae on another due to resulting crime is
error in the identity greater than intended
of the victim e.g., parricide when what
is intended is homicide
(Art. 49); no effect if the
resulting crime is the
same as that intended,
e.g., homicide and
homicide
Praeter actual crime is mitigating under Article
Intentionem greater than 13
intended
Proximate results in crime results in criminal
cause although not liability to the actor
intended whether acting with
intent or thru negligence
FELONIES
Compare Articles 3 and 365 on criminal negligence.
Based on Article 3, culpa is a mode of committing a

crime hence, for instance in homicide, killing is denominated
"homicide through reckless imprudence." In Article 365 (quasi-
offenses), culpa itself is the crime punished; hence, the crime is
denominated "reckless imprudence resulting to homicide."
Relate reckless imprudence to malice.
Reckless imprudence consists of voluntarily doing or

failing to do, without malice, an act from which material
damage results by reason of an inexcusable lack of precaution
on the part of the person performing or failing to perform such
act. Malice is the antithesis of reckless imprudence. Once
malice is proved recklessness disappears.
Appellant's external acts prove malice or criminal intent.

Resenting his son's meddling in his argument with his wife,
appellant purposely took his gun and shot his son. A deliberate
intent to do an unlawful act is inconsistent with reckless
imprudence. (People v. Agliday, G.R. No. 140794, October 16,
2001)
When the information charges intentional felony but what is

proved is culpable felony, can accused be convicted?
Y e s . "While a criminal negligent act is not a simple

modality of a willful crime, as we held in Quizon v. Justice
of the Peace of Bacolor, July 1995, but a distinct crime in our
Penal Code, designated as a quasi-offense it may however
be said that a conviction for the former can be had under an
information exclusively charging the commission of a willful
offense upon the theory that the greater includes the lesser
offense." (Cabello v. Sandiganbayan, 197 SCRA 94 [1991])
Can negligence and conspiracy co-exist?

N o , because crimes committed through negligence
presupposes lack of intent. On the other hand, conspiracy
denotes a meeting of minds of the co-conspirator, precisely for
the purpose or intention of committing a crime. (Crisostomo v.
Sandiganbayan)
45
• Define intelligence within the purview of felonies.

Intelligence is the capacity to understand what is right
and what is wrong. Discernment is relevant to intelligence,
N O T to intent. It does not mean that when a person acted with
discernment, he intended the crime or the wrong done. (People
u. Cordova, July 1993). Discernment is an element of both dolo
and culpa, thus, whether the resulting felony is intentional or
culpable, discernment is an element. Without discernment,
there is neither dolo nor culpa.
• What is the effect when the intelligence is lacking or diminished?

Intelligence may be diminished such as for minors over
15 but under 18 years old; or it may be completely lacking for
minors 15 and below, or insane or imbecile. It is the law itself
which presumes the lack of or the diminished intelligence of
minors. For diminished intelligence, the effect is to mitigate
criminal liability; where intelligence is lacking, there is
exemption from criminal liability.
A r t . 4. Criminal liability. — C r i m i n a l liability shall be

incurred:
1. By any p e r s o n committing a felony (delito) a l t h o u g h

the w r o n g f u l act d o n e be different f r o m that w h i c h he
intended.
2. B y a n y p e r s o n p e r f o r m i n g a n act w h i c h w o u l d b e
an offense a g a i n s t p e r s o n s or p r o p e r t y , w e r e it not for the
inherent impossibility of its a c c o m p l i s h m e n t or on a c c o u n t
of the employment of i n a d e q u a t e or ineffectual m e a n s .
• Compare Articles 3 and 4.
Article 3 defines how felonies are committed; Article 4 is

about who commits a felony.
• Who are liable for felonies?
There are two classes of offenders under this article. First

are those who commit a felony (delito), although the wrongful
act done is different from that intended. Second, those who do
not actually commit a felony but perform an act which would
FELONIES
be an offense against persons or property were it not for the

inherent impossibility of its accomplishment or on account of
the employment of inadequate or ineffectual means. Liability
under the second will result only if the act committed does not
result in a felony under the first paragraph of Article 4.
• How many clauses are there in paragraph 1?
T h e r e are t w o clauses in this paragraph: 1) "By any person

committing a felony (delito)," and 2) "Although the wrongful
act done be different from that which he intended."
• Does the first clause refer only to intentional felony?
N o , because the provision specified "delito" and under

Article 3, delitos are committed either by dolo or by culpa.
Therefore, by the process of substitution, the provision would
be, "By any person committing a dolo or culpa." Thus, the first
clause refers to both dolo and culpa and even if the wrongful
act done was different from what should have been the result
of the culpable or negligent act, a felony is still committed.
For instance, Facundo tried to commit suicide by jumping
to his conclusion from the fifth floor of the school building.
He survived the suicide attempt but killed Chiquito who was
sitting on the bench in the campus where he jumped. Was
Facundo liable for the death of Chiquito?
Y e s , Facundo was not committing a felony when he
attempted to commit suicide because suicide is not a crime.
But by jumping without ascertaining that there is somebody
on his suicide path considering that a school is a populated
place, Facundo was not careful in committing suicide. For his
negligence, he is liable for the death of Chiquito by virtue of
Article 3 and paragraph 1 of Article 4, and also Article 365.
T h e elements here, then, are:
a) A felony is committed; and
b) T h e wrong done must be the direct, natural, and
logical consequence of the felony committed.
• What is the rule of proximate cause?

Under Article 4, paragraph 1, a person committing
a felony is liable for its consequences. For instance, Kevin
47
announced a hold-up at a jeepney while brandishing a knife.

Because of fear, Cosme jumped out of the jeepney and was run
over by a truck killing him instantly. K e v i n will be liable for
the death of Cosme even though he had not touched the latter.
When a person causes a belief in the mind of another making
the latter to act in a manner fatal to him, the former will be
liable for that act of engendering such a belief. Even if there is
no intent to kill on the part of the offender, he may be liable for
homicide because of the rule of proximate cause.
Thus, anyone who inflicts injury voluntarily and with

intent is liable for all the consequences of his criminal act, such
as death, that supervenes as a consequence of the injuries.
Here, accused is liable for the demise of the victim for such was
caused by the violent kicks which he inflicted on the vital parts
of the victim's body. (People v. Mores, 252 SCRA 31)
The perceived delay in giving medical treatment to the

victim does not break at all the causal connection between
the wrongful act of the appellant and the injuries sustained
by the victim. It does not constitute an efficient intervening
cause. The proximate cause of the death of the deceased is
the shooting by the appellant. A n y o n e inflicting injuries is
responsible for all the consequences of his criminal act such
as death that supervenes in consequence of the injuries. T h e
fact that the injured did not receive proper medical attendance
would not affect appellant's criminal responsibility. T h e rule
is founded on the practical policy of closing to the wrongdoer a
convenient avenue of escape from the just consequences of his
wrongful act. If the rule w e r e otherwise, many criminals could
avoid just accounting for their acts by merely establishing a
doubt as to the immediate cause of death. (People v. Acuram,
G.R. No. 117954, April 27, 2000)
There should, however, be no effective intervening cause

between the first cause and the resulting injury. For instance,
in a fight, Harrison injured Ford at the palm of his hands.
Thereafter, Ford returned to his work of collecting pig feeds. One
week later, he died of gangrene. T h e gangrene brought about
by his unsanitary work condition is an effective intervening
cause and the death of Ford should not be attributed to the
injury caused by Harrison.
FELONIES
What is an impossible crime?
An impossible crime is one where the acts performed

would have been a crime against persons or property but which
is not accomplished because of its inherent impossibility or
because of the employment of inadequate or ineffectual means.
There is intent (subjective) to commit a crime but actually no
crime is committed (objective).
T h e act performed by the offender cannot produce an

offense against persons or property because: (1) the commission
of the offense is inherently impossible of accomplishment; or (2)
the means employed is either (a) inadequate or (b) ineffectual.
(Intod v. CA, G.R. No. 103119, October 21, 1992)
What are the two kinds of inherent impossibility?
a. L e g a l impossibility, where the intended acts, even if

completed would not amount to a crime. It applies to
those circumstances where: (1) the motive, desire and
expectation is to perform an act in violation of the law;
(2) there is intention to perform the physical act; (3) there
is a performance of the intended physical act; and (4) the
consequence resulting from the intended act does not
amount to a crime, (id.). Example: killing a dead person
or stealing property which turned out to belong to the
stealer.
b. Factual or physical impossibility of accomplishing the

intended act. This occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the
consummation of the intended crime, (id.). Example is
stealing from a vault which turned out to be empty.
Is impossible crime a crime?

N o . T h e law states that the act "would be a crime" hence,
it has not ripened to an actual crime because of the ineffectual
means employed or due to its inherent impossibility. Thus,
objectively, no crime has been committed.
Second, this article is under Book II on specific felonies
but is in Chapter One of Book I defining felonies in general.
49
• If there is no crime committed, why is impossible crime

punished?
Impossible crime is resorted to only if the acts committed
will not fall under paragraph 1 of Article 4. T h e purpose is to
suppress lawlessness. Subjectively, the offender is a criminal
although objectively no crime has been committed. There is no
attempted or frustrated stage because there is no actual crime
committed.
The R P C inspired by the Positivists School, recognizes in
the offender his formidability and penalizes an act which were
it not aimed at something quite impossible or carried out with
means which proved inadequate, would constitute a felony
against person or property. T h e rationale is to punish such
criminal tendencies, (id.)
• Is there an impossible crime of rape?

Y e s , because rape is now a crime against person since the
Anti-Rape L a w reclassified it from Crimes against Chastity.
Hence, if a person would rape one who unknown to him has
just died, he commits the impossible crime of rape.
• Should the offender know of the impossibility of the crime?
N o , because subjectively he intends to commit an unlawful

act. For instance, in homicide, the offender has the intent to
kill. If he knew that the victim is already dead, he would not
intend to kill the dead. Or, if he knew that the vault is empty,
he would not go to the trouble of breaking into a building with
all the attendant risks to himself to steal nothing.
A r t . 5. Duty of the court in connection with acts which should

be repressed but which are not covered by the law, and in cases of
M ^excessive penalties. — W h e n e v e r a c o u r t h a s k n o w l e d g e of a n y
act w h i c h it m a y d e e m p r o p e r to r e p r e s s a n d w h i c h is not
p u n i s h a b l e b y l a w , i t shall r e n d e r the p r o p e r decision a n d
shall r e p o r t to the C h i e f E x e c u t i v e , t h r o u g h the D e p a r t m e n t
of Justice, the r e a s o n s w h i c h i n d u c e the c o u r t to b e l i e v e that
said act s h o u l d be m a d e the subject of p e n a l legislation.
In the same w a y the c o u r t shall s u b m i t to the C h i e f

Executive, t h r o u g h the D e p a r t m e n t of Justice, such state-
50
FELONIES
m e n t a s m a y b e d e e m e d p r o p e r , w i t h o u t s u s p e n d i n g the
e x e c u t i o n of the sentence, w h e n a strict enforcement of the
p r o v i s i o n s of this C o d e w o u l d result in the imposition of a
c l e a r l y excessive p e n a l t y , t a k i n g into c o n s i d e r a t i o n the de-
g r e e o f m a l i c e a n d the i n j u r y c a u s e d b y the offense.
• What is the "proper decision" that the court should render if it

tried a case for an act which is not yet punishable by law?
T h e court should render a decision of acquittal or order

the dismissal of the case because of Article 21 which prohibit
the imposition of a penalty not prescribed by law prior to the
commission of a felony; A r t i c l e 22 which prohibits retroactivity
of penal laws; and the constitutional prohibition on ex post
facto law.
T h e present law prohibits and punishes only drunk

driving. T h e r e is no law banning a drunk person from riding
a public vehicle, or the latter's driver from allowing a person
who appears to be drunk to board a public conveyance. A
drunk passenger or one under the influence of liquor or drug
poses a veritable peril to the other passengers. He is prone to
react irrationally and violently, due to lack or diminution of
self-control. Senseless loss of lives and physical harm can be
avoided, and the riding public duly protected, if the potential
danger posed by drunk passengers can be addressed properly.
It is the duty of the court, whenever it has knowledge of

any act which it may deem proper to repress and which is not
punishable by law, to report to the Chief Executive, through the
Department of Justice, the reasons which induce the court to
believe that said act should be made the subject of legislation.
(People v. Glino, G.R. No. 173793, December 4, 2007)
• What is the duty of the court when the penalty prescribed for a
felony is excessive?
The court should call the attention of the President on
the matter. For instance, abduction with rape was committed
by the son with the complicity of his mother. The penalty of
reclusion perpetua imposed on the mother is the same as the
sons which the Court felt to be excessive. She acquiesced to
cooperate with the accused on account of maternal concern.
51
She must have agonized with her son who did not know how
to court the girl of his dreams, both of them being unschooled.
(People v. Villorente, July 1992)
May the court prevent the grant of pardon to a convict when it

feels that the crime committed is so reprehensible?
N o . The trial court, so revolted by the perversity of
appellant's crime that it was moved to include this proposal
in the dispositive portion of its decision: ". . . i n the event that
upon automatic review by the Honorable Supreme Court,
that the penalty of Death is not imposed but that of Reclusion
Perpetua, this Court recommends that accused should not
be granted pardon within the period of thirty (30) years."
Incestuous rape is indeed reprehensible. It deserves full
condemnation. However, the recommendation is improper. It
is the President's prerogative whether or not to grant a pardon
subject to the limitations imposed by the Constitution. (People
v. Orilla, G.R. Nos. 148939-40, February 13, 2004)
Considering that the accused: [i] was only 21 years old

when she committed the crime of kidnapping penalized by
reclusion perpetua; [ii] she did not maltreat the child victim;
and [iii] she has been in preventive detention since 1991, she
should be granted either commutation of sentence or executive
clemency. (People v. Acbangin, G.R. No. 117216, August 9,
2000) Likewise, for the appellant who is already 72 years old,
suffering from an acute heart ailment that requires a heart-
bypass operation and has served a term of imprisonment
consistent with the ends of retributive justice. (People v. Del
Rosario, G.R. No. 134581, October 26, 2000)
The penalty normally imposed for kidnapping and similar

offenses appears too harsh. T h e record does not indicate that HH
has been injured emotionally or physically by her experience.
T h e degree of malice exhibited by the appellant, an unlettered
woman, in committing the offense does not warrant the penalty
of reclusion perpetua, particularly because to date, she has
already spent seven years in prison. Executive clemency was
recommended as a means of mitigating the undue harshness
of the criminal law in this particular case. (People v. Gutierrez,
G.R. No. 81020, May 28, 1991)
52
FELONIES
A r t . 6. Consummated, frustrated, and attempted felonies.

C o n s u m m a t e d felonies, a s w e l l a s those w h i c h a r e f r u s t r a t e d
a n d attempted, a r e p u n i s h a b l e .
A felony is c o n s u m m a t e d w h e n all the elements neces-

s a r y f o r its e x e c u t i o n a n d a c c o m p l i s h m e n t a r e present; a n d
it is f r u s t r a t e d w h e n the o f f e n d e r p e r f o r m s all the acts of
execution w h i c h w o u l d p r o d u c e the felony as a consequence
b u t w h i c h , n e v e r t h e l e s s , d o not p r o d u c e i t b y r e a s o n o f
causes i n d e p e n d e n t o f the w i l l o f the p e r p e t r a t o r .
T h e r e i s a n a t t e m p t w h e n the o f f e n d e r commences the

c o m m i s s i o n of a felony directly by o v e r t acts, a n d does not
p e r f o r m all the acts o f e x e c u t i o n w h i c h s h o u l d p r o d u c e the
felony b y r e a s o n o f some c a u s e o r accident other than his
o w n s p o n t a n e o u s desistance.
• When is a felony consummated?
A felony is consummated when all the acts necessary for

its accomplishment and execution are present. T h e offender
does not have to do anything else to consummate the offense.
He has already reached the objective stage of the offense as he
no longer has control of his acts having already performed all
that is necessary to accomplish his purpose.
• What are formal crimes?

Formal crimes are always consummated because the
offender cannot perform all the acts necessary to execute the
offense without consummating it. Physical injuries are formal
crimes since these are punished as to result and the gravity of
the injury cannot be determined whether slight, less serious
or serious unless and until consummated. Slander is a formal
crime because the moment the defamatory words were uttered
and heard by a third person, the crime is consummated.
• When is a felony frustrated?

A felony is frustrated when the offender performs all the
acts which would produce the felony as a consequence, but the
felony was not produced by reason of causes independent of the
will of the perpetrator. T h e offender has reached the objective
stage because no further action is required on his part. Unlike
53
in consummated felony, however, the offense was not produced

because of some causes independent of the will of the offender.
If the cause of frustration is due to the will of the offender, the
felony is not frustrated, but could be another crime.
• What crimes cannot be committed in the frustrated stage?

They are those which, by the definition of a frustrated
felony, the offender cannot possibly perform all the acts of
execution to bring the desired result without consummating
the offense. Examples:
1. Rape, since the gravamen of the offense is carnal
knowledge, hence, no matter how slight is the
penetration, the felony is consummated. If the male
organ failed to touch the pudenda, by some causes or
accident other than his own spontaneous desistance,
the felony is merely attempted. If he desisted
spontaneously, he is not liable for attempted rape,
following Article 6, but he is liable for some other
crime such as acts of lasciviousness.
2. Arson, because this is defined as the burning of
property, hence, the moment burning occurs, even if
a small portion only, the offense is consummated. If
overt acts have been commenced such as drenching
the property with gasoline and fighting a match but
before it can be hurled into the property, the offender
was stopped by the owner, preventing the fire from
touching the property, it is attempted.
3. Corruption of public officers because the offense
requires agreement or participation of two parties,
such that when the offer is accepted, it is consum-
mated; but when rejected, the offense is attempted
because the offender was not able to perform all the
acts of execution as he failed to persuade the public
officer.
4. Adultery because its essence is sexual congress,
hence, the same principle as in rape applies.
5. Theft and robbery because apoderamiento is com-
plete from the moment offender gains possession of
the thing.
54
FELONIES
• When is a felony attempted?
A felony is attempted when the offender commences the

commission of an offense directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own
spontaneous desistance. T h e offender is still in the subjective
phase because he has not performed all acts necessary for its
accomplishment. T h e r e is something yet that he still has to do
to produce the felony. Therefore, he still has control over his
acts as he may or may not continue his overt acts.
W h e n the cause of the non-performance of all the acts

necessary for the commission of the offense is other than the
offender's spontaneous desistance, the felony is attempted.
(People v. Pareja, G.R. No. 88043, December 9,1996). Therefore,
if the cause is his desistance, the act is not yet attempted felony.
• What are overt acts? Preparatory acts?
Overt acts are external acts which if continued will

logically result in a felony. It is the start of criminal liability
because the offender has commenced the commission of an
offense with overt acts. Acts which still require another act so
that a felony will result are called preparatory acts and are not
as a rule punishable unless they are in themselves punished
as independent crimes. Example: buying poison, because that
act cannot be related to any crime as it cannot be determined
whether the poison will be used against a person or against a
pest. Proposal and conspiracy to commit a crime are preparatory
acts; hence, they are not punishable unless the proposal and
conspiracy relate to, for instance, treason or rebellion, because
such "preparatory acts" are independently punished.
• What is required for the "overt act" to be considered an attempt

of a felony?
T h e overt act must be directly related to the offense
committed. T h e attempted felony is that directly linked to the
overt act no matter what the intention is. Example: a person
intending to rob a store made an opening on its wall but before
he could enter he was apprehended. He cannot be charged
with attempted robbery even if that was his intention because
55
the overt act of making an opening is not directly linked with

robbery. The reason for this is that while inside he may commit
robbery or murder or rape or any other crime. Since intent is a
state of mind it can only be speculated what he would do inside.
But he may be charged with attempted trespass because that
act is directly related to the purpose of entering the store or
malicious mischief because of the destruction of property.
What is desistance?
It is the act of discontinuing the execution of the felony
which will negative criminal liability of the offender when done
during the attempted stage. It is an absolutory cause which
negates criminal liability because the law encourages a person
to desist from committing a crime.
Desistance has legal effect only in the attempted stage.

The attempted stage exists up to that time when the offender
still has control of his acts. T h e moment he has lost control of
the outcome of his acts the subjective phase is passed; the stage
is now either frustrated or consummated (objective phase). At
this stage, desistance is only factual but has no legal effect
because the law recognizes desistance only in the attempted
stage. Note that in Article 6, there is no desistance in either the
frustrated or the consummated stage.
For instance, Tolits aimed his gun at Bentong and fired

but missed. He again aimed his gun but Bentong begged for
his mercy. Tolits took mercy and desisted from firing his gun.
Is there criminal liability? In the first instance, yes, because
he has already discharged his firearm. His desistance pertains
only to the second instance, hence, only then will his criminal
liability be absolved.
Compare attempted and frustrated felonies.
1. As to acts of execution, in attempted, not all acts of

execution had been done whereas in frustrated all acts of
execution had been performed.
2. As to causes of non-accomplishment, in attempted, the
felony was not produced by reason of cause or accident
other than the offender's own spontaneous desistance; in
56
FELONIES
frustrated, the reason for the frustration is some cause

independent of the will of the perpetrator.
3. In attempted stage, the offender is still in the subjective

phase as he still has control of his acts; whereas in the
frustrated stage, he is already in the objective phase
because all the acts of execution are already there and
the cause of its non-accomplishment is other than the
offender's own will. Hence, if the felony was not produced
due to the w i l l of the offender, such as his giving the
antidote for the poison he administered on the victim,
there is no frustrated murder, but some other crime, e.g.,
physical injuries.
4. A t t e m p t e d is necessarily included in the frustrated stage,

hence, if one is charged with frustrated felony but what
w a s proved is merely attempted, the offender can be
convicted in the same information.
5. In both, intent is inherent for the offender has commenced

the commission of the felony but was unsuccessful because
of causes independent of the will of the perpetrator or
other than his own spontaneous desistance. There is no
attempted or frustrated culpa.
6. Example: In attempted homicide, the wound is not mortal,

hence, the offender should still need to deal another blow
on the victim which he was not able to do because of some
cause or accident like his being apprehended. In frustrated
homicide, the wound is mortal, already sufficient to bring
about death; hence, there is no more need of another
blow from the offender. But death nevertheless did not
supervene because of timely medical attendance.
A mere attempt to commit a felony is subsumed in the full

execution thereof. To attempt is to commence the commission of
a crime by overt acts. If one has been proved to have completely
carried out all the acts necessary to commit the crime, he has
certainly been proved to have executed the initial act required
in an attempt. Thus, the accused could have suffered no
prejudice, had they been tried under either one or the other
section. (People v. Boco, G.R. No. 129676, June 23, 1999)
57
• What separates attempted from frustrated homicide/murder?

Where the wound inflicted on the victim is not life threat-
ening, the accused not having performed all the acts of execu-
tion that would have brought about death, the crime is only
attempted. There being no circumstance to qualify the assault
upon FF to attempted murder, the crime is attempted homi-
cide. (People v. Albacin, G.R. No. 133918, September 13, 2000)
Where there is no evidence that without timely medical

attention the wounds inflicted, though serious, would be fatal if
not medically attended to, the character of the wound becomes
doubtful and all doubts are to be construed in favor of the ac-
cused and of lesser penalty, hence the crime is only attempted.
(People v. Costales, G.R. No. 141154-56, January 15, 2002)
• Compare frustrated and consummated felonies.
a. As to acts of execution, in both, all acts of execution had

been done and therefore, both are in the objective phase.
b. However, in frustrated the desire was not accomplished,
whereas in consummated, the purpose was accomplished.
c. Frustrated is subsumed in consummated.
A r t . 7. When light felonies are punishable. — L i g h t felonies

a r e p u n i s h a b l e only w h e n they h a v e b e e n c o n s u m m a t e d ,
with the exception of those committed a g a i n s t p e r s o n s or
property.
• What are light felonies? When are they punishable?
Light felonies are those infractions of law penalized with

arresto menor or a fine not exceeding P200 pesos, or both, is
provided. (Article 9) T h e y are punishable:
a. In general, only when they are consummated;
b. As an exception, in all stages when committed against
persons or against property.
• Who are punishable in light felonies?
Under Article 16, only the principals and the accomplices

are liable. Accessories are not punishable because light felony
58
FELONIES
is penalized with arresto menor. Accessories are penalized two

degrees lower than the principal or two degrees below arresto
menor which is non existent. De minimis non curat lex. (The
law does not deal with trifles.)
A r t . 8. Conspiracy and proposal to commit felony. — C o n -

s p i r a c y a n d p r o p o s a l t o commit felony a r e p u n i s h a b l e only
in the cases in w h i c h the l a w specially p r o v i d e s a penalty
therefor.
A c o n s p i r a c y exists w h e n t w o or m o r e p e r s o n s come to
an a g r e e m e n t c o n c e r n i n g the commission of a felony a n d
d e c i d e to c o m m i t it.
T h e r e i s p r o p o s a l w h e n the p e r s o n w h o has d e c i d e d t o
c o m m i t a felony p r o p o s e s its execution to some other p e r s o n
or persons.
• What is conspiracy? How is its existence determined?
T h e r e is conspiracy when two or more persons come to an

agreement concerning the commission of a felony and decide
to commit it. Conspiracy may be deduced from the mode and
manner in which the offense was perpetrated or inferred from
the acts of the accused when such point to a joint purpose and
design, concerted action and community of interest.
• What quantum of proof is required for conspiracy?

T h e same degree of proof required for establishing the
crime is required to support a finding of conspiracy. It must be
shown to exist as clearly and as convincingly as the commission
of the offense itself in order to uphold the fundamental principle
that no one shall be found guilty of a crime except upon proof
beyond reasonable doubt. (Pecho v. People, G.R. No. 111399,
September 27, 1996)
Conspiracy must be proved. It cannot be surmised that
conspiracy existed just because NN and LL were both seen
raising their arms and aiming at the victim. Conspiracy as a
basis for conviction should be proved in the same manner as the
criminal act. Although direct proof is not essential, conspiracy
must be shown to exist as clearly as the commission of the offense
itself. It is fundamental that a charge of conspiracy must be
59
proved, just like any other criminal accusation, "independently

and beyond reasonable doubt." M e r e simultaneous aiming by
appellant and his co-accused at the victim with their firearms
does not by itself demonstrate concurrence of will or unity
of action or purpose that could be a basis for their collective
responsibility.
The evidence only proves with certainty that LL was
present when the victim was killed. It does not prove beyond
doubt who killed him. There is paucity of evidence that indicate
that appellant and NN shared a common design and a unity of
purpose in killing II so as to make both responsible by reason
of a conspiracy. There is even doubt whether both did fire at
the victim. For the victim was hit only once; he suffered only
one bullet wound. Accordingly, acquittal of LL is in order. His
responsibility for the death of II has not been proven beyond
reasonable doubt. (People v. Loreno, June 6, 2002)
"To be sure, conspiracy is not a harmless innuendo to be

taken lightly or accepted at every turn. It is a legal concept
that imputes culpability under specific circumstances; as
such, it must be established as clearly as any element of the
crime. Evidence to prove it must be positive and convincing,
considering that it is a convenient and simplistic device by
which the accused may be ensnared and kept within the penal
fold." (People v. Mandao, G.R. No. 135048, December 3, 2002)
Does the finding of conspiracy require direct proof?
N o , for conspiracy may be inferred from the acts of the

accused before, during and after the commission of the crime,
all of which indubitably point to or indicate a joint purpose, a
concert of action and a community of interest. (People v. Boco)
It is not necessary to show that two or more persons met

together and entered into an explicit agreement setting out
the details of an unlawful scheme or the details by which an
illegal objective is to be carried out. Proof that accused acted
in concert, each of them doing his part to fulfill the common
design to kill the victim w i l l suffice to support a conviction.
(People v. Glinoa)
Batin, G.R. N o . 177223, N o v e m b e r 28, 2007 explained

that conspiracy may be deduced from the acts of the appellants
60
FELONIES
before, during, and after the commission of the crime which are
indicative of a joint purpose, concerted action, and concurrence
of sentiments. Inducement may be by command, advice or
through influence or agreement for consideration. The words
of advice or the influence must have actually moved the hands
of the principal by direct participation. Words of command of a
father may induce his son to commit a crime. Tamayo (44 Phil.
38) held that the moral influence of the words of the father may
determine the course of conduct of a son in cases in which the
same words coming from a stranger would make no impression.
To be liable for conspiracy, what is necessary to be done by a

conspirator?
It is essential for one to be a party to a conspiracy as

to be liable for the acts of others that there is intentional
participation in the transaction with a v i e w to the furtherance
of the common design. Except when he is the mastermind in
a conspiracy, it is necessary that a conspirator should have
performed some overt act as a direct or indirect contribution in
the execution of the crime planned to be committed. The overt
act may consist of active participation in the actual commission
of the crime itself or it may consist of moral assistance to his co-
conspirators by being present at the commission of the crime or
by exerting moral ascendancy over the other co-conspirators.
(id.)
M e r e presence at the situs of the crime or sole relationship

with the other accused does not make one a co-conspirator.
Evidence of actual cooperation and not mere cognizance or
approval of an illegal act is required to establish conspiracy.
Appellant could not have been conspirator for allegedly acting
as a lookout noting his eye defect (for which he was known
as "bulag") and doubted his ability to perform the role of a
supposed lookout. (People v. Tabuso, G.R. No. 113708, October
26, 1999)
T h e prosecution failed to prove that petitioner performed
any overt act in furtherance of the alleged conspiracy.
Petitioner was merely present when her husband signed the
check. T h e nature of her involvement in the commission of the
crime was not specified either by a direct act of participation,
a direct inducement of her co-conspirator, or cooperating in
61
the commission of the offense by another act without which

it would not have been accomplished. The only semblance of
overt act that may be attributed to petitioner is that she was
present when the first check was issued.
Conspiracy must be established, not by conjectures, but
by positive and conclusive evidence. Conspiracy transcends
mere companionship and mere presence at the scene of the
crime does not in itself amount to conspiracy. Even knowledge,
acquiescence in or agreement to cooperate, is not enough to
constitute one as a party to a conspiracy, absent any active
participation in the commission of the crime with a v i e w to the
furtherance of the common design and purpose.
• Can conspiracy co-exist with culpa?

No, for conspiracy presupposes the existence of malice
since it involves a meeting of the minds of the co-conspirators
on the manner and mode of committing a crime.
• What are the two concepts of conspiracy?
They are (1) conspiracy as a crime by itself; and (2)

conspiracy as a means of committing a crime. As a means
of committing a crime, it is either (a) by pre-agreement or
planning; or (b) implied from the concerted acts of the offenders
or implied conspiracy.
• Compare conspiracy as a crime and as a means of incurring

criminal liability.
As a crime by itself. Under paragraph 1 of Article 8, con-

spiracy as a crime is one for which the l a w specially provides
a penalty. As a crime by itself, the crime subject of conspiracy
is not yet committed but the mere act of conspiring is defined
and punished as a crime, for instance, conspiracy to commit re-
bellion or insurrection (Article 136) and conspiracy to commit
treason (Article 115).
As a means of committing a crime or incurring criminal

liability. If in the above, the conspiracy to commit rebellion
is actually carried out, the offenders will be liable not for the
conspiracy but for the rebellion under Article 135. Conspiracy
then will be a means of incurring criminal liability for the
acts of others. Under this concept, distinction should be made
62
FELONIES
between ( a ) conspiracy where there is actual pre-agreement or

planning stage; and (b) implied conspiracy.
• What are the kinds of conspiracy as a means of committing a

crime?
1. Conspiracy by prior agreement on how to commit the
crime. In this case, a conspirator is liable as long as he
appeared in the scene of the crime except when he is the
mastermind who is liable whether or not he appears. This
is because he is a principal by inducement and without his
inducement the crime would not have been committed.
H i s the mens rea.
2. Implied conspiracy, or conspiracy that is deduced from
the acts of the offenders. Here, the offenders acted in con-
cert during the commission of the crime; the agreement
to pursue a common design and united purpose was in-
stantaneous. It is essential for liability to attach that the
conspirator participated in the commission of the crime.
His mere presence or approval of the crime without more
w i l l not make the alleged conspirator liable because there
would be no basis for deducing conspiracy as to him as
there is absent criminis particeps. Since conspiracy is in-
stantaneous or spur of the moment, if he did not partici-
pate, it shows that he had no intent to join in the commis-
sion of the crime.
(In this aspect, it may be commented that there is a
similarity between conspiracy and culpa: both are either
crimes per se or means of committing a crime.)
• In conspiracy by pre-agreement who should be liable for a

second unplanned crime committed by one or some of the
perpetrators?
T h e liability of the conspirators is only for the crime
agreed upon except:
a. W h e n the other crime was committed in their pres-
ence and they did not prevent its commission indi-
cating their approval thereof;
b. When the other crime is the natural consequence
of the crime planned, e.g., homicide resulting from
physical injuries inflicted; and
63
c. When the resulting crime was a composite crime

because a composite crime or special complex crime
is indivisible. It cannot be split into different parts,
one part to be deemed covered by the conspiracy and
the other outside of conspiracy, (infra)
In the foregoing three instances, although there was
a crime committed which is not part of the plan or prior
agreement, all the conspirators are liable therefor. In other
cases, an unplanned crime committed will be the liability only
of the one who committed it.
Only the actual perpetrators are to be held liable for acts
beyond the agreement of the conspirators. Conspirators may
only be held accountable for the acts embraced in the criminal
agreement; and as regards felonious acts not included, only
the author thereof would be liable. (People v. Sinoc, G.R. No.
115211-12, July 11, 1997)
The actual participation of the appellants in the killing
of MM having been established by the prosecution, they are
equally liable pursuant to the rule that the act of one is the act
of all. Conspiracy was duly proven by the positive testimonies
of the prosecution witnesses pointing to acts done in concert by
the appellants to carry on their unlawful design but only with
respect to the killing of MM and not the shooting of Sgt. B B .
Thus, EE alone should be held liable for the crime of frustrated
homicide. (People v. Porras, 255 SCRA 514)
It was not established by the evidence that the other

accused had agreed to kill if necessary to carry out successfully
the plan to rob. In fact, one of the robbers berated the gunman
for having shot the security guard. Therefore, appellants joined
with merely the criminal design to rob, which makes them
accomplices. Their complicity must accordingly be limited to
the robbery, not to the killing of T P . W a i t i n g only at the parked
jeep could not have given them the opportunity to prevent the
killing, as is required of one seeking relief from liability for
assaults committed during the robbery. In Adriano, the driver,
who was unaware of the killing perpetrated inside the building
as he stayed always near his jeep, could not be a co-conspirator
in the killing of the guards, as the killing was not part of the
64
FELONIES
original plan but arose only during the exigency of the moment.
(People v. Corbes, G.R. No. 113470, March 26, 1997)
• What is implied conspiracy?
Implied conspiracy is one that is deduced from the mode

and manner in which the offense was committed. T h e concerted
acts of the parties to achieve the same objective signify
conspiracy. This doctrine was first enunciated in Guevarra,
179 S C R A 334, which held that "the act of the appellant in
holding the victim from behind immediately before the latter
was stabbed by Eduardo constitutes a positive and overt act
towards the realization of a common criminal intent which may
be classified as instantaneous. T h e act was impulsively done
on the spur of the moment. It sprang from the turn of events,
thereby uniting the criminal design of the slayer immediately
before the commission of the offense. That is termed as implied
conspiracy." (Subayco v. Sandiganbayan, G.R. No. 117267-
117310, August 22, 1996).
In implied conspiracy, the co-conspirator must do an act

which shows his unity of purpose and design with the other
offenders. M e r e presence at the scene of the crime, without
more, w i l l not make a person liable with the offenders, and
this is true even if he approves of the acts of the offenders.
M e r e knowledge, acquiescence to or approval of the act

without cooperation or agreement to cooperate, is not enough
to constitute one a party to a conspiracy absent the intentional
participation in the act with a view to the furtherance of the
common design and purpose. (People v. Bragaes, G.R. No.
L-62359, November 14, 1991)
• When conspiracy involves a pre-conceived plan, what is required

of a co-conspirator to incur liability?
To be liable as a co-conspirator, unless he is a mastermind,
he should appear in the scene of the crime. It is essential for
one to be a party to a conspiracy as to be liable for the acts
of the others that there is intentional participation in the
transaction with a view to the furtherance of the common
design. Except when he is the mastermind, it is necessary that
a conspirator should have performed some overt act as a direct
65
or indirect contribution in the execution of the crime planned

to be committed.
The overt act may consist of:
(a) active participation in the actual commission of the
crime itself; or
(b) moral assistance to his co-conspirators by being
present at the commission of the crime; or
(c) exerting moral ascendancy over the other conspira-
tors. (People v. Pablom, January 2011)
Is it necessary for the co-conspirators to perform equally each

and every part of the acts constituting the offense?
N o . As long as the parts played by each of the principals

in the conspiracy contribute to the realization of the common
design, they are all liable equally.
One who joins a criminal conspiracy adopts in effect the

criminal design of his co-conspirators and he can no longer
repudiate the conspiracy after it has materialized. Conviction
is proper upon proof that the accused acted in concert. T h e act
of one then becomes the act of all and each them w i l l be deemed
equally guilty as co-principals of the crime committed, (id.)
When the defendants by their acts aimed at the same

object, one performing one part and another performing another
part so as to complete it, with a v i e w to the attainment of the
same object, and their acts, though apparently independent,
were in fact concerted and cooperative, indicating closeness
of personal association, concerted action and concurrence of
sentiments, conspiracy is present. (Siton v. CA, G.R. No. 94065,
December 2, 1991)
T h e presence of a conspiracy was established. T h e

appellants were animated by one and the same purpose: to kill
RR and they were united in its execution. T h e question as to
who dealt the fatal blow on their victim is of no consequence for
when a conspiracy exists, the act of one is the act of all. (People
v. Lao, G.R. No. 90627, November 29, 1991)
Even if appellant never fired a gun, he would still be

principally liable as a co-conspirator in the killing of the
66
FELONIES
victims, for while only BB might have inflicted the fatal blows
or wounds, nevertheless, appellant must be held liable for the
killings under the principle that the act of a conspirator is the
act of all co-conspirators. T h e degree of actual participation
in the commission of the crime is immaterial in a conspiracy.
(People v. Maranion, G.R. No. 90672-73, July 18, 1991)
T h e quantity or quality of the participation of a co-

conspirator is immaterial in the determination of the penalty
for the act of one is the act of all. Thus, one who conspired in
the crime of rape by just holding the hands of the victim while
another was doing the act of raping her shall incur the same
guilt and the same penalty as the actual rapist.
M a y a co-conspirator be acquitted while others convicted?
Y e s . Although conspiracy is a joint act, there is nothing

irregular if a supposed co-conspirator is acquitted and others
convicted. Generally, conspiracy is only a means by which a
crime is committed: the mere act of conspiring is not by itself
punishable. Hence, it does not follow that one conspirator
alone (an alleged inducer) cannot be convicted when there is a
conspiracy. As long as the acquittal of a co-conspirator does not
remove the basis of a charge of conspiracy, other conspirators
may be found guilty of the offense. (People v. Tiguman, G.R.
No. 130144, May 24, 2001)
In an indictment based on conspiracy, the acquittal of a

conspirator does not absolve the co-conspirator from criminal
liability. If the prosecution fails to prove conspiracy, the alleged
conspirators should be individually responsible for their
respective acts. (People v. Figueroa, G.R. No. 134056, July 6,
2000)
M e r e knowledge, acquiescence, or agreement to cooperate
is not enough to constitute one as a conspirator, absent any
active participation in the commission of the crime, pursuant
to the common design and purpose. Conspiracy transcends
companionship. (People v. Compo, G.R. No. 112990, May 28,
2001) M e r e presence at the scene of the incident, knowledge
of the plan or acquiescence thereto is not sufficient to hold
a person liable as a co-conspirator. The mere fact that the
accused had prior knowledge of the criminal design of the
67
principal perpetrator of the crime does not ipso facto make him
as co-conspirator. Participation in the criminal act is essential
for he may yet be an accomplice. (People v. Samudio, March
2001)
• What are the two structures of multiple conspiracies?

Estrada, G.R. N o . 148965, February 26, 2002, categorized
two structures of multiple conspiracies:
(1) the "wheel" or "circle" conspiracy, in which there is a
single person or group (the "hub") dealing individu-
ally with two or more other persons or groups (the
"spokes"); and
(2) the "chain" conspiracy, usually involving the dis-
tribution of narcotics or other contraband, in which
there is successive communication and cooperation
in much the same w a y as with legitimate business
operations between manufacturer and wholesaler,
then wholesaler and retailer, and then retailer and
consumer.
» Discuss the concept: "The act of one is the act of all."
When conspiracy is established, all who participated

therein, irrespective of the quantity and quality of his
participation is liable equally, whether the conspiracy is pre-
planned or instantaneous. T h e criminal liability of one is the
same as the criminal liability of the other, unless one or some
of the conspirators committed another crime, which is not part
of the intended crime.
» In the absence of a conspiracy, what is the liability of the

offenders?
In the absence of previous conspiracy, unity of criminal

purpose and intention immediately before the commission
of the crime, or community of criminal design, the criminal
responsibility arising from different acts directed against one
and the same person is individual and not collective, and each
of the participants is liable only for the act committed by him.
(People v. Desoy, G.R. No. 127754, August 16, 1999)
FELONIES
At the very least, conspiracy presupposes a prior agree-

ment or contemporaneous understanding on the part of the
conspirators to commit a felony, in this case, to kill I N . Howev-
er, the attack on the victim originated spontaneously from and
was initiated unexpectedly by B B I I . B B , Sr., and his other son,
BB I I I , immediately joined in the fray by attacking the victim
with their knives, whereupon, the two female appellants, also
assisted by hitting the victim with stools.
T h e rapidity of the succession of such consecutive acts

of the assailants, with the last four coming instinctively, as it
were, to the aid of the original assailant, cannot but produce
the conclusion that their actuations were activated without
prior or apparent deliberation. It does not even appear that
there was a call or a signal from one to the other to join the
attack on I N , much less is there even an intimation that they
had a murderous intent or cabal at any time prior thereto. The
spontaneity of their respective reactions, albeit resulting in an
attack w h e r e they all participated, rules out the existence of
a conspiracy. (People v. Lacao, G.R. No. 95320, September 4,
1991 [contra: Subayco v. Sandiganbayan])
To be held guilty as a co-principal by reason of conspiracy,

the accused must be shown to have performed an overt act in
pursuance or furtherance of the complicity. The overt act or
acts of the accused may consist of active participation in the
actual commission of the crime itself or may consist of moral
assistance to his co-conspirators by moving them to execute
or implement the criminal plan. (Ladonga v. People, G.R. No.
141066, February 17, 2005)
• Relate conspiracy and the aggravating circumstances of evident

premeditation and price or reward.
Evident premeditation does not automatically follow a
finding of conspiracy or vice versa. Where conspiracy is merely
implied from concerted actions at the time of the commission
of the offense, evident premeditation cannot be appreciated,
absent proof showing how and when the plan to kill the victim
was hatched or the time that elapsed when it was carried out,
in order to determine if the accused had sufficient time between
its inception and its fulfillment to dispassionately consider and
69
accept all its consequences. (People v. Dulot, G.R. No. 137770,

January 30, 2001)
Where conspiracy is directly established, with proof of
the attendant deliberation and selection of the method, time
and means of executing crime, evident premeditation can be
appreciated. (People v. Givera, G.R. No. 1132159, January 18,
2001)
The hiring of TT to kill the victims for a price, providing
the victims' picture and the meeting to carry out the killing
provide more than sufficient evidence to appreciate the same.
As to the circumstance of price or reward, it can only be
appreciated against appellant TT since it was he who committed
the felonious act for money. T h e same evidence on price
established conspiracy between the appellants. Consequently
the act of one is the act of all. (People v. Tiguman)
• Is the laxity of a public official in the performance of his duty

supportive of a finding of conspiracy?
N o . T h e actions taken by MM involved the v e r y functions

he had to discharge in the performance of his official duties.
There has been no intimation at all that he had foreknowledge
of any irregularity committed by both DD and E E . MM might
have been indeed lax and administratively remiss in placing
too much reliance on the official report submitted by his
subordinate ( E E ) . But for conspiracy to exist, it is essential
that there must be a conscious design to commit an offense.
Conspiracy is not the product of negligence but of intentionality
on the part of cohorts. (Narciso v. Sandiganbayan, G.R. No.
9826263, January 10, 1994) Conspiracy is not presumed. L i k e
the physical acts constituting the crime itself, the elements of
conspiracy must be proved beyond reasonable doubt. W h i l e
conspiracy need not be established by direct evidence, for it
may be inferred from the conduct of the accused before, during
and after the commission of crime, all taken together, however,
the evidence therefor must reasonably be strong enough to
show a community of criminal design, (id.)
• When may the head of office be held liable for the acts of his
subordinates?
70
FELONIES
T h e head of office may be found liable for the acts of his

subordinates either due to conspiracy or by an act of reckless
imprudence which allowed the commission of estafa thru fal-
sification, or malversation through falsification, without such
act of negligence the crime could not have been accomplished.
Considering, however, that negligence cannot co-exist with
conspiracy, his liability shall be thru culpa but that of his sub-
ordinates thru dolo, sans conspiracy.
When, however, the infraction consists in the reliance in

good faith, albeit misplaced by a head of office on a subordinate
upon w h o m the primary responsibility rests, absent a clear
case of conspiracy, the Arias doctrine must be held to prevail.
(Arias v. Sandiganbayan, 180 SCRA 309)
• What is the Arias doctrine?
A l l heads of offices have to rely to a reasonable extent on

their subordinates and on the good faith of those who prepare
bids, purchase supplies, or enter into negotiations. There has to
be some added reason why he should examine each voucher in
detail. A n y executive head of even small government agencies
can attest to the volume of papers that must be signed. There
are hundreds of documents, letters, memoranda, vouchers, and
supporting papers that routinely pass through his hands. The
number in bigger offices or departments is even more appalling.
(id.)
A r t . 9. Grave felonies, less grave felonies and light felonies. —

G r a v e felonies a r e those to w h i c h the l a w attaches the capital
p u n i s h m e n t or penalties w h i c h in any of their periods are
afflictive, in a c c o r d a n c e w i t h Article 25 of this C o d e .
L e s s g r a v e felonies a r e those w h i c h the l a w punishes with

penalties w h i c h in their m a x i m u m p e r i o d a r e correctional,
in a c c o r d a n c e w i t h the above-mentioned article.
L i g h t felonies a r e those infractions of l a w for the

commission of w h i c h the penalty of arresto menor or a fine
not exceeding 200 pesos, or both, is p r o v i d e d .
71
How are felonies classified as to severity?

1. Grave felonies — penalized by capital punishment or af-
flictive penalties in any of its period. This means that
whenever the minimum, medium or maximum period of
the penalty is an afflictive penalty, the felony is a grave
felony. Afflictive penalties cover prision mayor, disqualifi-
cation, reclusion temporal and reclusion perpetua.
2. Less grave felonies — punished with penalties which in

their maximum period are correctional, i.e., the maximum
period of the penalty must be correctional, that is, desti-
erro, suspension, arresto mayor, or prision correccional.
For instance the penalty of arresto menor in its maximum
period to arresto mayor in its minimum period is a less
grave felony because the maximum period of that penalty
is arresto mayor, a correctional penalty.
3. Light felonies — punished with arresto menor or a fine not

exceeding P200. (In Article 26, a P200 fine is a correctional
penalty.)
What is the significance of classifying felonies into grave, less

grave or light?
To determine:
a. Whether a complex crime was committed (Article 48

which requires grave or less grave felonies);
b. T h e duration of the subsidiary penalty to be imposed

(Article 39, N o . 2) where the subsidiary penalty is
based on the severity of the penalty;
c. T h e duration of the detention in case of failure to

post the bond to keep the peace (Article 35);
d. Whether the crime has prescribed (Article 90);
e. Whether or not there is delay in the delivery of

detained persons to the judicial authority (Article
125 where the basis of the 12-18-36 hours is the
severity of the offense alleged); and
f. T h e proper penalty for quasi-offenses. (Article 365)
72
FELONIES
A r t . 10. Offenses not subject to the provisions of this Code. —

Offenses w h i c h a r e o r i n the future m a y b e p u n i s h a b l e u n d e r
special l a w s a r e not subject to the p r o v i s i o n s of this C o d e .
T h i s C o d e shall be s u p p l e m e n t a r y to such l a w s , unless the
latter s h o u l d specially p r o v i d e the c o n t r a r y .
• How are the first and second sentences of Article 10 reconciled?

T h e first sentence provides that offenses punishable
under special laws are not subject to the provisions of the
R P C , while the second makes the Code supplementary to such
laws. W h i l e it seems that the two are contradictory, a sensible
interpretation w i l l show that they can perfectly be reconciled.
T h e first sentence should be understood to mean that
special penal laws are controlling with regard to offenses
therein specifically punished following the rule that special
legal provisions prevail over general ones. Lex specialis
derogant generali. In fact, the clause can be considered as a
superfluity and could have been eliminated altogether. The
second clause contains the soul of the article. T h e main idea
and purpose of the article is embodied in the provision that the
"code shall be supplementary" to special laws, unless the latter
should specifically provide the contrary. (Ladonga v. People)
• What are special laws?

T h e y are laws that define and penalize crimes not included
in the R P C ; they are of a nature different from those defined
and punished in the Code.
T h e r e are special laws however which are mere amend-
ments of the provisions of the R P C , such as P . D . 533 modifying
Articles 308, 309 and 310, which is, thus, not a true special
law. (Taer v. CA; Canta v. People)
• What is the relationship between dolo and special laws?

Dolo is not required in crimes punished by a special
statute because it is the act alone, irrespective of the motives
which constitute the offense. When it was proved that petitioner
committed the unlawful acts alleged in the information, it
was properly presumed that they were committed with full
knowledge and with criminal intent, and it was incumbent
73
upon him to rebut such a presumption. (Lim v. CA, G.R. No.

100311, May 18, 1993)
The concept of delito continuado, although an outcrop of

the Spanish Penal Code, has been applied to crimes penalized
under special laws, e.g., violations of R . A . 145 penalizing the
charging of fees for following up claims for veteran's benefits.
Under Article 10, it shall be supplementary to special laws,
unless the latter provide the contrary. Hence, legal principles
developed from Penal Code may be applied in supplementary
capacity to crimes punished under special laws. (People v.
Sabun, 10 SCRA 156)
Article 24 enumerates measures of prevention or safety
which are not considered as penalties, e.g., suspension pendente
lite and preventive detention. Although a provision in the R P C ,
these are applicable to violations of special penal laws. It is
demanded by the constitutional provision on presumption of
innocence. However, Article 29 provides that the period of
preventive imprisonment will be deducted from the term of
imprisonment. (In Re: Petition for Habeas Corpus of Pete C.
Lagran, August 2001)
The rules governing civil/pecuniary liabilities are stated

in the R P C and in the N C C . Under the former the costs of the
proceedings and pecuniary liabilities are respectively found
in Articles 37, 38 and 104 to 108. These pecuniary liabilities
should be applicable to violators of special penal laws.
When is the Revised Penal Code suppletory to special laws?
Whenever the special law uses the nomenclature of

penalties in the R P C , indicating the intent of Congress to
make the Code apply suppletorily to such special laws (People
v. Simon, July 1994), unless the special law, though using
the Code's nomenclatures, specially provide that it shall not
be supplementary to such laws (Last clause of sentence no. 2 ) .
When the R P C supplements the special law, the rules under
the former shall be followed including in the application
of the I S L . But the mere fact that the special law uses the
nomenclature of penalties of the Code does not make the
offense malum in se.
74
FELONIES
When is the suppletory effect of the Code not available?
T h e general rule is that special laws are not subject to

the provisions of the R P C . For instance, the circumstances
affecting criminal liability (Articles 11 to 15) are not applicable
to crimes committed under special laws.
T h e suppletory effect of the Code to special laws under

this article cannot be invoked w h e r e there is legal or physical
impossibility of or a prohibition in special law against such
supplementary application. But, w h e r e the penalty is actually
taken from the Code in its technical nomenclature, then it
is necessarily w i t h its duration, correlation and legal effects
under the system of penalties in the Code. (People v. Simon)
W h e r e the special law expressly grants the court discre-

tion in applying the penalty prescribed for the offense, there
is no room for the application of the Code. Since the Danger-
ous Drugs L a w (prior to its amendment) contains no explicit
grant of discretion to the court in the application of the pen-
alty prescribed by the law, the court must be guided by the
rules prescribed in the Code concerning the applications of
penalties, (id.) But since R . A . 9165 further amending R . A .
6425 reverted back to "non-RPC" penalties, e.g., life impris-
onment the Comprehensive Dangerous Drugs A c t as the law
now stands is a purely special law. Hence, the R P C has no
suppletory effect.
What principles of the Revised Penal Code are applicable to

special penal laws?
Parel, 44 Phil. 437; Ponte, 20 Phil. 379; and Bruhez, 28
Phil. 305, involved the suppletory application of principles
under the then Penal Code to special laws. Parel is concerned
with the application of Article 22 to violations of Act 3030, the
Election L a w , with reference to the retroactive effect of penal
laws if they favor the accused. Ponte involved the application
of Article 17 with reference to the participation of principals
in the commission of the crime of misappropriation of public
funds as defined and penalized by Act 1740. Bruhez covered
Article 45 with reference to the confiscation of the instruments
used in violation of Act 1461, the Opium Law.
75
The suppletory application of the principle of conspiracy

is analogous to the application of the provision on principals
under Article 17 in Ponte. For once conspiracy or action in
concert to achieve a criminal design is shown, the act of one
is the act of all the conspirators, and the precise extent or
modality of participation of each of them becomes secondary,
since all the conspirators are principals. (Ladonga v. People)
B.P. 22 does not expressly proscribe the suppletory

application of the provisions of the R P C . Thus, in the absence
of contrary provision in B.P. 22, the general provisions of the
Code which, by their nature, are necessarily applicable, may be
applied suppletorily. Yu, G.R. No. 134172, September 20, 2004,
applied suppletorily Article 39 to B.P. 22.
Chapter T w o
JUSTIFYING CIRCUMSTANCES A N D
CIRCUMSTANCES W H I C H EXEMPT FROM
CRIMINAL LIABILITY
• Why is there a need for modifying circumstances?
E v e r y penalty under the R P C is understood to be prescribed

for consummated felonies and against the principal offenders.
L i k e w i s e , the R P C is primarily classical; the penalties are
predetermined without regard to the moral state of the
offender. Thus, the need for circumstances to modify criminal
liability taking into consideration the moral, emotional, and
mental state of the offender and the circumstances when
the offense was committed. T h e R P C , therefore, provides
for circumstances which modify the criminal liability of the
offenders.
• What are the different modifying circumstances?
1. Justifying circumstances — Article 11;

2. Exempting circumstances — Article 12;
3. Mitigating circumstances — Article 13;
4. A g g r a v a t i n g circumstances — Article 14; and
5. Alternative circumstances, either mitigating or
aggravating — Article 15.
Offenders falling under either Article 11 or 12 are
without criminal liability; those benefited by the circumstances
in Article 13 have reduced criminal liability; those proved to
be more perverse by committing the felony with any of the
circumstances in Article 14 have increased criminal liability;
and those who act while under the circumstances stated in
Article 15 will have their liability either increased or reduced
depending upon the situation obtaining in the commission of
the felony. In addition, specific felonies in Book II provide their
77
own modifying circumstances, otherwise called absolutory and

extenuating circumstances.
Is there any distinction between Articles 14 and 15?

Orilla differentiated Articles 14 and 15 in that the former
enumerates aggravating circumstances per se whereas the
latter are circumstances which are not aggravating per se but
may be mitigating depending upon the circumstances of the
case. When the term "aggravating circumstances" requires
strict interpretation, it should be confined to Article 14. W h e n it
calls for the award of indemnities, the term should be liberally
construed to include the circumstances in Article 15.
The term "aggravating circumstances" is strictly con-
strued, not only because what is involved is a criminal statute,
but also because its application could result in the imposition
of the death penalty. T h e list of aggravating circumstances in
Article 14 is thus exclusive for the purpose of raising a crime to
its qualified form.
Article 14 does not include relationship as an aggravat-
ing circumstance. Relationship is an alternative circumstance
under Article 15. Otherwise stated, for purposes of death pen-
alty, the aggravating circumstance must come exclusively from
Article 14. Article 15 cannot supply the generic aggravating
circumstance, which should accompany the qualifying circum-
stance to raise the penalty to death pursuant to paragraph 2 of
Article 63.
[With the abolition of the death penalty, the above

disquisition has become a c a d e m i c ]
What other factors affect criminal liability?
1. Absolutory circumstances referring to exempting circum-

stances outside Article 12 such as certain relatives who
acted as accessories to the offenders pursuant to Articles
19 and 20, and those covered by A r t i c l e 332 for crimes and
relatives enumerated therein, among others.
2. Extenuating circumstances which are mitigating but not

found in Article 13, e.g., abandonment in paragraph 3,
Article 333 and concealment of dishonor in Article 255.
78
JUSTIFYING CIRCUMSTANCES A N D CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY
• Give examples of exempting/absolutory circumstances.

1. Instigation by reason of public policy;
2. Article 6(3) — spontaneous desistance in the attempted
stage unless the overt act committed already constitutes
a crime other than that intended;
3. Article 7 — attempted/frustrated light felonies except
those against persons or property;
4. Article 16 — accessories in light felonies;
5. Article 20 — certain relatives who are accessories subject
to the requisites provided therein;
6. Article 247 — death and physical injuries inflicted under
exceptional circumstances;
7. Article 332 — certain relatives in theft, estafa, and
malicious mischief;
8. Battered woman syndrome - Section 26, R . A . 9262
9. Status offenses in Sections 57 and 58, R . A . 9344
10. Somnambulism;
11. Mistake of fact; and
12. Repeal of a penal law, either absolute or modification of
the penalty when favorable to the offender.
• What is entrapment? Instigation?

Entrapment is the employment of such ways and means
for the purpose of trapping or capturing a lawbreaker. In
entrapment, the idea to commit the crime originates from
the accused. Nobody induces or prods him into committing
the offenses. This act is distinguished from inducement or
instigation wherein the criminal intent originates in the mind
of the instigator and the accused is lured into the commission
of the offense charged in order to prosecute him. The instigator
practically induces another to commit the offense and himself
becomes a co-principal. (People v. Ramos, Jr., G.R. No. 88301,
October 28, 1991)
• What is a buy-bust operation?

It is a form of entrapment which has been accepted as
a valid means of arresting violators of the drugs law. It is
19
commonly employed by police officers as an effective way of

apprehending law offenders in the act of committing a crime.
In a buy-bust operation, the idea to commit a crime originates
from the offender, without anybody inducing or prodding him
to commit the offense. Its opposite is instigation or inducement,
wherein the police or its agent lures the accused into committing
the offense in order to prosecute him. Instigation is deemed
contrary to public policy and considered an absolutory cause.
A "buy-bust operation" is a form of entrapment employed
by peace officers to trap and catch a malefactor in flagrante
delicto. Entrapment has received judicial sanction as long as
it is carried out with constitutional and legal circumspection.
This requirement was observed in the present case. T h a t there
was no inducement on the part of the agents is bolstered by the
fact that the test-buy operation conducted by the same Sgt. U U
the day before yielded the same result, i.e., that the cigarettes
the accused was selling w e r e marijuana sticks. In addition
before Sgt. UU bought the 10 sticks of marijuana during the
operation, two other persons w e r e earlier seen buying from the
accused marijuana sticks, and for which they w e r e thereafter
apprehended. It was proved that appellant is indeed guilty as
charged.
How should allegation of frame-up and extortion be viewed?
An allegation of frame-up and extortion by police officers is

a common and standard defense in most dangerous drug cases.
It is viewed with disfavor, for it can be easily concocted. To
substantiate such defense, including instigation, the evidence
must be clear and convincing because of the presumption that
public officers acted in the regular performance of their official
duties, (id.)
Can instigation and frame-up be both present in a case?
No for they are incompatible. In instigation, the crime

is actually performed by the accused except that the intent
originates from the mind of the inducers. In frame-up, however,
the offense is not committed by the accused. Precisely, the
accused is only framed or set up in a situation leading to a false
accusation against him. Instigation and frame-up therefore
cannot be present concurrently, (id.)
80
Distinguish entrapment from instigation.
ENTRAPMENT INSTIGATION
T h e mens rea originated Evil idea originated from
from the accused who was the peace officer who
merely trapped by the induced the accused to
peace officer in flagrante commit the act
delicto
This is not absolutory as absolutory by reason of

to the offender since he public policy
authored the evil idea
Consistent with public contrary to public policy

policy
T r a p for the unwary trap for unwary innocent

criminal (People v.
Marcos, 185 SCRA 154)
T h e peace officer has no T h e peace officer is a

criminal liability for his principal by inducement
acts are in accordance
w i t h law
6. T h e crime has already T h e crime would not

been committed and could not have been
committed were it not for
the instigation
T h e underlying difference between entrapment and

instigation is in the origin of the criminal intent. In entrapment,
mens rea originates from the mind of the criminal. The idea
and resolve to commit the crime comes for him. In instigation,
the law enforcers conceive the commission of the crime and
suggest it to the accused who adopts the idea and carries it into
execution. Entrapment is sanctioned; instigation is tabooed.
(People v. de la Peha, G.R. No. 92534, July 9, 1991)
In entrapment, the entrapper resorts to ways and means
to trap and capture a lawbreaker while executing his criminal
plan; in instigation, the instigator practically induces the
defendant into committing the offense, and himself becomes
81
a co-principal. Entrapment is no bar to prosecution and

conviction; in instigation, the defendant will be acquitted.
(People v. Polizon, September 1992)
Entrapment is oftentimes, the only effective way of
apprehending a criminal in the act of the commission of the
offense. A criminal is caught committing the act by ways and
means devised by peace officers. (People v. Juma, G.R. No.
90391, March 24, 1993)
In entrapment, the crime had already been committed
while in instigation, it was not and could not have been com-
mitted were it not for the instigation by the peace officer, (id.)
Why is Article 247 on death inflicted during exceptional

circumstances extenuating?
Article 247, far from defining a felony, merely provides

or grants a privilege or benefit — amounting practically to an
exemption from an adequate punishment — to a legally married
person or parent who shall surprise his spouse or daughter in
the act of committing sexual intercourse with another, and shall
kill any or both of them in the act or immediately thereafter, or
shall inflict upon them any serious physical injury. Thus, in case
of death or serious physical injuries, considering the enormous
provocation and his righteous indignation, the accused — who
would otherwise be criminally liable for the crime of homicide,
parricide, murder, or serious physical injury, as the case may
be — is punished only with destierro. This penalty is mere
banishment and is intended more for the protection of the
accused than a punishment. (People v. Coricor, 79 Phil. 672).
And where physical injuries other than serious are inflicted,
the offender is exempted from punishment.
To hold that it defines and penalizes a distinct crime

would make the exceptional circumstances which practically
exempt the accused from criminal liability integral elements of
the offense, and thereby compel the prosecuting officer to plead
and admit them in the Information. Such an interpretation
would be illogical if not absurd, since a mitigating and much
less an exempting circumstance cannot be an integral element
of the crime charged. Only "acts or omissions . . . constituting
the offense" should be pleaded and a circumstance which
82
JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES
mitigates criminal liability or exempts the accused, not being

an essential element of the offense charged — but a matter of
defense that must be proved — need not be pleaded. (People v.
Abarca, G.R. No. 74433, September 14, 1987)
A r t . 11. Justifying circumstances. — T h e f o l l o w i n g do not

i n c u r c r i m i n a l liability:
1. A n y o n e w h o acts in defense of his p e r s o n or rights,

p r o v i d e d that the f o l l o w i n g circumstances concur:
First. U n l a w f u l a g g r e s s i o n ;
Second. R e a s o n a b l e necessity of the m e a n s e m p l o y e d

to p r e v e n t or r e p e l it;
Third. L a c k of sufficient p r o v o c a t i o n on the p a r t of

the p e r s o n d e f e n d i n g himself.
2. A n y o n e w h o acts in defense of the p e r s o n or rights of

his s p o u s e , a s c e n d a n t s , d e s c e n d a n t s or legitimate,
n a t u r a l or a d o p t e d b r o t h e r s or sisters, or of his
relatives by affinity in the s a m e d e g r e e s , a n d those
by c o n s a n g u i n i t y w i t h i n the fourth civil d e g r e e ,
p r o v i d e d , that the first a n d second requisites
p r e s c r i b e d i n the next p r e c e d i n g circumstance
a r e present, a n d the f u r t h e r requisite, in case the
p r o v o c a t i o n w a s g i v e n b y the p e r s o n attacked, that
the one m a k i n g the defense h a d n o p a r t therein.
3. A n y o n e w h o acts in defense of the p e r s o n or rights

of a s t r a n g e r , p r o v i d e d that the first a n d second
requisites m e n t i o n e d in the first circumstance
of this article a r e present a n d that the person
d e f e n d i n g be not i n d u c e d by r e v e n g e , resentment
or other evil motive.
4. A n y p e r s o n w h o , in o r d e r to a v o i d an evil or injury,
does an act w h i c h causes d a m a g e to another,
p r o v i d e d that the f o l l o w i n g requisites a r e present:
First. T h a t the evil sought to be avoided actually
exists;
Second. T h a t the injury feared be greater than that
done to a v o i d it;
83
Third. T h a t there be no other practical a n d less

harmful means of p r e v e n t i n g it.
5. A n y person w h o acts in the fulfillment of a duty or
in the l a w f u l exercise of a right or office.
6. A n y person w h o acts in o b e d i e n c e to an o r d e r
issued by a s u p e r i o r for some l a w f u l p u r p o s e .
• What are justifying circumstances?

Those wherein the acts of the actor are in accordance with
law and hence, he incurs no criminal liability. Since there is no
crime, there is no criminal, hence, he should not be called an
"offender" but an "actor." A n d therefore, no civil liability either.
That is why in Article 101, "in cases falling within subdivision
4 of Article 11, the persons for whose benefit the harm has been
prevented shall be civilly liable in proportion to the benefit
which they may have received." T h e civil liability is not on the
actor.
T h e following are justifying circumstances:
a. Defense of self, of relatives and of strangers;
b. State of necessity;
c. Fulfillment of duty; and
d. Obedience to superior order.
• What are the requisites of self-defense?
1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent

or repel it; and
3. Lack of sufficient provocation on the part of the person

defending himself.
Self-defense includes defense of life, of chastity, of property

and of honor. T h e latter includes defense against defamation.
Unlawful aggression is indispensable not only for self

defense but for defense of relatives and strangers as well for
without unlawful aggression, there is nothing to prevent or
repel. There can be no self-defense unless it is proven that
84
there had been unlawful aggression on the part of the person

injured or killed by the assailant. (People v. Bausing, G.R. No.
L-64965, July 18,1991)
What is unlawful aggression?
To constitute unlawful aggression, it is necessary that

an attack or material aggression, an offensive act positively
determining the intent of the aggressor to cause injury, shall
have been made. A mere threatening or intimidating attitude
is not sufficient; there must be a real danger to life or personal
safety. (People v. Nabayra, October 1991)
Unlawful aggression must be real or at least imminent.

Real aggression means an attack with physical force or with
a weapon such as to cause injury or danger to life or personal
safety. Imminent unlawful aggression means an attack that is
impending or at the point of happening. It must be offensive
and positively strong.
For unlawful aggression to be appreciated there must

be an actual, sudden, unexpected attack or imminent danger
thereof, and not merely a threatening or intimidating attitude.
T h e accused must present proof of positively strong act of real
aggression. Unlawful aggression must be such as to put in real
peril the life or personal safety of the person defending himself
or of a relative sought to be defended and not an imagined
threat, (id.)
What is the importance of unlawful aggression for the existence

of self-defense?
Self-defense, by its very nature, requires the attendance
of unlawful aggression initiated by the victim. (People v. Nell,
G.R. No. 109660, July 1, 1997)
If there is no unlawful aggression, there would be nothing
to prevent or repel. In that event, there could be no defense,
complete or incomplete. Where the unlawful aggression which
has begun no longer exists, the one making the defense has no
more right to kill or even wound the former aggressor. Just
as the presence and severity of a large number of wounds on
the part of the victim disprove self-defense, so do they belie
85
the claim of incomplete defense and indicate not the desire to

defend but a determined effort to kill. (People v. Santos, 255
SCRA 309)
When the accused invokes self-defense, what is the effect on

the burden of proof?
Although it is a cardinal principle that the prosecution
has the burden of proving the guilt of the accused, the rule is
reversed where the accused admits committing the crime in
self-defense. In such case, the burden is shifted to the accused
who must prove clearly and convincingly the elements of self-
defense. (People v. Magallanes, G.R. No. 114265, July 8, 1997)
By invoking self-defense, appellant admits the fact that
he did stab the deceased. Correspondingly, it is incumbent
upon him to prove by clear and convincing evidence that he
acted in self-defense. He must rely on the strength of his own
evidence and not on the weakness of that of the prosecution
for, even if the prosecution evidence is weak, it could not be
disbelieved after the accused himself admitted the killing.
(People v. Arroyo, G.R. No. 99258, September 13, 1991).
What is the rule when aggression ceased to exist?
W h e n aggression has ceased to exist, there is no more

necessity for self-defense. "Clearly, whatever act of aggression
was initiated by Tapales against the appellant has already
ceased as demonstrated by the fact that Tapales was running
away from the appellant. T h e tables w e r e turned when the
appellant chased Tapales with the obvious intent of stabbing
him. At this juncture, the appellant had assumed the role of
aggressor, thus, his claim of self-defense cannot obviously
prosper." (id.)
When the aggression no longer exists, such as when the

aggressor ran away after the attack or when the defender was
able to wrest the weapon from the aggressor, there is no need
for self-defense. T h e alleged defender in turn becomes the
aggressor if he would continue the attack.
"Evidence to be believed must not only proceed from the

mouth of a credible witness, but must be credible in itself such
as the common experience and observation of mankind can
86
approve as probable under the circumstances. T h e manner of

infliction and the number of physical injuries sustained by the
victim during the incident negate the self-defense posture. If
the intention of the accused was only to defend himself and he
was already able to hack the victim on the left temple, which
wound was fatal, he would not have inflicted further injuries
on the victim who was his uncle. T h e accused continued to hack
the victim on his back and even chased the victim when he
ran away to escape from further torture." (People v. Nabayra,
October 1991)
• What is the effect of presence of a large number of wounds on

the victim on the claim of self-defense?
T h e presence of a large number of wounds on the part

of the victim negates self-defense and instead indicates a
determined effort on the part of the offender to kill the victim.
T h e claim of self-defense can be belied by physical evidence.
Thus, the number, location and nature of the wounds would
reveal whether it was self-defense or intent to kill.
• When is there reasonable necessity of the means employed?
T h e reasonableness of the means employed depends upon

the circumstances surrounding the aggression, the state of
mind of the aggressor and the available weapon at the defend-
er's disposal. It cannot be measured by mathematical calcula-
tion. (People v. Gutual, G.R. No. 115233, February 22, 1996)
In self defense, there should be necessity of the action taken

as well as the means used. T h e latter requires a consideration
of (1) whether the aggressor was armed; (2) the nature and
quality of the weapon used; and (3) the physical conditions and
sizes of both the aggressor and the person defending himself.
(People v. Nell) Reasonable necessity of the means employed
to prevent or repel the unlawful aggression cannot be present
when the unlawful aggression on the part of the victim has
ceased.
• What is "rational equivalence" in the reasonable necessity of

the means employed?
Reasonable necessity of the means employed does not
imply material commensurability between the means of attack
87
and defense — what the law requires is rational equivalence.

It would not be proper or reasonable to claim that accused
should have fled or selected a less deadly weapon because
in an emergency in which without any reason whatever he
was placed, there was nothing more natural than to use
the weapon he had to defend himself. In the natural order
of things, following the instinct of self-preservation, he was
compelled to resort to a proper defense. In the consideration
of rational equivalence will enter the principal factors of the
emergency, the imminent danger to which the person attacked
is exposed, and the instinct, more than the reason, that moves
or impels the defense, and the proportionateness thereof does
not depend upon the harm done, but rests upon the imminent
danger of such injury, (id.)
What belies the reasonableness of the means employed?
The means employed becomes unreasonable and unnec-

essary when after the aggression had ceased and the victim
no longer posed any threat of further attack the accused con-
tinued inflicting injuries on the victim who fell on the ground
helpless. (People v. Binondo, G.R. No. 97227, October 20,
1992)
The presence of a large number of wounds inflicted on

the victim clearly indicates a determined effort on the part
of the accused to kill his prey and belies the reasonableness
of the means adopted to prevent or repel an unlawful act of
an aggressor. (People v. Arizala, G.R. No. 130708, October 22,
1999)
What is the paramount consideration in determining the

reasonableness of the means employed?
In determining whether the defender has chosen a

reasonable means to defend himself, self-preservation is of
paramount consideration. A person trapped by circumstances
of person, time and place will not examine the weapon of
the aggressor and calculate the weapon that he should use,
whether or not it is proportionate to that of the aggressor. T h e
only thing on the mind of a trapped defender is how to preserve
his life from imminent peril.
• Discuss the concept of lack of sufficient provocation on the part

of the defender.
Lack of sufficient provocation on the part of the defender

shows that there may have been provocation but it should not
be sufficient and it must not immediately precede the act. The
law requires that the provocation be sufficient or proportionate
to the act committed and adequate to arouse one to its
commission. It is not even enough that the provocative act be
unreasonable or annoying.
Sufficient provocation as a requisite of incomplete self-

defense is different from sufficient provocation as a mitigating
circumstance. As an element of self-defense, it pertains to its
absence on the part of the person defending, while as a mitigating
circumstance, it refers to its presence on the part of offended
party. (People v. CA, G.R. No. 103613, February 13, 2001)
» What are the rules when a person is attacked?
"Stand ground when in the right" applies when the

aggressor is armed with a weapon and is especially more liberal
if the person attacked is a peace officer in the performance
of his duty. A peace officer is not supposed to retreat from a
trouble maker but is expected to face the latter and pacify him
or prevent him from committing disorderly acts.
This rule has superseded the "retreat to the wall" principle

which makes it a duty of a person assailed to retreat as far as he
can before he meets the assault with force. (U.S. v. Domen, G.R.
No. L-12963, October 25, 1917) As weapons have become more
sophisticated and powerful, and men more harsh and unmerciful,
self-preservation demands that a person must watch his back
and eliminate the aggression as quickly as possible. Retreat to
the wall has been rendered obsolete and dangerous.
• What is the effect when not all of the requisites for defense are
present?
T h e accused should be entitled to either:
a. Ordinary mitigating circumstance of incomplete
defense pursuant to Article 13(1) if only one
requisite is present which should always be unlawful
aggression, or
89
b. Privileged mitigating circumstance under Article

69, if majority, that is, two requisites are present,
which should always include unlawful aggression.
For the claim of incomplete defense to prosper, it is essential

to prove the primordial element of unlawful aggression. If there
is no unlawful aggression, there would be nothing to prevent or
repel. In that event, there is no occasion to make any defense,
complete or incomplete. Where the unlawful aggression, which
has begun no longer exists, the one making the defense has no
more right to kill or even wound the former aggressor. Just
as the presence and severity of a large number of wounds on
the part of the victim disprove self-defense, so do they belie
the claim of incomplete defense and indicate not the desire to
defend but a determined effort to kill. (People v. Santos)
• What does defense of honor encompass?
It encompasses defense of one's chastity or reputation.

But there must be imminent and immediate danger of rape
to justify killing. If it were only acts of lasciviousness, killing
is an unreasonable means. Thus, the acts of lasciviousness
committed by a man on a lady beside him in the church provoked
the lady to stab the irreverent man. T h e means employed by
the prayerful lady was adjudged to be unreasonable.
Slander may be a necessary means to repel slander. But

it must only be to the extent necessary to redeem the honor of
the defender against the defamatory remarks.
• Can there be justifying circumstance of defense when what is

involved is property?
If the aggression is on property even if there was no

attack on the defender or owner or possessor, defense is proper
but not to the extent of taking life. K i l l i n g the aggressor w i l l
not be justified because the means used to repel or prevent the
aggression will then be not reasonable. T h e value of property
can never equal the value of life, hence killing is not justified.
The accused awoke to find his house being damaged and

his accessibility to the highway being closed as well as of his
rice mill bodega. This constituted unlawful aggression on the
part of the victims. However, their killing was not a reasonable
90
means to prevent or repel the aggression. Nevertheless, he

was credited with the privileged mitigating circumstance of
incomplete self-defense and ordinary mitigating circumstance
of passion and obfuscation. (People v. Narvaez, April 1983)
Under the doctrine of "self-help" in Article 429 of the

N C C , the law justifies the act of the owner or lawful possessor
of a thing in using such force as is necessary to protect his
proprietary or possessory rights at the very moment of unlawful
deprivation. But not to the extent of taking the offender's
life unless there is a like danger posed on the person of the
defender.
• W h o should determine the existence of these justifying

circumstances?
It must be the court, not the police officers. If a person

was killed, such as a thief, the police should file the case and
not declare for themselves that there is complete self-defense.
T h e y should allow the courts to decide the existence of all the
requirements for self-defense. These are matters of defense
that should be litigated.
• What are the elements of defense of relatives?
a. Unlawful aggression;
b. Reasonable necessity of the means employed to prevent
or repel it; and
c. In case the provocation was given by the person attacked,
the person defending had no part therein.
T h e relatives to be defended must be defender's spouse,
ascendants, descendants, legitimate, natural or adopted
brothers or sisters, or relatives by affinity in the same degrees,
and those by consanguinity within the fourth civil degree.
Defense of relatives from the fifth degree of consanguinity
falls within defense of strangers and the third element in
defense of relatives will be replaced by the element that the
defender is not induced by revenge, resentment or other evil
motives.
• What are the elements of defense of strangers?
a. Unlawful aggression;
91
b. Reasonable necessity of the means employed to prevent

or repel it; and
c. The person defending is not induced by revenge, resent-
ment or other evil motives.
The first and second requisites in the three kinds of
defenses are the same. Only the third requisite varies.
People v. Genosa, G.R. No. 135981, January 15,2004

• Characterize a battered woman.
A battered woman ( B W ) is one who is repeatedly subjected
to any forceful physical or psychological behavior by a man in
order to coerce her to do something he wants her to do without
concern for her rights. BW include wives or women in any form
of intimate relationship with men. To be classified as such,
the couple must go through the battering cycle at least twice.
A n y woman may find herself in an abusive relationship with
a man once. If it occurs a second time, and she remains in the
situation, she is a B W .
A BW exhibits common personality traits, such as low
self-esteem, traditional beliefs about the home, the family and
the female sex role; emotional dependence upon the dominant
male; the tendency to accept responsibility for the batterer's
actions; and false hopes that the relationship w i l l improve.
• Define battered woman syndrome.
The battered women syndrome ( B W S ) is characterized by

"cycle of violence," which has three phases:
(a) the tension-building phase;

(b) the acute battering incident; and
(c) tranquil, loving (or, at least nonviolent) phase.
At tension-building phase, minor battering occurs —

verbal, physical abuse or other form of hostile behavior. T h e
woman tries to pacify the batterer but this placatory/passive
behavior only legitimizes the man's belief that he has the right
to abuse her. At some point, the violence "spirals out of control"
and leads to acute battering incident.
92
T h e acute battering incident is said to be characterized

by brutality, destructiveness and, sometimes, death. The BW
deems this incident as unpredictable, yet also inevitable. At
this stage, she has a sense of detachment from the attack and
the terrible pain. Acute battering incidents are often so savage
and out of control that bystanders or intervenors are likely to
get hurt.
T h e final phase of the cycle of violence begins when the

acute battering incident ends. During this period, the couple
experience profound relief. Indeed, the batterer may show
tender, nurturing behavior toward his partner.
» What is the effect on the battered woman of this cycle of

violence?
Because of the recurring cycles of violence experienced the

abused woman's state of mind metamorphoses. In determining
her state of mind, expert evidence on psychological effect of
battering on wives/common-law partners are relevant and
necessary to clarify and refute myths and misconceptions
about B W .
T h e "overwhelming brutality/trauma" could result in
posttraumatic stress disorder which is a form of "anxiety
neurosis or neurologic anxcietism." After being repeatedly and
severely abused, the battered persons may believe that they are
essentially helpless, lacking power to change their situation.
Acute battering incidents can have the effect of stimulating
the development of coping responses to trauma at the expense
of the victim's ability to muster an active response to try to
escape further trauma. She ceases to believe that anything she
can do will have a predictable positive effect.
Just as the BW believes she is responsible for the violent
behavior of her partner, she also believes that he is capable of
killing her, that there is no escape. She feels unsafe, suffers
from pervasive anxiety, and usually fails to leave relationship.
• What should be proved by the battered woman who kills/

injures her batterer?
T h e defense should prove all three phases of cycle of
violence characterizing the relationship of the partners. The
93
defense fell short in this. There were acute battering incidents

typical characteristics of this stage. However, that single
incident does not prove the existence of syndrome. She failed to
prove that in at least another battering episode in the past, she
went thru a similar pattern. In criminal cases, all the elements
of the modifying circumstance must be proved.
The existence of B W S in a relationship does not in itself
establish a legal right of the woman to kill her partner. Evidence
must still be considered in the context of self-defense. Crucial
to the battered-woman defense is her state of mind at time of
offense — she must have actually feared imminent harm from
her batterer and honestly believed in the need to kill him in
order to save her life. One who resorts to self-defense must face
a real threat on his life; the peril sought to be avoided must be
imminent and actual, not merely imaginary.
Unlawful aggression is the most essential element of self-

defense. It presupposes actual, sudden and unexpected attack
or an imminent danger thereof on the life or safety of a person.
According to M M , there was sufficient time interval between
the unlawful aggression of BB and her fatal attack upon him.
She had withdrawn from his violent behavior and escaped to
their children's bedroom. He apparently ceased his attack and
went to bed. T h e reality or imminence of danger had ended
altogether. (But see Section 26 of the R . A . 9262)
Is physical assault at the actual time of the killing indispensable

for self-defense invocation to prosper?
Where the brutalized person if already suffering from

the syndrome, further evidence of actual physical assault at
the time of the killing is not required. Incidents of domestic
battery usually have a predictable pattern. To require the
battered person to await an obvious, deadly attack before
she can defend her life would amount to sentencing her to
'murder by installment.' Still, impending danger prior to the
defendant's use of deadly force must be shown. Threatening
behavior or communication can satisfy the required imminence
of danger. Considering such circumstances and the existence of
the syndrome, self-defense may be appreciated.
In summary: First, each of the phases of cycle of violence

must be proved to have characterized at least two battering
episodes. Second, final acute battering episode preceding the
killing of the batterer must have produced in the battered
person's mind actual fear of an imminent harm from the
batterer and honest belief that she needed to use force in order
to save her life. Third, at the time of the killing, the batterer
must have posed probable — not necessarily immediate and
actual — grave harm to the accused based on the history of
violence by the former against the latter. Taken altogether,
these circumstances could satisfy the requisites of self-defense.
• In the absence of complete self-defense, what circumstances

could be appreciated in favor of the battered woman?
T h e r e was the resulting diminution of freedom of action,

intelligence or intent analogous to illness that diminishes
exercise of w i l l power without depriving her of consciousness of
her acts. T h e r e is also the circumstance of having acted upon
an impulse so powerful as to have naturally produced passion
and obfuscation. This state of mind is present when a crime is
the result of an uncontrollable burst of passion provoked by
prior unjust or improper acts or by a legitimate stimulus so
powerful as to overcome reason, as in acute battering incident.
These two circumstances — psychological paralysis, and

passion and obfuscation — did not arise from the same set of
facts. T h e first circumstance arose from the cyclical nature and
severity of battery. T h e second is from violent aggression he had
inflicted on her prior to the killing. That the incident occurred
when she was eight months pregnant was deemed by her as an
attempt not only on her life, but likewise on that of the unborn
child which naturally produced passion and obfuscation on her
part.
[Subsequent to Genosa, Congress passed R . A . 9262.
Section 26 expressly states that the victim or any person acting
pursuant to that law does not incur criminal or civil liability
despite the absence of the requisites of self defense.]
• What are the elements of state of necessity?

a. The evil sought to be avoided actually exists;
95
b. The injury feared be greater than that done to avoid it;

and
c. There is no other practical and less harmful means of
preventing it.
What is the civil liability of the person acting under a state of

necessity?
Article 101 provides that in cases falling within subdivi-
sion 4 of Article 11, the persons for whose benefit the harm has
been prevented shall be civilly liable in proportion to the ben-
efit which they may have received. This is because the act here
is legal or justified, and therefore, the actor is not civilly liable.
For instance, if to arrest a conflagration threatening to

engulf a whole town, several houses had to be destroyed by
the local authorities, such act is justified but the owners of the
houses saved by such destruction of property should be made
liable for the value of the property destroyed. [Although it may be
argued that if their houses are not destroyed, these w i l l be eaten
up by the fire, anyway.] Article 101 provides that in this case,
when the respective shares cannot be equitably determined,
even approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town,
and, in all events, whenever the damage has been caused with
the consent of the authorities or their agents, indemnification
shall be made in the manner prescribed by special laws or
regulations. There is no greater danger for a man than for his
life and/or limb to be placed in peril. Thus, if for instance the
only way to save his life is to shove another person in front of
him or to duck behind another, such act should constitute the
justifying circumstance of state of necessity. In this case, since
he was the one benefited, he should be civilly liable.
What are the elements of fulfillment of duty or exercise of right

or office?
a. The offender acted in the performance of a duty or the

lawful exercise of a right or office; and
b. T h e injury caused or the offense committed is the neces-

sary consequence of the due performance of such right or
office.
In the absence of the second requisite, the justification

becomes incomplete thereby converting it into a mitigating
circumstance under Articles 13 and 69. (People v. Pinto Jr.
G.R. No. 39519, November 21, 1991)
Appellant was not in the performance of his duties at the

time of the shooting for the girls he was attempting to arrest
w e r e not committing any act of prostitution in his presence.
T h e fatal injuries that appellant caused the victim were not a
necessary consequence of his performance of duties as a police
officer. His duty to arrest the suspects did not include any right
to shoot them. (People v. Peralta, G.R. No. 128116, January 24,
2001)
T h e officers must not be negligent in the fulfillment of

their duties. In one case, the child taken hostage was killed
by the bullets of the police officers and not by the stab wounds
from the offender as shown by the medico legal findings. The
negligence of the police officers was evident from the fact that
the hostage taking was only several meters away from the police
line; that the offender was tired of carrying the boy for hours
and would even sit at times; that onlookers have massed in the
place of the incident; and that they waited until the offender
has stabbed the boy before taking action by indiscriminately
shooting the offender and their bullets killed the boy. This
negligence could not give rise to fulfillment of duty as justifying
circumstance.
When is obedience to superior order appreciated?
W h e n the following elements concur:

a. An order has been issued by a superior;
b. T h e order is for a legal purpose; and
c. T h e means used to carry out such order is lawful.
Even if the order is illegal but it is apparently legal and
the subordinate is not aware of its illegality, the subordinate
is not liable. (Tabuena v. Sandiganbayan, February 1997) This
justifying circumstance was appreciated in favor of TT where
it was shown that: (1) the subordinate-superior relationship
between TT and then President Marcos was clear; (2) the
lawfulness of the order was apparent as it has for its purpose
the partial payment of the liability of one government agency
97
to another; and (3) if it were illegal, TT was not aware of its

illegality.
A r t . 12. Circumstances which exempt from criminal liability.

— The following a r e exempt from criminal liability:
1. An imbecile or an insane p e r s o n , unless the latter
has acted d u r i n g a lucid interval.
W h e n a n imbecile o r a n insane p e r s o n has
committed an act w h i c h the l a w defines as a felony
(delito), the court shall o r d e r his confinement in one
of the hospitals or a s y l u m s established for p e r s o n s
thus afflicted, w h i c h he shall not be p e r m i t t e d to
leave w i t h o u t first o b t a i n i n g the p e r m i s s i o n of the
same court.
2. A p e r s o n u n d e r nine y e a r s of a g e .
3. A p e r s o n o v e r nine y e a r s of a g e a n d u n d e r fifteen,
unless he has acted w i t h d i s c e r n m e n t , in w h i c h
case, such m i n o r shall be p r o c e e d e d a g a i n s t in
a c c o r d a n c e w i t h the p r o v i s i o n s of A r t i c l e 80 of this
Code.
W h e n such m i n o r i s a d j u d g e d t o b e c r i m i n a l l y
i r r e s p o n s i b l e , the court, in c o n f o r m i t y w i t h the
p r o v i s i o n s o f this a n d the p r e c e d i n g p a r a g r a p h ,
shall commit h i m to the c a r e a n d custody of his
family w h o shall b e c h a r g e d w i t h his s u r v e i l l a n c e
a n d education; o t h e r w i s e , h e shall b e committed t o
the c a r e of some institution or p e r s o n m e n t i o n e d in
said A r t i c l e 80.
4. A n y p e r s o n w h o , w h i l e p e r f o r m i n g a l a w f u l act
w i t h d u e c a r e , causes a n i n j u r y b y m e r e a c c i d e n t
w i t h o u t fault or intention of c a u s i n g it.
5. A n y p e r s o n w h o acts u n d e r the c o m p u l s i o n o f a n
irresistible force.
6. A n y p e r s o n w h o acts u n d e r the i m p u l s e of an
uncontrollable fear of an equal or greater injury.
7. A n y p e r s o n w h o fails to p e r f o r m an act r e q u i r e d by
l a w , w h e n p r e v e n t e d b y some l a w f u l o r i n s u p e r a b l e
cause.
• Is Article 80 of the Revised Penal Code still operative?
N o . Article 80 was expressly repealed by Article 189 of P.

D. 603. ( P . D . 603 itself has been modified by R . A . 9344 which
was approved by the President on A p r i l 23, 2006, infra.)
• What are exempting circumstances?
These are circumstances by virtue of which, although

the act is criminal, the law exempts the actor from liability.
A crime is committed, but circumstances pertaining to the
offender calls for his exemption from criminal liability.
Since there is a crime, although there is no criminal lia-
bility, there is civil liability except in accident and insuperable
cause which strictly are not criminal.
T h e exempting circumstances are:

a. Imbecility/insanity;
b. Minority [amended by R . A . 9344, A p r i l 23, 2006];
c. Accident;
d. Compulsion of irresistible force;
e. Impulse of uncontrollable fear; and
f. Insuperable or lawful cause.
(Refer to notes on absolutory causes.)
• Distinguish justifying from exempting circumstances.
JUSTIFYING EXEMPTING
1. T h e act is legal, within the T h e act is criminal,

bounds of law.
2. There is no crime, hence, There is a crime and a
no criminal. criminal.
3. Since there is no crime, Since there is a crime,

there is no criminal and there is a criminal (but
no civil liability. exempt from criminal
liability) and there is civil
liability.
4. T h e emphasis of the law The emphasis of the law

is on the act. is on the actor.
99
Insanity
• What is insanity?
Section 1039 of the R A C defines insanity as "a manifesta-
tion in language or conduct of disease or defect of the brain or
a more or less permanently diseased or disordered condition of
the mentality, functional or organic, and characterized by per-
version, inhibition, or disordered function of the sensory or of
the intellective faculties or by impaired or disordered volition."
Insanity exists when there is a complete deprivation

of intelligence in committing the act, that is, the accused is
deprived of reason, he acts without the least discernment
because there is complete absence of power to discern, or there
is a total deprivation of freedom of the will. M e r e abnormality
of the mental faculties will not exclude imputability. (People v.
Danao, G.R. No. 96832, November 19, 1992)
» How is insanity manifested?
Insanity is evinced by a deranged and perverted condition

of the mental faculties which is manifested in language and
conduct. An insane person has no full and clear understanding
of the nature and consequences of his acts. Hence, insanity may
be shown by the surrounding circumstances fairly throwing
light on the subject, such as evidence of the alleged deranged
person's general conduct and appearance, his acts and
conduct consistent with his previous character and habits, his
irrational acts and beliefs, as w e l l as his improvident bargains.
The vagaries of the mind can only be known by outward acts,
by means of which one reads thoughts, motives and emotions
of a person, and through which can be determined whether the
acts conform to the practice of people of sound mind. (People v.
Villa, Jr., G.R. No. 129899, April 27, 2000)
* How is insanity disproved?
The following circumstances negate a complete absence

of intelligence of the accused: ( a ) immediately after he killed
the victims he thought of surrendering to the PC Detachment;
(b) he showed remorse during his confinement at the M e n t a l
Hospital; and (c) he was able to give a Sworn Statement before
100
the Prosecutor's Office immediately after the commission

of the crimes narrating his version of the incident. These
are hardly the acts of a person with a sick mind. Ambal
held: "The fact that immediately after the incident (accused)
thought of surrendering to the law-enforcement authorities is
incontestable proof that he knew that what he had done was
wrong and that he was going to be punished for it." Similarly, a
feeling of remorse is inconsistent with insanity, as it is a clear
indication that he was conscious of his acts, he acknowledged
his guilt and was sorry for them, (id.)
By the appellant's narration in his Sworn Statement,

he slaughtered his victims in a fit of rage after D D , allegedly
accused him of stealing chickens and cursed him. These negate
insanity. T h e r e is a vast difference between a genuinely insane
person and one who has worked himself up into such a frenzy
of anger that he fails to use reason or good judgment in what
he does. A man sometimes does crazy things when enraged but
it does not necessarily and conclusively prove that he is insane.
(id.)
In Rafanan, the fact that the appellant threatened the

victim with death in case she reported her ravishment indicated
that he was aware of the reprehensible moral depravity of
that assault and that he was not deprived of intelligence. In
Dungo, that the accused knew the nature of what he had done
negated his claim that he was insane when he fatally stabbed
the victim. In Aquino, appellant who took 120 cc of cough syrup
and consumed three marijuana sticks before raping his victim
and hitting her head with a stone had some form of mental
illness which did not deprive him of intelligence.
• What is the rule when insanity is interposed as a defense or a

ground of a motion to quash?
T h e burden rests upon the accused to establish that
fact, for the law presumes every man to be sane. Hence, in
the absence of sufficient evidence to prove insanity, the legal
presumption of sanity stands. (Zosa v. CA, G.R. No. 105641,
March 10, 1994) T h e defense of insanity, like self-defense, is in
the nature of avoidance and confession, thus the burden rests
with the accused to prove that he was insane at the time of the
101
commission of the offense. Allegations must be proved by the

one making them.
Article 800 of the N C C provides that the law presumes
that every person is of sound mind, in the absence of proof to
the contrary. The allegation of insanity must be clearly proved.
The law presumes all acts to be voluntary. N o t every aberration
of the mind or exhibition of mental deficiency is insanity, (id.)
• When should insanity occur to be exempting?

An inquiry into the mental state of appellant should relate
to the period immediately before or at the precise moment of
doing the act which is the subject of the inquiry, and his mental
condition after that crucial period or during the trial is incon-
sequential for purposes of determining his criminal liability.
More concrete evidence is needed on the mental condition of
the person alleged to be insane at the time of the perpetration
of the crimes in order that insanity may be appreciated in his
favor. Accused failed to discharge the burden of overcoming the
presumption that he committed the crimes freely, knowingly
and intelligently. It could be that he was insane at the time he
was examined at the center. But, in all probability such insan-
ity was contracted during his detention pending trial. He was
without contact with his friends and relatives most of the time.
He was troubled by his conscience, the realization of the grav-
ity of the offenses and the thought of a bleak future for him.
The confluence of these circumstances may have conspired to
disrupt his mental equilibrium. (People v. Villa, Jr.)
• Relate Article 12(1) to Article 79 of the Code.
Article 79 refers to the insanity occurring after the com-

mission of the crime, whereas, insanity in Article 12 refers to
that at the very moment the crime is being committed. "When
the convict shall become insane or an imbecile after final sen-
tence has been pronounced, the execution of said sentence
shall be suspended only with regard to the personal penalty,
the provisions of the second paragraph of circumstance num-
ber 1 of Article 12 being observed in the corresponding cases.
If at any time the convict shall recover his reason, his sentence
shall be executed, unless the penalty shall have prescribed in
accordance with the provisions of [the] Code."
102
W h e n insanity is alleged as a ground for exemption from

criminal responsibility, the evidence on this point must refer
to the time preceding the act under prosecution or to the very
moment of its execution. If the evidence pointed to the insanity
subsequent to the commission of the crime, the accused cannot
be acquitted. He is presumed to be sane when he committed it
(id.)
What quantum of evidence is required to overthrow the

presumption of sanity?
Proof beyond reasonable doubt is required. Insanity is a

defense in the nature of confession and avoidance, and as such
must be proved beyond reasonable doubt.
One who suffers from insanity at the time of the commis-
sion of the offense charged cannot in a legal sense entertain a
criminal intent and cannot be held criminally responsible for
his acts. His unlawful act is the product of a mental disease or
defect. In order that insanity may relieve a person from crimi-
nal responsibility, it is necessary that there be a complete de-
privation of intelligence in committing the act, i.e., that he be
deprived of cognition; that he acts without the least discern-
ment; that there be complete absence or deprivation of the
freedom of the will. (People v. Dungo, G.R. No. 89420, July 31,
1991)
Every man is presumed to be sane; hence, the burden of
proof is with the accused to prove that he is insane at the very
moment that the crime is committed. If the offender is known
to be insane prior to the commission of the felony, the burden is
with the prosecution to prove that he is sane at the time of the
commission of the offense.
T h e defense of insanity or imbecility must be clearly
proved for there is a presumption that acts penalized by law
are voluntary. Hence, in the absence of positive evidence that
the accused had previously lost his reason or was demented
moments prior to or during the perpetration of the crime, the
courts will always presume that he was in a normal state of
mind. (People v. Medina, G.R. No. 113691, February 1998)
• What should be done to an insane or imbecile who has

committed a felony?
103
Where the imbecile or an insane person has committed

an act which the law defines as a felony, the court shall order
his confinement in one of the hospitals or asylums established
for persons thus afflicted, which he shall not be permitted to
leave without first obtaining the permission of the same court.
(People v. Rafanan, Jr., G.R. No. L-54135, November 21, 1991)
What are the tests or criteria for insanity?

In this jurisdiction, there has been no case that lays down
a definite test or criterion for insanity. However, the definition
of insanity under Section 1039 of the R A C supplies the test or
criterion.
Imbecility or insanity is the complete deprivation of
intelligence in the commission of the act. T h e two tests to
determine this mental state are:
(a) Cognition test or complete deprivation of intelligence

in committing the criminal act; and
(b) Volition test or a total deprivation of the freedom of
the will.
Philippine case law shows common reliance on the test

of cognition, rather than on a test relating to "freedom of the
will." Examination of the case law has failed to turn up any
case where accused was exempted on the sole ground that he
was totally deprived of "freedom of the will," i.e., without an
accompanying "complete deprivation of intelligence." Logically
so for a person's volition naturally reaches out only towards
that which is presented as desirable by his intelligence,
whether that intelligence is diseased or healthy. In any case,
where the accused failed to show complete impairment or loss
of intelligence it is at most a mitigating circumstance in accord
with Article 13(9): such illness of the offender as would diminish
the exercise of his will-power without however depriving him of
the consciousness of his acts, (id.)
What is schizophrenia? How does it affect criminal liability?
Schizophrenia is chronic mental disorder characterized

by inability to distinguish between fantasy and reality, and
often accompanied by hallucinations and delusions. Formerly
104
called dementia praecox, it is said to be the most common form

of psychosis and usually develops between the ages of 13 and
30. (id.)
In previous cases where schizophrenia was interposed

as an exempting circumstance, it has mostly been rejected.
In each of these cases, the evidence presented tended to show
that if there was impairment of the mental faculties, such
impairment was not so complete as to deprive the accused of
intelligence or the consciousness of his acts, (id.)
In fact, schizophrenic persons can even be gainfully

employed; hence, they are still conscious of their acts except
for those aspects where they confuse reality and fantasy.
Schizophrenic reaction may be considered as a mitigating

circumstance under Article 13(9). Appellant should have been
credited with this mitigating circumstance, although it would
not have affected the penalty imposable upon him under Article
63: in all cases in which the law prescribes a single indivisible
penalty, it shall be applied regardless of any mitigating
or aggravating circumstances that may have attended the
commission of the deed, (id.)
• What is required for imbecility to be accepted as a defense?
Imbecility, like insanity, is a defense which pertains to

the mental condition of a person. Philippine case law projects
the same standards in respect of both insanity and imbecility,
that is, that the insanity or imbecility must constitute complete
deprivation of intelligence in committing the criminal act, or
a total deprivation of freedom of the will. Where the medical
evidence does not show complete deprivation or even substantial
deprivation of intelligence on the part of the accused he cannot
be exempted from criminal liability. His behavior on the night
he raped the victim showed that he was quite conscious of
his acts and aware of the moral quality thereof. (People v.
Buenaflor, G.R. No. 93752, July 15, 1992)
• How should lack of reason and failure to use reason affect

criminal responsibility?
Care must be taken to distinguish between lack of reason
(insanity) and failure to use reason or good judgment due to
105
extreme anger (passion). Mere mental depravity or moral

insanity which results not from any disease of mind, but from
a perverted condition of the moral system, where the person
is mentally sane, does not exempt one from the responsibility
for crimes committed under its influence. Thus, before the
defense of insanity may be accepted, there must be a complete
deprivation of intelligence (test of cognition) — not only of the
will — in committing the criminal act. The presence of his
reasoning faculties, enabling him to exercise sound judgment
and satisfactorily articulate matters, sufficiently discounted
any intimation of insanity when he committed the felony. M e r e
abnormality of the mental faculties does not exclude criminal
culpability. (People v. Medina, G.R. No. 113691, February 6,
1998)
• Can the trial court determine whether or not an accused is

insane?
Estrada, G.R. No. 130487, June 19, 2000, nullified the trial
proceedings and remanded the case for mental examination
on accused, a determination of his competency to stand trial,
and for further proceedings because the court took it solely
upon itself to determine the sanity of accused. T h e judge is
not a psychiatrist or psychologist equipped with the specialized
knowledge of determining the state of a person's mental health.
To determine the accused's competency to stand trial, the court
should at least order the examination of accused, especially in
the light of the latter's history of mental illness. In denying
his examination by a medical expert, the trial court practically
denied him a fair trial prior to conviction, in violation of his
constitutional rights.
Minority
• How are penal laws to be construed as to minor offenders?
Penal laws should be liberally construed in favor of the

offender. Thus, considering the gravity of the offense and in the
interest of justice, the Court has admitted the birth certificate
of an accused to prove minority although said birth certificates
were not presented or offered in the trial court. Since the fact
of minority is established by an official document prepared by
106
the Department of Social Services and Development in the

exercise of its functions and incorporated in the records of the
case judicial notice can be taken thereof ex mero motu. (People
v. Regalario, G.R. No. 101451, March 23, 1993)
R e p u b l i c A c t N o . 9344
TITLE I — GOVERNING PRINCIPLES
C H A P T E R 1—TITLE, P O L I C Y A N D D E F I N I T I O N
OF TERMS
S E C T I O N 1. Short Title and Scope. — This A c t shall be

known as the "Juvenile Justice and Welfare A c t of 2006." It shall
cover the different stages involving children at risk and children
in conflict with the l a w from prevention to rehabilitation and
reintegration.
S E C . 2. Declaration of State Policy. — T h e following State

policies shall be observed at all times:
( a ) T h e State recognizes the vital role of children and youth in

nation building and shall promote and protect their physical, moral,
spiritual, intellectual and social well-being. It shall inculcate in the
youth patriotism and nationalism, and encourage their involvement
in public and civic affairs.
(b) T h e State shall protect the best interests of the child
through measures that will ensure the observance of international
standards of child protection, especially those to which the
Philippines is a party. Proceedings before any authority shall be
conducted in the best interest of the child and in a manner which
allows the child to participate and to express himself/herself freely.
T h e participation of children in the program and policy formulation
and implementation related to juvenile justice and welfare shall be
ensured by the concerned government agency.
(c) T h e State likewise recognizes the right of children to as-
sistance, including proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty and exploitation, and other
conditions prejudicial to their development.
(d) Pursuant to Article 40 of the United Nations Convention
on the Rights of the Child, the State recognizes the right of every
107
child alleged as, accused of, adjudged, or recognized as having

infringed the penal law to be treated in a manner consistent with
the promotion of the child's sense of dignity and worth, taking
into account the child's age and desirability of promoting his/her
reintegration. Whenever appropriate and desirable, the State shall
adopt measures for dealing with such children without resorting
to judicial proceedings, providing that human rights and legal
safeguards are fully respected. It shall ensure that children are
dealt with in a manner appropriate to their well-being by providing
for, among others, a variety of disposition measures such as care,
guidance and supervision orders, counseling, probation, foster care,
education and vocational training programs and other alternatives
to institutional care.
(e) The administration of the juvenile justice and welfare

system shall take into consideration the cultural and religious
perspectives of the Filipino people, particularly the indigenous
peoples and the Muslims, consistent with the protection of the rights
of children belonging to these communities.
(f) The State shall apply the principles of restorative justice

in all its laws, policies and programs applicable to children in conflict
with the law.
S E C . 3. Liberal Construction of this Act. — In case of doubt,

the interpretation of any of the provisions of this A c t , including
its implementing rules and regulations ( I R R s ) , shall be construed
liberally in favor of the child in conflict w i t h the law.
SEC. 4. Definition of Terms. — T h e following terms as used

in this Act shall be defined as follows:
(a) "Bail" refers to the security given for the release of the
person in custody of the law, furnished by him/her or a bondsman,
to guarantee his/her appearance before any court. Bail may be given
in the form of corporate security, property bond, cash deposit, or
recognizance.
(b) "Best Interest of the Child" refers to the totality of the cir-
cumstances and conditions which are most congenial to the survival,
protection and feelings of security of the child and most encouraging
to the child's physical, psychological and emotional development.
It also means the least detrimental available alternative for safe-
guarding the growth and development of the child.
108
(c) "Child" refers to a person under the age of eighteen (18)

years.
(d) "Child at Risk" refers to a child who is vulnerable to and at

the risk of committing criminal offenses because of personal, family
and social circumstances, such as, but not limited to, the following:
(1) being abused by any person through sexual, physical,

psychological, mental, economic or any other means and
the parents or guardian refuse, are unwilling, or unable
to provide protection for the child;
(2) being exploited including sexually or economically;
(3) being abandoned or neglected, and after diligent search
and inquiry, the parent or guardian cannot be found;
(4) coming from a dysfunctional or broken family or without
a parent or guardian;
(5) being out of school;
(6) being a streetchild;
(7) being a member of a gang;
(8) living in a community with a high level of criminality or
drug abuse; and
(9) living in situations of armed conflict.
(e) "Child in Conflict with the L a w " refers to a child who is

alleged as, accused of, or adjudged as, having committed an offense
under Philippine laws.
(f) "Community-based Programs" refers to the programs
provided in a community setting developed for purposes of
intervention and diversion, as well as rehabilitation of the child in
conflict with the law, for reintegration into his/her family and/or
community.
( g ) "Court" refers to a family court or, in places where there
are no family courts, any regional trial court.
(h) "Deprivation of Liberty" refers to any form of detention
or imprisonment, or to the placement of a child in conflict with the
law in a public or private custodial setting, from which the child in
conflict with the law is not permitted to leave at will by order of any
judicial or administrative authority.
109
(i) "Diversion" refers to an alternative, child-appropriate

process of determining the responsibility and treatment of a child in
conflict with the law on the basis of his/her social, cultural, economic,
psychological or educational background without resorting to formal
court proceedings.
(j) "Diversion Program" refers to the program that the
child in conflict with the law is required to undergo after he/she is
found responsible for an offense without resorting to formal court
proceedings.
(k) "Initial Contact With the Child" refers to the apprehension
or taking into custody of a child in conflict with the law by law
enforcement officers or private citizens. It includes the time when
the child alleged to be in conflict with the law receives a subpoena
under Section 3(b) of Rule 112 of the Revised Rules of Criminal
Procedure or summons under Section 6(a) or Section 9(b) of the
same Rule in cases that do not require preliminary investigation or
where there is no necessity to place the child alleged to be in conflict
with the law under immediate custody.
(1) "Intervention" refers to a series of activities which are

designed to address issues that caused the child to commit an
offense. It may take the form of an individualized treatment program
which may include counseling, skills training, education, and other
activities that will enhance his/her psychological, emotional and
psycho-social well-being.
(m) "Juvenile Justice and Welfare System" refers to a system

dealing with children at risk and children in conflict w i t h the law,
which provides child-appropriate proceedings, including programs
and services for prevention, diversion, rehabilitation, reintegration
and aftercare to ensure their normal growth and development.
(n) "Law Enforcement Officer" refers to the person in

authority or his/her agent as defined in A r t i c l e 152 of the Revised
Penal Code, including a barangay tanod.
(o) "Offense" refers to any act or omission whether punishable

under special laws or the Revised Penal Code, as amended.
(p) "Recognizance" refers to an undertaking in lieu of a bond

assumed by a parent or custodian who shall be responsible for
the appearance in court of the child in conflict with the law, when
required.
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( q ) "Restorative Justice" refers to a principle which requires

a process of resolving conflicts with the maximum involvement
of the victim, the offender and the community. It seeks to obtain
reparation for the victim; reconciliation of the offender, the offended
and the community; and reassurance to the offender that he/she
can be reintegrated into society. It also enhances public safety by
activating the offender, the victim and the community in prevention
strategies.
(r) "Status Offenses" refers to offenses which discriminate

only against a child, while an adult does not suffer any penalty
for committing similar acts. These shall include curfew violations;
truancy, parental disobedience and the like.
(s) "Youth Detention H o m e " refers to a 24-hour child-caring

institution managed by accredited local government units ( L G U s )
and licensed and/or accredited nongovernment organizations
( N G O s ) providing short-term residential care for children in conflict
with the law who are awaiting court disposition of their cases or
transfer to other agencies or jurisdiction.
(t) "Youth Rehabilitation Center" refers to a 24-hour

residential care facility managed by the Department of Social
Welfare and Development ( D S W D ) , L G U s , licensed and/or
accredited N G O s monitored by the D S W D , which provides care,
treatment and rehabilitation services for children in conflict with
the law. Rehabilitation services are provided under the guidance
of a trained staff where residents are cared for under a structured
therapeutic environment with the end v i e w of reintegrating
them into their families and communities as socially functioning
individuals. Physical mobility of residents of said centers may be
restricted pending court disposition of the charges against them.
(u) "Victimless Crimes" refers to offenses where there is no

private offended party.
C H A P T E R 2 — P R I N C I P L E S IN THE A D M I N I S T R A T I O N
OF JUVENILE JUSTICE A N D W E L F A R E
S E C . 5. Rights of the Child in Conflict with the Law. —

Every child in conflict with the law shall have the following rights,
including but not limited to:
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(a) the right not to be subjected to torture or other cruel,

inhuman or degrading treatment or punishment;
(b) the right not to be imposed a sentence of capital punish-
ment or life imprisonment, without the possibility of release;
(c) the right not to be deprived, unlawfully or arbitrarily,
of his/her liberty; detention or imprisonment being a disposition of
last resort, and which shall be for the shortest appropriate period of
time;
(d) the right to be treated with humanity and respect, for
the inherent dignity of the person, and in a manner which takes
into account the needs of a person of his/her age. In particular, a
child deprived of liberty shall be separated from adult offenders at
all times. No child shall be detained together with adult offenders.
He/She shall be conveyed separately to or from court. He/She shall
await hearing of his/her own case in a separate holding area. A child
in conflict with the law shall have the right to maintain contact with
his/her family through correspondence and visits, save in exceptional
circumstances;
(e) the right to prompt access to legal and other appropriate

assistance, as well as the right to challenge the legality of the
deprivation of his/her liberty before a court or other competent,
independent and impartial authority, and to a prompt decision on
such action;
(f) the right to bail and recognizance, in appropriate cases;
( g ) the right to testify as a witness in his/her own behalf
under the rule on examination of a child witness;
(h) the right to have his/her privacy respected fully at all
stages of the proceedings;
(i) the right to diversion if he/she is qualified and voluntarily
avails of the same;
(j) the right to be imposed a judgment in proportion to the
gravity of the offense where his/her best interest, the rights of the
victim and the needs of society are all taken into consideration by
the court, under the principle of restorative justice;
(k) the right to have restrictions on his/her personal liberty
limited to the minimum, and where discretion is given by law to
the judge to determine whether to impose fine or imprisonment, the
imposition of fine being preferred as the more appropriate penalty;
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(1) in general, the right to automatic suspension of sentence;

( m ) the right to probation as an alternative to imprisonment,
if qualified under the Probation L a w ;
(n) the right to be free from liability for perjury, concealment
or misrepresentation; and
(o) other rights as provided for under existing laws, rules and
regulations.
T h e State further adopts the provisions of the United Nations

Standard M i n i m u m Rules for the Administration of Juvenile Justice
or "Beijing Rules," United Nations Guidelines for the Prevention of
Juvenile Delinquency or the "Riyadh Guidelines," and the United
Nations Rules for the Protection of Juveniles Deprived of Liberty.
S E C . 6. Minimum Age of Criminal Responsibility. — A

child fifteen (15) years of age or under at the time of the commission
of the offense shall be exempt from criminal liability. However, the
child shall be subjected to an intervention program pursuant to
Section 20 of this A c t .
A child above fifteen (15) years but below eighteen (18)
years of age shall likewise be exempt from criminal liability and
be subjected to an intervention program, unless he/she has acted
with discernment, in which case, such child shall be subjected to the
appropriate proceedings in accordance with this Act.
T h e exemption from criminal liability herein established does
not include exemption from civil liability, which shall be enforced in
accordance with existing laws.
S E C . 7. Determination of Age. — The child in conflict with

the law shall enjoy the presumption of minority. He/She shall enjoy
all the rights of a child in conflict with the law until he/she is proven
to be eighteen (18) years old or older. The age of a child may be
determined from the child's birth certificate, baptismal certificate or
any other pertinent documents. In the absence of these documents,
age may be based on information from the child himself/herself,
testimonies of other persons, the physical appearance of the child
and other relevant evidence. In case of doubt as to the age of the
child, it shall be resolved in his/her favor.
A n y person contesting the age of the child in conflict with the
law prior to the filing of the information in any appropriate court
113
may file a case in a summary proceeding for the determination of

age before the Family Court which shall decide the case within
twenty-four (24) hours from receipt of the appropriate pleadings of
all interested parties.
If a case has been filed against the child in conflict with the
law and is pending in the appropriate court, the person shall file a
motion to determine the age of the child in the same court where the
case is pending. Pending hearing on the said motion, proceedings on
the main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges
and other government officials concerned shall exert all efforts at
determining the age of the child in conflict with the law.
TITLE II — STRUCTURES IN THE A D M I N I S T R A T I O N OF

JUVENILE JUSTICE A N D W E L F A R E
X X X
SEC. 11. Child Rights Center (CRC). — T h e existing Child

Rights Center of the Commission on Human Rights shall ensure
that the status, rights and interests of children are upheld in
accordance with the Constitution and international instruments
on human rights. T h e C H R shall strengthen the monitoring of
government compliance of all treaty obligations, including the
timely and regular submission of reports before the treaty bodies, as
well as the implementation and dissemination of recommendations
and conclusions by government agencies as w e l l as N G O s and civil
society.
TITLE III — P R E V E N T I O N OF J U V E N I L E D E L I N Q U E N C Y
C H A P T E R 1—THE R O L E O F T H E D I F F E R E N T S E C T O R S
X X X
CHAPTER 2 — COMPREHENSIVE JUVENILE

INTERVENTION PROGRAM
X X X
SEC. 19. Community-based Programs on Juvenile Justice

and Welfare. — Community-based programs on juvenile justice
and welfare shall be instituted by the L G U s through the L C P C ,
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school, youth organizations and other concerned agencies. The

L G U s shall provide community-based services which respond to
the special needs, problems, interests and concerns of children and
which offer appropriate counseling and guidance to them and their
families. These programs shall consist of three levels:
( a ) P r i m a r y intervention includes general measures to

promote social justice and equal opportunity, which tackle perceived
root causes of offending;
(b) Secondary intervention includes measures to assist

children at risk; and
(c) T e r t i a r y intervention includes measures to avoid unnec-

essary contact with the formal justice system and other measures to
prevent re-offending.
T I T L E rV — T R E A T M E N T O F C H I L D R E N B E L O W T H E
AGE OF C R I M I N A L RESPONSIBILITY
S E C . 20. Children Below the Age of Criminal Responsibi-

lity. — I f it has been determined that the child taken into custody
is fifteen (15) years old or below, the authority which will have an
initial contact with the child has the duty to immediately release the
child to the custody of his/her parents or guardian, or in the absence
thereof, the child's nearest relative. Said authority shall give notice
to the local social welfare and development officer who will deter-
mine the appropriate programs in consultation with the child and
to the person having custody over the child. If the parents, guard-
ians or nearest relatives cannot be located, or if they refuse to take
custody, the child may be released to any of the following: a duly
registered nongovernmental or religious organization; a barangay
official or a member of the Barangay Council for the Protection of
Children ( B C P C ) ; a local social welfare and development officer; or
when and where appropriate, the D S W D . If the child referred to
herein has been found by the Local Social Welfare and Development
Office to be abandoned, neglected or abused by his parents, or in the
event that the parents will not comply with the prevention program,
the proper petition for involuntary commitment shall be filed by the
D S W D or the Local Social Welfare and Development Office pursu-
ant to Presidential Decree N o . 603, otherwise, known as "The Child
and Youth Welfare Code."
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TITLE V — JUVENILE JUSTICE A N D W E L F A R E SYSTEM

CHAPTER 1 — INITIAL CONTACT WITH THE CHILD
SEC. 21. Procedure for Taking the Child into Custody. —

From the moment a child is taken into custody, the law enforcement
officer shall:
(a) Explain to the child in simple language and in a dialect
that he/she can understand why he/she is being placed under custody
and the offense that he/she allegedly committed;
(b) Inform the child of the reason for such custody and advise
the child of his/her constitutional rights in a language or dialect
understood by him/her;
(c) Properly identify himself/herself and present proper
identification to the child;
(d) Refrain from using vulgar or profane words and from
sexually harassing or abusing, or making sexual advances on the
child in conflict with the law;
( e ) A v o i d displaying or using any firearm, weapon, handcuffs
or other instruments of force or restraint, unless absolutely necessary
and only after all other methods of control have been exhausted and
have failed;
(f) Refrain from subjecting the child in conflict with the law
to greater restraint than is necessary for his/her apprehension;
(g) A v o i d violence or unnecessary force;
(h) Determine the age of the child pursuant to Section 7 of
this Act;
( i ) Immediately but not later than eight (8) hours after

apprehension, turn over custody of the child to the Social Welfare
and Development Office or other accredited N G O s , and notify the
child's apprehension. T h e social welfare and development officer
shall explain to the child and the child's parents/guardians the
consequences of the child's act with a v i e w towards counseling
and rehabilitation, diversion from the criminal justice system, and
reparation, if appropriate;
(j) T a k e the child immediately to the proper medical and

health officer for a thorough physical and mental examination. T h e
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examination results shall be kept confidential unless otherwise

ordered by the Family Court. W h e n e v e r the medical treatment is
required, steps shall be immediately undertaken to provide the
same;
( k ) Ensure that should detention of the child in conflict with

the law be necessary, the child shall be secured in quarters separate
from that of the opposite sex and adult offenders;
(1) Record the following in the initial investigation:

1. W h e t h e r handcuffs or other instruments of restraint
w e r e used, and if so, the reason for such;
2. T h a t the parents or guardian of a child, the D S W D ,
and the P A O have been informed of the apprehension
and the details thereof; and
3. T h e exhaustion of measures to determine the age of
a child and the precise details of the physical and
medical examination or the failure to submit a child
to such examination; and
( m ) Ensure that all statements signed by the child during

investigation shall be witnessed by the child's parents or guardian,
social worker, or legal counsel in attendance who shall affix his/her
signature to the said statement.
A child in conflict with the law shall only be searched by a law
enforcement officer of the same gender and shall not be locked up in
a detention cell.
S E C . 22. Duties During Initial Investigation. — The
law enforcement officer shall, in his/her investigation, determine
where the case involving the child in conflict with the law should be
referred.
T h e taking of the statement of the child shall be conducted
in the presence of the following: (1) child's counsel of choice or in
the absence thereof, a lawyer from the Public Attorney's Office; (2)
the child's parents, guardian, or nearest relative, as the case may
be; and (3) the local social welfare and development officer. In the
absence of the child's parents, guardian, or nearest relative, and
the local social welfare and development officer, the investigation
shall be conducted in the presence of a representative of an N G O ,
religious group, or member of the B C P C .
117
After the initial investigation, the local social worker conducting

the same may do either of the following:
(a) Proceed in accordance with Section 20 if the child is
fifteen (15) years or below or above fifteen (15) but below eighteen
(18) years old, who acted without discernment; and
(b) If the child is above fifteen (15) years old but below
eighteen (18) and who acted with discernment, proceed to diversion
under the following chapter.
CHAPTER 2 — DIVERSION
SEC. 23. System of Diversion. — Children in conflict with

the law shall undergo diversion programs without undergoing court
proceedings subject to the conditions herein provided:
(a) Where the imposable penalty for the crime committee

is not more than six (6) years imprisonment, the law enforcement
officer or Punong Barangay with the assistance of the local social
welfare and development officer or other members of the L C P C
shall conduct mediation, family conferencing and conciliation
and, where appropriate, adopt indigenous modes of conflict
resolution in accordance with the best interest of the child with a
view to accomplishing the objectives of restorative justice and the
formulation of a diversion program. T h e child and his/her family
shall be present in these activities.
(b) In victimless crimes where the imposable penalty is not

more than six (6) years imprisonment, the local social welfare and
development officer shall meet with the child and his/her parents
or guardians for the development of the appropriate diversion and
rehabilitation program, in coordination with the B C P C .
(c) Where the imposable penalty for the crime committed

exceeds six (6) years imprisonment, diversion measures may be
resorted to only by the court.
S E C . 24. Stages Where Diversion May be Conducted. —

Diversion may be conducted at the Katarungang Pambarangay, the
police investigation or the inquest or preliminary investigation stage
and at all levels and phases of the proceedings including judicial
level.
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S E C . 25. Conferencing, Mediation and Conciliation. A

child in conflict with law may undergo conferencing, mediation or
conciliation outside the criminal justice system or prior to his entry
into said system. A contract of diversion may be entered into during
such conferencing, mediation or conciliation proceedings.
S E C . 26. Contract of Diversion. — If during the conferencing,

mediation or conciliation, the child voluntarily admits the
commission of the act, a diversion program shall be developed when
appropriate and desirable as determined under Section 30. Such
admission shall not be used against the child in any subsequent
judicial, quasi-judicial or administrative proceedings. The diversion
program shall be effective and binding if accepted by the parties
concerned. T h e acceptance shall be in writing and signed by the
parties concerned and the appropriate authorities. T h e local social
welfare and development officer shall supervise the implementation
of the diversion program. T h e diversion proceedings shall be
completed within forty-five (45) days. T h e period of prescription of
the offense shall be suspended until the completion of the diversion
proceedings but not to exceed forty-five (45) days.
T h e child shall present himself/herself to the competent

authorities that imposed the diversion program at least once a month
for reporting and evaluation of the effectiveness of the program.
Failure to comply with the terms and conditions of the contract

of diversion, as certified by the local social welfare and development
officer, shall give the offended party the option to institute the
appropriate legal action.
T h e period of prescription of the offense shall be suspended

during the effectivity of the diversion program, but not exceeding a
period of two (2) years.
S E C . 27. Duty of the Punong Barangay When There is No

Diversion. — If the offense does not fall under Section 23(a) and
(b), or if the child, his/her parents or guardian does not consent to
a diversion, the Punong Barangay handling the case shall, within
three (3) days from determination of the absence of jurisdiction over
the case or termination of the diversion proceedings, as the case may
be, forward the records of the case of the child to the law enforcement
officer, prosecutor or the appropriate court, as the case may be. Upon
the issuance of the corresponding document, certifying to the fact
119
that no agreement has been reached by the parties, the case shall be
filed according to the regular process.
SEC. 28. Duty of the Law Enforcement Officer When There

is No Diversion. — If the offense does not fall under Section 23(a)
and (b), or if the child, his/her parents or guardian does not consent
to a diversion, the Women and Children Protection Desk of the
P N P , or other law enforcement officer handling the case of the child
under custody, to the prosecutor or judge concerned for the conduct
of inquest and/or preliminary investigation to determine whether
or not the child should remain under custody and correspondingly
charged in court. The document transmitting said records shall
display the word " C H I L D " in bold letters.
SEC. 29. Factors in Determining Diversion Program. —

In determining whether diversion is appropriate and desirable, the
following factors shall be taken into consideration:
(a) The nature and circumstances of the offense charged;

(b) T h e frequency and the severity of the act;
(c) The circumstances of the child (e.g., age, maturity,
intelligence, etc.);
(d) The influence of the family and environment on the
growth of the child;
(e) The reparation of injury to the victim;
(f) The weight of the evidence against the child;
(g) T h e safety of the community; and
(h) The best interest of the child.
SEC. 30. Formulation of the Diversion Program. — In

formulating a diversion program, the individual characteristics and
the peculiar circumstances of the child in conflict with the l a w shall
be used to formulate an individualized treatment.
T h e following factors shall be considered in formulating a

diversion program for the child:
(a) The child's feelings of remorse for the offense he/she

committed;
(b) T h e parents' or legal guardians' ability to guide and
supervise the child;
120
(c) T h e victim's v i e w about the propriety of the measures to

be imposed; and
(d) T h e availability of community-based programs for
rehabilitation and reintegration of the child.
S E C . 31. Kinds of Diversion Programs. — T h e diversion

program shall include adequate socio-cultural and psychological
responses and services for the child. At the different stages where
diversion may be resorted to, the following diversion programs may
be agreed upon, such as, but not limited to:
(a) At the level of the Punong Barangay:

(1) Restitution of property;
(2) Reparation of the damage caused;
(3) Indemnification for consequential damages;
(4) W r i t t e n or oral apology;
(5) Care, guidance and supervision orders;
(6) Counseling for the child in conflict with the law and
the child's family;
(7) Attendance in trainings, seminars and lectures on:
(i) anger management skills;
(ii) problem solving and/or conflict resolution
skills;
( i i i ) values formation; and
( i v ) other skills which will aid the child in dealing
with situations which can lead to repetition of
the offense;
(8) Participation in available community-based pro-
grams, including community service; or
(9) Participation in education, vocation and life skills
programs.
(b) At the level of the law enforcement officer and the
prosecutor:
(1) Diversion programs specified under paragraphs (a)
(1) to (a)(9) herein; and
(2) Confiscation and forfeiture of the proceeds or
instruments of the crime;
121
(c) At the level of the appropriate court:

(1) Diversion programs specified under paragraphs (a)
and (b) above;
(2) Written or oral reprimand or citation;
(3) Fine;
(4) Payment of the cost of the proceedings; or
(5) Institutional care and custody.
CHAPTER 3 — PROSECUTION
SEC. 32. Duty of the Prosecutor's Office. — T h e r e shall

be a specially trained prosecutor to conduct inquest, preliminary
investigation and prosecution of cases involving a child in conflict
with the law. If there is an allegation of torture or ill-treatment of a
child in conflict with the law during arrest or detention, it shall be
the duty of the prosecutor to investigate the same.
SEC. 33. Preliminary Investigation and Filing of Infor-

mation. — The prosecutor shall conduct a preliminary investiga-
tion in the following instances: ( a ) when the child in conflict with the
law does not qualify for diversion; (b) when the child, his/her parents
or guardian does not agree to diversion as specified in Sections 27
and 28; and (c) when considering the assessment and recommenda-
tion of the social worker, the prosecutor determines that diversion is
not appropriate for the child in conflict with the law.
Upon serving the subpoena and the affidavit of complaint, the

prosecutor shall notify the Public Attorney's Office of such service,
as well as the personal information, and place of detention of the
child in conflict with the law.
Upon determination of probable cause by the prosecutor,

the information against the child shall be filed before the F a m i l y
Court within forty-five (45) days from the start of the preliminary
investigation.
CHAPTER 4 — COURT PROCEEDINGS
SEC. 34. Bail. — For purposes of recommending the amount

of bail, the privileged mitigating circumstance of minority shall be
considered.
122
S E C . 35. Release on Recognizance. — W h e r e a child is

detained, the court shall order:
( a ) the release of the minor on recognizance to his/her parents
and other suitable person;
(b) the release of the child in conflict with the law on bail; or
(c) the transfer of the minor to a youth detention home/youth
rehabilitation center.
T h e court shall not order the detention of a child in a jail
pending trial or hearing of his/her case.
S E C . 36. Detention of the Child Pending Trial. — Children

detained pending trial may be released on bail or recognizance as
provided for under Sections 34 and 35 under this Act. In all other
cases and whenever possible, detention pending trial may be replaced
by alternative measures, such as close supervision, intensive care
or placement with a family or in an educational setting or home.
Institutionalization or detention of the child pending trial shall be
used only as a measure of last resort and for the shortest possible
period of time.
W h e n e v e r detention is necessary, a child will always be
detained in youth detention homes established by local governments,
pursuant to Section 8 of the F a m i l y Courts Act, in the city or
municipality where the child resides.
In the absence of a youth detention home, the child in conflict
with the law may be committed to the care of the D S W D or a local
rehabilitation center recognized by the government in the province,
city or municipality within the jurisdiction of the court. T h e center
or agency concerned shall be responsible for the child's appearance
in court whenever required.
SEC. 37. Diversion Measures. — W h e r e the maximum penalty

imposed by law for the offense with which the child in conflict with
the law is charged is imprisonment of not more than twelve (12)
years, regardless of the fine or fine alone regardless of the amount,
and before arraignment of the child in conflict with the law, the
court shall determine whether or not diversion is appropriate.
SEC. 38. Automatic Suspension of Sentence. — Once the

child who is under eighteen (18) years of age at the time of the com-
mission of the offense is found guilty of the offense charged, the
123
court shall determine and ascertain any civil liability which may
have resulted from the offense committed. However, instead of pro-
nouncing the judgment of conviction, the court shall place the child
in conflict with the law under suspended sentence, without need of
application: Provided, however, That suspension of sentence shall
still be applied even if the juvenile is already eighteen years (18) of
age or more at the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various
circumstances of the child, the court shall impose the appropriate
disposition measures as provided in the Supreme Court Rule on
Juveniles in Conflict with the L a w .
SEC. 39. Discharge of the Child in Conflict with the Law.

— Upon the recommendation of the social worker who has custody
of the child, the court shall dismiss the case against the child
whose sentence has been suspended and against whom disposition
measures have been issued, and shall order the final discharge of
the child if it finds that the objective of the disposition measures
have been fulfilled.
T h e discharge of the child in conflict with the law shall not

affect the civil liability resulting from the commission of the offense,
which shall be enforced in accordance with law.
SEC. 40. Return of the Child in Conflict with the Law

to Court. — If the court finds that the objective of the disposition
measures imposed upon the child in conflict with the law have not
been fulfilled, or if the child in conflict with the law has willfully failed
to comply with the conditions of his/her disposition or rehabilitation
program, the child in conflict with the l a w shall be brought before
the court for execution of judgment.
If said child in conflict with the law has reached eighteen

(18) years of age while under suspended sentence, the court shall
determine whether to discharge the child in accordance with this
Act, to order execution of sentence, or to extend the suspended
sentence for a certain specified period or until the child reaches the
maximum age of twenty-one (21) years.
SEC. 41 Credit in Service of Sentence. — T h e child in conflict

with the law shall be credited in the services of his/her sentence
with the full time spent in actual commitment and detention under
this Act.
124
S E C . 42. Probation as an Alternative to Imprisonment.

T h e court may, after it shall have convicted and sentenced a child
in conflict with the law, and upon application at any time, place the
child on probation in lieu of service of his/her sentence taking into
account the best interest of the child. For this purpose, Section 4
of Presidential Decree N o . 968, otherwise known as the "Probation
L a w of 1976," is hereby amended accordingly.
C H A P T E R 5 — C O N F I D E N T I A L I T Y OF R E C O R D S A N D
PROCEEDINGS
S E C . 43. Confidentiality of Records and Proceedings. —

A l l records and proceedings involving children in conflict with the
law from initial contact until final disposition of the case shall be
considered privileged and confidential. T h e public shall be excluded
during the proceedings and the records shall not be disclosed directly
or indirectly to anyone by any of the parties or the participants in the
proceedings for any purpose whatsoever, except to determine if the
child in conflict with the law may have his/her sentence suspended
or if he/she may be granted probation under the Probation L a w , or
to enforce the civil liability imposed in the criminal action.
T h e component authorities shall undertake all measures to

protect this confidentiality of proceedings, including non-disclosure
of records to the media, maintaining a separate police blotter for
cases involving children in conflict with the law and adopting a
system of coding to conceal material information which will lead to
the child's identity. Records of a child in conflict with the law shall
not be used in subsequent proceedings for cases involving the same
offender as an adult, except when beneficial for the offender and
upon his/her written consent.
A person who has been in conflict with the law as a child shall
not be held under any provision of law, to be guilty of perjury or
of concealment or misrepresentation by reason of his/her failure to
acknowledge the case or recite any fact related thereto in response
to any inquiry made to him/her for any purpose.
TITLE VI — REHABILITATION A N D REINTEGRATION
S E C . 44. Objective of Rehabilitation and Reintegration.

— The objective of rehabilitation and reintegration of children
125
in conflict with the law is to provide them with interventions,

approaches and strategies that will enable them to improve their
social functioning with the end goal of reintegration to their families
and as productive members of their communities.
SEC. 45. Court Order Required. — No child shall be received
in any rehabilitation or training facility without a valid order issued
by the court after a hearing for the purpose. The details of this order
shall be immediately entered in a register exclusively for children
in conflict with the law. No child shall be admitted in any facility
where there is no such register.
SEC. 46. Separate Facilities from Adults. — In all
rehabilitation or training facilities, it shall be mandatory that
children shall be separated from adults unless they are members
of the same family. Under no other circumstance shall a child in
conflict with the law be placed in the same confinement as adults.
The rehabilitation, training or confinement area of children

in conflict with the law shall provide a home environment where
children in conflict with the law can be provided w i t h quality
counseling and treatment.
SEC. 47. Female Children. — F e m a l e children in conflict

with the law placed in an institution shall be given special attention
as to their personal needs and problems. T h e y shall be handled by
female doctors, correction officers and social workers, and shall be
accommodated separately from male children in conflict w i t h the
law.
SEC. 48. Gender-Sensitivity Training. — No personnel of

rehabilitation and training facilities shall handle children in conflict
with the law without having undergone gender sensitivity training.
SEC. 49. Establishment of Youth Detention Homes. — T h e

L G U s shall set aside an amount to build youth detention homes as
mandated by the Family Courts A c t . Y o u t h detention homes m a y
also be established by private and N G O s licensed and accredited by
the D S W D , in consultation with the J J W C .
SEC. 50. Care and Maintenance of the Child in Conflict

with the Law. — T h e expenses for the care and maintenance of a
child in conflict with the law under institutional care shall be borne by
his/her parents or those persons liable to support him/her: Provided,
126
That in case his/her parents or those persons liable to support him/

her cannot pay all or part of said expenses, the municipality where
the offense was committed shall pay one-third (1/3) of said expenses
or part thereof; the province to which the municipality belongs shall
pay one-third (1/3) and the remaining one-third (1/3) shall be borne
by the national government. Chartered cities shall pay two-thirds
(2/3) of said expenses; and in case a chartered city cannot pay said
expenses, part of the internal revenue allotments applicable to the
unpaid portion shall be withheld and applied to the settlement of
said obligations: Provided, further, That in the event that the
child in conflict w i t h the law is not a resident of the municipality/city
where the offense was committed, the court, upon its determination,
may require the city/municipality where the child in conflict with
the law resides to shoulder the cost.
A l l city and provincial governments must exert effort for the

immediate establishment of local detention homes for children in
conflict with the law.
S E C . 51. Confinement of Convicted Children in Agricul-

tural Camps and other Training Facilities. — A child in conflict
with the law may, after conviction and upon order of the court, be
made to serve his/her sentence, in lieu of confinement in a regular
penal institution, in an agricultural camp and other training facili-
ties that may be established, maintained, supervised and controlled
by the B U C O R , in coordination with the D S W D .
S E C . 52. Rehabilitation of Children in Conflict with

the Law. — Children in conflict with the law, whose sentences
are suspended may, upon order of the court, undergo any or a
combination of disposition measures best suited to the rehabilitation
and welfare of the child as provided in the Supreme Court Rule on
Juveniles in Conflict with the L a w .
If the community-based rehabilitation is availed of by a child in
conflict with the law, he/she shall be released to parents, guardians,
relatives or any other responsible person in the community. Under
the supervision and guidance of the local social welfare and develop-
ment officer, and in coordination with his/her parents/guardian, the
child in conflict with the law shall participate in community-based
programs, which shall include, but not limited to:
(1) Competency and life skills development;
127
(2) Socio-cultural and recreational activities;

(3) Community volunteer projects;
(4) Leadership training;
(5) Social services;
(6) Homelife services;
(7) Health services;
(8) Spiritual enrichment; and
(9) Community and family welfare services.
In accordance therewith, the family of the child in conflict with
the law shall endeavor to actively participate in the community-
based rehabilitation.
Based on the progress of the youth in the community, a final
report will be forwarded by the local social welfare and development
officer to the court for final disposition of the case.
If the community-based programs are provided as diversion

measures under Chapter I I , T i t l e V, the programs enumerated
above shall be made available to the child in conflict with the law.
SEC. 53. Youth Rehabilitation Center. — T h e youth

rehabilitation center shall provide 24-hour group care, treatment and
rehabilitation services under the guidance of a trained staff where
residents are cared for under a structured therapeutic environment
with the end v i e w of reintegrating them in their families and
communities as socially functioning individuals. A quarterly report
shall be submitted by the center to the proper court on the progress
of the children in conflict with the law. Based on the progress of
the youth in the center, a final report will be forwarded to the court
for final disposition of the case. T h e D S W D shall establish youth
rehabilitation centers in each region of the country.
SEC. 54. Objectives of Community-Based Programs. —

The objectives of community-based programs are as follows:
(a) Prevent disruption in the education or means of livelihood

of the child in conflict with the law in case he/she is studying, working
or attending vocational learning institutions;
(b) Prevent separation of the child in conflict with the law

from his/her parents/guardians to maintain the support system
128
fostered by their relationship and to create greater awareness of

their mutual and reciprocal responsibilities;
(c) Facilitate the rehabilitation and mainstreaming of the

child in conflict with the law and encourage community support and
involvement; and
(d) M i n i m i z e the stigma that attaches to the child in conflict

with the law by preventing jail detention.
S E C . 55. Criteria of Community-Based Programs. — Every

L G U shall establish community-based programs that will focus on
the rehabilitation and reintegration of the child. A l l programs shall
meet the criteria to be established by the J J W C which shall take into
account the purpose of the program, the need for the consent of the
child and his/her parents or legal guardians, and the participation
of the child-centered agencies whether public or private.
S E C . 56. After-Care Support Services for Children in

Conflict with the Law. — Children in conflict with the law whose
cases have been dismissed by the proper court because of good
behavior as per recommendation of the D S W D social worker and/
or any accredited N G O youth rehabilitation center shall be provided
after-care services by the local social welfare and development
officer for a period of at least six (6) months. T h e service includes
counseling and other community-based services designed to
facilitate social reintegration, prevent re-offending and make the
children productive members of the community.
TITLE VII — GENERAL PROVISIONS
CHAPTER 1 — EXEMPTING PROVISIONS
SEC. 57. Status Offenses. — A n y conduct not considered

an offense or not penalized if committed by an adult shall not be
considered an offense and shall not be punished if committed by a
child.
SEC. 58. Offenses Not Applicable to Children. — Persons
below eighteen (18) years of age shall be exempt from prosecution
for the crime of vagrancy and prostitution under Section 202 of the
Revised Penal Code, of mendicancy under Presidential Decree No.
129
1563, and sniffing of rugby under Presidential Decree N o . 1619, such

prosecution being inconsistent with the United Nations Convention
on the Rights of the Child: Provided, That said persons shall
undergo appropriate counseling and treatment program.
SEC. 59. Exemption from the Application of Death Penalty.

— The provisions of the Revised Penal Code, as amended, Republic
Act N o . 9165, otherwise known as the Comprehensive Dangerous
Drugs Act of 2002, and other special laws notwithstanding, no death
penalty shall be imposed upon children in conflict with the law.
CHAPTER 2 — PROHIBITED ACTS
SEC. 60. Prohibition Against Labeling and Shaming.

— In the conduct of the proceedings beginning from the initial
contact with the child, the competent authorities must refrain
from branding or labeling children as young criminals, juvenile
delinquents, prostitutes or attaching to them in any manner any
other derogatory names. Likewise, no discriminatory remarks and
practices shall be allowed particularly with respect to the child's
class or ethnic origin.
SEC. 61. Other Prohibited Acts. — T h e following and any

other similar acts shall be considered prejudicial and detrimental
to the psychological, emotional, social, spiritual, moral and physical
health and well-being of the child in conflict with the law and
therefore, prohibited:
(a) Employment of threats of whatever kind and nature;
(b) Employment of abusive, coercive and punitive measures

such as cursing, beating, stripping, and solitary confinement;
(c) Employment of degrading, inhuman end cruel forms of

punishment such as shaving the heads, pouring irritating, corrosive
or harmful substances over the body of the child in conflict with the
law, or forcing him/her to walk around the community wearing signs
which embarrass, humiliate, and degrade his/her personality and
dignity; and
(d) Compelling the child to perform involuntary servitude in

any and all forms under any and all instances.
130
CHAPTER 3 — PENAL PROVISION
S E C . 62. Violation ofthe Provisions ofthis Act or Rules or

Regulations in General. — A n y person who violates any provision
of this A c t or any rule or regulation promulgated in accordance
thereof shall, upon conviction for each act or omission, be punished
by a fine of not less than T w e n t y thousand pesos (P20.000.00) but not
more than Fifty thousand pesos (P50,000.00) or suffer imprisonment
of not less than eight (8) years but not more than ten (10) years,
or both such fine and imprisonment at the discretion of the court,
unless a higher penalty is provided for in the Revised Penal Code
or special laws. If the offender is a public officer or employee, he/
she shall, in addition to such fine and/or imprisonment, be held
administratively liable and shall suffer the penalty of perpetual
absolute disqualification.
CHAPTER 4 — APPROPRIATION PROVISION
X X X
TITLE VIII — TRANSITORY PROVISIONS
S E C . 64. Children in Conflict with the Law Fifteen (15)

Years Old and Below. — Upon effectivity of this Act, cases
of children fifteen (15) years old and below at the time of the
commission of the crime shall immediately be dismissed and the
child shall be referred to the appropriate local social welfare and
development officer. Such officer, upon thorough assessment of the
child, shall determine whether to release the child to the custody of
his/her parents, or refer the child to prevention programs as provided
under this Act. Those with suspended sentences and undergoing
rehabilitation at the youth rehabilitation center shall likewise be
released, unless it is contrary to the best interest of the child.
S E C . 65. Children Detained Pending Dial. — If the child

is detained pending trial, the Family Court shall also determine
whether or not continued detention is necessary and, if not,
determine appropriate alternatives for detention.
If detention is necessary and he/she is detained with adults,
the court shall immediately order the transfer of the child to a youth
detention home.
131
SEC. 66. Inventory of "Locked-up" and Detained Children

in Conflict with the Law. — The P N P , the B J M P and the B U C O R
are hereby directed to submit to the JJWC, within ninety (90) days
from the effectivity of this Act, an inventory of all children in conflict
with the law under their custody.
SEC. 67. Children Who Reach the Age of Eighteen (18)

Years Pending Diversion and Court Proceedings. — If a child
reaches the age of eighteen (18) years pending diversion and court
proceedings, the appropriate diversion authority in consultation
with the local social welfare and development officer or the Family
Court in consultation with the Social Services and Counseling
Division (SSCD) of the Supreme Court, as the case may be, shall
determine the appropriate disposition. In case the appropriate court
executes the judgment of conviction, and unless the child in conflict
the law has already availed of probation under Presidential Decree
N o . 603 or other similar laws, the child may apply for probation if
qualified under the provisions of the Probation L a w .
SEC. 68. Children Who Have Been Convicted and are

Serving Sentence. — Persons who have been convicted and are
serving sentence at the time of the effectivity of this Act, and w h o
were below the age of eighteen (18) years at the time the commission
of the offense for which they w e r e convicted and are serving sentence,
shall likewise benefit from the retroactive application of this A c t .
They shall be entitled to appropriate dispositions provided under
this Act and their sentences shall be adjusted accordingly. T h e y
shall be immediately released if they are so qualified under this A c t
or other applicable law.
TITLE K — FINAL PROVISIONS

X X X
SEC. 71. Repealing Clause. — A l l existing laws, orders,

decrees, rules and regulations or parts thereof inconsistent with the
provisions of this A c t are hereby repealed or modified accordingly.
SEC. 72. Effectivity. — This A c t shall take effect after fifteen

(15) days from its publication in at least two (2) national newspapers
of general circulation.
Approved: April 28, 2006.
132
• W h o are minors?
R . A . 9344 defines children as persons under the age of 18.

T h e y are in turn classified as:
a. Children at risk — those who are vulnerable to and

at the risk of committing criminal offenses because
of personal, family and social circumstances; and
b. Children in conflict with the law ( C I C L ) — those

w h o are alleged as, accused of or adjudged as having
committed an offense.
It is prohibited for authorities to brand or label these

children as 'young criminals,'juvenile delinquents,' 'prostitutes'
or attach to them any derogatory names in any manner.
• What are the features of R.A. 9344?
a. M i n i m u m age of criminal responsibility
A child 15 years of age or under at the time of the

commission of the offense shall be exempt from criminal
liability. But he shall be subject to an intervention pro-
gram pursuant to Section 20 thereof.
A child over 15 years old but under 18 shall likewise

be exempt from criminal liability and shall be subject to
intervention program unless he acted with discernment
in which case he shall undergo diversion program.
Criminal irresponsibility does not include exemption
from civil liability.
T h e C I C L shall enjoy presumption of minority. In
case of doubt as to the age of the child, it shall be resolved
in his favor.
Cases pending with court involving a C I C L shall
undergo a hearing on the motion to determine the age
of the child and during the pendency of such motion, the
proceedings on the main case shall be suspended.
b. System of diversion instead of prosecution and/or penalty
T h e diversion programs for children over 15 but
under 18 who acted with discernment shall be without
133
undergoing court proceedings. The crimes covered are

categorized into:
1. Where the imposable penalty is not more than six
years (six years and below); and
There is a victim of the crime — diversion shall
be before the law enforcement officer or the
Punong Barangay and shall be in the form of
mediation, family conferencing and conciliation
attended by the child and his family;
The crime is victimless — diversion shall
be conducted by the local social welfare and
development officer ( S W D O ) with the child and
his parents or guardians.
2. Where the imposable penalty exceeds six years (six
years and one day or more) diversion measures shall
be by courts only.
In case the penalty imposable is not more
than 12 years, regardless of the fine, or fine only
regardless of amount, and before arraignment of
the child, the court shall determine whether or not
diversion is appropriate.
T h e period of prescription of the offense shall
be suspended during the effectivity of the diversion
program but not exceeding two years.
3. If the offense does not fall under any of the above or

if the child, his parents or guardian does not consent
to a diversion, the authority handling the case shall
forward the records to the prosecutor or court within
three days from the determination of absence of
jurisdiction or termination of the proceedings and
shall be filed according to the regular process.
Detention of the child pending trial
Institutionalization or detention shall be a measure

of last resort and for the shortest possible period of time.
Detention may be replaced by alternative measures such
as close supervision, intensive care or placement with a
family or in an educational setting or home.
134
d. Automatic suspension of sentence
A child under 18 at the time of commission of the

crime who is found guilty of the offense charged shall
be placed under suspended sentence without need of
application even if the child is already 18 or more at the
time of the pronouncement of guilt unless disqualified
under P . D . 603. (Declador vs. Gubaton)
If the child has reached 18 while under suspended

sentence, the court shall determine whether:
To discharge the child;
To order execution of sentence; or
To extend the suspended sentence for a certain
period or until he reaches the maximum age of
21 years.
T h e child shall be credited in full for the time spent
in actual commitment and detention.
e. Probation privilege
Upon application at any time, the court shall place
the child on probation in lieu of service of sentence. For
this purpose, Section 4 of the Probation L a w is modified.
f. Status offenses
A n y conduct which is not an offense when committed
by an adult shall not be considered an offense and shall
not be punished if committed by a child. An example is
violation of curfew ordinances.
g. Offenses not applicable to persons below 18
1. Vagrancy and prostitution under Article 202, R P C
2. Mendicancy under P . D . 1563, and
3. Sniffing rugby under P . D . 1619.
• When shall a child in conflict with the law be subject to prelimi-

nary investigation and filing of information?
Preliminary investigation shall be conducted by the
Prosecutor in the following cases:
a. When the child does not qualify for diversion;
135
b. When the child, his parents or guardian does not

agree to diversion; and
c. When the prosecutor determines that diversion is
not appropriate for the C I C L , considering the as-
sessment and recommendation of the social worker.
Upon determination of probable cause, the information
against the child shall be filed with the Family Court within 45
days from the start of the preliminary investigation.
• Who are the minors exempt from criminal liability?

1. A minor 15 years old or under is absolutely exempt from
criminal liability. T h e age of exemption was increased
from 9 to 15.
2. A minor over 15 and under 18 who did not act with
discernment. This likewise modified the provision of
Article 12 on exemption of those over 9 but under 15 who
did not act with discernment.
• Who are the minors disqualified from suspension of sentence?
Pursuant to P . D . 603 a minor w h o ( a ) has once enjoyed

suspension of sentence under its provisions or (b) convicted for
an offense punishable by death or life imprisonment or (c) by
Military Tribunals cannot avail of suspended sentence. T h e
law was reproduced in A . M . N o . 02-1-18-SC where, except for
those under paragraph 3, Section 32 of the law, the sentence of
the accused is automatically suspended:
Sec. 32. Automatic Suspension of Sentence and

Disposition Order. - T h e sentence shall be suspended
without need of application by the juvenille in conflict
with the law. T h e court shall set the case for disposition
conference within fifteen (15) days from the promulgation
of sentence which shall be attended by the social worker of
the Family Court, the juvenile, and his parents or guardian
ad litem. It shall proceed to issue any or a combination
of the following disposition measures best suited to the
rehabilitation and welfare of the juvenile: care, guidance,
and supervision orders; Drug and alcohol treatment;
Participation in group counseling and similar activities;
136
Commitment to the Youth Rehabilitation Center of the

D S W D or other centers for juvenile in conflict with the
law authorized by the Secretary of D S W D .
T h e Social Services and Counseling Division ( S S C D )

of the D S W D shall monitor the compliance by the juvenile
in conflict with the law with the disposition measure
and shall submit regularly to the Family Court a status
and progress report on the matter. T h e Family Court
may set a conference for the evaluation of such report in
the presence, if practicable, of the juvenile, his parents
or guardian, and other persons whose presence may be
deemed necessary.
T h e benefits of suspended sentence shall not apply
to a juvenile in conflict with the law who has once enjoyed
suspension of sentence or to one who is convicted of an
offense punishable by death, reclusion perpetua or life
imprisonment, or when at the time of promulgation of
judgment the juvenile is already 18 years of age or over.
• What is the meaning of "punishable" in the disqualification

from suspension of sentence?
"Punishable" is defined as "deserving of, or capable, or
liable to punishment; liable to be punished; may be punished;
liable to punishment. "It does not mean "must be punished,"
but "liable to be punished" Villalon defined it as "deserving of,
or liable for, punishment." T h e term refers to possible, not to
actual sentence. It is concerned with the penalty which may be,
and not which is imposed.
Disqualification is based on nature of crime charged and
the imposable penalty therefor, and not on the penalty imposed
by the court after trial. It is not the actual penalty imposed
but the possible one which determines the disqualification of a
juvenile. (Declarador v. Gubaton, G.R. No. 159208, August 18,
2006)
• Did R.A. 9344 on automatic suspension of sentence repeal the

grounds for disqualification under P.D. 603?
N o . R . A . 9344 which took effect on M a y 20, 2006 merely
amended Article 192 of P.D. 603 in that the suspension of
137
sentence shall be enjoyed by the juvenile even if he is already

18 years old or more at the time of the pronouncement of his
guilt. The other disqualifications in Article 192 and Section
32 of A . M . No. 02-1-18-SC have not been deleted from Section
38 of R . A . 9344. Evidently, the intention of Congress was
to maintain the other disqualifications in P . D . 603. Thus,
juveniles convicted of a crime the imposable penalty for which
is reclusion perpetua, life imprisonment, or reclusion perpetua
to death or death, are disqualified from having their sentences
suspended.
Statutes in pari materia should be read and construed
together because enactments of the same legislature on the
same subject are supposed to form part of one uniform system;
later statutes are supplementary or complimentary to the
earlier enactments and in the passage of its acts the legislature
is supposed to have in mind the existing legislations on the
subject and to have enacted the new act with reference thereto.
Statutes in pari materia should be construed together to attain
the purposes of an expressed national policy, (id.)
• When else can suspension of sentence not be availed of?
Section 40 provides that once the child reaches 18, the

court shall determine whether to discharge the child, order
execution of sentence, or extend the suspended sentence for a
certain specified period or until the child reaches the maximum
age of 21. Petitioner already reached 21 or over and could no
longer be considered a child. Thus, the application of Sections
38 and 40 appears moot and academic. (Padua v. People, G.R.
No. 168546, July 23, 2008) In this case, PP was charged with
drug trafficking, hence, disqualified for probation under the
Dangerous Drugs L a w . He cannot argue that his right under
R . A . 9344 was violated or that Section 32 of A . M . N o . 02-1-
18-SC, "Rule on Juveniles in Conflict with the L a w " applies
herein. Section 38 of R . A . 9344 and Section 32 of A . M . 02-1-18-
SC both pertain to suspension of sentence and not probation.
Accident
• What is the meaning of accident?
An accident is an occurrence that "happens outside the

sway of our will, and although it comes about through some
138
act of our will, lies beyond the bounds of humanly foreseeable

consequences." It connotes the absence of criminal intent.
Intent is a mental state, the existence of which is shown
by a person's overt acts. Appellant got his shotgun and
returned to the kitchen to shoot his son who had intervened in
the quarrel between appellant and CC. A shotgun would not
have fired off without first being cocked. Appellant cocked the
shotgun before discharging it, showing a clear intent to fire it.
(People v. Agliday, G.R. No. 140794, October 16, 2001)
• What is required for accident to be accepted?
T h e following requisites must concur:

(1) Accused was performing a lawful act with due care;
(2) T h e injury is caused by mere accident; and
(3) T h e r e was no fault or intent of causing the injury. (People
v. Mat-an, December 1992)
W h e n the act is with fault, it will fall under culpa; when

with intent it will become an intentional felony. T h e accident
must not be foreseeable or there will be fault or criminal
negligence.
• What is the effect when accused claims the circumstance of

accident?
H a v i n g claimed that the shooting was accidental, peti-
tioner must prove the same by clear and convincing evidence.
H o w e v e r , the burden of proving the commission of the crime re-
mained with the prosecution. (People v. CA, G.R. No. 1036613,
February 23, 2001)
• What is the basis for exemption from criminal liability for

accident?
Under Article 12, criminal liability does not arise in case
a crime is committed by any person who while performing a
lawful act with due care, causes an injury by mere accident
without fault or intention of causing it. The exemption from
criminal liability under the circumstance showing accident
is based on the lack of criminal intent. For an accident to be
exempting, the act has to be lawful. The act of firing a shotgun
at another is not a lawful act. (People v. Agliday)
139
Relate accident to self-defense.

Accident and self-defense are two incompatible defenses.
Accident presupposes lack of intention, while self-defense
assumes voluntariness, but induced only by necessity. (People
v. Lao-as, G.R. No. 126396, June 29, 2001) When an accused
claims that the crime was the result of an accident, the burden
of proving self-defense will not come into play.
It is hardly a lawful act when accused struggled with

the victim for the ax as the latter's act of taking hold of the
ax was equivocal, and it cannot be deduced therefrom that he
was under the threat of an unlawful aggression from her. T h e
defense of accident, therefore, cannot exempt accused from
liability.
Although the Information charged frustrated murder, a
finding of guilt for the lesser offense of less serious physical
injuries may be made considering that the latter offense
is necessarily included in the former since the essential
ingredients of physical injuries constitute and form part of
those constituting the offense of murder. Similarly, an accused
may be convicted of slight, less serious or serious physical
injuries in a prosecution for homicide or murder, inasmuch as
the infliction of physical injuries could lead to any of the latter
offenses when carried to its utmost degree despite the fact that
an essential requisite of the crime of homicide or murder —
intent to kill — is not required in a prosecution for physical
injuries. (Aradillos v. CA, G.R. No. 135619, January 15, 2004)
What is negligence?
Negligence is the omission to do something which a rea-

sonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do.
(Raynera v. Hiceta, G.R. No. 120027, April 21, 1999)
What is the presumption when a driver bumps the rear of

another vehicle?
Drivers of vehicle who bump the rear of another vehicle are

presumed to be the cause of the accident, unless contradicted by
other evidence. The rationale behind this presumption is that
140
JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES
the driver of the rear vehicle has full control of the situation
as he is in a position to observe the vehicle in front of him.
Consequently, the responsibility to avoid the collision with the
front vehicle lies with the driver of the rear vehicle. His is the
last chance of avoiding the accident. (Raynera v. Hiceta)
Irresistible Force
• What are the elements of irresistible force? compulsion
a. T h e force must be physical, must come from an outside

source, and the accused must act not only without a will
but even against his will.
b. T h e actor must be reduced to a mere instrument, such
that the element of freedom is wanting.
c. T h e duress, force, fear or intimidation must be present,
imminent and impending and of such a nature as to
induce a well-grounded fear of death or serious bodily
injury if the act is not done.
• What is essential for duress to be a valid defense?
For duress to be validly availed of as a defense, it should

be anchored on a real, imminent or reasonable fear for one's
own life or limb and should not be speculative, fanciful, or
imagined. It is based on the complete absence of freedom on the
part of the accused and has its roots in the maxim "Actus me
invito factus non est meus actus" [an act done by me against my
will is not my act]. T h e compulsion employed upon the accused
must have been of such character as to leave no opportunity for
him to spring an escape or to himself foist any act of defense
for self-preservation. Thus, duress is unavailing where the
accused had every opportunity to run away if he had wanted to
or to resist any possible aggression because he was also armed.
L i k e a bare denial, the defense of duress is a self-serving and
negative device which judicial experience shows is conveniently
conjured by felons to justify their participation in a crime.
Hence, like a bare denial, it must fail if unsubstantiated by
clear and convincing evidence and cannot be given greater
evidentiary value than the testimony of credible witnesses who
testify on affirmative matters. (People v. Salvatierra, G.R. No.
111124, June 20, 1996)
141
Uncontrollable Fear comes from within the person.
• What are the elements of uncontrollable fear?

1. Threat which caused the fear of an evil greater than or
at least equal to that which the accused was required to
commit.
2. It promised an evil of such gravity and imminence that
the ordinary man would have succumbed to it.
Just like irresistible force, uncontrollable fear is founded
on duress or lack of voluntariness on the part of the actor.
There must be no possibility of avoiding or escaping from the
situation creating the fear, such as the case of the hostage who
decapitated his fellow hostage because otherwise he shall be
killed by his captors.
The fear experienced by men who allege hearing voices or
suspect other persons would kill or harm them cannot qualify
as the fear that could exempt from criminal liability. At most,
such fear which drive these persons suffering from nervous
breakdown could be mitigating under Article 13 on illness or
defect or circumstances analogous thereto.
Insuperable Cause
• What is insuperable cause?
It is an exempting circumstance which applies to felonies

by omission. The law imposes a duty on the offender to perform
an act but his failure to do so is due to a lawful or insuperable
cause. There is no civil liability because his acts are lawful. For
instance, Article 125 provides for the number of hours when a
person arrested must be delivered to the judicial authorities.
If the peace officers failed to do so because of circumstances
beyond their control such as long holidays when the judicial
offices are not open, that is insuperable cause and the peace
officers will not be liable under Article 125.
142
Chapter Three
CIRCUMSTANCES W H I C H MITIGATE
C R I M I N A L LIABILITY
A r t . 13. Mitigating circumstances. — T h e f o l l o w i n g a r e

m i t i g a t i n g circumstances:
1. T h o s e m e n t i o n e d in the p r e c e d i n g chapter, w h e n
all the r e q u i s i t e s n e c e s s a r y to justify the act or to
e x e m p t f r o m c r i m i n a l liability in the respective
cases a r e not attendant.
2. T h a t the o f f e n d e r is u n d e r 18 y e a r s of a g e or o v e r 70
y e a r s . In the case of the m i n o r , he shall be p r o c e e d e d
a g a i n s t in a c c o r d a n c e w i t h the p r o v i s i o n s of Article
80.
3. T h a t the o f f e n d e r h a d no intention to commit so

g r a v e a w r o n g as that committed.
4. T h a t sufficient p r o v o c a t i o n or threat on the p a r t of

the o f f e n d e d p a r t y immediately p r e c e d e d the act.
5. T h a t the act w a s committed in the immediate vindi-

cation of a g r a v e offense to the one committing the
felony (delito), his spouse, ascendants, descendants,
legitimate, n a t u r a l or a d o p t e d b r o t h e r s or sisters,
or relatives by affinity w i t h i n the same degrees.
6. T h a t of h a v i n g acted u p o n an impulse so p o w e r f u l as
n a t u r a l l y to h a v e p r o d u c e d passion or obfuscation.
7. T h a t the offender h a d voluntarily s u r r e n d e r e d
himself to a p e r s o n in authority or his agents, or
that he h a d voluntarily confessed his guilt before
the court p r i o r to the presentation of the evidence
for the prosecution.
8. T h a t the offender is d e a f a n d d u m b , blind or
o t h e r w i s e suffering some physical defect which
143
thus restricts his m e a n s of action, defense, or

communication w i t h his fellow beings.
9. Such illness of the offender as w o u l d diminish the
exercise of the w i l l - p o w e r of the offender w i t h o u t
h o w e v e r d e p r i v i n g h i m of consciousness of his
acts.
10. A n d , finally, any other circumstance of a similar
nature and a n a l o g o u s to those a b o v e mentioned.
• What are mitigating circumstances?

Mitigating circumstances show the lesser perversity of the
offender and has the effect of lowering the penalty prescribed
for the offense. T h e y are matters of defense which do not
have to be alleged in the information. A r t i c l e 13 enumerates
ordinary mitigating circumstances. T h e r e are circumstances,
too, which have the effect of reducing the penalty but are
not included in this article and are also called extenuating
circumstances. Examples are concealment of dishonor on
the part of the mother in infanticide and abandonment of
the wife by the husband in adultery. U n l i k e aggravating
circumstances, Article 13 allows analogous circumstances to
mitigate the offender's liability.
• What is the rationale for mitigating circumstances?
The rationale behind the whole concept of mitigating

circumstance is to show mercy and some extent of leniency
in favor of an accused who has shown lesser perversity in
the commission of an offense. W h e r e the evidence on record
bespeaks of vileness and depravity, no mercy or leniency
should be accorded an accused who should be made to suffer
in full for acts perpetrated with complete voluntariness and
intent for their tragic consequences. (People v. Santos)
• What are the classifications of mitigating circumstances?
a. Ordinary — lowers the penalty to the minimum period.

Article 13 enumerates ordinary mitigating as well as
provisions on specific felonies where the penalty is
lowered to the minimum period.
144
C I R C U M S T A N C E S W H I C H MITIGATE C R I M I N A L LIABILITY
b. Privileged — lowers the imposable penalty, whether

divisible or indivisible, by one or more degrees.
c. Specific — applies to a specific felony like concealment of

dishonor in the case of abortion by the pregnant woman
herself. These circumstances can either be ordinary or
privileged depending upon the effect on the penalty.
Distinguish ordinary from privileged mitigating circumstances.
ORDINARY PRIVILEGED
1. Can be offset by a generic cannot be offset by

aggravating circumstance any aggravating
circumstance
2. Penalty is lowered to the Penalty is lowered by

minimum period of the one or two degrees
penalty prescribed
3. N o t considered when what A l w a y s considered

is prescribed is single whether the penalty
indivisible penalty imposable is divisible or
indivisible
M i t i g a t i n g circumstances are personal to an accused in

whose favor they exist and cannot be enjoyed by his co-accused.
R R , being below 18 at the time he committed the crime, is en-
titled to the privileged circumstance of minority notwithstand-
ing that the penalty imposable is reclusion perpetua. (People v.
Barreta, G.R. No. 120367, October 16, 2000)
Paragraph 2 of Article 63 states that when what is imposed
on the convict is a penalty made up of two indivisible penalties,
ordinary mitigating circumstance shall operate to bring down
the penalty to the minimum. R . A . 9346 banned the imposition
of the death penalty, thus said provision is inoperatable. There
is now only one indivisible penalty of reclusion perpetua.
Ordinary mitigating lowers the penalty to the minimum

period. As an exception, where there are two ordinary mitigating
with no aggravating circumstance attendant, Article 64(5)
allows the penalty is to be lowered by one degree.
145
Paragraph 1 — Incomplete justifying or exempting circumstances

• What are the requirements for the mitigating circumstance of
incomplete justification/exemption to be present?
In the incomplete justification of defense, there must
always be unlawful aggression otherwise there is nothing to
defend and consequently no occasion to justify the act in defense
of self or relatives or strangers. Without unlawful aggression,
there is neither complete nor incomplete defense.
In accident, the requisites of due care and lack of fault are
indispensable without which negligence will be present giving
rise to culpable felony. If the requisites of lawful act and lack
of intention of causing the injury are absent, an intentional
act results taking the case out of the benefit of this mitigating
circumstance.
• When is incomplete defense ordinary mitigating? When

privileged?
Unlawful aggression is indispensable in self-defense,
complete or otherwise. W h e n unlawful aggression alone is
proved, such incomplete self-defense is appreciated as ordinary
mitigating under Article 13(1). W h e n it is combined with another
element, such incomplete self-defense becomes privileged
mitigating under Article 69. Article 69 which provides for the
imposition of a penalty lower by one or two degrees than that
prescribed by law where the killing is not wholly excusable
applies only where a majority of the conditions required to
justify a criminal act or to exempt from liability are present.
(People v. Deopante, G.R. No. 102772, October 30, 1996)
It is necessary that there be present majority of the

elements of the circumstance for Article 69 to apply. W h e n
the circumstance requires only two elements, the presence
of one is considered a majority. This is privileged mitigating
which cannot be offset by any aggravating circumstance and
is considered even if the penalty prescribed is single and
indivisible under paragraph 1 of Article 63.
If there is only one or less than majority of the elements

present, the incompleteness is an ordinary mitigating circum-
stance under Article 13 and as such can be offset by a generic
aggravating circumstance.
146
• Is unlawful aggression a mitigating circumstance?
N o . A n y first year law student knows that unlawful

aggression is not mitigating. (Estoya v. Singson, A.M. RTJ-
91-758, September 1994) It is incomplete self-defense that
is mitigating, not unlawful aggression which is a mere but
indispensable component of defense of self, of relatives or of
strangers.
Minority
• What amendment was introduced by P.D. 603 on Article 80?
W h a t Article 189 of P . D . 603 modified Article 80 of the

R P C on suspension of sentence; not Article 13(2) which treats
of minority as a mitigating circumstance. Thus, for minority to
be considered as a mitigating circumstance, the offender must
be under 18 years of age at the time the crime was committed
(id.). [But even then, minority is never ordinary mitigating
notwithstanding its inclusion in Article 13. P . D . 603 has been
superseded by R . A . 9344 in that minority up to age 15 in an
absolute exempting circumstance Article 13(2) and Article 68
have been modified accordingly.]
• What is the nature of minority as a mitigating circumstance?

It is never an ordinary mitigating; it is always privileged
mitigating because:
a. Article 47 dictates that if the death penalty is imposable,
the penalty will be lowered to reclusion perpetua;
b. R . A . 9344 mandates that if the minor is 15 or under, he
shall be exempt from criminal liability; and
c. Article 68(2) in relation to R . A . 9344 requires that if
the minor is over 15 but under 18 and he acted with
discernment he shall be entitled to a reduction of penalty
to the next lower penalty but in the proper period.
A l l of these provisions have been modified by R.A. 9344
and 9346.
Penal laws should be liberally construed in favor of
the offender. Accordingly, the mitigating circumstance of
minority should be appreciated in favor of DC who was clearly
a minor when he committed the offense, especially in light
147
of the compassionate liberty the Court has granted to minors

involved in serious crimes. Thus, considering the gravity of
the offense and in the interest of justice, the Court allowed
the presentation of and admitted the birth certificate of the
accused to prove minority although said birth certificates were
not presented or offered in the trial court. T h e same equitable
consideration with respect to DC can be adopted since the fact
of his minority is established by an official document prepared
by the Department of Social Services and Development in the
exercise of its functions and incorporated in the records of this
case which can be taken judicial notice ex mero motu. (People v.
Regalario, G.R. No. 101451, March 23, 1993)
Praeter Intentionem
• What is praeter intentionem?
It is the lack of intention to commit so grave a wrong as

that committed. There should be a great disparity between the
intent (means employed to accomplish the criminal act) and
its consequences. Lack of intent to commit so grave a wrong is
shown by the means employed by the accused, the nature and
the location of the wound.
Praeter intentionem should be appreciated where the
accused had no intent to kill but only to inflict injuries when he
attacked the victim. (People v. Flores, supra)
• When can praeter intentionem not be invoked?
Praeter intentionem cannot be invoked if the acts of the

accused are sufficient to bring about the result intended or
when the means employed would naturally result to the felony
committed. It does not apply to culpa or to crimes not involving
intent. T h e word "intentionem" denotes intentional felonies.
T h e Anti-hazing law express prohibits the application of
this circumstance in favor of the offender.
Sufficient Provocation
• What are the requirements for sufficient provocation?
T h e provocation must be sufficient; immediate to the

commission of the crime; and must originate from the offended
148
party. Provocation is immediate if no interval of time elapsed

between the provocation and the commission of the crime.
(People v. Pagal, 79 SCRA 570 [1977]) [See notes under self-
defense on the comparison between provocation as an element
of self defense and as a mitigating circumstance.]
Sufficient provocation could not mitigate the criminal

liability of the accused. He cannot claim that he was provoked
by 00 when the latter ran away from him because, the hapless
victim feared for his life having been beaten up twice by his
assailants that same evening. To flee when danger lurks is
human and can never be regarded as a source of provocation
sufficient to come within the ambit of the law. In fact, when
an offended party flees from his aggressor, the latter has no
reason to pursue and attack him. (People v. Padilla, G.R. No.
75508, June 10, 1994)
Immediate Vindication of a Grave Offense
• Must the "offense" in immediate vindication be a crime?
N o , but it may be any act or event which offends the ac-

cused causing mental agony to him and moves him to vindi-
cate himself of such offense. For instance, insulting an old man
(U.S. v. Ampar, 37 Phil. 301), or eloping with the offender's
daughter. (People v. Diokno, 63 Phil. 601)
• How should the word "immediate" be understood?

"Immediate" means proximate and allows for a lapse of
time as long as the offender is still suffering from the mental
agony brought about by the "offense" to him. (People v. Parana,
64 Phil. 331) It is unlike in sufficient provocation where there
should be no lapse of time between the provocation and the
commission of the crime.
This circumstance cannot be considered in favor of the
accused when he had sufficient time to recover his serenity.
(People v. Santos)
Appellant should be credited with having acted in the
immediate vindication of a grave offense committed by the
deceased against his wife, consisting of a libidinous attempt
against her virtue and a cowardly attack against her person.
While the law speaks of an "immediate" vindication of a grave
149
offense, the same should be understood to mean "proximate."

(People v. Babor, G.R. No. 106875, September 24, 1996)
Passion and Obfuscation

• What is necessary for passion or obfuscation to be considered?
The passion or obfuscation must arise from accused's law-
ful sentiments. The offended must have done an act unlawful
and sufficient to excite passion or obfuscation on the part of the
accused. (People v. Tiongco, September 1994)
For instance, a person who maintains an illicit relation-
ship with the wife of another is courting the passion or obfus-
cation of the husband because his act of having an affair with
the wife is unjust and sufficient to make the passion of the
husband arise. As the relationship of the husband and the wife
is legitimate, the passion or obfuscation of the husband would
result from lawful sentiments.
» When is passion and obfuscation not appreciated?

The court will not appreciate passion and obfuscation
where the anger did not arise from lawful sentiments. T h e delay
of FF in obeying EE's request to buy a ball caster bearing is too
trivial a matter as to fairly and justly cause such overreaction
on the part of EE. (People v. Tiongco, September 1994)
This circumstance cannot co-exist w i t h treachery or
evident premeditation because passion or obfuscation must be
a spur of the moment. It cannot be appreciated if the acts of
the accused were done in the spirit of revenge and lawlessness,
for which no mitigating circumstance can arise. (People v. CA,
G.R. No. 103613, February 23, 2001). It cannot be claimed in
addition to vindication of grave offense if the t w o circumstances
arose from the same cause.
» Will injury resulting from a quarrel constitute passion or

obfuscation?
N o . For passion and obfuscation to be mitigating, the
same must originate from lawful feelings. T h e turmoil and
unreason that naturally result from a quarrel or fight should
not be confused with the sentiment or excitement in the mind
of a person injured or offended to such a degree as to deprive
150
C I R C U M S T A N C E S W H I C H M I T I G A T E C R I M I N A L LIABILITY
him of his sanity and self-control. T h e excitement which is

inherent in all persons who quarrel and come to blows does not
constitute obfuscation. (People v. Rabanillo, G.R. No 130010
May 26, 1999)
For battered women, there is also the circumstance of
having acted upon an impulse so powerful as to have naturally
produced passion and obfuscation. This state of mind is
present when a crime is the result of an uncontrollable burst
of passion provoked by prior unjust or improper acts or by a
legitimate stimulus so powerful as to overcome reason, as in
acute battering incident. (People v. Genosa, supra)
• How further should the act that produces passion or obfuscation

be from the commission of the crime?
T h e act producing obfuscation must not be far removed
from the commission of the crime by a considerable length of
time, during which the accused might have regained his normal
equanimity. Thus, where at least half an hour elapsed between
the previous fight and the killing, the accused cannot be given
the benefit of the attenuating circumstance of obfuscation.
In this case, 30 minutes intervened between the fistfight
and the killing of MM by R R . T h e attack cannot, therefore,
be said to be the result of a sudden impulse of natural and
uncontrollable fury. H a v i n g been actuated more by the spirit
of revenge or by anger and resentment for having been publicly
berated by M M , RR cannot be credited with the extenuating
circumstance of passion and obfuscation. (People v. Rabanillo)
• Compare sufficient provocation, immediate vindication of a

grave offense and passion or obfuscation.
These three mitigating circumstances are based on the
same ground — the overwhelming emotion that blinds a person
or causes him to lose reason and equanimity. Thus, the offender
cannot be credited with three mitigating circumstances but
only one if all of these are invoked in a case.
Voluntary Surrender
• What are the elements of voluntary surrender?
a. The offender surrendered to a person in authority or his
agent;
151
b. The offender surrendered before arrest is effected; and

c. The surrender must be voluntary, i.e., spontaneous and
must show the intent of the accused to submit himself
unconditionally to the authorities, either because he
acknowledges his guilt or he wishes to save them the
trouble and expense incidental to his search and capture.
Taraya, G.R. No. 135551, October 27, 2000 added a
fourth requisite, that there is no pending warrant of arrest
or information filed. When AA learned that the police were
looking for him, he immediately went to the police station
where he confessed to killing SS in self-defense. However, the
said surrender does not constitute as a mitigating circumstance
for at the time of his surrender, he had a pending warrant of
arrest issued five days before his surrender. His arrest by that
time was imminent.
Be Vera v. De Vera, G.R. No. 172832, April 7, 2009,

clarified that the mere filing of an information and/or the
issuance of a warrant of arrest w i l l not automatically make
the surrender "involuntary." Oco, 458 S C R A 815 appreciated
voluntary surrender because immediately upon learning that a
warrant for his arrest was issued, and without the same having
been served on him, the accused surrendered to the police.
Notwithstanding the pendency of a warrant for his arrest, the
accused may still be entitled to the mitigating circumstance in
case he surrenders, depending on the actual facts surrounding
the very act of giving himself up.
Voluntary surrender is present even if the accused

surrendered one week after the crime. T h e fact is they
voluntarily surrendered to the police before arrest could be
effected. (People v. Amaguin, G.R. No. 54344-45, January 10,
1994)
What determines whether the surrender is voluntary?
T h e surrender must be spontaneous and deliberate,

that is, there must be intent to submit unconditionally to the
authorities. Since it was the police officer who went looking
for the accused immediately after obtaining information from
eye witnesses as to who had perpetrated the crime, even if he
did not resist arrest or deny his criminal act, this cannot be
152
equated with voluntary surrender. (People v. Rebamontan

G.R. No. 125318, April 13, 1999)
On the day following the killing, accused surrendered to

the Provincial Commander. T h a t the latter announced over the
radio that he would issue a "shoot to kill" order unless accused
voluntarily surrenders, and that he was persuaded to surrender
by his employer do not militate against the consideration of his
voluntary surrender. T h e stubborn fact was he was not arrested
and that he presented himself to the Provincial Commander to
surrender. (People v. Morato, G.R. Nos. 95358-59, July 5, 1993)
T h e mitigatingcircumstance of voluntary surrender should

have been considered. T h e evidence shows that immediately
after slaying C C , accused walked all the w a y straight to the
Calinan Patrol Station in Davao City to surrender. (People v.
Curaraton, G.R. No. 96765, July 5, 1993)
T h a t accused admitted that he surrendered because of
fear of reprisal does not retract from the spontaneity of his
surrender and the fact that he had saved the government of the
time and trouble of searching for him. (People v. Amazon, G.R.
No. 136251, January 16, 2001) T h e fact that accused yielded
his weapon to his superior at the time of the incident, albeit
w i t h some persuasion from the latter, should be considered in
his favor. (People v. Amion, G.R. No. 140511, March 1, 2001)
• W h o should surrender?
T h e offender himself should surrender. W h e r e the
offender did not submit himself to the authorities investigating
the commission of the crime, and it was his superior who
surrendered him to the custody of the court, such is not the
voluntary surrender contemplated by law. (People v. Acuram)
T h e essence of voluntary surrender is spontaneity and
the intent of accused to give up and submit unconditionally
to the authorities either because he acknowledges his guilt or
he wishes to save them the trouble and expense necessarily
incurred in his search and capture. Here, it was appellant's
commanding officer who surrendered him to the custody of
the court. Being restrained by one's superiors to stay within
the camp without submitting to the investigating authorities
concerned is not tantamount to voluntary surrender, (id.)
153
Voluntary plea of guilt

• What are the elements of voluntary plea of guilt?
Voluntary plea of guilt must be made:
(1) in open court;

(2) spontaneously and unconditionally; and
(3) prior to the presentation of the evidence of the prosecution.
An extra-judicial confession is not within the concept of
voluntary plea of guilt because it is not made in open court.
The court must be one of original jurisdiction because it must
be made before the presentation of the prosecution's evidence,
which means that the case is being tried for the first time.
Likewise, the court must be possessed with jurisdiction to hear
and decide the case for, if the court is acting without jurisdiction,
all proceedings there are void for lack of jurisdiction, including
the taking of the plea of the accused.
• Why is voluntary plea of guilt mitigating?
It is mitigating because it is an act of repentance and

respect for the law. It indicates a moral disposition in the
accused favorable to his reform.
• What is the effect of an improvident plea of guilt?
T h e accused must be acquitted if the only evidence of his

guilt is his improvident plea due to the prodding of his lawyer
from the Public Attorney's Office. (People v. Mendoza, G.R.
No. 80845, March 1994)
• May voluntary plea of guilt and voluntary surrender be both

considered in one case?
Y e s . These two circumstances are separate and distinct

from each other. T h e y do not arise out of the same facts and
circumstances, hence, will entitle the offender to two mitigating
circumstances when both are present.
• Relate voluntary plea of guilt to plea bargaining.
When accused did not plead to a lesser offense but pleaded

guilty to the rape charges and only bargained for a lesser
penalty, he did not plea bargain but made conditions on the
154
penalty to be imposed. This is erroneous because by pleading

guilty to the offense charged, accused should be sentenced to
the penalty to which he pleaded. It is the essence of a plea of
guilty that the accused admits absolutely and unconditionally
his guilt and responsibility for the offense imputed to him.
Hence, an accused may not foist a conditional plea of guilty on
the court by admitting his guilt provided that a certain penalty
will be meted unto him. (People v. Magat, G.R. No. 130026
May 31, 2000)
For voluntary confession to be appreciated as an extenu-
ating circumstance it must not only be unconditional but the
accused must admit to the offense charged. (People v. Gano,
G.R. No. 134373, February 28, 2001)
Physical defects and illness
• What is required for the defect of the offender to be mitigating?
T h e offender's being deaf and dumb or blind or otherwise

suffering from some physical defect must relate to the offense
because the law requires that the defect has the effect of
restricting his means of action, defense, or communication to
his fellow beings. T h e illness or defect is the contributory cause
that moved him to commit the offense. Thus, rape committed
by a deaf and dumb on the girl of his dreams to whom he
cannot convey his feelings will mitigate his liability unless
the circumstances justify the imposition of a single indivisible
penalty where modifying circumstances have no effect.
T h e fact that the offender suffers from a physical defect, a
severed left hand does not automatically mean that he should
be credited with this mitigating circumstance. In order for
this condition to be appreciated, it must be shown that such
physical defect limits his means of communication with his
fellow beings to such an extent that he did not have complete
freedom of action, consequently resulting in diminution of the
element of voluntariness. Such cannot be appreciated where
appellant's physical condition clearly did not limit his means
of action, defense or communication, nor affect his free will.
Despite his handicap, appellant managed to attack, overcome
and fatally stab his victim. T h e fact that he had only one hand
in no way limited his freedom of action to commit the crime.
(People v. Deopante, G.R. No. 102772, October 30, 1996)
155
• What is necessary for illness to be considered as mitigating?

The illness must only diminish and not deprive the
offender of the consciousness of his acts; otherwise he will be
exempt from criminal liability. (People v. Rafaran)
The defect or illness must be contributory to the
commission of the crime. Without such relation, the defect or
illness shall not be considered.
Analogous circumstances
• Is being a non-Christian an analogous mitigating circumstance?
The appreciation of this circumstance lies within the sound
discretion of the trial court considering all the facets of the
case that would best serve the interest of justice. Even if their
formal education be ignored, such attenuating circumstance is
nonetheless unavailing. T h e fact that defendants belong to the
cultural minorities cannot reduce from the subjective point of
view the defendants' awareness of the gravity of their offense
for robbery and killing are by their v e r y nature just as wrong to
the ignorant as they are to the enlightened. W h a t e v e r may be
the religious or cultural affiliation of a person, heinous crimes
are universally regarded as evil.
Membership in a cultural minority is not expressly

mentioned among the mitigating circumstances, nor would
it come under Article 13(10) which speaks of "any other
circumstances of a similar nature and analogous to those above
mentioned." (People v. Macatanda)
• Is extreme poverty an analogous mitigating circumstance?
Extreme poverty is not among the mitigating circumstances

enumerated in Article 13 and it is doubtful whether it may be
considered as a circumstance of a similar nature or analogous
to those mentioned in said Article. (Gallardo v. Tabamo, Jr.,
Adm. Mat. RTJ-92-881, June 2, 1994)
• Cite some examples of analogous circumstances.
Restitution may be considered mitigating circumstance

in malversation of public funds analogous to voluntary plea
156
of guilty. (Nizurtado v. Sandiganbayan, G.R. No. 107383,

December 7, 1994)
T h a t the petitioner voluntarily took the cow to the

municipal hall to place it unconditionally in the custody of
the authorities and thus save them the trouble of recovering
the cow, can be analogous to voluntary surrender and should
be considered in his favor. (Canta v. People, G.R. No. 140937,
February 28, 2001)
Chapter Four
CIRCUMSTANCES W H I C H AGGRAVATE
CRIMINAL LIABILITY
A r t . 14. Aggravating circumstances. — T h e f o l l o w i n g a r e

a g g r a v a t i n g circumstances:
1. T h a t a d v a n t a g e be t a k e n by the offender of his
p u b l i c position.
2. T h a t the crime be committed in contempt of or w i t h
insult to the p u b l i c authorities.
3. T h a t the act be committed w i t h insult or in d i s r e g a r d
of the respect d u e the offended p a r t y on a c c o u n t of
his r a n k , a g e , or sex, or that it be committed in the
d w e l l i n g of the o f f e n d e d p a r t y , if the latter h a s not
given provocation.
4. T h a t the act be committed w i t h a b u s e of confidence

or obvious ungratefulness.
5. T h a t the c r i m e be committed in the p a l a c e of the
C h i e f E x e c u t i v e , o r i n his p r e s e n c e , o r w h e r e p u b l i c
authorities a r e e n g a g e d i n the d i s c h a r g e o f their
duties or in a p l a c e d e d i c a t e d to r e l i g i o u s w o r s h i p .
6. T h a t the c r i m e be c o m m i t t e d in the nighttime or in

an uninhabited place, or by a b a n d , w h e n e v e r such
circumstances m a y facilitate the c o m m i s s i o n of the
offense.
W h e n e v e r more than three a r m e d malefactors

shall h a v e acted t o g e t h e r in the c o m m i s s i o n of an
offense, it shall be d e e m e d to h a v e b e e n c o m m i t t e d
by a b a n d .
7. T h a t the crime be committed on the occasion of a

conflagration, s h i p w r e c k , e a r t h q u a k e , e p i d e m i c , o r
other calamity o r m i s f o r t u n e .
158
C I R C U M S T A N C E S W H I C H AGGRAVATE
8. T h a t the c r i m e be committed w i t h the aid of a r m e d

m e n o r p e r s o n s w h o i n s u r e o r afford impunity.
9. T h a t the a c c u s e d is a recidivist.
A recidivist is o n e w h o , at the time of his trial

for one c r i m e , shall h a v e p r e v i o u s l y b e e n convicted
by final j u d g m e n t of a n o t h e r c r i m e e m b r a c e d in the
s a m e title of this C o d e .
10. T h a t the o f f e n d e r h a s b e e n p r e v i o u s l y p u n i s h e d for

an offense to w h i c h the l a w attaches an e q u a l or
g r e a t e r p e n a l t y o r for t w o o r m o r e crimes t o w h i c h
it attaches a lighter penalty.
11. T h a t the c r i m e be committed in consideration of a

price, r e w a r d , or promise.
12. T h a t the c r i m e be committed by m e a n s of i n u n d a -

tion, fire, poison, explosion, s t r a n d i n g of a vessel or
intentional d a m a g e thereto, d e r a i l m e n t of a loco-
motive, or by the use of a n y other artifice involving
great waste and ruin.
13. T h a t the act be committed w i t h evident p r e m e d i t a -

tion.
14. T h a t craft, f r a u d , or disguise be e m p l o y e d .
15. T h a t a d v a n t a g e be t a k e n of s u p e r i o r strength, or
m e a n s be e m p l o y e d to w e a k e n the defense.
16. T h a t the act be committed w i t h t r e a c h e r y (alevosia).

T h e r e is t r e a c h e r y w h e n the offender commits
a n y of the crimes against the p e r s o n , employing
m e a n s , m e t h o d s or forms in the execution thereof
w h i c h tend directly a n d specially to insure its
execution, w i t h o u t risk to himself arising from the
defense w h i c h the offended p a r t y might make.
17. T h a t m e a n s be e m p l o y e d or circumstances b r o u g h t
a b o u t w h i c h a d d ignominy to the natural effects of
the act.
18. T h a t the crime be committed after an u n l a w f u l
entry.
159
T h e r e is u n l a w f u l entry w h e n an entrance is
effected by a w a y not intended for the p u r p o s e .
19. T h a t as a means to the commission of a crime a
w a l l , roof, floor, door, or w i n d o w be b r o k e n .
20. T h a t the crime be committed w i t h the a i d of
persons u n d e r 15 y e a r s of a g e , or by m e a n s of m o t o r
vehicles, motorized w a t e r c r a f t , a i r s h i p s , or other
similar means. (As amended by R.A. No. 5438.)
21. T h a t the w r o n g d o n e in the commission of the c r i m e

b e deliberately a u g m e n t e d b y c a u s i n g other w r o n g
not necessary for its commission.
• Compare aggravating and mitigating circumstances.

Mitigating circumstances consider the lesser perversity of
the offender, hence, the penalty is reduced. T h e list in A r t i c l e
13 is not exclusive because there are analogous circumstances
which manifest the liberal interpretation of the l a w in favor
of the offender. A g g r a v a t i n g circumstances recognize that the
offender is of greater perversity hence, the penalty is increased.
The list in Article 14 is exclusive — there are no analogous
circumstances and this is due to the strict interpretation of
the law against the State. A g g r a v a t i n g circumstances must be
alleged in the Information, because they increase the penalty
and the offender must be given the opportunity to defend
himself against these; mitigating are matters of defense, hence
not required to be alleged in the Information.
The rationale for the lack of analogous circumstance in

Article 14 is that a penal law is liberally construed in favor of
the offender and no person should be brought within its terms
if he is not clearly made so by the statute. (People v. Regala,
G.R. No. 130508, April 5, 2000)
Immoral motive may not be considered as it does not

fall under any of the aggravating circumstances in A r t i c l e 14.
Unlike mitigating circumstances, there is no such thing as
similar nature and analogous to those mentioned as aggravating
circumstances. (People v. Villaver, G.R. No. L-32104, March
25, 1983)
160
• What are the different kinds of aggravating circumstances?

1. Generic aggravating circumstances which:
a. A p p l y generally to all crimes;
b. Can be offset by an ordinary mitigating circumstance;
c. Increase the penalty to the maximum period of the

penalty prescribed in the law provided alleged in the
information as required under the Revised Rules on
Criminal Procedure ( R R C P ) .
2. Qualifying circumstances which:
a. cannot be offset by any mitigating circumstance;
b. change the nature of the crime and the designation

of the offense;
c. must be alleged in the Information, otherwise,

cannot be considered against the offender because
it will violate his right to be informed of the nature
of the accusation against him since a qualifying
circumstance changes the nature of the offense; and
d. must be proved as conclusively as the guilt of the

offender because of its effect which is to change the
nature of the offense and consequently increase the
penalty by degrees.
3. Special or specific aggravating circumstances which
apply to a particular felony. They are found elsewhere
than Article 14.
4. Inherent circumstance which is an element of the felony
committed thus no longer considered against the offender
in the determination of the penalty. (Article 62, no. 1)
• Do qualifying circumstances increase the penalty to a higher

degree?
N o . T h e penalty prescribed by the law cannot be increased
because that will violate the rule that a penalty not prescribed
by law cannot be imposed (Article 21). Also, the ex post facto
rule prohibits the imposition of a penalty greater than that
prescribed by law when the crime was committed.
161
It is not the qualifying circumstance itself that increases

the penalty by degree. What the qualifying circumstance does
is to change the nature of the crime resulting to the increase in
the penalty. Thus, homicide becomes murder and the penalty
for murder is higher than for the homicide. The penalty for
homicide is always reclusion temporal which can be lowered
but not increased to reclusion perpetua. T h e homicide has to
be changed by a qualifying circumstance to murder for the
penalty to increase to reclusion perpetua.
Qualifying circumstances proved during the trial but not

alleged in the Information cannot be considered as generic
aggravating because of the amendment made in the new R R C P .
• What is the nature of the circumstances in Article 14?

The circumstances enumerated in Article 14 are generic
circumstances although some are qualifying in particular
crimes made so by specific provisions of the R P C . Treachery
is qualifying for murder because Article 248 made it so but
generic for parricide or less serious physical injuries because
the provisions for these crimes are silent as to treachery, hence,
Article 14 shall govern.
There is no law providing that the additional rape/s or
homicide/s should be considered as aggravating circumstance.
The enumeration of aggravating circumstance under Article 14
is exclusive as opposed to Article 13 where there is,-a- specific
paragraph (paragraph 10) providing for analogous mitigating
circumstances. (People v. Regala)
It is true that the additional rapes or killing would result
in the "anomalous situation" where from the standpoint of
the gravity of the offense, robbery with one rape or homicide
would be on the same level as robbery with multiple rapes or
homicides. However, the remedy lies with the legislature. A
penal law is liberally construed in favor of the offender and no
person should be brought within its terms if he is not clearly
made so by the statute.
• When is the term "aggravating circumstances" broadly con-

strued to include those in Article 15?
Catubig, G.R. No. 137842, August 23, 2001 considered the

alternative circumstance of relationship as basis for an award
162
of exemplary damages because the term "aggravating circum-

stances" must be understood in its broad or generic sense. How-
ever, this interpretation is only applicable to the civil aspect,
not the criminal aspect of rape, which involves the imposition
of the proper penalty. W h e n the penalty to be imposed on the
accused is teetering between reclusion perpetua and death, the
term "aggravating circumstance" in Article 63 must be under-
stood in the strictest sense. T h e "aggravating circumstance"
that would spell the difference between life and death for the
accused must be that listed in Article 14.
In all other cases where the maximum penalty is not
death, "aggravating circumstance" must be interpreted in its
broad or generic sense so as to include the circumstances under
Article 15. (People v. Orilla, G.R. Nos. 148939-40, February 13,
2004). (Moot and academic because of R . A . 9346J
What is the new rule on the allegation of generic aggravating

circumstances in the Information?
T h e R R C P now requires that generic aggravating

circumstances must be alleged in the information just like
qualifying circumstances. In effect, the distinction between
generic and qualifying circumstances as to the allegation in the
Information has been obliterated. T h e rule that a qualifying
circumstance proved during the trial but was not alleged in
the Information can be considered as generic aggravating is
no longer true. W h e n the circumstance was not alleged in the
Information, the accused was not forewarned of, and could not
have prepared his defense against, such circumstance. This
constitutes violation of his right to be informed of the nature of
the accusation against him.
T h e rule on generic aggravating circumstances has now
been formalized in the R R C P , which took effect on December
1, 2000. Sections 8 and 9 of Rule 110 now respectively provide
that:
Sec. 8. Designation of the offense. — The complaint or
information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense,
and specify its qualifying and aggravatins circumstances. If
there is no designation of the offense, reference shall be made to
the section or subsection of the statute punishing it.
163
Sec. 9. Cause of the accusation. — The acts or omissions

complained of as constituting the offense and the qualifying
and aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as
its qualifying circumstances and aggravating circumstances
and for the court to pronounce judgment, (emphasis supplied)
Treachery attended the commission of the crime and it

was merely a generic aggravating circumstance. However, it
was not alleged in the information as mandated by Section 8,
Rule 110. Treachery cannot be considered even as a generic
circumstance. Although the crime took place before the R R C P
took effect, it should be applied retroactively as it is favorable
to the appellant. (Rugas v. People, G.R. No. 147789, January
14, 2004)
• What is the fundamental requirement before qualifying circum-

stances are considered?
T h e fundamental requirement is that qualifying circum-

stances should be alleged in the information. To allow other-
wise would be to deny the accused the right to be informed of
the nature and the cause of the accusation against him. "There
was abuse of superior strength, but it could not qualify the kill-
ing to murder because it has not been sufficiently alleged in the
information." (People v. Feran, October 1992). T h e rationale for
this requirement of the right to be informed of the existence
of the qualifying circumstance is for the accused to prepare
properly for his defense to meet head-on the qualifying circum-
stance and because such circumstance changes the nature of
the charge against him. Due process requires that the accused
be given fair notice of what he is being tried for.
It is error to consider nighttime, use of fire and abuse

of superior strength as "attendant qualifying aggravating
circumstances." T h e information alleged only treachery and
evident premeditation as qualifying circumstances. N i g h t t i m e ,
band, use of fire, craft, fraud or disguise and ignominy w e r e
alleged as generic aggravating circumstances. T h e trial court
cannot elevate the status of any of the generic circumstances
164
and consider them as qualifying for the crime of murder.

(People v. Valeriano, September 1993)
What is the requirement as to proof of qualifying circumstances?
Qualifying circumstance must be proved beyond reason-

able doubt as convincingly as the crime itself for it is not mere-
ly a modifying circumstance but an element of the crime. It
changes the nature of the crime. An allegation of treachery
changes the offense from homicide to murder and increases
tremendously the penalty. Homicide is penalized with reclu-
sion temporal (12 years and 1 day to 20 years), whereas, mur-
der carries reclusion perpetua (20 years and 1 day to 40 years).
In effect, this qualifying circumstance carries with it another
reclusion temporal, hence, the requirement that it should be
proved as convincingly as the crime itself.
How many circumstances are required to be used as qualifying

circumstance?
Only one is required. W h e r e one of the aggravating cir-

cumstances has been used as a qualifying circumstance, the
others w i l l be deemed as generic. Since treachery has already
been used to qualify the crime to murder, evident premedi-
tation should be considered as only a generic aggravating
circumstance. (People v. Fabros, October 1992)
What are special aggravating circumstances?
Special aggravating circumstances are those applicable to

specific crimes. T h e y do not change the character of the offense
charged but guides the court in imposing the proper penalty.
Agguihao, G.R. No. 104725, March 10, 1994 ruled that just
like a generic aggravating the special circumstance of spite
does not change the character of the arson charged. However,
unlike generic aggravating which can be offset by an ordinary
mitigating circumstance, special aggravating cannot be offset
by an ordinary mitigating circumstance. (People v. De Leon,
G.R. No. 179943, June 26, 2009)
Give examples of special aggravating circumstances.

R . A . 7659 added "organized/syndicated group" in Article
6 2 [ l ] [ a ] . This is a special aggravating circumstance because
165
Article 14 which contains generic aggravating circumstances

was not correspondingly amended. The maximum penalty
shall be imposed if the offense was committed by any person
belonging to an organized/syndicated crime group. An
organized/syndicated crime group means a group of two or
more persons collaborating, confederating, or mutually helping
one another for purposes of gain in the commission of any
crime. The gain here refers not only to robbery or theft but to
all criminal activities which are "profitable" to the offenders
such as kidnapping for ransom, and estafa.
Moreover, R . A . 7659 modified Article 62, no.l in relation

to Article 64, no. 4 in that when advantage is taken by the
public officer of his public position, Article 64, no. 4 on offsetting
shall not operate; instead, Article 62, no 1 (a) shall be followed
and regardless of the presence of mitigating circumstances, the
penalty shall be imposed in its maximum period.
T h e use of unlicensed firearm is a special aggravating

circumstance for homicide or murder, pursuant to R . A . 8294.
(People v. De Leon)
• Is conspiracy an aggravating circumstance?
N o . Conspiracy is neither aggravating nor qualifying

but rather a manner of incurring collective criminal hability
among every co-conspirator in an equal degree, whereby the
effect is that the act of one becomes the act of all. T h e presence
of conspiracy cannot qualify a killing to murder. (People v.
Feran)
Abuse of official position
• When is abuse or taking advantage of official position present?
In the circumstance of taking advantage of official posi-

tion, the test is: Did the accused abuse his office in order to
commit the crime? If he did, then this circumstance is present.
(Sanchez v. Demetriou) An example is when the offender falsi-
fies a document in connection with the duties of his office which
consist of either making or preparing or otherwise intervening
in the preparation of a document. (Layno v. People, September
1992). T h e public official must use the influence, prestige and
166
ascendancy which his office gives him in realizing his purpose.

T h e r e must be an intimate connection between the offense and
the office of the accused.
• Is the offender's being a public officer ipso facto aggravating?
N o . For such to be considered aggravating, the public

official must use the influence, prestige and ascendancy which
his office gives him in realizing his purpose. That accused
used his service firearm in shooting the victim should not be
considered as taking advantage of public position. (People v.
Amion, G.R. No. 140511, March 1, 2001) T h e mere fact that
accused was a member of the C A F G U and was issued an M - l
Garand rifle is not sufficient to establish that he misused his
public position in the commission of the crimes. (People v. Villa,
Jr., G.R. No. 129899, April 27, 2000)
T h e dual functions of a jail guard are to insure the safe

custody and proper confinement of persons detained in the
jail. T h e victim was a detention prisoner when the jail guard
conspired with some inmates to kill him. Murder or homicide
is never the main function of any public office. No public office
w i l l ever be the constituent element of murder or homicide.
Montejo, 108 Phil. 613, held that a public officer commits an
offense in relation to his office if he perpetrates the offense
while performing, though in an improper or irregular manner,
his official functions and he cannot commit the offense without
holding his public office. In such a case, there is an intimate
connection between the offense and the office of the accused.
As jailer, accused has access to the victim prisoner. Without
his office he cannot have access to the prisoner because the
latter is under the watchful eye of his jailer whose function is
to insure the proper confinement of persons, access to whom
is restricted by law. (Crisostomo u. Sandiganbayan, G.R. No.
152398, April 14, 2005)
Insult to public authorities

• Who are included by the term "public authority"?
It covers not only persons in authority but also agents of
persons in authority and other public officers. Rodriguez, 19
Phil 150; Siojo, 61 Phil. 307; and Verzo, 21 SCRA 1403, were
167
reconsidered in Rodil, G.R. No. L-35156, November 20, 198,

because it is not justified by the employment of the term public
authority in Article 14 (2) instead of the term person in authority
which is specifically used in Articles 148 and 152. There is no
extended reasoning of the doctrine enunciated in those three
cases why the phrase public authority should comprehend only
persons in authority. The lawmaker could have easily utilized
the term "persons in authority" in Article 14 in much the same
way that it employed the said phrase in Articles 148 and 152.
The lawmaker must have intended a different meaning for the
term public authority which may include but not limited to
persons in authority.
A municipal mayor, barangay captain, or barangay tanod

is a person in authority or a public authority. Even a public
school teacher is a person in authority under CA 578 amending
Article 152. So is the town municipal health officer, or a nurse,
a municipal councilor or an agent of the B I R .
• Relate this circumstance to the crime of direct assault.
The circumstance of contempt of or insult to public

authorities requires that the public- authority is engaged in
the discharge of his duties and the offender knows that he is a
public authority. This is an aggravating circumstance because
it shows disrespect of the offender in the commission of the
crime notwithstanding the presence of public authority.
If the public authority is a person in authority or an agent

of person in authority as the term is used in A r t i c l e 152, the
crime committed against him is direct assault and as such, this
aggravating circumstance will be deemed absorbed because it
is inherent thereto. (See Article 62, no. 2)
Age, sex, rank, dwelling
• What are the common factors with regard to the circumstances

of "insult or lack of regard due to the offended party by reason
of age, sex, or rank or the crime is committed in the dwelling of
the offended party"?
These four circumstances show lack of respect to the

offended. There must be proof that offender deliberately
168
intended to offend or insult the offended. These circumstances

cannot co-exist with passion or obfuscation where the offender
lost his control or reason. They are considered in crimes against
persons, security, or honor but not in crimes against property.
T h e circumstance of sex is not considered in crimes where being
a woman is an element thereof as in parricide, rape, abduction,
or seduction.
T h e circumstance of disregard of the respect due the

offended party on account of his rank is unavailing. There is
no showing that appellants intended to deliberately offend
or insult the rank of the victim, which is the essence of said
aggravating circumstance. This is so because the raiding police
officers w e r e not even in uniform. (People u. Verchez, G.R. No.
82729-32, June 1994)
What is the rationale for these aggravating circumstances?
Those generally considered of high station in life, on

account of their rank, age or sex, deserve to be respected.
Therefore, whenever there is a difference in social condition
between the offender and the offended party, any of these
circumstances sometimes is present. (People v. Rodil)
What is the meaning of the word "rank" as used in the Article?
T h e term "rank" should be given its plain, ordinary

meaning, and as such, refers to a high social position or
standing such as a grade in the armed forces; or to a graded
official standing or social position or status; or to the order or
place in which said officers are placed in the army and navy in
relation to others; or to the designation or title of distinction
conferred upon an officer in order to fix his relative position in
reference to other officers in matters of privileges, precedence,
and sometimes command or by which to determine his pay and
emoluments as in the case of army officers; or to a grade or
official standing, relative position in civil or social life, or in any
scale of comparison, status, grade, including its grade, status,
scale of comparison within a position, (id.)
Give examples of cases where rank aggravated the crime

committed.
169
1. The killing of a staff sergeant by his corporal (People v.

Mil, 92 SCRA 89)
2. The killing of the Assistant Chief of Personnel Transaction
of the CSC by a clerk (People v. Benito, 62 SCRA 351)
3. The murder by a pupil of his teacher (People v. Aragon,
107Phil. 706)
4. The murder of a municipal mayor (People v. Lopez de
Leon, 69 Phil. 298)
5. The murder of a city chief of police by the chief of the
secret service division (People v. Hollero, 88 Phil. 167)
6. Assault upon a 66-year old Judge of the C F I by a justice
of the peace (People v. Torrecarreoni, CA 52 OG 7644);
7. The killing of a Spanish consul by his subordinate (People
v. Godinez, 106 Phil. 597) and
8. The killing of an army general (People v. Torres, L-4642,
May 29, 1953)(id.)
What consideration affects the appreciation of rank?
The charge should not include rank as an element thereof.

If the accused were charged with the complex crime of murder
with assault against an agent of a person in authority, and not
merely murder, then the aggravating circumstance of disre-
gard of rank or contempt of or insult to public authority cannot
be appreciated as aggravating because either circumstance is
inherent in the charge of assault against a person in authority.
If the accused is charged of murder only, then, either aggravat-
ing circumstance should be considered in the imposition of the
penalty, (id.)
Is the mere fact that the victim of the offense is a female an

aggravating circumstance of disregard of sex?
N o . It must also be shown that the offender specially

saw to it that his victim would be a woman. T h e aggravating
circumstance of sex is not sustained by the fact that the victim
was a woman, unless it further appears that aside from the
unlawful taking of her life, there was in the commission of
the crime some specific insult or disrespect shown to her
womanhood. (People v. Ursal, 121 SCRA)
170
To what crimes do this group of circumstances pertain?
T h e circumstance of insult or in disregard of the respect

due the offended party can be appreciated only in crimes
against person or honor — not in the special complex crime
of robbery with homicide which is a crime against property.
(People v. Paraiso, G.R. No. 127849, November 29, 1999) To be
appreciated, it should be clearly demonstrated that the accused
deliberately intended to act with insult or in disregard of the
respect due the victim on account of his rank. That the accused
was cognizant of the rank of the deceased police officer or that
he articulated hatred against all policemen in general does not
by itself suffice to prove this aggravating circumstance.
Does age pertain only to old age?
N o , but it includes tender age. J V was barely six years

old when ruthlessly stabbed 14 times before his body was
submerged in the pail. It was error not to have considered his
age as an aggravating circumstance. (People v. Lapan, G.R. No.
88300, July 6, 1992)
What is included in dwelling?
"Dwelling" includes dependencies, staircase, and enclo-

sures under the house. It is not necessary that the house is
owned by the offended. It may include a room in a boarding
house, for home is that which the law seeks to protect or up-
hold whether the dweller is a lessee, a boarder or a bed spacer.
A dwelling must be a building or structure, exclusively

used for rest and comfort. W h e r e the crime was committed in
a store, which is about 15 meters away from the complainant's
house, dwelling cannot be considered. T h e store cannot be
considered a dwelling or even a dependency of complainant's
home. (People v. Joya, G.R. No. 79090, October 1, 1993) As
dwelling must exclusively be used for rest and comfort, a
combination store and dwelling is not a "dwelling" as used in
the law.
Why is dwelling (morada) an aggravating circumstance?

The reason is that it reveals the offender's greater perver-
sity in deliberately invading the tranquility of one's domicile.
171
The trial court erred in disregarding morada inasmuch as

the crime took place and was committed by the accused in the
house of the victims. The accused showed greater perversity in
his deliberate invasion of the tranquility and privacy of P F s
domicile. (People v. Lapan, G.R. No. 88300, July 6, 1992)
To what situations is the circumstance of dwelling appreciated?

The commission of the crime in the dwelling of the offended
party who has not given any provocation is an aggravating
circumstance. (People v. Banez, September 1992)
In abduction and illegal detention, where the offended
party is taken from his house, dwelling may be taken into
account as an aggravating circumstance. (People v. Grefiel,
G.R. No. 77228, November 13, 1992)
Dwelling should be taken into account in the imposition
of the proper penalty because robbery with homicide can be
committed without necessarily transgressing the sanctity of
the home. (People v. Delos Reyes, October 1992)
Dwelling is aggravating since that the assailants w e r e
in the sanctity of the victims' own home — which is perhaps
the last bulwark of their safety. An unsuspecting knock on
the door betrayed that trust of peace in the family who w e r e
only conversing. Dwelling is aggravating when a crime is
committed in the dwelling of the offended party who has not
given provocation. Provocation in dwelling must be: ( a ) given
by the offended party; (b) sufficient; and (c) immediate to the
commission of the crime. (People v. Tiguman, supra)
Must the offender enter the dwelling of the victim?

N o . Although the triggerman fired the shot from outside
the house, his victim was inside. For dwelling to be considered,
it is not necessary that the accused should have entered the
dwelling of the victim to commit the offense; it is enough that
the victim was attacked inside his own house, although the
assailant may have devised means to perpetrate the assault
from without. Although the attack was made not from inside
the house but from below the floor of the house, dwelling may
be considered as attending the shooting, as in fact, the target
victim was hit inside his own house. (People v. Dacibar, G.R.
No. 111286, February 17, 2000)
172
BB was at the main door when he called W W . When WW

refused to go with B B , it was there that he forced WW to go
with him. WW was abducted while she was still in her house.
Thus, dwelling may be appreciated considering that it is not
necessary that the accused should have entered the dwelling of
the victim. (People v. Magat, G.R. No.)
• When is dwelling not aggravating?
Dwelling is not aggravating if the offended has given

provocation or if both the offended and the offender live
there or if inherent in the crime such as those which could be
committed in no other place (trespass to dwelling, robbery in
an inhabited place). It is not appreciated separately as it is
absorbed in treachery. (People v. Catapang, G.R. No. 128126,
June 25, 2001)
Abuse of confidence
• What are the requisites of abuse of confidence/obvious

ungratefulness?
a. T h e offended had trusted the offender;

b. T h e offender abused such trust; and
c. Such abuse of confidence facilitated the commission of the
crime.
For abuse of confidence to exist, it is essential to show
that the confidence between the parties must be immediate and
personal as would give the accused some advantage or make
it easier for him to commit the criminal act. The confidence
must be a means of facilitating the commission of the crime,
the culprit taking advantage of the offended party's belief that
the former would not abuse said confidence. (People v. Arojado,
350 SCRA 679)
Palace of Chief Executive

• Is performance of public function necessary in the appreciation
of the aggravating circumstances in paragraph 5 of Article 14?
Only in the third circumstance — where public authorities
are engaged in the discharge of their duties — is performance
173
of function necessary. The other three circumstances require

merely that the crime be committed in the places specified —
in the palace of the Chief Executive, in his presence, or in a
place dedicated to religious worship. It is necessary though
that the offender must have sought the above places for the
commission of the crime which shows his lack of respect for the
places enumerated.
Nighttime (Nocturnity)
• What is nocturnity and when is it aggravating?
Nocturnity or nighttime, by and of itself, is not an
aggravating circumstance. It becomes so only when it is
especially sought by the offender, or taken advantage by
him to facilitate the commission of the crime or to ensure his
immunity from capture. If there was no proof that nighttime
was deliberately sought by the accused in committing the
crime, said circumstance should be disallowed. (People v.
Pasiliao, G.R. No. 98152-53, October 26, 1992)
Nighttime is appreciated as an aggravating circumstance,

when:
(a) Nighttime was especially sought by the offender;
(b) It was taken advantage of by him;
(c) It facilitated the commission of the crime by insuring
the offender's immunity from capture; and
(d) T h e place where the crime was committed was not
illuminated. (People v. Espina)
• What time period is covered by nocturnity?
"Nighttime" is the period from sunset to sunrise. T h e

crime must be committed exclusively at nighttime and not
commenced at daytime because it is necessary that the time
was especially chosen by the offender to commit the offense.
• Is the commission of the offense at night per se aggravating?
N o . Nocturnity cannot be considered where the

prosecution established no more than the simple fact that
the crime was committed at night. W h i l e nighttime must be
deliberately sought in the perpetration of the crime, a close
174
examination of the records shows no factual support that the

appellants deliberately considered the cover of darkness as an
indispensable factor in assaulting A A . (People v. Ferrer)
• What are the two tests for the appreciation of nocturnity?
T h e objective test — that nocturnity facilitated the

commission of the crime and the subjective test — that it was
purposely sought by appellants in order to afford impunity.
It is error to accept nocturnity as aggravating for during

the incident the moon was shining brightly. T h e light was
bright enough to see what was going on and to recognize the
assailants. It, therefore, does not qualify as an aggravating
circumstance under either the subjective or objective tests.
(People v. Bigcas, G.R. No. 94534, July 2, 1992)
• What factors will disallow nighttime as aggravating?
W h e n nighttime is neither especially sought by the offender

nor taken advantage of by him to facilitate the commission of
the crime by ensuring the offender's immunity from capture. It
is not especially sought when the notion to commit the crime
was conceived only shortly before its commission or when the
crime was committed at night upon a mere casual encounter.
Here, other than the time of the crime, there is nothing else to
suggest that accused deliberately availed or took advantage of
the circumstance of nighttime. (People v. Labrador, G.R. No.
126787, May 24, 1999)
• Is nighttime a qualifying circumstance?

Nighttime is not qualifying under Article 248. (People
v. Valeriano) It is absorbed in treachery if it is part of the
treacherous means to insure execution of crime, otherwise
nighttime is to be considered separately but as generic
aggravating. (People v. Ong, January 1975)
Uninhabited Place
• What determines whether a place is uninhabited?
T h e uninhabitedness of a place of locus delicti is deter-
mined not solely by the distance of the nearest house to the
175
scene but also whether or not in the place of the commission

of the offense, there was reasonable possibility of the victim
receiving some help. A place where there are no people or any
number of houses within a perimeter of 200 meters is uninhab-
ited. It is not only the distance to the nearest occupied habita-
tion but also the possibility of securing assistance that should
be considered. (People v. Balisteros, G.R. No. 110289, October
7, 1994)
Band
• What comprises a band (cuadrilla)?
Band consists of:

a. More than three (four or more persons);
b. A r m e d malefactors (bad elements, not males; at
least four must be armed);
c. Acting together in the commission of an offense
(presupposing the presence of conspiracy.)
A crime is deemed committed by a band w h e n more than

three armed malefactors acted together in the commission of
the offense. (People v. Robiego, November 1993)
• Compare band under Article 14 and under Articles 295 and 296.
Under Article 14, band is a generic aggravating circum-

stance whereas under Articles 295 and 296 it is a qualifying
circumstance. T h e latter articles apply only to robbery with
unnecessary violence or physical injuries under Article 263,
paragraphs 2, 3, and 4 in relation to Article 294, paragraphs
3, 4 and 5. Article 294 enumerates five classes of robbery with
violence against or intimidation of persons and prescribes the
corresponding penalties. Article 295 provides that when the of-
fenses described in subdivisions 3, 4, and 5 of Article 294 are
committed by a band, the proper penalties must be imposed
in the maximum period. Band is therefore qualifying only in
robbery punished by subdivisions 3, 4, and 5 of Article 294.
Consequently, Article 295 is inapplicable to robbery with homi-
cide, rape, intentional mutilation, and lesiones graves result-
ing in insanity, imbecility, impotency or blindness. If the rob-
176
bery in Article 294(1) and (2) are perpetrated by a band, they

would not be punishable under Article 295, but then cuadrilla
would be generic aggravating under Article 14. Hence, with
the present wording of Article 295, there is no "robbery with
homicide in band." If robbery with homicide were committed by
a band, the indictable offense is "robbery with homicide" under
Article 294(1), but band would be appreciated as an ordinary
aggravating circumstance. (People v. Apduhan, Jr., G.R. No.
L-19491, August 30, 1968)
Under Article 14(6), a crime is deemed committed by a

band when more than three armed malefactors acted together
in the commission of the offense. In this case, there were only
three culprits. T h e trial court incorrectly characterized the
crime as robbery in band with homicide. It has not been shown
that more than three persons perpetrated the crime. T h e crime
committed is therefore the special complex crime of robbery
with homicide. (People v. Robiego, November 1993)
• When is band not appreciated?
T h e trial court erred in finding the presence of the

aggravating circumstance of band. T h e circumstance that the
crime was committed with the use of a deadly weapon or by
two or more persons was already taken into account when the
law imposed the penalty of reclusion perpetua to death for such
offense. (People v. Villagracia, G.R. No. 94311, September 14,
1993)
• When conspiracy is proved, can band be appreciated?

Y e s , because conspiracy is not an aggravating circumstance
but a means to commit a crime. Hence, one cannot absorb the
other.
Calamity or Misfortune
• To what does "other calamity or misfortune" refer?
It refers to events similar in nature as conflagration,
shipwreck, earthquake or epidemic. It cannot refer to "acts of
men" because they are different from the events enumerated.
Under the principle of "ejusdem generis," where general terms
such as "other calamity or misfortune," follow the enumeration
177
of particular things, the general term will include only those

classes of things or persons of the same class or nature as those
mentioned in the preceding enumeration.
• Distinguish paragraph 7 from paragraph 12 of Article 14.

Paragraph 12 refers to the means in the commission of
the crime; paragraph 7 refers to the occasion or during any of
the calamities mentioned when the crime is committed. These
circumstances are aggravating because these are indicative of
the greater perversity of the offender, who, instead of lending
aid to the victims, adds to their sufferings. The offender should
particularly seek the opportunity provided by the calamities
mentioned to perpetrate his crime.
Aid of armed men

• What are the elements of aid of armed men? When is it not
appreciated?
1. That armed men or persons took part in the commission

of the crime, directly or indirectly; and
2. That the accused availed himself of their aid or relied

upon them when the crime was committed.
A i d of armed men cannot be appreciated when there is
conspiracy, accused acting under the same plan and for the
same purpose. Hence, they are all principals in the commission
of the crime. (People v. Amion, G.R. No. 140511, March 1,
2001)
• Compare "band," "aid of armed men," "organized crime

syndicate," "syndicated estafa," and "illegal recruitment in a
large scale."
1. In band and organized crime syndicate, all the members

are principal; in aid of armed men, the armed men merely
aided the principal offender and are accomplices.
2. In band, there must be at least four armed men; in aid

of armed men, their number is not specified nor required
as long as there is more than one; in organized crime
syndicate, there must be at least two members who are
not required to be armed.
178
3. In band and aid of armed men, the crimes are not specified;
in organized crime syndicate, the purpose is to commit
crimes for gain.
Syndicated estafa under P . D . 1689 is different from or-

ganized crime syndicate under Article 62 ( l a ) . T h e former re-
quires at least five members whereas the latter needs only two.
Illegal recruitment in a large scale requires that it be

committed by at least three offenders.
Habituality
• What are the different forms of habituality?
T h e y are recidivism (Article 14, no. 9), reiteration (Article

14, no. 10), habitual delinquency (Article 62, no. 5) and quasi-
recidivism (Article 160).
• W h o is a recidivist?
A recidivist is one who:

a. At the time of his trial for one crime;
b. Shall have been previously convicted by final judgment;
c. Of another crime embraced in the same title of the R P C .
Recidivism requires at least two convictions: the first
must be by final judgment and must take place prior to the
second conviction. Both must be felonies embraced in the same
title of the R P C . "Final judgment" means executory, i.e., 15
days have elapsed from its promulgation without the convict
appealing the conviction. (See Article 89)
• What is the nature of recidivism?

Recidivism is a generic aggravating circumstance. There
is no specific period between the prior conviction and the second
conviction. Recidivism can be appreciated even if the convict
was given absolute pardon, as pardon extinguishes the penalty
only but not the effects of the offense.
• What is required for recidivism to be appreciated?

T h e prosecution must allege recidivism in the information
and present certified true copy of the judgment of conviction in
179
the other case since the omission to do so is not cured by the

failure of the accused to object to such lack of presentation.
Recidivism is an affirmative allegation whenever alleged in the
information and when the accused enters a plea of not guilty to
such information, there is a joinder of issues not only as to his
guilt or innocence but also as to the presence or absence of the
modifying circumstances so alleged. (People v. Compendio, Jr.,
G.R. No. 114002, July 5, 1996)
• What is reiteration?
In reiteracion, the offender has been previously punished
(has served sentence.) T h e first offense must have been
punished with an equal or greater penalty; or he has committed
two or more crimes previously to which the law attaches a
lighter penalty. It does not require that the offenses be covered
under the same title of the R P C .
The trial court erred in appreciating reiteracion. This

circumstance is not alleged in the information. T h e prosecution
did not prove it. Upon cross-examination of the accused by
the Prosecutor, over the objection of the defense counsel, the
only information elicited is that the accused had earlier been
convicted for the crime of homicide, had served the sentence
and had later been released.
T h e fact of his being out on parole was brought out upon

questioning by the court after the termination of the cross-
examination. Besides, for the same to exist, it is necessary that
the offender has been previously punished for an offense to
which the law attaches an equal or greater penalty or for two
or more crimes to which it attaches a lighter penalty. Appellant
was earlier convicted of homicide which is punishable by
reclusion temporal. That penalty is not equal or greater but is
definitely lower than that provided for rape which is reclusion
perpetua. (People v. Race, Jr., G.R. No. 93143, August 4, 1992)
• Distinguish recidivism from reiteracion.
RECIDIVISM REITERACION
1. Antecedent Previous conviction Service of sentence
by final judgment
180
2. Offenses Under the same T i t l e N e e d not be a

of the R P C (felony) felony nor under
the same Title
3. Penalty No requirement as to Prior crime must
penalty imposed in have been penalized
the prior conviction with an equal or
greater penalty or
two or more crimes
was lighter penalty
What is habitual delinquency?
Habitual delinquency is a special aggravating circum-

stance for which is imposed an additional penalty which esca-
lates with the increase in the number of convictions.
A person is a habitual delinquent if:
a. W i t h i n a period of 10 years from his release or last

conviction;
b Of the crimes of falsification, robbery, estafa, theft,
serious or less serious physical injuries;
c. He is found guilty of said crimes a third time or
oftener.
T h e law requires three convictions. The third conviction

for the covered crimes must be committed within 10 years from
the second conviction. T h e 10-year period is counted from the
date of release if he had been released when again convicted.
This is a special aggravating circumstance because it

is not included in Article 14. It is not an "ordinary" special
aggravating circumstance because its effect is to impose an
incremental penalty, that is, an additional penalty to that
imposed for the crime actually committed. T w o penalties shall
therefore be imposed — for the crime committed and for the
habitual delinquency. T h e penalty for the habitual delinquency
escalates with the number of conviction.
It is not also a qualifying circumstance because although
the increase in the penalty is significant, it does not change the
nature of the offense committed.
181
It is in effect a crime by itself because it has its own pen-

alty. An offender can be a recidivist and a habitual delinquent
at the same time if he were convicted for the third time of the
crimes of estafa, robbery and theft which are all within T i t l e
10 or for serious and less serious physical injuries which are
within Title 8.
Distinguish between Recidivism and Habitual Delinquency.
HABITUAL
RECIDIVISM
DELINQUENCY
1. Convictions T w o are enough Three are required
2. Crimes Must be both Falsification, robbery,

covered under the same estafa, theft, serious
T i t l e of the Code and less serious
physical injuries
3. Prescription None as no time Prescribes after 10

n d
limit given by law years between the 2
st rd
between the 1 and 3 convictions
n d
and 2 convictions
4. Nature Generic; can be Special circumstance;

offset by ordinary cannot be offset
mitigating
circumstance
5. Penalty Increase is to the Entails additional

M a x i m u m period penalty which
increases with the
number of convictions
What is Quasi-recidivism?
Quasi-recidivism is a special aggravating circumstances

wherein the offender has been previously convicted by final
judgment and before beginning to serve such sentence, or
while serving the same he committed a felony. It is not offset
by ordinary mitigating circumstance.
182
T h e new crime committed before or during service of

sentence must be a felony. It has been held the felony need not
be similar as the felony to be served or being served.
Article 16 specifies that quasi-recidivism is in addition to

habitual delinquency because of the opening phrase "Besides
the provisions of Rule 5 of Article 62." T h e effect is to penalize
the convict with the maximum period for the new felony
committed before or during the service of sentence. If: (1) in the
service of the first conviction, he reached the age of 70; or (2) he
shall complete the service of the original conviction after that
age, he shall be pardoned, unless he is a habitual criminal or
his conduct or other circumstances show that he is not worthy
of pardon.
Price, Promise, Reward
• W h o are affected by the circumstance of price, promise, or

reward?
T h e y affect principal by direct participation who com-

mitted the crime for consideration. The other co-conspirators
if there be any who did not benefit from the price, promise
or reward will not have his penalty aggravated because this
circumstance is personal to the receiver. T h e reward is the
primary consideration in the commission of the crime for this
circumstance to be aggravating.
Inundation, Fire, etc.

• Relate the circumstances of inundation, fire, poison, explosion,
etc., with paragraph 1 of Article 62.
These circumstances by themselves constitute a
crime, hence, Article 62(1) shall apply. Thus, "aggravating
circumstances which in themselves constitute a crime specially
punished by law or which are included by the law in defining a
crime and prescribing the penalty therefor shall not be taken
into account for the purpose of increasing the penalty." If
one of these circumstances was a means to kill, the crime is
murder, not homicide, hence, the penalty will be for murder.
The circumstance will no longer be considered aggravating.
183
Evident Premeditation
• What is evident premeditation? What are its elements?
Evident premeditation indicates a stubborn adherence
to a decision to commit a felony. It requires a showing of: (1)
a previous decision by the accused to commit the crime; (2)
overt act[s] manifestly indicating that the accused clung to his
determination; and (3) a lapse of time between the decision to
commit the crime and its actual execution sufficient to allow
the accused to reflect upon the consequences of his acts.
Evident premeditation connotes adherence to a plan to

commit a crime. Returning to the scene of an earlier fight four
hours later does not establish these elements. M e r e lapse of
time is not equivalent to evident premeditation. It cannot be
appreciated to qualify a killing to murder in the absence of
evidence, not only of sufficient lapse of time, but also of the
planning and preparation to kill when the plan was conceived.
(People v. Nell)
Otherwise stated, its elements are:
a. T h e T I M E when the offender determined to commit

the crime;
b. An A C T manifestly indicating that he has clung to

his determination; and
c. Sufficient L A P S E of time between such determina-

tion and execution to allow him to reflect upon the
consequences of his act.
» What is the essence of evident premeditation?
The criminal act must be preceded by cool thought and

reflection of the resolution to carry out the criminal intent
during the space of time sufficient to arrive at a calm judgment.
Hence, it must be shown when the plan to execute the crime
was hatched or what time elapsed before it was carried out.
Evident premeditation means that a period sufficient in

a judicial sense to afford full opportunity for meditation and
reflection and sufficient to allow the conscience of the actor to
overcome the resolution of his will if he desires to hearken to
184
its warnings has elapsed. In one case, 3 1/2 hours from the plan
to the commission of the crime is sufficient time for the accused
to dispassionately reflect upon the consequences of his act or to
desist from its execution.
• When is evident premeditation not appreciated?
W h e n it is an inherent element of a crime because then, it

had already been considered by the law when it prescribed the
penalty. (Article 62, paragraph 2)
T h e r e is no evident premeditation if the attack was made

in the heat of anger or the meeting of the accused and the
victim was a chance encounter and not sought on purpose.
T h e appellant did not even know the victim and vice

versa prior to their confrontation at the place of the shooting
incident. T a i l i n g the victims is not an overt act that reflects his
determination to kill the victim. Appellant followed the jeep in
order to arrest the women whom he suspected to be prostitutes.
(People v. Peralta, G.R. No. 128116, January 24, 2001)
Evident premeditation is not inherent in robbery with

homicide. T h e premeditation must relate to the killing and not
to the robbery. (People v. Manansala, G.R. No. 88752, July 3,
1992)
• What evidence is required to establish evident premeditation?

Evident premeditation must be clearly proven, established
beyond reasonable doubt and must be based on external acts
which are evident, not merely suspected, and which indicate
deliberate planning. (People v. Florida, September 1992)
W h e n there is no direct evidence of the planning and
preparation to kill or when the plan was conceived, evident
premeditation cannot be considered. The information that EW
heard that AA was "hunting" him because of competition over
a girl is not sufficient proof of evident premeditation. (People v.
Wenceslao, G.R. No. 95583, August 12, 1992)
Evident premeditation may not be appreciated against
the accused, absent proof as to how and when the plan to kill
was hatched or what time elapsed before it was carried out.
(People v. Mallari, G.R. No. 94299, August 21, 1992)
185
Proof of alleged resentment does not constitute conclusive

proof of evident premeditation. (People v. Padama, G.R. No.
132137, October 1, 1999)
• What is the relationship between conspiracy and evident

premeditation?
Under normal conditions, where conspiracy is directly
established, with proof of the attendant deliberation and
selection of the method, time and means of executing the crime,
the existence of evident premeditation can be taken for granted.
But in implied conspiracy, it may not be appreciated, in the
absence of proof as to how and when the plan to kill the victim
was hatched or what time elapsed before it was carried out,
so that it cannot be determined if the accused had "sufficient
time between its inception and its fulfillment dispassionately
to consider and accept the consequences." There should be a
showing that the accused has the opportunity for reflection
and persisted in effectuating his criminal design. Absent
such showing, this circumstance should be rejected. (People v.
Manansala, G.R. No. 88752, July 3, 1992)
Proof of conspiracy does not imply the existence of evident

premeditation. It can be presumed only where conspiracy is
directly established, not where conspiracy is only implied.
(People v. Padlan, G.R. No. 111263, May 21, 1998)
Craft, Fraud, Disguise
• Distinguish among craft, fraud and disguise.

Craft is cunning or intellectual trickery or chicanery
resorted to by the accused to carry out his evil design. Example:
The offender assumed position of authority to gain entry in a
house; or feigning friendship to lure a victim to an uninhabited
place. Fraud constitutes deceit and is manifested by insidious
words or machinations. Disguise is resorted to conceal the
identity. If in spite of the disguise, the offender was recognized,
such cannot be aggravating.
These circumstances are not aggravating if they did not
facilitate the commission of the crime or not taken advantage
of by the offender in the course of the assault. If they w e r e used
to insure the commission of the crime against persons without
risk to offender, they are absorbed by treachery.
186
Abuse of superior strength or means

taken to weaken the defense
• When is there abuse of superior strength?
T h e r e is abuse of superior strength where the offenders

intentionally and purposely employ excessive force out of
proportion to the means of defense available to the offended
party. T h e r e must be a notorious inequality of forces between
the victim and the aggressor.
Superiority in number does not necessarily mean that

the offenders abused their superior strength or that means
are employed to weaken the defense. It must be proved that
the attackers cooperated in such a w a y as to secure advantage
from superiority of strength.
• Cite examples of abuse of superior strength.
1. T h e aggressors, who w e r e all armed, first hit the legs of

their unarmed victim, causing the latter to fall kneeling;
then, stabbed him above the knee; and, having deprived
him of his means to stand or run, took turns in inflicting
mortal wounds on him. (People v. Apelado, G.R. No.
114937, October 11, 1999)
2. An attack by a man with a deadly weapon upon an
unarmed and defenseless woman is abuse of superior
strength which his sex and weapon afforded him. (People
v. Olivo, G.R. No. 130335, January 18, 2001)
3. W h e n the attack was not made with alevosia, the number
of the assailants and the simultaneity of the attack upon
a defenseless person may constitute abuse of force. By
reason of the synchronal attack on the victim by the two
armed persons, they cooperated and intended to use or to
secure advantage from the superiority of their combined
strength. This is manifest where the victim was unarmed
and was trying to flee while the two felons were armed
and used their weapons in perpetrating the crime. (People
v. Alacar, G.R. No. 64725-26, July 10, 1992)
4. Three persons assaulted the victim inside his house and
the appellant stabbed the deceased while firmly held by
the two companions. Treachery cannot be appreciated
187
because it is deemed included in abuse of superior

strength, (id.)
• When is abuse of superior strength not appreciated?

It is not taken into account if the assault was characterized
with passion or obfuscation or made during a quarrel or
when the attack was made on the victim alternately and not
simultaneously. (People v. Pablo, G.R. No. 120394-97, January
16, 2001)
It is inherent in parricide as generally, the husband is
stronger than the wife. It is inherent in rape or is absorbed in
the element of force hence, it is already taken into account in
fixing the penalty. This circumstance absorbs band. L i k e the
circumstance of "means taken to weaken the defense," this
circumstance has the same essence, which is the utilization
of the combined strength of the assailants to overpower the
victim.
Superior strength is not appreciated by mere superiority

in the number of the malefactors, but by the deliberate
employment of excessive force, which is out of proportion to the
means of defense available to the person attacked. N o t e also
that the victim was not alone. (People v. Nell)
Treachery (Alevosia)
• What is treachery? What are its preconditions?
Treachery exists when the offender commits any of the

crimes against the person, employing means, methods, or forms
in the execution thereof which tend directly and especially to
insure its execution, without risk to himself arising from the
defense which the offended party might make. T h e offender
must: (1) insure that the offended at the time of the attack was
not in a position to put up any defense, not even token defense;
and (2) the means, manner, and form was consciously and
deliberately chosen. (People v. Magallanes, August 1997) T h e
means, methods or forms of the execution of the crime must be
consciously adopted because the law requires that the same
insure its execution. T h e attack must be intended to facilitate
the perpetration of the killing without risk to the offender from
a defense that the other party might offer.
188
What is the essence of treachery?
Its essence is the swiftness and the unexpectedness of the

attack upon the unsuspecting and unarmed victim, who does
not give the slightest provocation. T h e fact that CJ was facing
accused at the same moment as the latter's attack did not
erase its treacherous nature. Even if the assault were frontal,
it was sudden or totally unexpected, thus giving the victim no
opportunity at all to defend himself or to retaliate, definitely
points to the presence of treachery. (People v. Rebamontan,
G.R. No. 125318, April 13, 1999)
sudden and unexpected. frontal =
general rule, no treachery.
When is treachery appreciated?
An attack upon an unconscious victim who could not have

put up any defense whatsoever; where the victim is a child of
tender age and the assailant is an adult and therefore the child
is helpless to put up any defense at all; where the victim was
hogtied and therefore in a helpless condition before he was
killed; where the victim was totally unconscious, dead drunk,
lying on the pavement when accused administered strong,
vicious and killing kicks at the belly of the victim. Totally
unconscious, the victim could not have put up any defense
whatsoever against the sudden assault by the accused. There
was absolutely no risk to accused from any defense that the
victim might have made. (People v. Flores, supra)
When is treachery not appreciated?

There is no treachery if the attack is an impulse of the
accused or when the killing is due to passion or when the
accused did not make any preparation to kill the deceased so
as to insure the commission of the crime.
It was not shown that there was that swift and unexpected
attack of an unarmed victim, which is the essence of treachery.
T h e victims were not defenseless, since they too were armed.
RR had a 6o/o, while MM had a slingshot with darts. The sight
of the accused at a distance must have sufficiently warned the
them of the accused and their intentions; that was why they
tried to evade them. Thus, an important condition has not been
proved: that the means of execution employed was deliberately
and consciously adopted so as to give the person attacked no
opportunity to defend himself or to retaliate. (People v. Padlan)
189
The shooting was done at the spur of the moment. The

victim had shouted damning curses at the driver and the
passengers of the jeepney. The shooting was an instantaneous
response to the cursing. Treachery cannot be appreciated where
the accused shot the victim as a result of a rash and impetuous
impulse rather than from a deliberate act of the will. (People v.
Acuram, G.R. No. 117954, April 27, 2000)
There is no evidence that the appellant made preparation
to kill the victim in such a manner as to insure the execution of
the crime or to make it impossible or difficult for DD to defend
himself or retaliate. T h e appellant shot the victim when he was
peeved by DD's failure to give him duck eggs. T h e shooting was
perpetrated at the spur of the moment. A killing done at the
spur of the moment is not treacherous. (People v. Badajos, G.R.
No. 139692, January 15, 2004)
No one saw the killing or how it commenced. In the

absence of any witness, the manner and mode of attack
employed by accused could not be established with certitude.
Treachery cannot be deduced from mere presumptions. (People
v. Pagador, G.R. Nos. 140006-10, April 20, 2001)
Can treachery be present in a chance encounter?
N o . W h e r e the meeting between the accused and the

victim was casual and the act was done impulsively, there is
no treachery even if the attack was sudden and unexpected
and while the victim was running a w a y with his back towards
the accused. T h e accused could not have made preparations for
the attack and the means, method and form thereof could not
have therefore have been thought of by the accused, because
the attack was impulsively done.
Treachery cannot be presumed from the mere suddenness

of the attack or from the fact that the victim was stabbed with
his back towards the appellant. T h e suddenness of an attack
does not of itself suffice to support a finding of alevosia even
if the purpose was to kill so long as the decision was made all
of a sudden and the victim's hapless position was accidental.
From the reaction of RR in running a w a y from the EE brothers
the moment he saw them, he was not completely unaware that
the accused posed a danger to him. This necessarily put him
190
on guard, with the opportunity to prevent or repel a possible

assault. (People v. Escoto, G.R. No. 91756, May 11, 1995)
T h e suddenness of attack must be preconceived by the

accused, unexpected by the victim and without provocation on
the part of the latter. Accordingly, chance encounters, impulse
killing or crimes committed at the spur of the moment or
that were preceded by heated altercations are generally not
attended by treachery for lack of opportunity of the accused to
deliberately employ a treacherous mode of attack. (People v.
Abapo, 239 SCRA 469)
• M a y treachery be appreciated if the victim was warned of the

danger?
Y e s , for what is decisive is that the execution of the attack

made it impossible for the victim to defend himself or retaliate.
(People v. Landicho)
• From whom should the "retaliation" in treachery come?
T h e "retaliation" relevant in the appreciation of treachery

must come from the victim, not from anyone else. That the site
of the crime was heavily populated where others could thus
intervene is not significant at all. (People v. Costelo, G.R. No.
134311, October 13, 1999)
• At what stage in the attack must treachery exist?

To appreciate treachery in a continuous aggression, the
same must be present at the inception of the attack. Where
the prosecution failed to definitively establish the manner
in which the initial assault against the deceased victim was
committed to justify the appreciation of treachery, this hiatus
in the evidence cannot be substituted by mere suppositions.
Treachery must be proved by clear and convincing evidence,
or as conclusively as the killing itself. The shooting of peace
officers, who were fully aware of the risks in pursuing the
malefactors, when done in a spur of the moment, can hardly
be characterized as treacherous where it was nowhere proved
that the same was deliberately adopted to deny the victim the
opportunity to defend himself. (People v. Porras)
191
Where the lone witness was not able to observe the

commencement of the assault, he could not testify on how it all
began and developed. Absent any particulars as to the manner
in which the aggression commenced or how the act which
resulted in the death of the victim unfolded, treachery cannot
be appreciated to qualify the killing to murder. (People v. Lug-
aw, G.R. No. 85735, January 18, 1994)
In order that alevosia may be considered as qualifying
circumstance to raise the classification of the crime, or
as an aggravating circumstance to augment the penalty,
the treacherous acts must be present and preceded the
commencement of the act which caused the injury complained
of. After the commencement of such an attack, and before its
termination, an accused may have employed means or methods
which were of a treacherous character, and yet such means
or methods would not constitute alevosia. One continuous
attack cannot be broken up into two or more parts and made to
constitute separate, distinct and independent attacks so that
treachery may be injected therein, and considered as qualifying
or aggravating circumstance. T h e second blow delivered on the
victim when he was in such a position where he could not have
defended himself cannot constitute treachery. Treachery must
be present from the commencement of the attack. (People v.
Peran, G.R. No. 95259, October 26, 1992)
When the manner of the attack is not shown, does the fact that
the wound is at the back show treachery?
N o . T h e presence of treachery may not be simply assumed

from the mere fact that the fatal wounds were found at the
back of the deceased. In the absence of proof as to the manner
the victim was attacked, the killing could not be considered as
qualified by treachery. W h e r e no particulars are known as to
the manner the aggression was made or how the act resulting
to the death of the victim began and developed, it could not be
established by mere suppositions that the accused perpetrated
the killing with treachery. Being a qualifying circumstance,
treachery must be proved as convincingly as the crime itself.
Treachery cannot be presumed but must be proved by clear
and convincing evidence, as conclusively as the killing itself.
(People v. Borreros, May 1999)
192
• When will a frontal attack constitute treachery?
Generally, a frontal attack is not treachery. But when the

attack although frontal is sudden and in a manner that tends
directly and especially to insure its execution free from danger
and without risk to oneself on account of what the victim might
make to defend himself, there is treachery.
W h i l e even a frontal attack can be treacherous, as when

it is sudden and unexpected and the victim is unarmed, where
it appears that the aggressors did not employ means tending
directly and especially to insure the execution of the crime
without risk to themselves arising from the defense which
the offended parties might make, there is no treachery. T h e
assailants attacked a group of six individuals who could have
been armed. It is highly probable that at least one of those
attacked could offer resistance and could put the lives of the
aggressor in danger. (People v. Amaguin, G.R. Nos. 54344-45,
January 10, 1994)
• What is the nature of treachery as an aggravating circumstance?
It is a special aggravating circumstance in the sense that

it applies only to crimes against persons. It is a qualifying
circumstance in murder. In serious physical injuries, it is a
specific aggravating circumstance. In less serious physical
injuries it is a generic aggravating circumstance. It is usually
given preference over other qualifying circumstances which
then become generic.
Since treachery is included in Article 14, it is a generic
aggravating circumstance for crimes other than killing. It will
only assume the form of a qualifying circumstance to upgrade
killing to murder if it is alleged and proved.
Treachery absorbs both nighttime and taking advantage
of superior strength in the light of the circumstances of this
case. Considering that treachery qualifies the killing of the
four victims, the accused is guilty of four counts of murder.
(People v. Bechayda, G.R. No. 72001, August 7, 1992)
• What proof is required if treachery is to qualify homicide to

murder?
193
It must be proved as convincingly as the crime itself for

treachery cannot be presumed. It cannot be inferred just from
the location of the wound because the evidence should show the
manner of the attack and how the victim reacted thereto. But
if the victim is a child of tender age, there is treachery even if
the manner of the attack is not shown for a child cannot put up
a defense against an adult assailant.
Treachery changes the nature of the offense and increases
tremendously the penalty. Homicide is penalized with reclusion
temporal (12 years and 1 day to 20 years); murder, reclusion
perpetua (20 years and 1 day to 40 years). In effect, treachery
carries another reclusion temporal, hence, the requirement
that it should be proved as convincingly as the crime itself.
• How is the allegation of "minor" in the information understood?
The allegation that the victims are minors is compliance

with the rule. It is commonly understood that when the victim
in physical injuries, homicide or murder is a child of tender
years, he is described in the information as a minor. Minority
in such cases should not be equated with its statutory meaning
— below 18 years of age. It is used not so much as to state the
age of the victim (otherwise, the charging fiscal would have
simply placed the exact a g e ) ; rather it is more of a description
of the state of helplessness of the young victim.
T h e information in this case is sufficient to inform the

accused that the manner of his attack is alleged to be treacher-
ous and as such he could be liable for murder. T h e killing of an
11-year old child who by reason of his tender years cannot be
expected to put up a defense is considered attended by treach-
ery even if the manner of attack is not precisely shown. T h e r e
is a blatant inequality of strength between the offender and the
victim, but abuse of superior strength cannot be appreciated as
it is necessarily absorbed in treachery. (People v. Abuyen)
Ignominy
• What is involved in the circumstance of ignominy?
This circumstance pertains to the moral attribute, which

adds disgrace to the material injury caused by the crime. It
194
produces more suffering on account of its humiliating effects.

Ignominy relates to moral suffering whereas, cruelty refers
to physical suffering. Ignominy is exemplified by the adage
'adding insult to the injury'; cruelty is compared to 'rubbing
salt to the wound.'
Ignominy pertains to the moral order, which adds disgrace

and obloquy to the material injury caused by the crime. It was
not appreciated where the sexual assault was not done to put
the victim to shame before the killing. (People v. Diaz, October
1999)
Unlawful entry/breaking of wall
• When is there unlawful entry?
W h e n an entrance is through a way not intended for that

purpose; the opening must be used to enter, not to escape. It
qualifies the crime of theft to robbery. It is inherent in the
crimes of trespass and in robbery with force upon things thus
should no longer be aggravating per Article 62, no. 2.
Since paragraph 19 states that "as a means to the

commission of the crime a wall, roof, floor, door, or window
be broken," unlawful entry excludes ingress by means of such
breaking.
Aid of minors/use of motor vehicles
• How are these circumstances treated?

There are two distinct circumstances here: (1) the
commission of crime with the aid of a minor under 15 years
of age; and (2) its commission by means of motor vehicles,
airships, motorized water craft or similar means.
T h e use of a minor in the commission of the offense shows
the greater perversity of the offender because he is educating
the innocent in committing an offense. Especially so in view
of R . A . 9346 exempting 15 year old and below from criminal
liability.
The use of motorized means of conveyance to commit the
crime is penalized because they pose difficulty to the authorities
in apprehending them. This circumstance is considered
195
when the motor vehicle was purposely used to facilitate the

commission of the offense not when used to escape because the
law used the phrase "committed x x x by means of." "Other
similar means" should refer to other means of transportation
that are similar to motor vehicles such as motorcycles under
the principle of "ejusdem generis."
Cruelty
• What are required to attend the commission of the cruel acts?
To be aggravating there must be evidence to show that
the cruel acts were done while the victim was alive and the
offender delighted in the suffering of the victim. T h e mere
fact that there were numerous stab wounds on the victim will
not cause appreciation of cruelty because the offender may be
overwhelmed by passion or obfuscation or it may be that the
victim was already dead when the stab wounds w e r e inflicted
and can no longer suffer pain in excess of that necessary to
commit the crime.
The test in appreciating cruelty is whether the accused

deliberately and sadistically augmented the wrong by caus-
ing another wrong not necessary for its commission or inhu-
manly increased the victim's suffering or outraged or scoffed
at his person or corpse. Cruelty cannot be appreciated where
the prosecution failed to prove that the accused inflicted the
13 wounds upon the victim in such a w a y that he was made to
agonize before they rendered any of the blows which snuffed
out his life. T h e accused dealt the victim successive blows so
that he must have died instantaneously, considering that nine
of his wounds were fatal. (People v. Ferrer)
• Is the presence of multiple wounds on the victim per se cruelty?
N o . There is cruelty when the culprit delights in making

his victim suffer slowly and gradually, causing unnecessary
moral and physical pain in the consummation of the crime.
T h e victim should still be alive when the cruel acts w e r e done.
T h e number of wounds alone does not indicate cruelty as it is
essential to show that these w e r e inflicted unnecessarily while
the victim was alive to prolong his physical suffering.
196
T h e r e is cruelty when the wrong done in the commission

of the crime is deliberately augmented by causing another
wrong which is not necessary therefor. LL did not deliberately
prolong the physical suffering of his victim; his repeated blows
show that he intended to kill YY as soon as he could. (People v.
Llabres, G.R. Nos. 74294-96, August 4, 1993)
In the absence of cruelty, what may be present instead?
Assuming that the victim was still alive during the en-
tire period of the ordeal, there could possibly be cruelty since
appellants deliberately augmented the wrong they committed.
On the other hand, if the victim died immediately after he was
stabbed, then appellants could be held to have outraged his
corpse when they fiendishly slashed his intestines to pieces.
H o w e v e r , neither of these alternative hypotheses was estab-
lished and, further, the intervening time between the initial
attack and subsequent acts was not sufficiently established to
enable the Court to determine whether these were one continu-
ous series of acts or w e r e so deliberately spaced as to constitute
either cruelty or outrage. (People v. Balisteros)
T h e killing was done with cruelty, by deliberately or
inhumanly augmenting the suffering of the victim or outraging
or scoffing at his person or corpse. No greater outrage, insult or
abuse can a person commit upon a corpse than to sever the head
from the body. T h e head represents the dignity of the person
and any violence directed towards it cannot be interpreted in
any other manner than an outrage to his corpse. (People v.
Binondo, G.R. No. 97227, October 20, 1992)
After the victim was ravished, appellant hacked her,
almost splitting her face. Such bestiality is cruelty and per-
versity, it being unnecessary to its commission and manifest-
ly an outrage on the victim's person. (People v. Nescio, G.R.
No. 102008, December 28, 1994)
197
Chapter Five
ALTERNATIVE CIRCUMSTANCES
A r t . 15. Their concept. — A l t e r n a t i v e circumstances a r e

those w h i c h must be t a k e n into c o n s i d e r a t i o n as a g g r a v a t i n g
or mitigating a c c o r d i n g to the n a t u r e a n d effects of the c r i m e
a n d the other conditions a t t e n d i n g its commission. T h e y a r e
the relationship, intoxication, a n d the d e g r e e of instruction
a n d education of the offender.
T h e alternative c i r c u m s t a n c e of r e l a t i o n s h i p shall
be taken into c o n s i d e r a t i o n w h e n the o f f e n d e d p a r t y is
the spouse, ascendant, d e s c e n d a n t , legitimate, n a t u r a l , or
a d o p t e d b r o t h e r or sister, or relative by affinity in the s a m e
d e g r e e s of the offender.
T h e intoxication of the o f f e n d e r shall be t a k e n into

consideration as a m i t i g a t i n g c i r c u m s t a n c e w h e n the o f f e n d e r
has committed a felony in a state of intoxication, if the s a m e
is not h a b i t u a l or s u b s e q u e n t to the p l a n to c o m m i t s a i d
felony; b u t w h e n the intoxication is h a b i t u a l or intentional,
it shall be c o n s i d e r e d as an a g g r a v a t i n g c i r c u m s t a n c e .
• What are alternative circumstances?
They are circumstances, which are either aggravating or

mitigating according to the nature and effects of the crime and
other conditions attending its commission. T h e y are considered
only when they influenced the commission of the crime. W h e n
the nature of the circumstance has been proved, they are no
longer called alternative circumstances but are denominated
as aggravating or mitigating circumstances, as the case may
be.
• What are the three alternative circumstances?
T h e y are relationship, intoxication, and degree of

instruction and education of the offender. T h e relationship
198
included are exclusively that of spouse, ascendant, descendant,

legitimate, natural, or adopted brother or sister or relative by
affinity in the same degrees. Stepparents and stepchildren
are included by analogy, but not uncles and nieces for there
is no mention of relatives by consanguinity other than those
enumerated in the article.
Compare the circumstances in Articles 14 and 15.
T h e circumstances in Article 14 are per se aggravating

whereas those in Article 15 are not for they could be at times
mitigating. W h e n the term "aggravating" is strictly construed,
it exclusively pertains to Article 14 and excludes Article 15.
(People v. Sabredo, G.R. No. 126114, May 11, 2000; People v.
Orilla)
When is relationship aggravating and when mitigating?
T h e R P C is silent as to when relationship is mitigating

and when it is aggravating. In crimes against chastity such as
acts of lasciviousness, relationship is aggravating. (People v.
Marino, G.R. No. 141183, January 18, 2001) However, rape is
no longer a crime against chastity but a crime against persons
still relationship is aggravating in rape.
Article 264 provides that if the injury is inflicted upon the

father, mother or child, other ascendants or descendants and
spouse, the penalty shall be one or two degrees higher, except
when committed against the offender's child due to excessive
chastisement, in which case it is not aggravating.
When is relationship neither aggravating nor mitigating?

W h e n they are elements of the crime, thus, in parricide,
relationship is neither mitigating nor aggravating. For
abortion practiced by a physician or midwife, their education
and scientific skill are inherent in that crime hence no longer
aggravating. This is because as an element of the felony, it
has already been considered by the law when it prescribed the
penalty therefor. Besides, Article 62 states that any aggravating
circumstance inherent in the crime to such a degree that it
must of necessity accompany the commission thereof shall no
longer be considered in determining the penalty.
199
If what was charged was murder or homicide instead

of parricide, relationship can no longer be considered even
if proved because of the requirement of allegation of all
aggravating circumstances in the information.
• What is the effect of the amendments by R.A. 7659 on rape?

The father-daughter relationship in rape cases has
been treated by Congress as a special circumstance. Hence,
relationship as an alternative circumstance should no longer
be applied in view of the amendments introduced by R . A . 7659.
Without the foregoing amendment, relationship would still
be aggravating in rape and acts of lasciviousness. (People v.
Manhuyod, Jr., G.R. No. 124676, May 20, 1998)
• When is intoxication mitigating and when aggravating?

A person pleading intoxication as a mitigating
circumstance must show that: (1) he has taken a quantity
of alcoholic beverage prior to the commission of the crime
sufficient to produce the effect of obfuscating reason; and (2) he
is not a habitual drinker and did not take the alcoholic drink
with the intention to reinforce his resolve to commit the crime.
(People v. Pinca, G.R. No. 129256, November 17, 1999)
T h e offender's mental faculties must be affected by

drunkenness. M e r e drinking of liquor prior to the commission
of the crime does not necessarily produce a state of intoxication.
It is mitigating if it is not habitual, not intentional and self-

control is diminished as a result of the intoxication. Otherwise,
it is aggravating. Therefore, an alcoholic who commits a felony
while intoxicated will always suffer from this circumstance
because either habitual or intentional intoxication w i l l suffice
as the law used the disjunctive "or" in "habitual or intentional."
• What should be the degree of intoxication to be mitigating?
To be mitigating, the accused's state of intoxication

should be proved or established by sufficient evidence. It
should be such an intoxication that would diminish or impair
the exercise of his willpower or the capacity to know the
injustice of his act. T h e accused must then show that: (1) at the
time of the commission of the criminal act, he has taken such
200
quantity of alcoholic drinks as to blur his reason and deprive

him of a certain degree of self-control; and (2) such intoxication
is not habitual or subsequent to the plan to commit the felony
(intentional). (People v. Rabanillo)
When is degree of instruction or education considered?
Whether to be considered as aggravating or mitigating

depends upon the nature of the crime committed. If the crime
is basically wrong, such as parricide, robbery or rape, it is
immaterial whether the offender is schooled or not. It is not
illiteracy alone but the lack of intelligence of the offender that
is considered. If one is not considered literate but is highly
or exceptionally intelligent or mentally alert or comes from a
family of professionals, so that he realizes the significance of
his act, there is no mitigation. T h e mitigating circumstance of
lack of instruction does not apply to crimes of theft and robbery.
(People v. Macatanda)
T h e high degree of learning should be taken in relation

to the crime committed whether his education puts him in
a better position than the ordinary offenders. For instance,
falsification or estafa committed by a lawyer. However, the
degree of instruction or education may already have been
considered in the penalty prescribed such as abortion practiced
by physician. In that case, it is not aggravating.
L o w degree of education or instruction may be mitigating

but is never aggravating; conversely, high degree may be
aggravating but never mitigating.
201
TITLE TWO
PERSONS CRIMINALLY LIABLE
FOR FELONIES
A r t . 16. Who are criminally liable. — T h e f o l l o w i n g a r e

criminally liable for g r a v e a n d less g r a v e felonies:
1. Principals.
2. Accomplices.
3. Accessories.
T h e f o l l o w i n g a r e c r i m i n a l l y l i a b l e for light felonies:
1. Principals.
2. Accomplices.
• Who are criminally liable?
1. For grave and less grave felonies: principals, accomplices

and accessories.
2. For light felonies: principals and accomplices; accessories

are not liable. L i g h t felonies are punished with arresto
menor; accessories are meted with penalty t w o degrees
lower than the principal, hence, the logic of the rule.
Under Article 9 in relation to Article 25:
a. Grave felonies are penalized with capital punishment

or afflictive penalties in any of their periods;
b. Less grave felonies are meted with penalties which

in their maximum period are correctional;
c. Light felonies carry arresto menor or fine not greater

than P200.
A r t . 17. Principals. — The following are considered

principals:
202
P E R S O N S CRIMINALLY LIABLE
FOR FELONIES
1. T h o s e w h o t a k e a d i r e c t p a r t in the execution of the

act;
2. T h o s e w h o directly force or i n d u c e others to commit
it;
3. T h o s e w h o c o o p e r a t e in the commission of the
offense b y a n o t h e r act w i t h o u t w h i c h i t w o u l d not
have been accomplished.
Direct participator
• W h o are principals by direct participation?
T h e y are those w h o materially execute the crime. They

must appear at the scene of the crime and perform acts necessary
in the commission of the offense to be liable. In conspiracy by
prior agreement, if the principal by direct participation does
not appear at the scene of the crime, he is not liable because:
a. Non-appearance is desistance which is favored and

encouraged;
b. Conspiracy is not a crime unless the law specially

provides a penalty therefor. By merely conspiring,
the co-conspirator has not yet committed any crime.
c. T h e r e is no basis for criminal liability because there

is no criminal participation.
Inducer
• When is an offender a principal by inducement?

T h e principal by inducement must intend that his
inducement be obeyed. M e r e careless comment of one who
does not possess dominance or moral ascendancy over the
offender will not make the former a principal by inducement.
T h e inducer's utterances must be of such a nature and made in
such a manner as to become the determining cause of the crime.
Where the words uttered did not make any great dominance
or influence on the offenders or is no longer necessary as the
offenders were already determined to commit the offending
acts, the utterance will not make the utterer an inducer.
(People v. Parungao, G.R. No. 125812, January 1996)
203
The inducer is generally liable as an accomplice because

the law favors a lesser penalty for if he were regarded as a
principal, his penalty would be heavier.
In fine, an inducer may be a principal, an accomplice or
not criminally liable, in the latter case, if the inducement was
a mere careless remark which is not meant to be obeyed.
• Must the principal by inducement appear at the scene of the

crime?
N o . Principals by inducement (or mastermind) are liable
even if they did not appear in the scene of the crime because the
crime would not have been committed without the inducement.
That is why they induce others to commit the crime — so that
they would remain in the background.
The fact that it was MM and not petitioner who dealt
directly with said fixers cannot exculpate petitioner from the
charge of falsification. He is a principal by inducement in the
commission of said crime, (id.)
• How does an inducer "induce" another to commit a crime?
One is induced to commit a crime either by a command

(precepto) or for a consideration (pacto), or by any other similar
act which constitutes the real and moving cause of the crime
and which was done for the purpose of forcing or inducing such
criminal act and which was sufficient for that purpose. (People
v. Dumancas, G.R. No. 133527-28, December 13, 1999)
Indispensable cooperator
• Who is a principal by indispensable cooperation?
To be a principal by indispensable cooperation, there must

be direct participation in the criminal design by another act
without which the crime could not have been committed. T h e
prosecution failed to present any evidence tending to establish
appellant's conspiracy with the evil designs of the members of
the N P A armed group. Neither was it established that his act
was of such importance that the crime would not have been
committed without him or that he participated in the actual
killing. Under the circumstances, he cannot be considered a
principal by indispensable cooperation. (People v. Fronda)
204
FOR FELONIES
An indispensable cooperator may be a co-conspirator

under the doctrine of implied conspiracy. T h e voluntary and
indispensable cooperation of the offender is a concurrence
of the criminal act to be executed. Consequently, he is a co-
conspirator by indispensable cooperation, although the
common design or purpose was never bottled up by previous
undertaking. (Subayco v. Sandiganbayan)
> How does the cooperator participate in the commission of the

offense?
A principal by indispensable cooperation participates

by means of an act without which the crime would not have
been committed. T h e cooperator need not be a party in the
planning stage of a conspiracy for he may become a principal
at the moment of the execution of the crime with the other
principals. His common purpose and unity of design with the
other conspirators may be inferred from the circumstances of
the crime.
T h e participation of the cooperator must be indispensable

to the crime. If his participation is not indispensable, as when
with or without his participation, the offense will be committed,
his liability may only be that of an accomplice.
• When is one an accomplice instead of an indispensable

cooperator?
W h e n his cooperation is not indispensable. Sotto, March
1996 involved the pumpboat owner who helped the offenders
by pretending that his pumpboat needed towing by the passing
boat of the victims. T h e offenders transferred to the boat of the
victims and later robbed and killed them. T h e pumpboat owner
was held as an accomplice for the principal offenders could have
asked the help of other owners, hence, his cooperation was not
indispensable as his participation in the criminal design is not
by another act without which the crime could not have been
committed.
• Even if there is conspiracy, can the liability of the principals

differ?
Y e s . Notwithstanding conspiracy, the liability of the
principals may be different. Since GG did not know the
205
treacherous manner by which CC was supposed to kill the

victim, GG shall be liable for homicide while CC for murder.
(People v. Cabillan, G.R. No. 131808, February 6, 2002)
• Describe the nature of the "cooperation" required to incur

criminal liability.
The cooperation that the law punishes is the assistance
knowingly or intentionally rendered, which cannot exist
without previous cognizance of the criminal act intended to
be executed. It is required to be liable either as a principal
by indispensable cooperation, or as an accomplice, that the
accused unite with the criminal design of the principal by
direct participation. Nothing on record shows that appellant
knew that BB was going to stab P P , creating a doubt as to
appellant's criminal intent. (People v. Jorge, G.R. No. 99379,
April 22, 1994)
A r t . 18. Accomplices. — A c c o m p l i c e s a r e those p e r s o n s

w h o , not b e i n g i n c l u d e d in A r t i c l e 17, c o o p e r a t e in the
execution of the offense by p r e v i o u s or s i m u l t a n e o u s acts.
• Who are accomplices? not a conspirator.
An accomplice is one who, not being a principal "cooperates

in the execution of the offense by previous or simultaneous
acts." A person is an accomplice if his role in the perpetration
of the crime is of a minor character. If there is ample evidence
of criminal participation but a doubt exists as to the nature
of liability, courts should resolve to favor the milder form of
responsibility, that of an accomplice. (People v. Fronda) M e r e
presence does not of itself constitute a simultaneous act of
cooperation sufficient to make one an accomplice. (People v.
Lacao)
To be an accomplice:
a. Offender should take part in the execution of the
crime by previous or simultaneous acts; and
b. He intends to take part in the commission of the
crime.
206
FOR FELONIES
Is conspiracy necessary for the liability of an accomplice?
Conspiracy is not necessary for he is not a principal

but he supplies material or moral aid to the principal in
an efficacious w a y . He knows of the criminal design of the
principal and he cooperates knowingly or intentionally but in
a manner not indispensable to the commission of the crime,
otherwise he w i l l be considered a principal by indispensable
cooperation.
If there is conspiracy, he ceases to be an accomplice but

instead is considered a principal although his participation is
such that, without the conspiracy, should have been that of an
accomplice.
PP and TT cooperated in the execution of the offense by

simultaneous acts which, although not indispensable to the
commission of the offense, bore a relation to the acts done
by the principal. T h e y supplied material or moral aid in the
execution of the crime in an efficacious way and since they
w e r e aware of the criminal intent of the principals and having
participated in such criminal design sans a conspiracy, they
are guilty of the milder form of responsibility as accomplices.
(People v. Lacao, Sr.)
Compare a principal and an accomplice.
1. A principal by inducement induces the other offenders to

commit an act in such a w a y that without the inducement,
the crime would not be committed. He wills that his
inducement be obeyed by exerting influence or moral
ascendancy over the other malefactors. An accomplice's
inducement or utterance is not indispensable for with or
without such utterance, the crime would be committed
as the principal is already determined to commit the
crime.
2. The cooperation of the principal in the offense is indis-
pensable without which the crime would not be commit-
ted; that of the accomplice is minor.
207
A lookout who was not part of the conspiracy but

participated only after such decision was reached is an
accomplice since he is merely an instrument of the crime
and cooperates after the decision to commit the same had
already been made. (People v. De Vera, G.R. No. 128966,
August 18, 1999) A "lookout" is a principal if he was a
co-conspirator in the criminal design and in deciding the
course of action to be taken in its commission. He is a co-
author of the crime and provides his companions effective
means and encouragement to carry out the same. His
being a lookout is a necessary part of the concerted action
to achieve the desired result. (People v. Loreno)
3. Both the principal and the accomplice act before or during

the commission of the crime.
Conspirators decide that a crime should be committed;
accomplices merely concur in it and cooperate in the
accomplishment. Conspirators are the authors of the crime;
accomplices are merely the instruments who perform acts
not essential to the perpetration. Thus, mere knowledge and
participation do not suffice to make one a conspirator, for such
are required also of an accomplice, especially if even without
his participation, the crime could have been accomplished.
Where the acts of an accused show that he shared in

the community of purpose with the principals and their acts
collectively and individually demonstrate the existence of
a common design toward the accomplishment of the same
purpose, conspiracy is evident and all the perpetrators are
liable as principal.
Principals and accomplices are similar in that they know

and agree with the criminal design. T h e y are different however
in that conspirators know the criminal intention because
they themselves have decided upon such course of action;
accomplices come to know about it after the conspirators have
reached the decision and only then do they agree to cooperate
in its execution.
A r t . 19. Accessories. — A c c e s s o r i e s a r e those w h o ,

h a v i n g k n o w l e d g e of the commission of the c r i m e , a n d
without h a v i n g p a r t i c i p a t e d t h e r e i n , either a s p r i n c i p a l s o r
208
FOR FELONIES
accomplices, t a k e p a r t s u b s e q u e n t to its commission in any

o f the f o l l o w i n g m a n n e r s :
1. By profiting themselves or assisting the offender to

profit by the effects of the crime;
2. By c o n c e a l i n g or d e s t r o y i n g the b o d y of the crime,
or the effects or instruments thereof, in o r d e r to
p r e v e n t its discovery;
3. By h a r b o r i n g , c o n c e a l i n g , or assisting in the
e s c a p e of the p r i n c i p a l of the c r i m e , p r o v i d e d the
a c c e s s o r y acts w i t h a b u s e of his p u b l i c functions
or w h e n e v e r the a u t h o r of the crime is guilty of
t r e a s o n , p a r r i c i d e , m u r d e r , o r a n attempt t o take
the life of the C h i e f E x e c u t i v e , or is k n o w n to be
h a b i t u a l l y guilty of some other crime.
A r t . 20. Accessories who are exempt from criminal liability. —

T h e p e n a l t y p r e s c r i b e d for accessories shall not b e imposed
u p o n those w h o a r e s u c h w i t h respect t o their spouses,
a s c e n d a n t s , d e s c e n d a n t s , legitimate, n a t u r a l , a n d a d o p t e d
b r o t h e r s a n d sisters, or relatives by affinity w i t h i n the same
d e g r e e s , w i t h the single exception of accessories falling
w i t h i n the p r o v i s i o n s of p a r a g r a p h 1 of the next p r e c e d i n g
article.
• W h o are accessories?
T h e y are those who:

a. H a v e knowledge of the commission of the crime;
b. Without having participated therein; and
c. T a k e part subsequent to its commission in any of the
following manners:
1. By profiting or assisting the offender to profit from
the effects of the crime.
2. By concealing or destroying the body of the crime
(corpus delicti) or effects or the instruments thereof
to prevent its discovery.
3. By harboring, concealing or assisting in the escape
of the principal.
209
How do accessories profit by the effects of the crime?

A person who received any property from another and
used it, knowing that the same had been stolen is guilty as an
accessory because he is profiting by the effects of the crime. By
employing the carabaos in his farm, TT was profiting by the
objects of the theft. TT has k n o w l e d g e of the crime and yet
without having participated either as principal or as an
accomplice, for he did not participate in the taking of the
carabaos, he took part subsequent to the commission of the
act of taking by profiting himself by its effects. TT is an
accessory after the fact. (Taer v. CA)
What is the effect of some special laws on accessories who

profit by the effects of the crime?
If the crime is robbery or theft and one bought, sold,
possessed, or in any other manner dealt with the proceeds
which he knew or should have known to be proceeds of robbery
or theft, he is a principal in the crime of fencing. But he must
be charged with fencing in another information, otherwise he
is liable only as an accessory of the principals in robbery or
theft.
If the crime is brigandage and he profited from the loot, he

should be charged with abetting brigandage — an accomplice of
brigands. T h e procedural aspect should be observed, charging
him in another information otherwise he w i l l be liable as an
accessory.
When will an accessory be liable as a principal in another crime?
W h e n he is an accessory whose act or omission is also

penalized in a special law. In violations of special laws or
crimes mala prohibita, the offenders generally are penalized
as principals unless otherwise provided.
What is corpus delicti"?
Corpus delicti is the body or substance of the crime and

in its primary sense refers to the fact that a crime has actually
been committed. As applied to a particular offense, it means
the actual commission by someone of the particular crime
charged. It is a compound fact made up of two things:
210
FOR FELONIES
(1) the existence of a certain act or result forming the

basis of the criminal charge; and
(2) the existence of a criminal agency as the cause of

this act or result.
Otherwise stated, its elements are: a) the proof of the

occurrence of a certain event; and b) some person's criminal
responsibility. (People v. Boco, G.R. No. 129676, June 23, 1999)
In of drug sale, an illegal sale of the regulated drug took place
(criminal event); and the accused were the authors thereof
(criminal agent).
W h o are the two kinds of accessory by concealing or harboring

the offender?
a. A public officer who acts with abuse of public functions is

liable whatever crime may have been committed by the
offender;
b. A private individual if the author of the crime is guilty

of treason, attempt on the life of the Chief Executive,
murder, parricide or is known to be habitually guilty of
some other crime.
A police officer who was present when the crime was

committed abused his official function when he failed to
immediately arrest the offender and conduct a speedy
investigation of the crime, but instead left the scene of the
crime together with the offender, thus assisting the offender to
escape. Being a public officer, he is an accessory to the crime.
(People v. Antonio, G.R. No. 128900, July 14, 2000)
For one to be considered accessory, whom should he assist?

T h e offender to be assisted must be a principal; assisting
an accomplice is not included. Those who assist the principal
to escape may be prosecuted under P . D . 1829 on obstruction
of justice not as accessory but as a principal, provided that
a separate information shall be prepared for the crime of
obstruction. W h e n he is convicted, the penalty to be imposed is
the higher penalty under P . D . 1829 or any other law, including
the R P C . (Section 1, last paragraph)
211
P R E S I D E N T I A L D E C R E E N O . 1829 —
OBSTRUCTION OF JUSTICE
XXXXXXXXX
SECTION 1. The penalty of prision correccional in
its maximum period, or a fine ranging from 1,000 to 6,000
pesos, or both, shall be imposed upon any person who
knowingly or willfully obstructs, impedes, frustrates, or
delays the apprehension of suspects and the investigation
and prosecution of criminal cases by committing any of the
following acts:
a. Preventing witnesses from testifying in any criminal
proceeding or from reporting the commission of any
offense or the identity of any offenders by means of
bribery, misrepresentation, deceit, intimidation,
force or threats;
b. Altering, destroying, suppressing or concealing any

paper, record, document, or object with intent to
impair its verity, authenticity, legibility, availability
or admissibility as evidence in any investigation of
or official proceedings in criminal cases, or to be
used in the investigation of, or official proceedings
in, criminal cases;
c. Harboring or concealing, or facilitating the escape

of any person he knows, or has reasonable ground to
believe or suspect, has committed any offense under
existing penal laws in order to prevent his arrest,
prosecution and conviction;
d. Publicly using a fictitious name for the purpose

of concealing a crime, evading prosecution or the
execution of a judgment, or concealing his true
name and other personal circumstances for the
same purpose or purposes;
e. Delaying the prosecution of criminal cases by
obstructing the service of process or court orders
or disturbing proceedings in the fiscals' offices, in
Tanodbayan, or in the courts;
212
FOR FELONIES
/. Making, presenting or using any record, document,

paper or object with knowledge of its falsity and
with the intent to affect the course or outcome of the
investigation of, or official proceedings in criminal
cases;
g. Soliciting, accepting, or agreeing to accept any ben-

efit in consideration of abstaining from, discontinu-
ing, or impeding the prosecution of a criminal of-
fender;
h. Threatening directly or indirectly another with

the infliction of any wrong upon his person, honor
or property or that of any immediate member or
members of his family in order to prevent a person
from appearing in the investigation of, or official
proceedings in, criminal cases, or imposing a
condition, whether lawful or unlawful, in order to
prevent a person from appearing in the investigation
of, or in official proceedings in criminal cases;
i. Giving of false or fabricated information to mislead
or prevent the law enforcement agencies from
apprehending the offender or from protecting
the life or property of the victim; or fabricating
information from the data gathered in confidence
by the investigating authorities for purposes of
background information and not for publication
and publishing or disseminating the same to
mislead the investigator or the court.
If any of the acts mentioned herein is penalized by any

other law with a high penalty, the higher penalty shall be
imposed.
Section 2. If any of the foregoing acts are committed by a
public official or employee, he shall, in addition to the penalties
provided thereunder, suffev perpetual disqualification from
holding public office.
Section 3. This Decree shall take effect immediately.
Done in the City of Manila, this 16th day of January, in
the year of Our Lord, nineteen hundred and eighty-one.
213
Compare an accomplice to an accessory.
ACCOMPLICE ACCESSORY
1. When Participates before Takes part

or during the subsequent to the
commission of the commission of the
offense offense
2. Knowledge Knows the criminal Knows the

design of the commission of the
principal offense
3. Acts Provides material Acts in the three

or moral aid in an specific ways in
efficacious w a y but Article 19
not in a manner
indispensable to the
offense
4. Liability No exemption from M a y be exempted

liability liability per
Articles 19 and
20 and for light
felonies under
Article 16
5. Penalty one degree lower than two degrees lower

the principal's than the principal's
As to when they participate, the accomplices are thus

also known in other jurisdictions as accessories before the fact
while accessories are denominated accessories after the fact.
W h o are the accessories exempt from criminal liability?
They are the offender's spouse, ascendant, descendant,

legitimate, natural, and adopted brothers and sisters,
or relatives by affinity within the same degrees as those
enumerated. Relatives by consanguinity are not included
hence sister in law is better situated than a niece/nephew of
the offender which is not in keeping with normal, traditional
filial affection in this jurisdiction.
214
FOR FELONIES
• For what acts are they exempt from liability?
For those acts enumerated in Article 19 except for

profiting by the effects of the crime. W h e n the relatives assist
the principal by concealing or destroying the body of the crime
or by assisting in the escape of the principal, the law recognizes
that they are doing so because they are motivated by their
natural affection for the offender. H o w e v e r , when they profit or
assist the offender in profiting by the effects of the crime, they
are doing so because of greed and not because of filial affection.
Hence, they are not exempted from criminal liability.
• Compare Articles 11, 15, 20, 266-B, 332 on relatives of the

offender.
Article 11 on defense of relatives includes relatives by

consanguinity in the fourth civil degree. Article 15 does not
include as offended party relatives by consanguinity that can
mitigate or aggravate criminal liability of the offender. Article
20 w i l l not benefit relatives by consanguinity from exemption
from criminal liability. Article 266-B on qualified rape includes
relatives by consanguinity in the third civil degree as victims.
Article 332 w i l l not exempt relatives by consanguinity from
criminal liability for theft, estafa and malicious mischief.
215
TITLE THREE
PENALTIES
Chapter One
PENALTIES IN G E N E R A L
A r t . 21. Penalties that may be imposed. — No felony shall be

p u n i s h a b l e b y a n y penalty not p r e s c r i b e d b y l a w p r i o r t o its
commission.
• What are penalties?

Penalties are the punishment imposed by lawful
authority upon a person who commits a deliberate or negligent
act (Moreno, Philippine L a w Dictionary, cf Moron, 44 Phil.
431) or for omitting to act when there is a duty to do so. T h e y
are imposed as a result of judicial proceedings. (Santiago v.
Sandiganbayan)
• Who has the power to prescribe penalties?
Penalties are prescribed by statutes and are essentially

and exclusively legislative. Judges can only interpret and apply
them and have no authority to modify them or revise their
range as determined exclusively by the legislature. (People v.
Dela Cruz, G.R. No. 100386, December 11, 1992)
• What penalties may be imposed upon an offender?
Only those penalties prescribed by law prior to its

commission may be imposed. Unless there is a law defining an
act or omission as a crime and prescribing a penalty therefor,
that act or omission cannot be penalized, no matter how
reprehensible it may be. Nullum crimen, nulla poena sine lege.
216
• What is the effect of judicial decisions on the power of Congress

to enact statutes?
Decisions of the Court cannot limit the power of Congress

to enact penal statutes. Hernandez, Enrile and other cases
decreed that Article 48 cannot be invoked as the basis for
charging and prosecuting the complex crime of rebellion with
homicide for the purpose of obtaining imposition of the penalty
for the more serious offense in its maximum period. Said cases
did not prohibit the legislature from validly enacting statutes
that would define and punish, as offenses sui generis crimes
which, in the context of Hernandez and the other cases, may be
v i e w e d as a complex of rebellion with other offenses. W h a t the
court stated in said cases about rebellion "absorbing" common
crimes committed in its course or furtherance may be viewed
in light of the fact that at the time they were decided, there
w e r e no penal provisions defining and punishing, as specific
offenses, crimes like murder, etc., committed in the course or
as part of a rebellion. This is no longer true as far as this case is
concerned and there being no question that P . D . 1866 is a valid
statute. (Baylosis v. Chavez, 202 SCRA 405) (But see the effect
of the amendment by R . A . 8294 on P . D . 1866)
• Will the favorable judgment on a co-accused be applied to a

convict who did not appeal?
Y e s , for, the present rule is that an appeal taken by one
or more of several accused shall not affect those who did not
appeal, except insofar as the judgment of the appellate court is
favorable and applicable to the latter.
T h e decision with respect to FF is favorable and applicable
to R R . He should not be treated as the odd man out, but should
also benefit from the more beneficial indeterminate sentence
that will be imposed. In fact, under similar conditions and on
the same ratiocination, the Rule has justified the extension of
the judgment of acquittal "to the co-accused who did not appeal
the judgment of the trial court. (Ladino v. Garcia)
A r t . 22. Retroactive effect of penal laws. — P e n a l laws shall

h a v e a retroactive effect insofar as they favor the person
guilty of a felony, w h o is not a h a b i t u a l criminal, as this term
is defined in R u l e 5 of Article 62 of this Code, although at the
217
time of the publication of such l a w s a final sentence has b e e n

pronounced a n d the convict is serving the same.
• May the favorable provisions of a law be given retroactive effect

to entitle the offender to a lesser penalty?
Yes. Article 22 provides the exception to the prospectivity
characteristic of penal law. A n d this favorable application
of penal laws applies equally whether the crime consists of
violations of the R P C or of special penal laws. Although R . A .
6425 was enacted as a special law, by force of Article 10, the
beneficent provisions of Article 22 applies to and shall be given
retroactive effect to crimes punished by special laws. T h e
exceptions in Article 22 would not apply to those convicted of
drug offenses since habitual delinquency refers to convictions
for falsification, robbery, estafa, theft, serious and less serious
physical injuries. (People v. Simon)
• Can the court on its own apply Article 22 when it was not
invoked by the accused?
Y e s . T h e plain precept of Article 22 would be useless and

nugatory if the courts were not under obligation to fulfill such
duty, irrespective of whether or not the accused has applied for
it, just as would also all provisions relating to the prescription
of the crime and the penalty, (id.) (But see Bon where there is
a need for the filing of habeas corpus to benefit from a favorable
law which reduced the penalty for the crime committed)
• Can a law have both retroactive and prospective application?
Y e s . T h e application of R . A . 8294 would not be beneficial

to the accused, as it would increase the penalty for parricide.
Hence, that law was not given retroactive application, as
otherwise it would acquire the character of an ex post facto law.
(People v. Macoy, G.R. No. 126253, August 16, 2000)
On the other hand, a crime was committed before July

6, 1997 when R . A . 8294 took effect. This law is advantageous
to the accused as it spares him from a separate conviction
for illegal possession of firearm. Hence, said law was applied
retroactively. (People v. Lazaro, G.R. No. 112090, October 26,
1999) Before, violation of P . D . 1866 should have been punished
218
separately under the ruling in Quijada. Nevertheless, P.D.

1866 was recently amended by R . A . 8294. T h e third paragraph
of Section 1 provides that "if homicide or murder is committed
with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance."
Only one offense shall be punished, viz., either homicide or
murder, and the use of the unlicensed firearm is aggravating
circumstance. Being favorable, this provision may be given
retroactive effect, as accused is not a habitual criminal. (People
v. Bergante, G.R. No. 120369, February 27, 1998)
• What is the effect of an absolute repeal of penal laws?
An absolute repeal of a penal law deprives a court of its

authority to punish a person charged with violation of the law
prior to its repeal because an unqualified repeal constitutes
a legislative act of rendering legal what had been previously
declared as illegal, such that the offense no longer exists and it
is as if the person who committed it never did so. T h e exceptions
are:
a. T h e inclusion of a saving clause in the repealing

statute that provides that the repeal shall have no
effect on pending actions.
b. W h e r e the repealing act re-enacts the former statute

and punishes the act previously penalized under the
old law. In such instance, the act committed before
the re-enactment continues to be an offense in the
statute books and pending cases are not affected,
regardless of whether the new penalty to be imposed
is more favorable to the accused. (Benedicto v. CA,
G.R. No. 125359, September 4, 2001)
A r t . 23. Effect of pardon by the offended party. — A p a r d o n

by the offended p a r t y does not extinguish criminal action
except as p r o v i d e d in Article 344 of this Code; but civil
liabilities w i t h r e g a r d to the interest of the injured party is
extinguished by his express w a i v e r .
(Refer to notes under Article 89)
219
A r t . 24. Measures of prevention or safety which are not

considered penalties. — T h e f o l l o w i n g shall not be considered
as penalties:
1. The arrest a n d t e m p o r a r y detention of accused
persons, as well as their detention by r e a s o n of
insanity or imbecility, or illness r e q u i r i n g their
confinement in a hospital.
2. T h e commitment of a m i n o r to a n y of the institutions
mentioned in A r t i c l e 80 a n d for the p u r p o s e s
specified therein.
3. S u s p e n s i o n f r o m the e m p l o y m e n t or p u b l i c office
d u r i n g the trial or in o r d e r to institute the p r o c e e d -
ings.
4. Fines a n d other c o r r e c t i v e m e a s u r e s w h i c h , in the
exercise o f their a d m i n i s t r a t i v e o r d i s c i p l i n a r y
p o w e r s , s u p e r i o r officials m a y i m p o s e u p o n their
subordinates.
5. D e p r i v a t i o n of rights a n d the r e p a r a t i o n s w h i c h
the civil l a w m a y establish i n p e n a l f o r m .
• Why are the measures not considered penalties?
The measures under Article 24 are not considered penalty

because of the constitutional provision on presumption of
innocence. T h e y are not imposed after trial on the merits but
are mere preventive measures, hence cannot be considered
as penalties. H o w e v e r , A r t i c l e 29 provides that the period of
preventive imprisonment w i l l be deducted from the term of
imprisonment when the accused is finally convicted.
Preventive suspension is not a penalty because it is not

imposed as a result of judicial proceedings. In fact, if acquitted,
the official concerned shall be entitled to reinstatement and to
the salaries and benefits which he failed to receive during the
suspension. (Santiago v. Sandiganbayan, April 2001)
* What is the nature and rationale of preventive suspension of

public officers pending investigation?
Preventive suspension pending investigation is intended

to enable the disciplining authority to investigate the
220
charges against respondent by preventing the latter from

intimidating or in any w a y influencing witnesses against
him. If the investigation is not finished and a decision is not
rendered within that period, the suspension will be lifted and
the respondent w i l l be reinstated. If after investigation he is
found innocent of the charges and is exonerated, he should be
reinstated. (Gloria v. CA, G.R. No. 131012, April 21, 1999)
221
Chapter Two
CLASSIFICATION OF PENALTIES
A r t . 25. Penalties which may be imposed. — T h e penalties

w h i c h m a y be imposed, a c c o r d i n g to this C o d e , a n d their
different classes, a r e those i n c l u d e d in the following:
SCALE
PRINCIPAL PENALTIES
Capital punishment:
Death.
Afflictive penalties:
Reclusion perpetua,
Reclusion temporal,
P e r p e t u a l o r t e m p o r a r y a b s o l u t e disqualification,
P e r p e t u a l o r t e m p o r a r y special disqualification,
Prision mayor.
Correctional penalties:
Prision correccional,
Arresto mayor,
Suspension,
Destierro.
Light penalties:
Arresto menor,
P u b l i c censure.
Penalties common to the last preceding:
Fine, and
B o n d to k e e p the p e a c e .
ACCESSORY PENALTIES
P e r p e t u a l o r t e m p o r a r y a b s o l u t e disqualification,
P e r p e t u a l o r t e m p o r a r y special disqualification,
222
S u s p e n s i o n f r o m p u b l i c office, the r i g h t to vote a n d be

voted for, the p r a c t i c e of profession or calling,
Civil interdiction,
Indemnification,
F o r f e i t u r e o r confiscation o f instruments a n d proceeds
of the offense,
P a y m e n t o f costs.
• Characterize the penalties in the Revised Penal Code?
Penalties in Book I I , R P C are:
a. Graduated according to severity;

b. Divided into periods except for reclusion perpetua;
c. Classified into principal or accessory penalties;
d. Deemed imposed for consummated crimes;
e. Imposed against the principal offenders (Article 46);
f. T h e maximum imposable for the particular crime
to which they are respectively prescribed. Thus,
the penalties prescribed for the respective felonies
can never be increased by the court no matter how
perverse the offender may be (Article 64, no. 6); and
g. Understood to be a degree for purposes of lowering

the penalty under the ISL, in case of the presence
of privileged mitigating circumstances, and for
applying the rules under Articles 50 to 57. For
instance, the penalty of arresto mayor, minimum
period for light coercion in Article 287 is one degree
and the penalty next lower in degree is arresto
menor, maximum period.
• What are principal and accessory penalties?

Principal penalties are the specific penalty for specific
felony in the various provisions of Book II defining felonies
and imposing penalties thereon, such as reclusion temporal
for homicide. They must be imposed by the court expressly in
the decision. Accessory penalties are those which follow the
principal penalties by operation of law (Article 73). As such,
they need not be expressly stated in the decision.
223
What are the three scales of penalties in the Code and their
significance?
1. Article 25 classifies the penalties into principal and
accessories.
2. Article 70 provides for the scale when there are two or
more sentences to be served, including the 3-fold rule.
3. Article 71 graduates the penalties into the order of
severity for purposes of applying the rules under Article
61 in relation to Articles 50-57, the penalty imposable on
principal, accomplices, and accessories for consummated,
frustrated, and attempted felonies.
Did the 1987 Constitution abolish the death penalty?

There is nothing in Section 19(1) of Article I I I of the 1987
Constitution that expressly declares the abolition of the death
penalty. T h e provision merely says that the death penalty
shall not be imposed unless for compelling reasons involving
heinous crimes, the Congress thereafter provides for it and, if
already imposed, shall be reduced to reclusion perpetua. If the
language under construction is plain, it is neither necessary
nor permissible to resort to extrinsic aids like the records of the
constitutional convention, for its interpretation. (People v. Bon)
When was the death penalty reimposed?
R . A . 7659 which reimposed the death penalty took effect

on December 31, 1993, fifteen days after its publication in the
December 16, 1993 issues of the Manila Bulletin, Philippine
Star, Malaya and Philippine T i m e s Journal; not on January
1, 1994, as is sometimes misinterpreted. (People v. Godoy,
December 1995). ( R . A . 9346 abolished of the death penalty.)
What was the effect on Article 248 of the 1987 Constitutional

proscription on the death penalty?
Article I I I , Section 19(1) does not change the periods of

the penalty prescribed by Article 248 except only insofar as it
prohibits the imposition of the death penalty and reduces it to
reclusion perpetua. T h e range of the medium and the minimum
penalties remains unchanged. (People v. Dela Cruz, 216 SCRA)
224
T h e r e being no generic or mitigating circumstance

attending the commission of the offense, the applicable
sentence is the medium period of the penalty prescribed by
Article 248, which is still reclusion perpetua. (People v. Munoz,
170 SCRA; People v. Dela Cruz) [Prior to R . A . 7659, murder-
is penalized with reclusion temporal maximum to death; hence,
reclusion perpetua was then the medium period.]
R E P U B L I C A C T N O . 9346
S E C T I O N 1. T h e imposition of the p e n a l t y of death is

hereby prohibited. Accordingly, Republic Act N o . Eight
T h o u s a n d O n e H u n d r e d Seventy-Seven ( R . A . N o . 8177),
o t h e r w i s e k n o w n a s the A c t D e s i g n a t i n g D e a t h b y L e t h a l
Injection, i s h e r e b y r e p e a l e d . R e p u b l i c A c t N o . Seven
T h o u s a n d Six H u n d r e d Fifty-Nine ( R . A . N o . 7659), o t h e r w i s e
k n o w n as the D e a t h P e n a l t y L a w , a n d all other l a w s , executive
o r d e r s a n d d e c r e e s , i n s o f a r as they impose the d e a t h penalty
are hereby repealed or amended accordingly.
S E C . 2. In lieu of the d e a t h penalty, the f o l l o w i n g shall

b e imposed:
( a ) the p e n a l t y of reclusion perpetua, w h e n the l a w

violated m a k e s use of the n o m e n c l a t u r e of the penalties of
the R e v i s e d P e n a l C o d e ; o r
( b ) the p e n a l t y of life imprisonment, w h e n the l a w
violated does not m a k e use of the n o m e n c l a t u r e of the
penalties of the R e v i s e d P e n a l C o d e .
S E C . 3. P e r s o n s convicted of offenses p u n i s h e d with
reclusion perpetua, or w h o s e sentences will be r e d u c e d to
reclusion perpetua, by r e a s o n of this A c t , shall not be eligible
for p a r o l e u n d e r A c t N o . 4103, otherwise k n o w n as the
I n d e t e r m i n a t e Sentence L a w , a s a m e n d e d .
S E C . 4. T h e B o a r d of P a r d o n s a n d P a r o l e shall cause
the publication at least once a w e e k for three consecutive
w e e k s in a n e w s p a p e r of general circulation of the names
of persons convicted of offenses punished with reclusion
perpetua or life imprisonment by reason of this Act w h o
225
are being considered or r e c o m m e n d e d for commutation or

pardon; Provided, however, T h a t nothing h e r e i n shall limit
the p o w e r of the P r e s i d e n t to g r a n t executive clemency
u n d e r Section 19, Article V I I of the Constitution.
S E C . 5. This Act shall take effect immediately after
its publication in t w o national n e w s p a p e r s of g e n e r a l
circulation.
A p p r o v e d : June 24, 2006.
• When did R.A. 9346 take effect?

Although the letter of the law states that it shall take
effect immediately upon its publication, practically, however,
it took effect even prior thereto because it is a law favorable
to the offender and the rule is that, "Penal laws shall have
retroactive effect insofar as they favor the person guilty of a
felony, who is not a habitual criminal, as this term is defined
in Rule 5 of Article 62 of the Code, although at the time of the
publication of such laws a final sentence has been pronounced
and the convict is serving the same." (Article 22)
Even if the offender is a habitual delinquent, still this

law shall benefit him for from the wordings of the law, the
intent of Congress is to eliminate the death penalty without
regard to whether or not the offender is a habitual delinquent.
Indeed, the crimes covered by habitual delinquent, are not
more heinous than rape, murder, or kidnapping and the
rapists, murderers, etc., who are the primary beneficiaries of
the retroactive application of the law cannot be more benign
than falsifiers, robbers, or swindlers.
• What provisions of the Revised Penal Code are affected by the

law abolishing the death penalty?
1. Article 25 — on the category of capital punishment;

2. Article 47 — cases when the death penalty shall not be
imposed; automatic review of death penalty cases;
3. Paragraph 2 of Article 63 — rules for the application of
indivisible penalties;
226
4. Article 71 — order of severity of penalties (People v. Bon,

infra);
5. Article 74 — penalty higher than reclusion perpetua in
certain cases.
These specific provisions should be deemed as inoperative

due to the abolition of the death penalty.
• Are convicts, whose penalty were reduced to reclusion perpetua

because of R.A. 9346, entitled to parole?
N o . Section 3 of R . A . 9346 expressly bars the convict from

benefiting from the I S L . It is however clear that such prohibition
is a surplusage because the I S L is not applicable for offenders
whose crimes are punishable with life imprisonment, death,
or reclusion perpetua imposed as a single indivisible penalty
under Article 63 in paragraph 1.
• What is the effect of R.A. 9346 on R.A. 7659?
It merely modifies the penalty imposable for the crime

covered by R . A . 7659 but does not affect the provision itself
on how the crime is committed. R . A . 9346 does not affect the
provision of R . A . 7659 on Article 267 making the killing, rape,
torture, ransom-payment, etc., of the victim as qualifying
circumstances in kidnapping. It merely made the penalty
imposable thereon as reclusion perpetua. However, for all
intents and purposes, the graduation of penalty between
simple kidnapping and kidnapping with homicide has been
erased. Thus, it does not make any difference now whether or
not the kidnap victim is killed or raped. It can therefore be
asserted that the new law is an absolutory cause insofar as the
penalty is concerned because the kidnapper can now go ahead
and kill the victim after ransom is paid for impunity for the
penalty will be the same anyway.
People v. Bon, G . R . N o . 166401, O c t o b e r 30, 2006
issues;
1. Whether the penalty for attempted qualified rape should
be two degrees lower from death penalty or from reclusion
perpetua.
227
2. Whether R . A . 9346 intended to delete the word "death" in

the graduated scale of penalties under Article 71.
3. Whether the debarring of the death penalty
correspondingly declassified those crimes catalogued as
heinous.
4. Whether retroactive effect should be extended to this new
ruling to persons previously convicted of crimes which,
if consummated or participated in as a principal, would
have warranted the solitary penalty of death.
Held: Mufioz, G.R. No. 38969-70, February 9, 1989 declined

to acknowledge the constitutional abolition of the death penalty
through the 1987 Constitution. Here, it is now necessary to determine
whether R . A . 9346 resulted in the statutory interdiction of the death
penalty. Resultantly, the issue is whether the penalty for attempted
qualified rape should be computed from death or reclusion perpetua.
Article 266-B prescribes the death penalty for qualified rape.

The determination of two degrees lower than the death penalty
entails the application of Articles 61 and 71. Article 71 provides that
in the case in which the law prescribes a penalty lower or higher by
one or more degrees than another given penalty, the rules prescribed
in Article 61 shall be observed in graduating such penalty. T h e lower
or higher penalty shall be taken from the graduated scale in Article
71.
At the same time, the I S L prescribes that "the court shall

sentence the accused to an indeterminate sentence, the maximum
term of which shall be that which, in v i e w of the attending
circumstances, could be properly imposed under the rules of the
said Code, and the minimum which shall be within the range of the
penalty next lower to that prescribed by the Code for the offense."
T h e purpose of the prescription of minimum and maximum periods
is to effect the privilege granted under the same law, for prisoners
who have served the minimum penalty to be eligible for parole. Thus,
convicts sentenced to suffer death penalty or life imprisonment are
ineligible under that law, as are persons sentenced to reclusion
perpetua, an indivisible penalty without minimum or maximum
periods. (People v. Tubongbanua)
Prior to R . A . 9346, the death penalty was imposable under two

different frames of reference under the R P C , as amended by R . A .
228
7653: (1) as the maximum penalty for "reclusion perpetua to death"

imposable on several crimes, including murder, qualified piracy,
and treason depending on the appreciation of the aggravating and
mitigating circumstances; and (2) death itself as an automatic and
exclusive penalty for the crimes of qualified bribery "if it is the
public officer who asks or demands such gift or present;" kidnapping
or detention "for the purpose of extorting ransom from the victim
or any other person;" destructive arson wherein "death results;"
and rape qualified by any of the several circumstances enumerated
under the law.
Under Article 6 1 ( 2 ) , " [w] hen the penalty prescribed for the crime
is composed of two indivisible penalties ... the penalty next lower in
degree shall be that immediately following the lesser of the penalties
prescribed in the respective graduated scale." Hence, in passing
sentence on those convicted of attempted felonies which warranted
the penalty of "reclusion perpetua to death" if consummated, it was
consistently held that the penalty two degrees lower than "reclusion
perpetua to death" is prision mayor. In contrast, if the penalty for
the consummated crime is the single indivisible penalty of death,
Article 61(1) provides that "the penalty prescribed for the felony
is single and indivisible, the penalty next lower in degree shall be
that immediately following that indivisible penalty in the respective
graduated scale prescribed in Article 71." Thus, the proper penalty
two degrees lower than death is reclusion temporal.
T h e negation of the word "death" in Article 71 will have the

effect of appropriately downgrading the proper penalties attaching
to accomplices, accessories, frustrated and attempted felonies to the
level consistent with the rest of the penal laws. For example, the
convicted accomplice in kidnapping for ransom, would now bear the
penalty of reclusion temporal, the penalty one degree lower than
that the principal would bear (reclusion perpetua). Such sentence
would be consistent with Articles 52 and 71, as amended, to remove
the reference to "death."
T h e harmonization that would result if R . A . 9346 were
construed as having eliminated the reference to "death" in Article
71 would run across the board in our penal laws. Consistent with
Article 51 those convicted of attempted qualified rape would receive
the penalty two degrees lower than that prescribed by R.A. 9346, for
qualified rape.
229
Interpretare et concordare legibus est optimus interpretandi —

a statute should be so construed not only to be consistent with itself,
but also to harmonize with other laws on the same subject matter,
as to form a complete, coherent and intelligible system—a uniform
system of jurisprudence that would secure the rights of all persons
affected by different legislative and quasi-legislative acts. There can
be no harmony between R . A . 9346 and the R P C unless the later
statute is construed as having downgraded those penalties attached
to death by reason of the graduated scale under Article 71.
Advocates of the theory that R . A . 9346 did not amend any
of the penalties other than death in our penal laws would invoke
Munoz which ruled that the constitutional bar on the imposition
of the death penalty did not enact "a corresponding modification in
the other periods [in penalties]," there being no expression of "such
a requirement... in Article I I I , Section 19(1) of the Constitution or
indication] therein by at least clear and unmistakable implication."
It made the pronouncement that there was nothing in the 1987
Constitution "which expressly declares the abolition of the death
penalty."
Would Munoz as precedent, deter the Court from ruling that
R . A . 9346 consequently downgraded penalties other than death?
The accused in Munoz were found guilty of murder which
carried the penalty of reclusion temporal in its maximum period
to death. T h e subject murders therein w e r e not attended by any
modifying circumstance, and thus penalized in the penalty's medium
term. Jurisprudence previous to Munoz held that the proper penalty
in such instances should be "the higher half of reclusion temporal
maximum," with reclusion temporal maximum, divided into t w o
halves for that purpose. Munoz rejected this formulation, holding
instead that the penalty should be reclusion perpetua.
Munoz inquired into the effects of the Constitution on the
proper penalty for murder; while herein, the effects of R. A. 9346
on the proper penalty for attempted qualified rape are ascertained.
Munoz may have pronounced that the Constitution did not abolish
the death penalty, but that issue no longer falls into consideration
herein, the correct query now being whether Congress has banned
the death penalty through R . A . 9346. Otherwise framed, Munoz
does not preclude the Court from concluding that with the express
prohibition of the imposition of the death penalty Congress has
unequivocally banned the same.
230
Munoz interpreted Section 19(1), Article I I I as prohibiting the

actual imposition of the death penalty, as opposed to enacting an
amendatory law that eliminates all references and applications of
the death penalty in our statutes. At the time Munoz was decided, it
would have been polemical to foster an unequivocal pronouncement
that Section 19(1) abolished the death penalty, since the very
provision itself acknowledged that Congress may subsequently
provide for the penalty "for compelling reasons involving heinous
crimes." No such language exists in R . A . 9346. It was that express
stipulation in the Constitution that dissuaded the Court from
recognizing the constitutional abolition of the death penalty; and
there is no similar statutory expression in R . A . 9346 which could be
construed as evocative of intent similar to that of the Constitution.
T h e critical question is whether R . A . 9346 intended to delete
the word "death" in the graduated scale of penalties under Article 71.
Munoz did not engage in an analogous inquiry in relation to Article
71 and the Constitution, for what was relevant therein was not the
general graduated scale of penalties, but the range of the penalties
for murder. Herein, no provision in R . A . 9346 provides a context
within which the concept of "death penalty" bears retentive legal
effect, especially in relation to Article 71. Unlike the Constitution,
R . A . 9346 does expressly stipulate the amendment of all extant laws
insofar as they called for the imposition of the penalty of death.
Munoz impressed that the use of the word "imposition" in the
Constitution evinced the framer's intent to retain the operation
of penalties under the R P C . One might try to construe the use of
"imposition" in R . A . 9346 as a means of Congress to ensure that the
"death penalty," as applied in Article 71, remain extant. If the use
of "imposition" was implemented as a means of retaining "death"
under Article 71, it would have been a most curious, roundabout
means. T h e Court can tolerate to a certain degree the deliberate
vagueness sometimes employed in legislation, yet constitutional due
process demands a higher degree of clarity when infringements on
life or liberty are intended.
There is no material difference between "imposition" and
"application," for both terms embody the operation in law of the
death penalty. Since Article 71 denominates death as an element in
the graduated scale of penalties, the operation of Article 71 involves
the actual application of the death penalty as a means of determining
the extent which a person's liberty is to be deprived. Since R.A.
231
9346 unequivocally bars the application of the death penalty, as

well as expressly repeals all such statutory provisions requiring the
application of the death penalty, such effect necessarily extends to
its relevance to the graduated scale of penalties under Article 71.
Following Munoz, the 1987 Constitution might not have willed
the abolition of the death penalty and instead placed it under
a suspensive condition. As such, the death penalty during the
interregnum between the 1987 Constitution and its reimposition
through law was "in a state of hibernation." No longer because R . A .
9346 banned the death penalty.
R . A . 7659 classified the crimes listed therein as "heinous,"
within constitutional contemplation. Such reclassification was
accompanied by certain legal effects other than the imposition of
the death penalty, such as the increase in imposable fines attached
to certain heinous crimes; it officially recognized that some crimes
are more odious than others and consequently affected the proper
pecuniary indemnities awarded to the victims of these crimes.
Hence, a general inclination persists in levying a greater amount of
damages on accused found guilty of heinous crimes.
T h e debarring of the death penalty through R . A . 9346 did not

correspondingly declassify those crimes catalogued as heinous. T h e
amendatory effects of R . A . 9346 extend only to the application of
the death penalty but not to the definition or classification of crimes
which by their abhorrent nature, constitute a special category by
themselves. Accordingly, R . A . 9346 does not serve as basis for the
reduction of civil indemnity and other damages that adhere to
heinous crimes.
As to sentences not yet handed down, or affirmed with finality,
the application is immediate. Henceforth, "death," as utilized in
Article 71, shall no longer form part of the equation in the graduation
of penalties. In the case of appellant, his penalty for attempted rape
shall be reckoned two degrees lower than reclusion perpetua. Hence,
the maximum term of his penalty shall be prision mayor.
Both reclusion perpetua and death are indivisible penalties.
Under Article 61(2) when the penalty prescribed for the crime is
composed of two indivisible penalties the penalty next lower in
degree shall be that immediately following the lesser of the penalties
prescribed in the respective graduated scale. T w o degrees lower
than reclusion perpetua to death is prision mayor.
232
As R . A . 9346 downgraded the penalties for such crimes

the benefit of A r t i c l e 22 has to apply, except as to "habitual
criminal[s]." R . A . 9346 expressly recognized that its enactment
would have retroactive beneficial effects, referring to "persons x x
x whose sentences w e r e reduced to reclusion perpetua by reason of
this Act."
By operation of R . A . 9346 and Article 22, R P C , there may be
convicts presently serving their original sentences whose actual
served terms exceed their reduced sentences. This decision does not
make operative the release of such convicts, especially as there may
be other reasons that exist for their continued detention. There are
remedies under l a w that could be employed to obtain the release
of such prisoners, if warranted. T h e Public Attorney's Office and
non-governmental organizations that assist detainees possess the
capacity and acumen to help implement the release of such prisoners
who are so entitled by reason of this ruling.
• Is reclusion perpetua the same as life imprisonment?
N o . It is erroneous to impose 'life imprisonment' for

felonies as it is nowhere in the scheme of penalties in the R P C
nor is it a penalty similar to reclusion perpetua. Administrative
Circular 6-A-92 (June 21, 1993) which amended Circular 6-92
(October 12, 1992) enjoins trial judges to strictly observe the
distinction between life imprisonment and reclusion perpetua
to curb the practice of using them interchangeably in the
imposition of penalty in serious offenses. (People v. Narca, G.R.
No. 108488, July 21, 1997)
• Distinguish life imprisonment and reclusion perpetua.

Life Imprisonment Reclusion perpetua
a. Violation of special laws of the R P C

b. No fixed duration with fixed duration
c. No accessory penalties with accessory penalties
T h e penalty of reclusion perpetua is invariably imposed for

serious felonies under the R P C . It carries with it imprisonment
for at least 30 years, after which the convict becomes eligible
for pardon, and also accessory penalties, e.g., perpetual special
disqualification, etc. (Article 27)
233
Is there a penalty denominated "imprisonment for life"?

None, for that would imply that the culprit will stay in
prison for the rest of his life. It is ignorance of the law to impose
this penalty on a convict.
Courts must employ the proper nomenclature such as
reclusion perpetua not life imprisonment or 10 days of arresto
menor, not 10 days of imprisonment (People v. Latupan, G.R.
Nos. 112453-56, June 28, 2001) because the penalties under
the R P C are different from those prescribed by special penal
laws. The former carries with it accessory penalties not
obtaining in the latter. T h e system of penalties under the R P C
is entirely different from the system of penalties under special
penal laws.
Why is there a need to employ the proper terminology of

penalties?
It is necessary to employ legal terminology in the imposi-
tion of penalties because of the substantial difference in their
corresponding legal effects and accessory penalties. T h e R P C
does not prescribe the penalty of life imprisonment for any of
the felonies therein defined, that penalty being invariably im-
posed for serious offenses penalized by special law.
Murder being penalized under the R P C , the proper
imposable penalty should be reclusion perpetua instead of
life imprisonment. (People v. Cabactulan, G.R. No. 84398,
December 2, 1992)
Mobe, 84 SCRA 167, reiterated in Pilones and in the
concurring opinion of Justice Ramon Aquino in Sumadic,
reclusion perpetua is not the same as imprisonment for life
or life imprisonment. Every judge should take note of the
distinction and not mistake one for the other. (People v. Narca)
Does the suspension for the practice of profession apply to

convicted prisoners only?
N o . A l l prisoners whether under preventive detention

or serving final sentence, cannot practice their profession or
engage in any business or occupation, or hold office, elective or
appointive, while in detention. This is a necessary consequence
234
of arrest and detention. As a matter of law, when a person

indicted for an offense is arrested, he is deemed placed under
the custody of law. He is placed in actual restraint of liberty in
jail so that he may be bound to answer for the commission of
the offense. He must be detained in jail during the pendency
of the case against him unless he is authorized by the court
to be released on bail or on recognizance. An attorney cannot
practice law during that period except where he would appear
in court to defend himself. (People v. Maceda, G.R. No. 89591-
96, January 24, 2000)
» What is the nature of disqualification and suspension as

penalties?
Disqualification and suspension are both principal and

accessory penalties. T h e y are principal penalty when imposed
by the R P C for a specific crime; otherwise, they are accessory
penalty which need not be stated in the sentence but follows
the principal penalty to which they are attached.
• What is bond to keep the peace?
Bond to keep the peace is a principal penalty yet there

is no crime in Book II for which it can be imposed. Therefore,
following Article 21, there is no occasion to impose this penalty.
Compared with bond for good behavior:
a. Bond to keep the peace is a principal penalty which
is not restricted to any crime; Bond for good behavior
is a penalty specifically applicable to grave and light
threat only. (Article 284)
b. Failure to post the former will make the accused
suffer detention; failure to post the latter will make
the accused suffer destierro.
• What is the nature of public censure?

Public censure is a light penalty and is considered under
the graduated scale provided in Article 71 as a penalty lower
than arresto menor. It follows that the offense of reckless
imprudence resulting in slight physical injuries for which it is
prescribed is a light felony. (Reodica v. CA, G.R. No. 125066,
July 8, 1998)
235
In the scheme of penalties in the Revised Penal Code, cite

examples where the lesser offense absorbs the graver offense.
a. The lesser offense of rebellion punished with reclusion
temporal, absorbs the graver offense of murder punished
with reclusion perpetua, if committed in furtherance of
rebellion;
b. The lesser offense of forcible abduction punished by reclu-
sion temporal, absorbs the graver offense of illegal deten-
tion of a woman, by reclusion perpetua;
c. The lower offense of slavery involving kidnapping of a

person, punished by prision mayor, absorbs the higher
offense of kidnapping punished by reclusion perpetua.
(People v. Quijada, July 1996, dissenting opinion of
Justice Regalado)
A r t . 26. Fine — When afflictive, correctional, or light penalty.

— A fine, w h e t h e r i m p o s e d as a single or as an a l t e r n a t i v e
penalty shall be c o n s i d e r e d an afflictive penalty, if it exceeds
6,000 pesos; a c o r r e c t i o n a l p e n a l t y , if it does not e x c e e d 6,000
pesos b u t is not less t h a n 200 pesos; a n d a light p e n a l t y , if it
be less t h a n 200 pesos.
• Compare Article 9 and Article 26.
In Article 9, a fine of P200 is a light penalty imposed for

light felonies ("not exceeding 200 pesos") but in Article 26, it is
a correctional penalty as it defines as light penalty fine of less
than P200.
The classification of fine as grave, less grave or light

penalty holds true whether the fine is imposed as a single
penalty or as an alternative for another principal penalty.
• How can the two articles be harmonized?
Article 9 should prevail when the issue is prescription of

crime because it is within the T i t l e pertaining to felonies and
how they are committed. Article 26 should prevail when the
issue is prescription of penalty because it is included in the
title on penalties.
236
Chapter Three
D U R A T I O N A N D EFFECT OF PENALTIES
S e c t i o n O n e . — Duration of Penalties
A r t . 27. Reclusion perpetua. — T h e p e n a l t y of reclusion

perpetua shall be f r o m 20 y e a r s a n d 1 d a y to 40 years.
Reclusion temporal. — T h e p e n a l t y of reclusion temporal

shall be f r o m 12 y e a r s a n d 1 d a y to 20 y e a r s .
Prision mayor and temporary disqualification. — The

d u r a t i o n of the penalties of prision mayor a n d t e m p o r a r y
disqualification shall be f r o m 6 y e a r s a n d 1 d a y to 12 years,
except w h e n the p e n a l t y of disqualification is imposed as an
accessory p e n a l t y , in w h i c h case, its d u r a t i o n shall be that of
the p r i n c i p a l penalty.
Prision correctional, s u s p e n s i o n a n d destierro. — T h e

d u r a t i o n of the penalties of prision correccional, suspension
a n d destierro shall be f r o m 6 months a n d 1 d a y to 6 years,
except w h e n s u s p e n s i o n is imposed as an accessory penalty,
in w h i c h case, its d u r a t i o n shall be that of the p r i n c i p a l
penalty.
Arresto mayor. — T h e d u r a t i o n of the penalty of arresto
mayor shall be f r o m 1 m o n t h a n d 1 d a y to 6 months.
Arresto menor. — T h e d u r a t i o n of the penalty of arresto
menor shall be f r o m 1 d a y to 30 days.
Bond to keep the peace. — T h e b o n d to k e e p the peace shall
be r e q u i r e d to cover such p e r i o d of time as the court may
d e t e r m i n e . (As amended by R.A. No. 7659.)
Reclusion perpetua
• When the law fixed the duration of reclusion perpetua, has it
become a divisible penalty?
N o . Although Section 17 of R . A . 7659 fixed the duration of
reclusion perpetua from 20 years and 1 day to 40 years, there
237
was no clear legislative intent to alter its original classification

as an indivisible penalty. If reclusion perpetua were reclassified
as a divisible penalty, then Article 63 would lose its reason and
the basis for existence. If Congress had intended to do so, then
it should have amended Articles 63 and 76. There are also other
provisions involving reclusion perpetua, such as Article 41 on
its accessory penalties and Article 61 (2) and (3), which have
not been correspondingly amended. (People v. Lucas, G.R. Nos.
108172-73, January 9, 1995) (This ruling modified the decision
in the same case dated M a y 1994 which held that reclusion
perpetua had become a divisible penalty.)
Reclusion perpetua remains indivisible notwithstanding

the fixing of its duration. Hence, it is error to impose 30 years
of reclusion perpetua. Accused should suffer the entire extent
of 40 years. (People v. Arrojado, G.R. No. 130492, January 31,
2001)
What was the reason for fixing the duration of reclusion

perpetua?
In Reyes (decided prior to R . A . 7659), Articles 25, 70 and 71

list reclusion perpetua as the penalty immediately next higher
to reclusion temporal. It follows by necessary implication that
the minimum of reclusion perpetua is 20 years and one day
with a maximum duration thereafter to last for the rest of
the convict's natural life although pursuant to Article 70, the
maximum period for the service of penalties shall not exceed 40
years. It would be absurd and violative of the scales of penalties
to reckon the minimum of reclusion perpetua at 30 years since
there would be a resultant lacuna (gap) whenever the penalty
exceeds the maximum 20 years of reclusion temporal but is
less than 30 years. In fixing a specific duration for reclusion
perpetua, R . A . 7659 merely restated the existing jurisprudence.
(id.)
Is a penalty exceeding 20 years within the range of reclusion

perpetua?
Y e s . There is legal basis, both in law and logic for P . D . 818

to declare that any penalty exceeding 20 years is within the
range of reclusion perpetua.
238
The other applicable reference to reclusion perpetua

is in Article 70 laying down the rule on successive service
of sentences where the culprit has to serve more than three
penalties. It provides that the maximum duration of the
convict's sentence shall not be more than three-fold the length
of time corresponding to the most severe of the penalties
imposed upon him. In applying the provisions of this rule, the
duration of perpetual penalties is computed at 30 years.
Since as set out in Articles 25, 70 and 71, reclusion

perpetua is immediately next higher to reclusion temporal, it
follows by necessary implication that the minimum of reclusion
perpetua is 20 years and 1 day. (People v. Reyes, G.R. Nos.
101127-31, August 7, 1992)
• M a y the convict sentenced to reclusion perpetua be allowed to

remain on bail pending appeal?
No bail shall be granted to those charged with an offense,

which under the law at the time of its commission and at
the time of the application for bail is punishable by reclusion
perpetua, when evidence of guilt is strong. Such unequivocal
and explicit provisions in the Constitution and the Rules of
Court admit no exception, qualification or distinction, (id.)
• What is the minimum period of imprisonment of reclusion

perpetua?
Reclusion perpetua entails imprisonment of at least 30
years. T h e statement in the dispositive portion of the decision
of the trial court that the penalty is equivalent to 30 years
gives the impression that after that period, the convict is to be
immediately set free. This is not so; rather, he only becomes
eligible for pardon. (People v. dela Pena, July 1997)
• What is the rationale of the penalty of reclusion perpetua?

T h e provision's intendment is that a person condemned
to undergo the penalty of reclusion perpetua shall remain in
prison perpetually, or for the rest of his natural life. However,
he becomes eligible for pardon by the Chief Executive after he
has been imprisoned for at least 30 years, unless he is deemed
unworthy of such pardon. (This cannot preclude the President
from pardoning a convict by final judgment sentenced to
239
reclusion perpetua at anv time pursuant to the constitutional

prerogative to grant executive clemency.)
This period of 30 years vis-a-vis reclusion perpetua is
reiterated in Article 70. Said article pertinently provides that
in applying the "three-fold rule"— that when the culprit has
to serve two or more penalties, the maximum duration of the
convict's sentence shall not be more than three-fold the length
of time corresponding to the most severe of the penalties
imposed upon him — the duration of perpetual penalties (pena
perpetua) shall be computed at 30 years.
The imputation of the 30-year duration to reclusion
perpetua in Articles 27 and 70 is only to serve as the basis
for determining the convict's eligibility for pardon or for the
application of the three-fold rule in the service of multiple
penalties.
It is incorrect to specify the duration of 30 years in relation
to the penalty of reclusion perpetua. (People v. Tena, October
1992)
Reclusion Temporal
• Describe the penalty of reclusion temporal.
Reclusion temporal is the most severe of the divisible

penalties with duration of 12 years and 1 day to 20 years. Only
one day separates the divisible penalty of reclusion temporal
from the indivisible penalty of reclusion perpetua. Both have
the same accessory penalties of civil interdiction and perpetual
absolute disqualification. It is an afflictive penalty under Article
25 and therefore it is attached to grave felonies. It prescribes in
15 years.
Prision mayor
• What is the medium period of prision mayor?
The medium period of prision mayor is from 8 years and

1 day to 10 years. It is entirely wrong to describe 12 years, 5
months, and 11 days as the medium period of prision mayor
not only because it already exceeded prision mayor, but also
because it is not the medium period of prision mayor. (Bernabe
v. Memoracion, AM. No. RTJ-95-1303, August 11, 1997)
240
Prision Correctional
• M a y the penalty of reclusion temporal for homicide with no

mitigating circumstance be reduced to prision correctional?
N o , that is gross ignorance of the law since prision
correccional is two degrees lower than reclusion temporal.
T h e duration of prision correccional is from six months and
one day to six years. T h e reduced penalty is therefore two
degrees lower than that prescribed by law for homicide. Since
no mitigating circumstance was found in the original decision,
nothing could justify the reduction of the penalty to six years
of prision correccional. N o t even the claim of the accused that
they did not intend to commit the act of killing and harming
the policemen could justify such reduction. Even if praeter
intentionem w e r e appreciated, and still under the assumption
that one single penalty under Article 249 is permissible, the
said mitigating circumstance would be offset by any of the
aggravating circumstance pursuant to Article 64(4). (id.)
Arresto mayor
• What is the duration and prescriptive period of arresto mayor?

T h e duration of arresto mayor is 1 month and 1 day to 6
months. It is a correctional penalty and has accessory penalties
of suspension of the right to hold office and the right of suffrage
during the term of the sentence. For instance, less serious
physical injuries carries arresto mayor; the indeterminate
sentence law does not apply since the maximum penalty does
not exceed one year. That penalty prescribes in five years.
• Which between destierro and arresto menor is a more severe

penalty?
Uy Chin Hua v. Dinglasan, 86 Phil. 617 and Santos, 87
Phil. 687 explained that destierro is lighter than arresto mayor
thusly:
Destierro is not a higher penalty than arresto mayor
which is imprisonment or complete deprivation of liberty,
whereas destierro means banishment or only a prohibition
from residing within a radius of 25 kilometers from the actual
residence of the accused for a specified length of time. The
respective severities of arresto mayor and destierro must not
241
be judged by the duration of each of these penalties, but by

the degree of deprivation of liberty involved. Penologists have
always considered destierro lighter than arresto mayor. Such
criterion is reflected both in the old Spanish Penal Code and
in the R P C . In the graduated scale of Article 71 the lawmaker
has placed destierro below arresto mayor. There is, therefore,
no basis in fact or in law for holding that destierro is a higher
penalty than arresto mayor and that an offense penalized with
destierro falls under the jurisdiction of the C F I . (People v.
Eduarte, G.R. No. 88232, February 26, 1990)
Uy Chin Hua and Santor were decided under the

Judiciary Act of 1948 but there is no mention in said A c t of
crimes for which the penalty is not imprisonment. These cases
were decided on the premise that "there exists a gap in the law
as to which court shall have original jurisdiction over offenses
penalized with destierro or banishment." (id.)
A r t . 28. Computation of penalties. — If the o f f e n d e r shall be

in prison, the t e r m of the d u r a t i o n of the t e m p o r a r y penalties
shall b e c o m p u t e d f r o m the d a y o n w h i c h the j u d g m e n t o f
conviction shall h a v e b e c o m e final.
If the offender be not in p r i s o n , the t e r m of the d u r a t i o n

of the penalty consisting of d e p r i v a t i o n of l i b e r t y shall be
computed f r o m the d a y that the o f f e n d e r is p l a c e d at the
disposal of the j u d i c i a l authorities for the e n f o r c e m e n t
of the penalty. T h e d u r a t i o n of the o t h e r penalties shall
b e computed only f r o m the d a y o n w h i c h the d e f e n d a n t
commences to serve his sentence.
In computing the duration of penalty, regard should be had

of the civil provision on the duration of days, weeks, months and
years. The same rule is followed in the prescription of penalties and
of crimes. Hence, one month and one day means 31 days not 28/29
plus one day of February though incarcerated on that month or 31
plus one day of July though imprisoned in July. In the same vein, six
years and one day means 360 days multiplied by six plus one day,
disregarding leap year or years in between.
A r t . 29. Period of preventive imprisonment deducted from term

of imprisonment. — O f f e n d e r s or a c c u s e d w h o h a v e u n d e r g o n e
preventive i m p r i s o n m e n t shall be c r e d i t e d in the service
242
of their sentence consisting of d e p r i v a t i o n of liberty, with

the full time d u r i n g w h i c h they h a v e u n d e r g o n e preventive
i m p r i s o n m e n t , if the detention p r i s o n e r a g r e e s voluntarily
in w r i t i n g to a b i d e by the s a m e d i s c i p l i n a r y rules imposed
u p o n convicted p r i s o n e r s , except in the f o l l o w i n g cases:
1. W h e n they a r e recidivists, or h a v e b e e n convicted
p r e v i o u s l y t w i c e or m o r e times of a n y crime; and
2. W h e n u p o n b e i n g s u m m o n e d for the execution
of t h e i r sentence they h a v e failed to s u r r e n d e r
voluntarily.
If the detention p r i s o n e r does not a g r e e to a b i d e by the
s a m e d i s c i p l i n a r y r u l e s i m p o s e d u p o n convicted prisoners,
he shall be c r e d i t e d in the service of his sentence w i t h 4/5
o f the time d u r i n g w h i c h h e has u n d e r g o n e preventive
imprisonment.
W h e n e v e r a n a c c u s e d has u n d e r g o n e preventive impris-

o n m e n t for a p e r i o d e q u a l to or m o r e than the possible maxi-
m u m i m p r i s o n m e n t of the offense c h a r g e d to w h i c h he may
be sentenced a n d his case is not yet terminated, he shall be
r e l e a s e d i m m e d i a t e l y w i t h o u t p r e j u d i c e to the continuation
of the trial t h e r e o f or the p r o c e e d i n g on a p p e a l , if the same
is u n d e r r e v i e w . In case the m a x i m u m penalty to w h i c h the
a c c u s e d m a y be sentenced is destierro, he shall be released
after 30 d a y s of p r e v e n t i v e imprisonment.
• What is the purpose of preventive imprisonment?

It is to prevent the flight of the accused and his going into
hiding. T h e accused is detained if the offense is not bailable;
if bailable he cannot post bail and he is not qualified for
recognizance. T h e offense is not bailable if it is punishable with
death or reclusion perpetua and the evidence of guilt is strong.
T h e mere fact that it is a capital offense does not per se make it
non-bailable. There is the other requirement that the evidence
of guilt is strong.
• How will the time spent in prison by the detention prisoner be

credited?
Full credit is given to the detention prisoner who agrees
voluntarily in writing to abide by the same disciplinary rules
243
imposed on convicts unless: (1) he is a recidivist or (2) when

upon being summoned for the execution of his sentence he
failed to surrender voluntarily. Otherwise, he shall be given 4/5
credit.
If the maximum penalty imposable is destierro, the accused
shall be released after 30 days of preventive imprisonment
because arresto menor (1-30 days) is a more severe penalty
than destierro under Article 70. (People v. Eduarte)
• What is the remedy when the person has already served the
maximum penalty imposable?
The appropriate remedy is to file a petition for habeas
corpus. In accordance with the resolution in Angeles January
4, 1995, and Agustin, September 5, 1995, which held that the
rules on habeas corpus should be liberally applied in cases
which are sufficient in substance, the motion can be considered
as substantial compliance with the rules on habeas corpus.
Having served more than the maximum imposable penalty,
the accused should be released. (People v. Labriaga, G.R. No.
92418, November 20, 1995)
• Will the convict who was imposed of the penalty of reclusion

perpetua or destierro be credited of the time of his preventive
imprisonment?
Y e s . Article 29 on the deduction of the period of preventive

imprisonment applies where the accused is sentenced to
destierro because destierro also constitutes deprivation of liberty.
(People v. Bastasa, February 1979) A n d so with offenders who
have undergone preventive imprisonment even if the penalty
imposed is reclusion perpetua because it does not make any
distinction between temporal and perpetual penalties. (People
v. Corpuz, March 1994). M o r e so, since reclusion perpetua now
has a fixed period although still indivisible.
» Can a convict be released on bail or recognizance?

No. It is patently erroneous to release a convict on
recognizance. Section 24, Rule 114 of the Rules of Court
prohibits the grant of bail after conviction by final judgment
and after the convict has started to serve sentence. T h e only
exception thereto is when the convict has applied for probation
244
before he commences to serve sentence, provided the penalty

and the offense are within the purview of the Probation L a w .
(White v. Bugtas, A.M. No. RTJ-02-1738, November 17, 2005)
In what instance can a convict be allowed to post bail pending

appeal?
Regardless of the nature of the appeal, whether it is on

question of fact or on purely legal issues, the right to bail pending
appeal remains unabridged. T h e right, after conviction, may be
a matter of discretion, but it does not appear in this case that
the lower court denied bail upon consideration of certain facts
and circumstances that relate to the possibility of petitioner
absconding to thwart the process of criminal justice, which
is the primary consideration in granting or denying bail. For
it is not so much in the imposition of an allegedly excessive
penalty that habeas corpus might lie, for appeal is the proper
remedy, but in the denial of bail, without sufficient warrant
that the detention of petitioners is illegal. While the petitioners
pleaded guilty, and their appeal is only on question of law, the
questioned sentence has not become final as to give warrant
to petitioners' detention pending appeal without right to bail.
N o r may petitioners be said to have commenced service of a
sentence since they have assailed their sentence as illegal.
T h e lower court's reason for denying bail pending appeal is,
therefore, legally untenable. Petitioners should have been
allowed to post bail for their provisional liberty while their
appeal is pending in Court. (Zafra v. City Warden, G.R. Nos.
L-49602 & L-49938, May 17, 1980)
Section 1. Any provision of existing law to the contrary
notwithstanding, bail shall not be requiredofa person charged
with violation of a municipal or city ordinance, a light felony
and/or a criminal offense the prescribed penalty for which
is not higher than six months imprisonment and/or a fine of
2,000 pesos, or both, where said person has established to the
satisfaction of the court or any other appropriate authority
hearing his case that he is unable to post the required cash or
bail bond, except in the following cases:
245
a. When he is caught committing the offense in

flagrante;
b. When he confesses to the commission of the offense
unless the confession is later repudiated by him in
a sworn statement or in open court as having been
extracted though force or intimidation;
c. When he is found to have previously escaped from
legal confinement, evaded sentence, or jumped bail;
d. When he is found to have previously violated the
provisions of Sec. 2 hereof;
e. When he is found to be a recidivist or habitual
delinquent or has been previously convicted for an
offense to which the law or ordinance attaches an
equal or greater penalty or for two or more offenses
to which it attaches a lighter penalty;
f. When he commits the offense while under parole or

under conditional pardon; and
g. When the accused has previously been pardoned

by the municipal or city mayor for violation of
municipal ordinance for at least two times.
xxx xxx xxx
Approved, August 4, 1969.
Section T w o . — Effects of the penalties according to

their respective nature
A r t . 30. Effects of the penalties of perpetual or temporary
absolute disqualification. — T h e penalties of p e r p e t u a l or
t e m p o r a r y absolute disqualification for p u b l i c office shall
p r o d u c e the f o l l o w i n g effects:
1. T h e d e p r i v a t i o n of the p u b l i c offices a n d e m p l o y -
ments w h i c h the o f f e n d e r m a y h a v e h e l d , e v e n i f
c o n f e r r e d b y p o p u l a r election.
2. T h e d e p r i v a t i o n of the r i g h t to vote in a n y election

for a n y p o p u l a r elective office or to be elected to
such office.
246
3. T h e disqualification for the offices or p u b l i c em-

p l o y m e n t s a n d for the exercise of any of the rights
mentioned.
In case of t e m p o r a r y disqualification, such dis-

qualification as is c o m p r i s e d in p a r a g r a p h s 2 a n d
3 of this A r t i c l e shall last d u r i n g the t e r m of the
sentence.
4. T h e loss of r i g h t s to r e t i r e m e n t p a y or other pension

for a n y office f o r m e r l y held.
A r t . 31. Effects of the penalties of perpetual or temporary special

disqualification. — T h e penalties of p e r p e t u a l or t e m p o r a r y
special disqualification for p u b l i c offices, profession, or
c a l l i n g shall p r o d u c e the f o l l o w i n g effects:
1. T h e d e p r i v a t i o n of the office, employment, profes-

sion or c a l l i n g affected.
2. T h e disqualification for h o l d i n g similar offices or

e m p l o y m e n t s either p e r p e t u a l l y or d u r i n g the t e r m
of the sentence, a c c o r d i n g to the extent of such
disqualification.
A r t . 32. Effects of the penalties of perpetual or temporary

special disqualification for the exercise of the right of suffrage. —
T h e p e r p e t u a l or t e m p o r a r y special disqualification for the
exercise of the r i g h t of suffrage shall d e p r i v e the offender
p e r p e t u a l l y or d u r i n g the t e r m of the sentence, a c c o r d i n g to
the n a t u r e of s a i d penalty, of the r i g h t to vote in a n y p o p u l a r
election for a n y p u b l i c office or to be elected to such office.
M o r e o v e r , the offender shall not be permitted to hold any
p u b l i c office d u r i n g the p e r i o d of his disqualification.
A r t . 33. Effects of the penalties of suspension from any

public office, profession or calling, or the right of suffrage. — The
suspension f r o m p u b l i c office, profession, or calling, or the
exercise of the right of suffrage shall disqualify the offender
f r o m h o l d i n g such office or exercising such profession or
calling or right of suffrage d u r i n g the t e r m of the sentence.
T h e p e r s o n suspended from h o l d i n g public office shall
not hold another h a v i n g similar functions d u r i n g the period
of his suspension.
247
A r t . 34. Civil interdiction. — Civil interdiction shall

deprive the offender d u r i n g the time of his sentence of the
rights of parental authority, or g u a r d i a n s h i p , either as to
the person or p r o p e r t y of any w a r d , or m a r i t a l authority, of
the right to m a n a g e his p r o p e r t y a n d of the r i g h t to dispose
of such p r o p e r t y by any act or a n y conveyance inter vivos.
• What is civil interdiction? What rights does it cover?

Under Article 38 of the N C C , civil interdiction is one of the
restrictions on capacity to act but does not exempt the offender
from certain obligations, as when the latter arise from his act
or from property relations. It is an accessory penalty imposed
upon a person sentenced to the principal penalties of reclusion
perpetua and reclusion temporal. It covers deprivation of the
following rights:
a. Parental authority;
b. Guardianship as to the person or property of any ward;
c. Marital authority;
d. To manage his property; and
e. To dispose of such property by any act or conveyance inter
vivos.
• May a person civilly interdicted appoint an agent?
N o , for the act of the agent is also the act of the principal.
By acting through an agent, the civilly interdicted person is
doing indirectly what the law prohibits to be done directly.
Moreover, one of the causes for the extinction of agency is
civil interdiction. Thus, Article 1919 of the N C C provides that
agency is extinguished by the death, civil interdiction, insanity
or insolvency of the principal or the agent.
• Can the convict prepare his last will and testament?
Y e s , for what the law prohibits is the disposition of

property by an act inter vivos. Further, the will does not dispose
of the property at the time of its making but at the time of
his death subject to the legal requirements under the laws on
succession and the Rules of Court.
248
A r t . 35. Effects of bond to keep the peace. — It shall be the

d u t y of a n y p e r s o n sentenced to give b o n d to k e e p the peace,
t o p r e s e n t t w o sufficient sureties w h o shall u n d e r t a k e
that such p e r s o n w i l l not commit the offense sought to be
p r e v e n t e d , a n d that in case such offense be committed they
w i l l p a y the a m o u n t d e t e r m i n e d by the c o u r t in its j u d g m e n t ,
or o t h e r w i s e to d e p o s i t such a m o u n t in the office of the clerk
of the c o u r t to g u a r a n t e e s a i d u n d e r t a k i n g .
T h e c o u r t shall d e t e r m i n e , a c c o r d i n g to its discretion,
the p e r i o d o f d u r a t i o n o f the b o n d .
S h o u l d the p e r s o n sentenced fail to give the b o n d as
r e q u i r e d he shall be d e t a i n e d for a p e r i o d w h i c h shall in no
case e x c e e d 6 m o n t h s , if he shall h a v e b e e n p r o s e c u t e d for a
g r a v e or less g r a v e felony, a n d shall not exceed 30 days, if for
a light felony.
• Is the penalty of bond to keep the peace enforceable?
N o , because, being a principal penalty, it must be

specifically prescribed in Book II for a particular felony. There
being none, the penalty is unenforceable by virtue of Article 21,
which states that no felony shall be punishable by any penalty
not prescribed by law prior to its commission.
A r t . 37. Costs — What are included. — Costs shall include

fees a n d indemnities in the course of the j u d i c i a l proceedings,
w h e t h e r they b e f i x e d o r u n a l t e r a b l e amounts previously
d e t e r m i n e d by l a w or r e g u l a t i o n s in force, or amounts not
subject to schedule.
A r t . 38. Pecuniary liabilities — Order of payment. — In case
the p r o p e r t y of the offender should not be sufficient for the
p a y m e n t of all his p e c u n i a r y liabilities, the same shall be
met in the f o l l o w i n g o r d e r :
1. T h e r e p a r a t i o n of the d a m a g e caused.
2. Indemnification of consequential damages.
3. T h e fine.
4. T h e costs of the proceedings.
249
• What are the pecuniary liabilities of the offender? How are they
to be paid?
The pecuniary liabilities of an offender are those owing
to the offended: reparation of the damage caused (restitution
first if that is possible) and indemnification of consequential
damages (Article 104); and those owing to the government: fine
and costs of proceedings.
They are to be settled in the order given: reparation, then
indemnification, next fine and lastly costs of the proceedings, if
the means of the convict are not enough to settle them all. Fine,
however, is subject to subsidiary penalty in the proper cases.
• What is a fine?
Esler v. Ledesma, 52 Phil. 114, said that a fine is a
pecuniary punishment imposed by a lawful tribunal upon a
person convicted of a crime. T h e fine in B.P. 22 was intended
as an additional penalty for the act of issuing a worthless
check. This is the only logical conclusion since the law does
not require that there be damage or prejudice to the individual
complainant by reason of the issuance of the worthless check.
(Lazaro v. CA, G.R. No. 105461, November 11, 1993)
Being a penalty, fine is mandatory. In fact, although the
culprit has suffered subsidiary penalty in case of insolvency,
still he is not relieved of the obligation to pay the same if his
circumstances should improve. (Article 39, N o . 5)
• If a person is found guilty of several offenses, how is the order

of payment of civil liabilities observed?
The civil liabilities of a person found guilty of two or

more offenses shall be satisfied by following the chronological
order of the dates of the final judgments rendered against him,
beginning with the first final judgment. (Article 73)
A r t . 39. Subsidiary penalty. — If the convict h a s no p r o p e r t y

with w h i c h to meet the fine m e n t i o n e d in p a r a g r a p h 3 of the
next p r e c e d i n g article, he shall be subject to a s u b s i d i a r y
p e r s o n a l liability at the rate of 1 d a y for e a c h 8 pesos, subject
to the f o l l o w i n g rules:
250
1. If the p r i n c i p a l p e n a l t y i m p o s e d be prision correc-

cional or arresto a n d fine, he shall r e m a i n u n d e r confine-
m e n t until his fine r e f e r r e d in the p r e c e d i n g p a r a g r a p h is
satisfied, b u t his s u b s i d i a r y i m p r i s o n m e n t shall not exceed
1/3 of the t e r m of the sentence, a n d in no case shall it con-
tinue for m o r e t h a n 1 y e a r , a n d no fraction or p a r t of a d a y
shall b e c o u n t e d a g a i n s t the p r i s o n e r .
2. W h e n the p r i n c i p a l p e n a l t y i m p o s e d be only a fine,

the s u b s i d i a r y i m p r i s o n m e n t shall not e x c e e d 6 months, if the
c u l p r i t shall h a v e b e e n p r o s e c u t e d for a g r a v e or less g r a v e
felony, a n d shall not e x c e e d 15 d a y s , if for a light felony.
3. W h e n the p r i n c i p a l penalty i m p o s e d is h i g h e r than

prision correccional no s u b s i d i a r y i m p r i s o n m e n t shall be
i m p o s e d u p o n the culprit.
4. If the p r i n c i p a l p e n a l t y i m p o s e d is not to be
e x e c u t e d by confinement in a p e n a l institution, b u t such
p e n a l t y is of fixed d u r a t i o n , the convict, d u r i n g the p e r i o d
of time e s t a b l i s h e d in the p r e c e d i n g rules, shall continue to
suffer the s a m e d e p r i v a t i o n s as those of w h i c h the p r i n c i p a l
p e n a l t y consists.
5. T h e s u b s i d i a r y p e r s o n a l liability w h i c h the convict

m a y h a v e s u f f e r e d by r e a s o n of his insolvency shall not
relieve h i m f r o m the fine in case his financial circumstances
should improve.
• What is subsidiary penalty?

It is a penalty that takes the place of the fine for insolvent
convicts. It is neither a principal nor accessory penalty, but a
substitute penalty for fine only. The subsidiary penalty may be
in the form of imprisonment or deprivation of right depending
upon the principal penalty imposed on the convict. It is
imposable whether the violation is under the R P C or under
special laws such as B.P. 22.
minimum daily wage

• How is subsidiary penalty computed?
1. It is computed at l d a y for each P8.00 of fine but in no case
to exceed 1 year. If the penalty is:
251
a. Purely a fine
and the felony is: — the subsidiary imprisonment:
- grave or less grave.... shall not exceed 6
months
- light shall not exceed 15 days.
b. Fine and imprisonment of not more than Prision
Correccional (6 years), the subsidiary imprisonment
is computed at
- 1/3 of the principal penalty;
- the quotient of Fine divided by P8.00; or
- 1 year
whichever of these three is least.
c. Fine and Destierro which must be of a fixed duration:
destierro also computed in accordance w i t h the above
rules.
d. T h e same goes with Fine and Suspension.
• When is subsidiary penalty served?
Subsidiary penalty is proper when the penalty imposed

upon the convict includes fine but he cannot pay the same. T h e
court must expressly state that subsidiary penalty shall be
served in case of insolvency because this is not an accessory
penalty that follows the principal penalty as a matter of course.
Also, the penalty imposed must be susceptible of subsidiary
penalty.
• When is subsidiary penalty not proper?
a. T h e principal penalty imposed is more than prision

correccional (6 years and 1 day or more);
b. T h e principal penalty is other than prison sentence which
is not of fixed duration;
c. Subsidiary penalty is not expressly stated in the sentence
to take the place of fine in case of insolvency;
d. T h e sentence imposed does not include fine; and
e. Convict has the means to pay the fine.
252
How is the gravity of the fine classified?
Fine whether imposed singly or alternatively is:

a. afflictive/grave if more than P6,000.00;
b. correccionaJVless grave if P200.00 to P6,000.00; and
c. light if less than P200.00.
(Under Article 9, a P200 fine is imposed on light felonies.)
When the culprit who had served subsidiary penalty became

solvent, is he still liable to pay the fine?
Y e s . Paragraph 5 of Article 39 states that the subsidiary

personal liability which the convict may have suffered shall
not relieve him from the obligation to pay the fine in case his
financial circumstances should improve.
Is there subsidiary imprisonment in case of failure to pay the

fine in violations of special laws?
Y e s . T h e Supreme Court imposed subsidiary imprison-

ment in case of failure of the offender to pay the fine notwith-
standing the absence of such provision in the law. It is now the
policy to impose fines rather than imprisonment in violations
of B.P. 22. (Diongzon v. CA, December 1999)
Does subsidiary penalty apply to criminal negligence?
Y e s . If the offender cannot pay the fine for damage resulting

from the negligence, he will suffer subsidiary imprisonment
provided that the same is expressed in the sentence. If the
offense is grave or less grave, subsidiary imprisonment should
not be more than 6 months; if light felony, not more than 15
days.
Section T h r e e . — Penalties in which Other

Accessory Penalties are Inherent
Must accessory penalties be expressed in the court's decision?

No for they are ipso facto imposed with the principal
penalties to which these accessory penalties are attached.
Thus, the Title of Section Three specifies that these accessory
penalties are "inherent." Too, Article 73 states that: "whenever
253
the courts shall impose a penalty which, by provision of law,

carries with it other penalties, according to the provisions
of Articles 40, 41, 42, 43, 44, and 45 of this code, it must be
understood that the accessory penalties are also imposed upon
the convict."
A r t . 40. Death—Its accessory penalties. — T h e death penalty,

w h e n it is not executed by r e a s o n of commutation or p a r d o n
shall c a r r y with it that of p e r p e t u a l absolute disqualification
a n d that of civil interdiction d u r i n g 30 y e a r s f o l l o w i n g the
date of sentence, unless such accessory penalties h a v e b e e n
expressly remitted in the p a r d o n .
A r t . 41. Reclusion perpetua and reclusion temporal — Their
accessory penalties. — T h e penalties of reclusion perpetua
a n d reclusion temporal shall c a r r y w i t h t h e m that of civil
interdiction for life or d u r i n g the p e r i o d of the sentence as the
case m a y b e , a n d that of p e r p e t u a l a b s o l u t e disqualification
w h i c h the offender shall suffer e v e n t h o u g h p a r d o n e d as
to the p r i n c i p a l penalty, unless the s a m e shall h a v e b e e n
expressly remitted in the p a r d o n .
• When reclusion perpetua is imposed as a penalty next higher

than that provided by law, what is to be the accessory penalty?
W h e n the penalty imposed is reclusion perpetua as a

penalty next higher in degree, the accessory penalty shall be
that under Article 40 but the offender shall not be given the
benefit of the provision of Article 27 until 40 years have elapsed,
otherwise, there could be no difference at all between reclusion
perpetua when imposed as a penalty next higher in degree and
when it is imposed as a penalty fixed by law. (People v. Bago,
G.R. No. 122290, April 6, 2000)
• What are the accessory penalties of reclusion perpetua imposed

as a penalty and reclusion perpetua imposed as next higher?
T h e accessory of reclusion perpetua as a penalty is

provided in Article 41: civil interdiction for life or during
the period of the sentence as the case may be, and perpetual
absolute disqualification which the offender shall suffer even
though pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.
254
As a penalty next higher, the accessory penalties is that

under Article 40 for the death penalty, when it is not executed
by reason of commutation or pardon: perpetual absolute
disqualification and that of civil interdiction during 30 years
following the date of sentence, unless such accessory penalties
have been expressly remitted in the pardon. (This distinction,
has been obliterated by R . A . 9346 banning the death penalty.)
A r t . 42. Prision mayor — Its accessory penalties. — T h e

p e n a l t y of prision mayor shall c a r r y w i t h it that of t e m p o r a r y
a b s o l u t e disqualification a n d that of p e r p e t u a l special
disqualification f r o m the r i g h t of s u f f r a g e w h i c h the offender
shall suffer a l t h o u g h p a r d o n e d as to the p r i n c i p a l penalty,
unless the s a m e shall h a v e b e e n e x p r e s s l y remitted in the
pardon.
A r t . 43. Prision correccional — Its accessory penalties. —

T h e p e n a l t y of prision correccional shall c a r r y with it
that of s u s p e n s i o n f r o m p u b l i c office, f r o m the right to
f o l l o w a p r o f e s s i o n or calling, a n d that of p e r p e t u a l special
disqualification f r o m the r i g h t of suffrage, if the d u r a t i o n of
s a i d i m p r i s o n m e n t shall exceed 18 months. T h e offender shall
suffer the disqualification p r o v i d e d in this article a l t h o u g h
p a r d o n e d as to the p r i n c i p a l penalty, unless the same shall
h a v e b e e n e x p r e s s l y remitted i n the p a r d o n .
A r t . 44. Arresto — Its accessory penalties. — T h e penalty of

arresto shall c a r r y w i t h it that of suspension of the right to
h o l d office a n d the r i g h t of suffrage d u r i n g the t e r m of the
sentence.
A r t . 45. Confiscation and forfeiture of the proceeds or
instruments of the crime. — E v e r y penalty imposed for the
commission of a felony shall c a r r y with it the forfeiture of
the p r o c e e d s of the crime a n d the instruments or tools with
w h i c h it w a s committed.
S u c h p r o c e e d s a n d I n s t r u m e n t s or tools shall be
confiscated a n d forfeited in favor of the G o v e r n m e n t , unless
they be the p r o p e r t y of a third p e r s o n not liable for the
offense, b u t those articles w h i c h a r e not subject of lawful
commerce shall be destroyed.
255
What is required before the proceeds or instruments of the

crime may be confiscated?
The proceeds or instruments which are the property of
third person who has no complicity in the crime cannot be
confiscated unless the said articles are contraband or not subject
of lawful commerce. Since confiscation is an accessory penalty,
it is automatically imposed pursuant to Article 73.
Chapter Four
A P P L I C A T I O N OF PENALTIES
S e c t i o n O n e . — Rules for the application of penalties

to the persons criminally liable and for the
graduation of the same
A r t . 46. Penalty to be imposed upon principals in general. —

T h e p e n a l t y p r e s c r i b e d by l a w for the commission of a felony
shall be i m p o s e d u p o n the p r i n c i p a l s in the commission of
s u c h felony.
W h e n e v e r the l a w p r e s c r i b e s a penalty for a felony in

g e n e r a l terms, it shall be u n d e r s t o o d as a p p l i c a b l e to the
c o n s u m m a t e d felony.
T h e penalties in Book II are understood to be imposed on the

principal offender and in the consummated stage. When the felony
is frustrated or attempted and when accomplices or accessories
participate in its commission, there is a need to lower the penalty by
one or several degrees. Hence, the rules in this chapter.
A r t . 47. In what cases the death penalty shall not be imposed;

Automatic review of death penalty cases. — T h e death penalty
shall be i m p o s e d in all cases in w h i c h it must be imposed
u n d e r existing l a w s , except w h e n the guilty p e r s o n is b e l o w
18 y e a r s of a g e at the time of the commission of the crime
or is m o r e t h a n 70 y e a r s of a g e or w h e n u p o n a p p e a l or
automatic r e v i e w of the case by the S u p r e m e Court, the
r e q u i r e d majority vote is not o b t a i n e d for the imposition
of the death penalty, in w h i c h cases the penalty shall be
reclusion perpetua.
In all cases w h e r e the death penalty is imposed by the
trial court, the r e c o r d s shall be f o r w a r d e d to the S u p r e m e
C o u r t for automatic r e v i e w a n d j u d g m e n t by the court
en banc, w i t h i n 20 d a y s b u t not earlier than 15 days after
p r o m u l g a t i o n of the j u d g m e n t or notice of denial of any
257
motion for n e w trial or reconsideration. T h e transcript shall

also be f o r w a r d e d within 10 days after the filing thereof by
the stenographic reporter. (As amended by R.A. No. 7659)
Death Penalty
• What is the effect of R.A. 9346 on Article 47?
Article 47 has become absolute because R . A . 9346 has
proscribed again the imposition of the death penalty and in its
stead shall be reclusion perpetua or life imprisonment as the
case may be without any right of the offender to avail of the
benefit of parole. (Section 3, R . A . 9346)
As a matter of law, though, when a convict is below 18

when he committed the offense, with or without the death
penalty law, the minor shall never be put to death because
minority is a privileged mitigating circumstance, which is
always considered and is never offset by any aggravating
circumstance. (See Article 68)
• Is there an automatic review of conviction where the penalty

imposed is reclusion perpetua?
None. It is only in cases where the penalty imposed is

death that the trial court must forward the records of the case
to the Supreme Court for automatic r e v i e w of the conviction. If
the convicts did not file a notice of appeal or otherwise indicate
their desire to appeal, the decision convicting them and
imposing reclusion perpetua becomes final and unappealable.
(Garcia v. People, G.R. No. 106581, November 18, 1999)
A r t . 48. Penalty for complex crimes. — W h e n a single act

constitutes t w o o r m o r e g r a v e o r less g r a v e felonies, o r w h e n
an offense is a necessary m e a n s f o r c o m m i t t i n g the other,
the penalty for the most s e r i o u s c r i m e shall be i m p o s e d , the
same to be a p p l i e d in its m a x i m u m p e r i o d .
• What are the two kinds of complex crimes?
a. Compound crime or delito compuesto - when a single act

constitutes two or more grave or less grave felonies, and
258
APPLICATION OF PENALTIES
b. complex crime proper or delito complejo - when an offense

is a necessary means to commit the other.
What are the elements of compound crimes?
1. A single act is committed by the offender
2. T h a t single act resulted to t w o or more g r a v e and/or less

g r a v e felonies
3. T h e penalty provided is for the most serious in the

m a x i m u m period.
T h e classic example of a single act constituting two

homicides is that of a single bullet successively killing two
victims.
T h e felonies committed may be: [a] two or more grave

felonies; [b] t w o or more less g r a v e felonies; or [c] one or
more g r a v e and one or more less grave felonies. W h e n a light
felony l i k e w i s e resulted, the light felony shall be treated
as a separate offense. T h e basis of compound crimes is the
singularity of the act, such as the single act of throwing hand
grenade, killing some and seriously wounding a number of
persons, thus, the single penalty.
Give an example of a single act that does not result to a complex

crime.
T h e crime committed when a single act of pressing the
trigger of an automatic sub-machine gun is not a complex
crime. In v i e w of the special characteristic or mechanism of
automatic machine guns and the offender knowing this fact,
there are as many offenses as the numbers of victims of the
bullets fired. It is error to impose a single penalty for the four
murders committed relying on the doctrines enunciated in
Pama, C.A., 44 O.G. 339; Lawas, 97 Phil. 975 [unrep., 1955];
and Pineda, 20 SCRA 748. (People v. Tabaco, G.R. Nos. 100382-
100385, March 19, 1997) t
In Pama, there was only one bullet that killed two persons.
Hence, there was only a single act, which produced two crimes.
In the instant case, TT fired the weapon, which
contained 20 rounds of bullets, continuously. When the rifle
259
was recovered, the magazine was already empty. Moreover,

several spent shells were recovered from the scene of the
crime. Hence, the ruling Pama cannot be applied. W h a t is on
all fours with these case is Desierto, C.A., 45 O.G. 4542 [1948]
where accused killed five persons with a sub-machine gun
which like an M-14, is capable of firing continuously.
Desierto held that although the burst of shots was caused
by one single act of pressing the trigger of the sub-machine
gun, in view of its special mechanism, the person firing it has
only to keep pressing the trigger with his finger and it would
fire continually. Hence, it is not the act of pressing the trigger
which should produce the several felonies, but the number of
bullets which actually produced them.
Pineda provided the definition of what a complex crime is.
But Article 48 was not applied therein for there were actually
several homicides committed by the perpetrators. It stated
the "deeply rooted doctrine that when various victims expire
from separate shots, such acts constitute separate and distinct
crimes." "To apply the first half of Article 48, there must be
singularity of criminal act; singularity of criminal impulse is
not written into the law."
T h e firing of several bullets by T T , although resulting
from one continuous burst of gunfire, constitutes several acts.
Each person, felled by different shots, is a victim of a separate
crime of murder. T h e r e is no showing that only a single missile
passed through the bodies of all four victims. T h e killing of
each victim is thus separate and distinct from the other.
Consequently, the four murders which resulted from a
burst of gunfire cannot be considered a complex crime. T h e y
are separate crimes. T h e accused must be held liable for each
and every death he has caused, and sentenced accordingly to
four reclusion perpetua. (People v. Tabaco)
In another case, BB and CC fired at SB and R R . T h e bullet
which killed SB was recovered from his head. RR suffered
four gunshot wounds. There were here two offenders and two
victims. T h e logical possibilities may be:
(1) BB shot and killed SS (or JJ), while CC was fatally

wounding JJ (or SS); or
260
(2) BB shot and killed both SS and JJ successively, i.e.,

with different shots; or
(3) CC successively and fatally hit SS and JJ.
Whichever scenario had actually materialized, the accused

performed separate and distinct acts which were animated by a
common criminal intent — to slay SS and the other members
of his group. Since BB and CC had acted in concert with each
other, which of them had in fact fatally wounded SB and JJ
becomes unimportant. T h e r e was no complex crime in the
above scenario but two separate crimes because there was
no singularity of acts. But since there was conspiracy, both
of the accused are liable for the two homicides. They must be
held guilty of two distinct crimes of homicide rather than the
complex crime of double homicide. (People v. Caldito, G.R. Nos.
78432-33, February 9, 1992) (Contra: Lawas)
Give an example of separate acts that constitute a complex

crime.
In Lawas, the accused and other members of the Home

Guard commenced firing at a large group of Maranaos at a
signal from L L , and continued firing until he gave a cease-fire
signal. About 50 Maranaos died in the slaughter. T h e accused
w e r e found guilty of the compound crime of multiple homicide
thusly:
"One last question involves the determination of the
number of crimes for which each of the appellants may be
found guilty, whether each one should be considered as having
committed as many crimes as there were persons who were
killed, or only for one complex crime of multiple homicide. The
information is for multiple murder, and no inference can be
made therefrom, that the accused are being charged of as many
offenses as there were victims. Then the evidence positively
shows that the killing was the result of a single impulse, which
was induced by the order of the leader to fire, and continued
with the intention to comply therewith, as the firing stopped as
soon as the leader gave the order to that effect. There was no
intent on the part of the appellants either to fire at each and
every one of the victims as separately and distinctly from each
other.
261
"It has been held that if the act or acts resulted from a
single criminal impulse, it constitutes a single offense. (People
v. Acosta, 60 Phil. 158) So also it has been held that the act of
taking two roosters belonging to two different persons in the
same place and on the same occasion cannot give rise to two
crimes having an independent existence of their own, because
there are not two distinct appropriations nor two intentions that
characterize two separate crimes. (People v. de Leon, 49 Phil.
237) A n d in Guillen, 47 O.G. No. 7, 3433, a single act, that of
throwing a highly explosive hand grenade at President Roxas,
resulting in the death of one victim and in physical injuries on
others was considered as a single act, also falling under the
first part of Article 48. It may be added that there is absolutely
no evidence as to the number of persons killed by each and
every one of the appellants, so even if we were induced to hold
each appellant responsible for each and every death caused
by him, it is impossible to carry that desire into effect as it is
impossible to ascertain the individual deaths caused by each
and everyone. We are, therefore, forced to find the appellants
guilty of only one offense, that of multiple homicide for which
the penalty to be imposed should be in the maximum period."
(Why not 50 counts of homicide for each appellant in v i e w of
conspiracy?)
What are complex crimes proper?
These are felonies denominated complex crime proper

where when one offense is necessary to commit another. T h e
two crimes thus committed comprise one complex crime. T h e
first crime must be a necessary means to commit the other.
This means that the first offense is committed to insure and
facilitate the commission of the next crime.
The bank's custodian of unissued Cashier's Checks, with

grave abuse of confidence reposed in him as Assistant Cashier,
forged the signature of officers authorized to sign the subject
check and then deposited the check in the account of a fictitious
payee. Thereupon, the value of the check was taken by him.
T h e forging of the signature of the officers authorized to sign
the check was resorted to in order to obtain the amount of
P36,480.30. Hence, the falsification of the check was a necessary
means to commit qualified theft, resulting in a complex crime
262
of Qualified Theft Thru Falsification of Commercial Document.

(People v. Salonga, June 2001). (The crime committed was not
estafa but qualified theft because the Assistant Cashier did not
have juridical possession of the funds involved.)
What are cases where commission of two crimes will not result
to complex crimes proper?
a. A crime to conceal another for the law requires a crime to

commit another, not to conceal the other crime.
If the cashier resorted to falsification to hide the

taking of public funds, the falsification and the taking are
separate offenses. W h e r e the treasurer effected payments
to his co-accused for construction materials supposedly
delivered to the province for various projects when in fact
no such materials were delivered. To conceal the defrau-
dation, accused used six vouchers which were intrinsically
fake, the crimes committed are not complex but separate
crimes of falsification and malversation. T h e falsifications
cannot be regarded as constituting one continuing offense
impelled by a single criminal impulse. Each falsification
of a voucher constitutes one crime. T h e falsification of six
vouchers results to six separate offenses; and each mis-
appropriation as evidenced by a provincial voucher con-
stitutes a separate offense. (People v. Sendaydiego, G.R.
Nos. L-33252-54, January 20, 1978)
b. A crime which is an element of the other for in that

case, the former shall be absorbed by the latter such as
trespassing which is an element of robbery.
c. A crime which has the same element as the other crime

committed.
Estafa and falsification of private documents have
the same element of damage. T h e same damage cannot
give rise to two crimes. Thus, there is no complex crime
of estafa thru falsification of private documents.
d. Where the intent is really to commit the second crime
but the first act although also a crime is incidental to
the commission of the second crime. For instance, in the
taking away of a woman for the original intent to commit
263
rape on her, the taking is merely incidental to the crime

of rape, hence, it is not complex crime of abduction with
rape but only simple rape.
What is the procedural requirement for the accused to be liable

for a complex crime?
It is a condition precedent that there is one information
charging a complex felony. Although a single act resulted to
two deaths, one murder and one homicide, the accused cannot
be sentenced for a complex crime with one penalty where two
separate informations were filed for said killings. This is true
even though a joint trial of the two criminal cases was held
and a consolidated decision rendered. Accordingly, the accused
should be meted a separate penalty for each of the crime
charged in each information. (People v. De Vera, June 1999)
Only one information should be filed for three murders

and an attempted murder produced by an explosion caused by
the hurling of a hand grenade into the bedroom of the victims.
Article 48 on complex crimes governs inasmuch as all the
felonies were produced by a single act. (People v. Carpo, G.R.
No. 132676, April 4, 2001)
Why is there only one penalty for complex crimes?
T h e penalty for complex crimes for the most serious crime

in the maximum period. Such penalty is beneficial to the ac-
cused for he is given a single penalty instead of as many penal-
ties as there are crimes committed. T h e reason for the single
penalty is that the basis of the felony is the singularity of the
act. For instance, in the single act of shooting with a high-pow-
ered gun killing two persons with one bullet, without Article
48, the offender would have been penalized with two reclusion
temporal. But with the provision on complex crimes, the pen-
alty would be one reclusion temporal in the maximum period.
What is the effect of R.A. 9346 on the penalty for complex

crimes?
T h e effect of the abolition of the death penalty on complex

crimes is that the maximum period cannot be imposed on
complex crimes punishable with reclusion perpetua to death.
264
• What is the effect of complex crimes on the indeterminate

sentence on the convict?
T h e effect is that the minimum of the indeterminate

sentence shall be imposed in the maximum period. Under the
I S L , the minimum penalty should be within the whole range
of the penalty next lower than that prescribed for the offense.
However, under Article 48, the penalty shall be for the most
serious in the maximum period. T a k e the case where the
imposable penalty was prision mayor maximum to reclusion
temporal minimum. One degree lower is prision mayor
minimum to prision mayor medium being the next two periods
in the scale of penalties, the full range of which is 6 years
and 1 day to 10 years. This one degree lower penalty should
be imposed in its maximum period or from 8 years and 1 day
to 10 years. (Nizurtado v. Sandiganbayan, G.R. No. 107383,
December 7, 1994)
• Does Article 48 apply to imprudence?
Y e s . Reckless imprudence resulting in damage to

property is penalized with arresto mayor in its minimum and
medium periods. Since arresto mayor is a correctional penalty,
the quasi-offense is a less grave felony. Clearly, if a reckless,
imprudent or negligent act results in two or more grave or less
grave felonies, a complex crime is committed.
However, where one of the resulting offenses in criminal
negligence constitutes a light felony, there is no complex crime.
T h e resulting offenses may be treated as separate or the light
felony may be absorbed by the grave felony. Thus, the light
felonies of damage to property and slight physical injuries, both
resulting from a single act of imprudence, do not constitute a
complex crime. T h e y cannot be charged in one information.
T h e y are separate offenses subject to distinct penalties.
Slight physical injuries is punishable by public censure
only. Article 9, paragraph 3 defines light felonies as infractions
of law carrying the penalty of arresto menor or a fine not
exceeding P200, or both. Since public censure is classified
under Article 25 as a light penalty, and is considered under the
graduated scale provided in Article 71 as a penalty lower than
arresto menor, it follows that the offense of reckless imprudence
resulting in slight physical injuries is a light felony.
265
Where the single act of imprudence resulted in double

less serious physical injuries, damage to property amounting
to P 10,000 and slight physical injuries, it is correct to file a
separate complaint for the slight physical injuries and another
complaint for the lesiones menos graves and damage to property.
(Reodica v. Memoracion)
Can offenses be complexed with felonies?

N o . Offenses punished in special laws cannot be complexed
with felonies penalized under the R P C . For instance, rape
cannot be complexed with violation of Section 5(b), Article I I ,
R.A. 7610 (sexual abuse of minor). Article 48 does not allow a
felony to be complexed with an offense penalized by a special
law. (People v. Araneta, 48 Phil. 650)
Besides complex crime and compound crime, what are the other
kinds of plurality of crimes where a single penalty is imposed?
a. Composite crimes or special complex crimes;

b. Continued crime or delito continuado; and
c. Continuing crimes or transitory crimes.
Article 312 on usurpation of real property or real rights

therein is a distinct specie of plurality of crimes. It is a single
felony composed of different felonies but which carries a two-
tiered penalty of fine for the resurpation and the proper penalty
for the means used to commit the usurpation.
What are composite crimes?
These are crimes which in the eyes of the law are treated
as single indivisible offenses although in reality are made up
of more than one crime. T h e y are also called special complex
crimes. There is only one provision of law violated which defines
the specific crimes composing the single indivisible felony and
imposing a specific penalty therefor. Examples of which are:
1. Article 294 on robbery with homicide, robbery with rape,

robbery with mutilation, robbery w i h serious physical
injuries.
2. Article 320 on arson with homicide.
266
3. Article 267 on kidnapping with homicide, kidnapping

with rape, kidnapping with serious physical injuries.
4. Article 266-A on rape with homicide. Interestingly, rape
with homicide was a complex crime under Article 48 in
relation to Articles 335 and 249, prior to the amendment
by R . A . 7659 and 8353.
Distinguish composite crimes from complex crimes.
a. Composite crime — the combination of the offenses is

fixed by law, e.g., kidnapping with rape (Article 267)
Complex crime — the combination is not specified but
in general terms, that is, grave and/or less grave; or one
offense being the necessary means to commit the other,
e.g. forcible abduction with rape (Article 342 and 266-A)
b. Composite crime — the penalty for the specified combina-
tion of crimes is also specific, e.g., kidnapping with rape
which carries reclusion perpetua [to death].
Complex crime — the penalty is not specific but is for the
most serious offense in the maximum period.
c. Composite crimes — even if there are more than one count
of the component crime such as several rapes or several
homicides accompanying the kidnapping, there is just one
composite crime to be charged. A l l the excess homicides/
rapes accompanying the kidnapping are absorbed in
kidnapping with homicide/rape.
Complex crime — if there is more than one count of the
crime forming part of the complex crime, the first shall
be complexed while the other counts may be treated as
separate crime. In forcible abduction with rape only
the first rape is complexed with the abduction and the
subsequent rapes shall be charged separately. (People v.
Jose)
d. Composite crimes — if a light felony accompanied the
commission of the composite offense, such fight felony
is absorbed. Hence, robbery with serious physical
injuries absorbs maltreatment or slight physical injuries
committed in the course of the robbery.
267
Complex crime — if a light felony accompanies the

commission of the complex crime, the light felony may be
subject to separate information.
e. Composite crimes — penalized in a single provision of
law, e.g.. Article 267 on kidnapping with rape and given a
single specific penalty.
Complex crimes — penalized by two provisions of law in
relation to Article 48, e.g., rape under Article 266-A and
forcible abduction under Article 342 and penalized under
Article 48 for the most serious in the maximum period.
f. Composite crimes — offenses under special law can

become composite, e.g., carnapping with homicide.
Complex crimes — It is not possible to complex under
Article 48 two offenses; one felony and one offense.
• What is the effect when one of the crimes in the information

charging complex crimes is not proved?
The effect is that the accused can be convicted of the

other.
Although it is true that the term "homicide" as used in

special complex crime of rape with homicide is to be understood
in its generic sense, and includes murder and slight physical
injuries committed by reason or on the occasion of rape, where
a complex crime is charged and the evidence falls to support
the charge as to one of the component offense, the accused can
be convicted of the other.
In rape with homicide, to be convicted of murder in case

the evidence fails to support the charge of rape, the qualifying
circumstance must be sufficiently alleged and proved.
Otherwise, it would be a denial of the right of the accused to be
informed of the nature of the offense with which he is charged.
Every element of the offense must be alleged in the complaint
or information. T h e main purpose of requiring the various
elements of a crime to be set out in an information is to enable
the accused to suitably prepare his defense. He is presumed to
have no independent knowledge of the facts that constitute the
offense.
268
An accused cannot be convicted of an offense higher than

that for which he is tried. It matters not how conclusive and
convincing the evidence of guilt may be, but an accused cannot
be convicted of any offense, unless it is charged in the complaint
or information for which he is tried, or is necessarily included
in that which is charged. He has a right to be informed of the
nature of the offense with which he is charged before he is put
on trial. To convict an accused of a higher offense than that
charged in the complaint or information under which he is
tried would be an unauthorized denial of that right. (People v.
Gallarde, G.R. No. 133025, February 17, 2000)
W h i l e it may appear that forcible abduction was also

committed, the appellant cannot be convicted of the complex
crime of forcible abduction with rape. W h i l e the information
sufficiently alleges the forcible taking of complainant from
Cebu to Masbate, it fails to allege "lewd designs." When
charging a complex crime such as forcible abduction with
rape, the prosecution must allege and prove all the elements
of forcible abduction, as w e l l as all the elements of rape. When
appellant, using a blade, forcibly took away complainant for
the purpose of sexually assaulting her, as in fact he did rape
her, the rape may then absorb forcible abduction. T h e crime
is simple rape only. (People v. Sabredo, G.R. No. 126114, May
11, 2000)
Is arson with homicide a complex crime?

N o . If death results by reason or on the occasion of arson,
the crime is simply arson although the imposable penalty is
mandatory death (now reclusion perpetua). The deaths here
are not separate crimes but are merely qualifying circumstance
(aggravated arson). (Article 320, as amended by R . A . 7659)
Indeed, arson with homicide is in the nature of a special complex
crime because the crimes composing this felony — arson and
homicide (which is used in the generic sense) are specified and
the penalty therefor is likewise specified — [death] reclusion
perpetua.
For instance, where four persons were killed first and an
infant died as a result of the burning of their house thereafter,
the crime committed is arson and four counts of murder, each
count aggravated by dwelling. For the arson where death
269
resulted, they should be sentenced to a separate term of

reclusion perpetua, and for the four counts of murder, four
terms each of reclusion perpetua to be served successively in
accordance with Article 70. (People v. Cedenio, January 1994)
What are continued crimes?

Continued crimes or delito continuado also known as
continuous crimes, the offender, impelled by a single criminal
impulse, commits a series of overt acts at about the same time
in about the same place and all the overt acts violate one and
the same provision of law.
Santiago u. Garchitorena, G.R. No. L-109266, December 2,
1993, explained that technically, only one crime was committed,
hence, only one information should be filed. T h e 32 Amended
Informations charge what is known as "delito continuado" or
"continued crime" and sometimes referred to as "continuous
crime."
The original information charged petitioner with

performing a single criminal act — that of her approving the
application for legalization of aliens not qualified under the law
to enjoy such privilege. T h e original information also averred
that the criminal act committed: [i] was in violation of a law
— E.O. 324 dated A p r i l 3, 1988; [ii] caused undue injury to
one offended party, the Government; and [iii] was done on a
single day, i.e., on or about October 17, 1988. T h e 32 A m e n d e d
Informations reproduced verbatim the allegation of the
original information, except that instead of the word "aliens" in
the original information each amended information states the
name of the individual whose stay was legalized. T h e strong
probability even exists that the approval of the application for
the legalization of the stay of the 32 aliens was done by a single
stroke of the pen, as when the approval was embodied in the
same document.
M a y the principle of delito continuado be applied to special

laws?
Y e s . T h e concept of delito continuado, although an

outcrop of the Spanish Penal Code, has been applied to crimes
penalized under special laws. Under Article 10, the R P C shall
270
be supplementary to special laws, unless the latter provide the

contrary. Hence, legal principles developed therefrom may be
applied in supplementary capacity to crimes punished under
special laws, (id.)
• What is the "single larceny" doctrine?
T h e trend in theft cases is to follow the "single larceny"

doctrine, that is, the taking of several things, whether belonging
to the same or different owners, at the same time and place
constitutes but one larceny. T h e "separate larceny doctrine,"
under which there was a distinct larceny as to the property
of each victim, has been abandoned. Also abandoned was the
doctrine that the government has the discretion to prosecute
the accused for one offense or for as many distinct offenses as
there are victims, (id.)
• Give some examples of cases of delito continuado.
1. T h e theft of 13 cows belonging to different owners

committed by the accused at the same place and at the
same period of time. (People v. Tumlos, 67 Phil. 320)
2. T h e theft of six roosters belonging to two different owners

from the same coop and at the same period of time. (People
v. Jaranillo, 55 SCRA 563)
3. T h e illegal charging of fees for services rendered by a

lawyer every time he collects veteran's benefits on behalf
of a client, who agreed that the attorney's fees shall be
paid out of said benefits. (People v. Sabbun, 10 SCRA 156)
T h e collections of the legal fees were impelled by the same
motive, that of collecting fees for services rendered, and
all acts of collection were made under the same criminal
impulse.
• Give examples when the concept of delito continuado was not

applied.
1. T w o estafa cases one of which was committed during the
period from January 19 to December 1955 and the other
from January to July 1956. (People v. Dichupa, 113 Phil.
306) T h e said acts were committed on different occasions.
271
2. Several malversations committed in M a y , June and July

and falsifications to conceal the said offenses committed in
August and October. The malversations and falsifications
were not the result of only one purpose or of only one
resolution to embezzle and falsify. (People v. Cid, 66 Phil.
354)
3. T w o estafa cases, one committed in December involving
the failure of the collector to turn over the installments
for a radio and the other in June involving the pocketing
of the installments for a sewing machine. (People v.
Ledesma, 73 SCRA 77)
4. Estafa cases committed by the conversion by the agent
of collections from customers of the employer made on
different dates. (Gamboa v. CA, 68 SCRA 308)
• What is a continuing crime?
1. In the Rules of Court it is one where any of the elements

of the offense was committed in different localities such
that the accused may be indicted in any of those localities.
2. It may also refer to any offense which is continuing in

time, e.g., rebellion which may have been started years
ago by the offender and continuing up to the present.
Rebellion, insurrection, conspiracy and proposal to com-

mit such crimes are in the nature of continuing offenses, which
set them apart from the common offenses, aside from their es-
sentially involving a massive conspiracy of nationwide magni-
tude. (Garcia-Padilla v. Enrile, 121 SCRA)
Violation of B.P. 22 is in the nature of a continuing crime.

Venue is determined by the place where the elements of mak-
ing, issuing, or drawing of the check and delivery thereof are
committed. Yabut, G.R. No. L-42847, April 29, 1977, explained
that a person indicted with a transitory offense may be validly
tried in any jurisdiction where the offense was in part commit-
ted. T h e place where the bills were written, signed or dated
does not necessarily fix or determine the place where they were
executed. What is of decisive importance is the delivery thereof
which is the final act essential to its consummation as an obli-
gation. (Ibasco v. CA )
272
• When an act or acts constitute more than one offense, for what
shall the accused be liable?
His liability may be for:
a. A single crime, with one crime absorbing the other

offenses;
b. A complex crime when the offenses constitute grave or

less grave felonies;
c. A special complex crime, with each offense constituting

elements of the composite offense; or
d. T w o separate crimes.
For instance, the taking of a woman forcibly and thereaf-

ter, rape was committed on her. H o w should the offenders be
charged?
a. If the original intent is to rape, the taking is merely

incidental to commit the intended offense the crime is
simple rape.
b. If the intention is to take the woman against her will with

l e w d designs, complex crime of forcible abduction with
rape provided the information will allege lewd designs.
c. If the original intention is to kidnap the woman for ransom
and thereafter, rape is committed, the offense committed
is special complex crime of kidnapping with rape.
d. If in (b) above, there were several counts of rape, the first

rape shall be complexed with the forcible abduction and
the subsequent rapes shall be treated as separate crimes.
A r t . 49. Penalty to be imposed upon the principals when the
crime committed is different from that intended. — In cases in
w h i c h the felony committed is different f r o m that which the
offender intended to commit, the f o l l o w i n g rules shall be
observed:
1. If the penalty p r e s c r i b e d for the felony committed
be h i g h e r than that c o r r e s p o n d i n g to the offense
w h i c h the accused intended to commit, the penalty
c o r r e s p o n d i n g to the latter shall be imposed in its
maximum period.
273
2. If the penalty p r e s c r i b e d for the felony committed

be l o w e r than that c o r r e s p o n d i n g to the one w h i c h
the accused intended to commit, the penalty for the
former shall be imposed in its m a x i m u m p e r i o d .
3. T h e rule established by the next p r e c e d i n g p a r a -

g r a p h shall not be a p p l i c a b l e if the acts commit-
ted by the guilty p e r s o n shall also constitute an
attempt or frustration of a n o t h e r crime, if the l a w
prescribes a h i g h e r penalty for either the latter of-
fenses, in w h i c h case, the penalty p r o v i d e d for the
attempted or the frustrated c r i m e shall be i m p o s e d
in the m a x i m u m p e r i o d .
• To what circumstance does Article 49 apply?
A r t i c l e 49 applies to error in personae. It cannot apply

to praeter intentionem which is covered by A r t i c l e 13. It
does not apply to complex crimes resulting from aberratio
ictus which are covered by A r t i c l e 48. Article 49 provides for
the imposition of the lower penalty in the maximum period,
whereas Article 48 prescribes the penalty for the most serious
offense in the maximum period.
The penalties for the intended crime and for the actual
crime committed are compared and the lower penalty is
imposed in the maximum period, unless the crime committed
constitutes an attempt or frustration of another, and the law
provides a higher penalty for the frustrated or attempted felony,
the penalty for the latter shall be imposed in the maximum
period.
For instance, if the intended crime is homicide but due

to error in personae, parricide was committed, the penalty
for homicide shall be imposed. If parricide w a s intended, but
homicide was committed, the lower penalty shall be imposed.
In effect, error in personae is an extenuating circumstance. If,
however the intended and the actual crimes committed are
both homicides, there is no lower penalty to impose. Error in
personae in such case is not extenuating.
A r t . 50. Penalty to be imposed upon principals of a frustrated

crime. — T h e penalty next l o w e r in d e g r e e t h a n that p r e s c r i b e d
274
b y l a w for the c o n s u m m a t e d felony shall b e imposed u p o n

the p r i n c i p a l s in a f r u s t r a t e d felony.
A r t . 51. Penalty to be imposed upon principals of attempted
crime. — A p e n a l t y l o w e r by t w o d e g r e e s t h a n that p r e s c r i b e d
b y l a w for the c o n s u m m a t e d felony shall b e imposed u p o n
the p r i n c i p a l s in an attempt to commit a felony.
A r t . 52. Penalty to be imposed upon accomplices in a
consummated crime. — T h e penalty next l o w e r in d e g r e e than
that p r e s c r i b e d b y l a w for the c o n s u m m a t e d felony shall
be i m p o s e d u p o n the accomplices in the commission of a
A r t . 53. Penalty to be imposed upon accessories to the commission
of a consummated felony. — T h e p e n a l t y l o w e r by t w o d e g r e e s
t h a n that p r e s c r i b e d b y l a w for the c o n s u m m a t e d felony
shall be i m p o s e d u p o n the accessories to the commission of a
A r t . 54. Penalty to be imposed upon accomplices in a frustrated
crime. — T h e p e n a l t y next l o w e r in d e g r e e than that p r e s c r i b e d
b y the l a w for the f r u s t r a t e d felony shall b e imposed u p o n
the accomplices in the commission of a frustrated felony.
A r t . 55. Penalty to be imposed upon accessories of a frustrated
crime. — T h e p e n a l t y l o w e r by t w o d e g r e e s than that
p r e s c r i b e d b y l a w for the f r u s t r a t e d felony shall b e imposed
u p o n the accessories to the commission of a frustrated
felony.
A r t . 56. Penalty to be imposed upon accomplices in an
attempted crime. — T h e penalty next l o w e r in d e g r e e than that
p r e s c r i b e d by l a w for an attempt to commit a felony shall be
i m p o s e d u p o n the accomplices in an attempt to commit the
felony.
A r t . 57. Penalty to be imposed upon accessories of an attempted
crime. — T h e penalty l o w e r by t w o degrees than that
p r e s c r i b e d by l a w for the attempt shall be imposed upon the
accessories to the attempt to commit a felony.
A r t . 58. Additional penalty to be imposed upon certain acces-
sories. — T h o s e accessories falling within the terms of p a r a -
g r a p h 3 of Article 19 of this C o d e w h o should act with abuse
of their p u b l i c functions, shall suffer the additional penalty
of absolute p e r p e t u a l disqualification if the principal offend-
275
er shall be guilty of a g r a v e felony, a n d that of absolute tem-

p o r a r y disqualification if he shall be guilty of a less g r a v e
felony.
A r t . 59. Penalty to be imposed in case of failure to commit the
crime because the means employed or the aims sought are impossible.
— W h e n the person intending to commit an offense has
a l r e a d y p e r f o r m e d the acts for the execution of the same
but nevertheless the crime w a s not p r o d u c e d by r e a s o n
of the fact that the act intended w a s by its n a t u r e one of
impossible accomplishment or b e c a u s e the m e a n s e m p l o y e d
by such person a r e essentially i n a d e q u a t e to p r o d u c e the
result desired by him, the court, h a v i n g in m i n d the social
d a n g e r a n d the d e g r e e o f criminality s h o w n b y the offender,
shall impose u p o n h i m the penalty of arresto mayor or a fine
r a n g i n g f r o m 200 to 500 pesos.
A r t . 60. Exceptions to the rules established in Articles 50 to 57.
— T h e provisions c o n t a i n e d in A r t i c l e s 50 to 57, inclusive, of
this C o d e shall not be a p p l i c a b l e to cases in w h i c h the l a w
expressly p r e s c r i b e s the p e n a l t y p r o v i d e d for a f r u s t r a t e d
or attempted felony, or to be i m p o s e d u p o n a c c o m p l i c e s or
accessories.
• Why are the rules in Articles 50-57 prescribed?
T h e penalties in Book II are understood to be imposed

upon the principal offender for the consummated felony.
(Article 46) Hence, there is a need to provide for the rules when
the crime is not consummated, and when the offenders include
accomplices and/or accessories.
An additional one-degree deduction from the penalty for
frustrated and attempted parricide, murder or homicide is
granted in Article 250 because of the gravity of the penalty on
said felonies.
• How are Articles 50-57 applied in relation to Article 61?
Whenever the law prescribes a penalty for a felony in

general terms, it shall be understood as applicable to the
consummated felony and against the principal offender. Hence,
every penalty in the R P C should be understood as imposed
upon the principal for a consummated felony.
276
It is thus necessary that the penalty should be deter-

mined according to the degree of participation and the stage of
accomplishment. A p p l y i n g Articles 50-57 in relation to Article
61 below is a table of reduction of penalties by degrees consid-
ering the participation in and the stage of accomplishment of
a felony:
CONSUMMATED FRUSTRATED ATTEMPTED

PRINCIPAL as provided -1 -2
ACCOMPLICE -1 -2 -3
ACCESSORY -2 -3 -4
In consummated homicide the principal gets reclusion
temporal. T h e penalty of an accomplice shall be one degree
lower or prision mayor; accessory shall get two degrees lower
or prision correccional. If the homicide is the frustrated stage,
the accomplice shall get two degrees lower than reclusion
temporal or prision correccional and so on.
Article 249 provides the penalty of reclusion temporal for

homicide. U n d e r Article 51, the penalty for an attempted crime
is two degrees lower than that prescribed by law. Attempted
homicide is thus punishable by prision correccional.
A r t . 61. Rules of graduating penalties. — F o r the p u r p o s e of

g r a d u a t i n g the penalties w h i c h , a c c o r d i n g to the provisions
of A r t i c l e s 50 to 57, inclusive, of this C o d e , a r e to be imposed
u p o n p e r s o n s guilty as p r i n c i p a l s of any frustrated or
attempted felony, or as accomplices or accessories, the
f o l l o w i n g rules shall b e o b s e r v e d :
1. W h e n the penalty p r e s c r i b e d for the felony is

single a n d indivisible, the penalty next l o w e r in
d e g r e e shall be that immediately f o l l o w i n g that
indivisible penalty in the respective g r a d u a t e d
scale p r e s c r i b e d in Article 71 of this Code.
2. W h e n the penalty p r e s c r i b e d for the crime is com-

posed of t w o indivisible penalties, or of one or more
divisible penalties to be imposed to their full ex-
tent, the penalty next l o w e r in d e g r e e shall be that
immediately f o l l o w i n g the lesser of the penalties
p r e s c r i b e d in the respective g r a d u a t e d scale.
277
3. W h e n the penalty p r e s c r i b e d for the crime is

composed of one or t w o indivisible penalties a n d
the m a x i m u m p e r i o d of another divisible penalty,
the penalty next l o w e r in d e g r e e shall be composed
of the m e d i u m a n d m i n i m u m periods of the p r o p e r
divisible penalty a n d the m a x i m u m p e r i o d of that
immediately f o l l o w i n g in said respective g r a d u a t e d
scale.
4. W h e n the p e n a l t y p r e s c r i b e d for the c r i m e is

composed of several periods, corresponding to
different d i v i s i b l e p e n a l t i e s , the p e n a l t y n e x t
l o w e r i n d e g r e e s h a l l b e c o m p o s e d o f the p e r i o d
i m m e d i a t e l y f o l l o w i n g the m i n i m u m p r e s c r i b e d
a n d o f the t w o n e x t f o l l o w i n g , w h i c h s h a l l b e t a k e n
f r o m the p e n a l t y p r e s c r i b e d , i f p o s s i b l e ; o t h e r w i s e
f r o m the p e n a l t y i m m e d i a t e l y f o l l o w i n g i n the
a b o v e m e n t i o n e d r e s p e c t i v e g r a d u a t e d scale.
5. W h e n the l a w p r e s c r i b e s a penalty for a c r i m e in

some m a n n e r not specially p r o v i d e d for in the f o u r
p r e c e d i n g rules, the courts, p r o c e e d i n g b y a n a l o g y ,
shall impose c o r r e s p o n d i n g penalties u p o n those
guilty as principals of the f r u s t r a t e d felony, or of
attempt to commit the same, a n d u p o n accomplices
a n d accessories.
Why is there a need for the rules in graduating penalties under

Article 61?
Article 61 is necessary to guide the courts how to lower

the penalty. In the application of the rules therein, it is to
be understood that each penalty prescribed by l a w for every
felony is a degree. Thus, generally when the penalty imposed
comprises of two periods, the two-period penalty is deemed
as one degree and the penalty next lower in degree should be
composed of two periods also. If the penalty is composed of one
period only, that is a degree for purposes of the rules and the
next lower penalty shall also be made up of one period.
T h e scale of penalties provided in Article 71 is to be used in

determining the penalty lower in degree than that prescribed.
278
Explain the rules in Article 6 1 .

R u l e 1: W h e n the penalty imposed for the offense is single
and indivisible, the penalty next lower in degree shall be
that immediately following that indivisible penalty in the
respective graduated scale in Article 71.
T h e r e is now only one indivisible penalty - reclusion
perpetua. T h e next lower in degree is the penalty immediately
following it in which is reclusion temporal.
R u l e 2: W h e n the penalty prescribed is two indivisible
penalties, or one or more divisible penalties to be imposed
to their full extent, the penalty next lower in degree shall
be that immediately following the lesser of the penalties
prescribed.
There is no more two indivisible penalties because of R . A .
9346. Thus, the first part of the rule is no longer operative.
T h e second part says that when the penalty prescribed
is composed of one or more divisible penalties to be imposed to
their full extent, the penalty next lower in degree shall be that
immediately following the lesser of the penalties. For instance,
when the penalty imposed is prision mayor to reclusion temporal
the penalty next lower in degree is that immediately following
prision mayor, which is prision correccional.
R u l e 3: W h e n the penalty prescribed is composed of one
or two indivisible penalties and the maximum period of
another divisible penalty, the penalty next lower in degree
shall be composed of the medium and minimum periods of
the proper divisible penalty and the maximum period of
that immediately following.
This rule refers to a three-period penalty: reclusion
temporal, maximum period to death and the next lower penalty
is also composed of three periods - prision mayor, maximum
period to reclusion temporal, medium period. [This is now
academic due to the demise of the death penalty.]
The rule can also apply to a two-period penalty composed
of one indivisible penalty and the maximum period of a
divisible penalty - reclusion temporal, maximum to reclusion
perpetua. T h e penalty next lower is the same for the three-
period penalty: prision mayor, maximum to reclusion temporal,
medium, as expressly stated in Rule 3 of Article 61.
279
R u l e 4: When the penalty prescribed for the crime is

composed of several periods, corresponding to different
divisible penalties, the penalty next lower in degree shall
be composed of the period immediately following the
minimum prescribed and of the two next following, which
shall be taken from the penalty prescribed, if possible;
otherwise from the penalty immediately following in the
respective graduated scale.
The penalty for brigandage under Article 306 is prision

mayor, medium to reclusion temporal, minimum, a penalty
composed of several periods corresponding to different divisible
penalties. The penalty next lower in degree shall likewise be
composed of different divisible penalties - prision correccional,
medium period to prision mayor, minimum.
• When the penalty prescribed is not provided for in the rules

in Article 61, how should the court proceed in lowering the
penalty?
Article 61(5) provides that when the law prescribes a

penalty in some manner not specially provided for in the four
preceding paragraphs, the courts shall proceed by analogy.
Hence, when the penalty prescribed for the crime consists of
one or two penalties to be imposed in their full extent, the
penalty next lower in degree shall likewise consist of as many
penalties which follow the former in the scale in Article 71.
For instance, R . A . 6425 as amended by R . A . 7659 imposes the
complex penalty consists of three discrete penalties in their
full extent - prision correccional, prision mayor and reclusion
temporal, then one degree lower would be arresto menor,
destierro and arresto mayor. There can be no further reduction,
since only the penalties of fine and public censure remain in
the scale. (People v. Simon, G.R. No. 930280, July 29, 1994)
S e c t i o n T w o . — Rules for the application of penalties with

regard to the mitigating and aggravating circumstances,
and habitual delinquency
A r t . 62. Effects of the attendance of mitigating or aggravating

circumstances and of habitual delinquency. — M i t i g a t i n g or
a g g r a v a t i n g circumstances a n d h a b i t u a l d e l i n q u e n c y shall
280
be t a k e n into a c c o u n t for the p u r p o s e of d i m i n i s h i n g or

i n c r e a s i n g the p e n a l t y in conformity w i t h the f o l l o w i n g
rules:
1. A g g r a v a t i n g c i r c u m s t a n c e s w h i c h in themselves
constitute a c r i m e especially p u n i s h a b l e by l a w or
w h i c h a r e i n c l u d e d by the l a w in defining a crime
a n d p r e s c r i b i n g the p e n a l t y t h e r e f o r shall not b e
t a k e n into a c c o u n t for the p u r p o s e of i n c r e a s i n g
the p e n a l t y .
1 ( a ) . W h e n i n the c o m m i s s i o n o f the c r i m e , a d v a n t a g e
w a s t a k e n b y the o f f e n d e r o f his p u b l i c position,
the p e n a l t y to be i m p o s e d shall be in its m a x i m u m
r e g a r d l e s s o f m i t i g a t i n g circumstances.
T h e m a x i m u m p e n a l t y shall b e i m p o s e d i f the
offense w a s c o m m i t t e d b y a n y p e r s o n w h o b e l o n g s
to an organized/syndicated crime group.
A n o r g a n i z e d / s y n d i c a t e d crime g r o u p m e a n s a
g r o u p of 2 or m o r e p e r s o n s c o l l a b o r a t i n g , confed-
e r a t i n g o r m u t u a l l y h e l p i n g one a n o t h e r for p u r -
poses of g a i n in the commission of any crime. (As
amended by R.A. No. 7659.)
2. T h e same r u l e shall a p p l y w i t h respect to any

a g g r a v a t i n g circumstances inherent in the crime to
such a d e g r e e that it must of necessity a c c o m p a n y
the c o m m i s s i o n thereof.
3. A g g r a v a t i n g or mitigating circumstances w h i c h
arise f r o m the m o r a l attributes of the offender,
or f r o m his p r i v a t e relations with the offended
p a r t y , or f r o m a n y other p e r s o n a l cause, shall only
serve to a g g r a v a t e or mitigate the liability of the
p r i n c i p a l s , accomplices a n d accessories as to w h o m
each circumstances a r e attendant.
4. T h e circumstances w h i c h consist in the material
execution of the act, or in the means employed
to accomplish it, shall serve to a g g r a v a t e or
mitigate the liability of those persons only w h o had
k n o w l e d g e of them at the time of the execution of
the act or their cooperation therein.
281
5. H a b i t u a l delinquency shall have the following

effects:
a. U p o n a 3rd conviction, the culprit shall be
sentenced to the penalty p r o v i d e d by l a w for
the last crime of w h i c h he be f o u n d guilty a n d to
the a d d i t i o n a l penalty of prision correccional
in its m e d i u m a n d m a x i m u m periods;
b. U p o n a 4th conviction, the culprit shall be

sentenced to the penalty p r o v i d e d for the
last crime of w h i c h he be f o u n d guilty a n d to
the a d d i t i o n a l p e n a l t y of prision mayor in its
minimum and m e d i u m periods; and
c. U p o n a 5th or a d d i t i o n a l conviction, the c u l p r i t

shall be sentenced to the p e n a l t y p r o v i d e d for
the last c r i m e o f w h i c h h e b e f o u n d guilty a n d
to the a d d i t i o n a l p e n a l t y of prision mayor in
its m a x i m u m p e r i o d to reclusion temporal in
its m i n i m u m p e r i o d .
N o t w i t h s t a n d i n g the p r o v i s i o n s of this
article, the total of the t w o penalties to be im-
p o s e d u p o n the offender, in conformity h e r e -
w i t h , shall in no case e x c e e d 30 y e a r s .
F o r the p u r p o s e of this article, a p e r s o n

shall b e d e e m e d t o b e h a b i t u a l d e l i n q u e n t , i f
w i t h i n a p e r i o d of 10 y e a r s f r o m the d a t e of
his r e l e a s e or last conviction of the c r i m e s of
serious or less serious p h y s i c a l i n j u r i e s , robo,
hurto, estafa, or falsification, he is f o u n d guilty
of a n y of said c r i m e s a 3rd time or oftener.
What are the different kinds of modifying circumstances in this

article?
a. Those which in themselves constitute a crime such as "by

means of fire" or arson
b. Those included by law in defining a crime and prescribing

the penalty, e.g., laying hands upon a person in authority
which is direct assault.
282
c. Those inherent in the crime, e.g., dwelling in trespass to

dwelling.
These shall no longer be considered in imposing

the penalty because in [a] and [b] they were already
considered by the law in prescribing the penalty for the
offense and in [c] the circumstance is absorbed by the
crime committed.
d. Those which are caused by the moral attributes of the

offender or his relations with the offended or any other
personal causes [paragraph 3] — only the offender
having such attribute shall be affected. Thus, only the
minor shall enjoy the privileged mitigating circumstance
of minority. In parricide, only the relative-offender
shall be liable therefor; the co-conspirator shall be liable
for homicide or murder, as the case may be. Habitual
delinquency w i l l be considered against the one to whom
it pertains and w i l l not aggravate the crime of the other
offenders.
What modifying circumstances were added by R.A. 7659 in this

article?
1. W h e n advantage is taken by the offender of his public
position, the penalty shall be in its maximum period,
regardless of the presence of mitigating circumstances.
T h e rule in offsetting of aggravating and mitigating
circumstances under Article 64 shall not apply when the
offender abused his official position in the commission of
the offense.
2. An organized/syndicated crime group formed for purposes

of gain. "Gain" here should not be taken to mean the
technical word "gain" in theft or robbery but should
pertain to those crimes where the offenders will profit,
such as estafa, kidnapping for ransom, etc.
T h e phrase "same rule" in N o . 2 of this Article should be
understood to refer to paragraph 1 without regard to paragraph
1(a) which is an amendment by R . A . 7659. Therefore,
aggravating circumstances which are inherent to the crime
283
shall not increase the penalty to the maximum period and shall
no longer be considered in the determination of the penalty.
What is the essence of a syndicated or organized crime group?

The essence is that it was organized for the general
purpose of committing crimes for gain. It is not enough that
accused and his companions confederate and mutually help
one another for the purpose of gain, there must be proof that
they were a group organized for that general purpose. They
do not merely conspire (which is not aggravating) to commit
a particular crime but formed to commit crimes for gain. They
practically make it their industry or profession to commit such
crimes.
What emerges from the Senate deliberation of what is now
Article 2 ( l ) ( a ) (S.B. N o . 891) is the deed of a group of persons,
at least two in number, which is organized for the purpose of
committing crimes for gain. W h i l e the evidence shows that
the accused and his companions planned to rob SS, there is no
evidence that they were organized to commit crimes for gain.
There was a conspiracy to commit robbery but not a syndicate
or organized crime group. (People v. Alberca, G.R. No. 117106,
June 26, 1996)
In the deliberation of S.B. 891 that became R . A . 7659,

Senator Tolentino explained the difference between conspiracy
and organized crime syndicate: "The difference, of course, is
that in the case of syndicated crime, the group is an organized
group, while such organization is not required in the case of mere
conspiracy. Two or more persons just agree to commit a crime,
we have a conspiracy, while in the case of a syndicate there is a
group that is actually organized for crime purposes, "x x x "Well,
in the case of a band that means all of them participate in the
commission of the offense. All the members, I think, four or more
participate in the commission of the offense. But in the case of a
syndicated crime, maybe one member of the group alone commits
a crime, while in the organized group one or two members may
commit the crime." x x x "Senator Tolentino. Mr. President, I
think the concept of syndicate here is different from conspiracy.
Two or more persons may conspire to commit robbery. All right.
That is a particular offense. But in the case of a syndicate, the
284
concept here is a group that is organized for commission of

crimes, not only a particular crime, but of crimes. So, there is
a big difference between the conspiracy and the syndicate." x
x x "But when we talk of conspiracy, we mean an agreement
between two or more persons to commit a particular crime. I
do not think the Gentleman can raise that to a level of making
it an aggravating circumstance because there is no reason for
it. The reason in the syndicated crime is that it is practically a
profession that is being adopted by a group." (cited in People v.
Alberca)
• What are the elements of habitual delinquency and its effect?
T h e elements of habitual delinquency are:
1. T h e felonies must be any of falsification, robbery, estafa,

theft, serious and less serious physical injuries;
2. T h e r e must be at least three convictions; and
3. T h e third conviction must take place within 10 years from

the last conviction or release.
T h e effect of habitual delinquency is to impose upon the

convict an additional penalty, which increases with the number
of his convictions from the third and so forth, but the total of the
two penalties (for the crime and for the habitual delinquency)
should not be more than 30 years. Thus, habitual delinquency
is in effect not a "regular" aggravating circumstance but is akin
to a felony with its own escalating penalty.
Another effect is that habitual delinquents are disqualified

from the retroactive application of a favorable penal law.
A r t . 63. Rules for the application of indivisible penalties. —

In all cases in w h i c h the l a w p r e s c r i b e s a single indivisible
penalty, it shall be a p p l i e d by the courts r e g a r d l e s s of any
mitigating or a g g r a v a t i n g circumstances that may have
attended the commission of the deed.
In all cases in w h i c h the l a w prescribes a penalty
composed of t w o indivisible penalties the following rules
shall be o b s e r v e d in the application thereof:
285
1. W h e n in the commission of the d e e d there is present

only one a g g r a v a t i n g circumstance, the g r e a t e r
penalty shall be a p p l i e d .
2. W h e n there a r e neither mitigating n o r a g g r a v a t i n g
circumstances in the commission of the deed, the
lesser penalty shall be a p p l i e d .
3. W h e n the commission of the act is attended by
some mitigating circumstance a n d there is no
a g g r a v a t i n g circumstance, the lesser penalty shall
be applied.
4. W h e n both m i t i g a t i n g a n d a g g r a v a t i n g c i r c u m -
stances a t t e n d e d the commission of the act, the
courts shall r e a s o n a b l y a l l o w t h e m to offset one
a n o t h e r i n c o n s i d e r a t i o n o f their n u m b e r a n d
i m p o r t a n c e , for the p u r p o s e o f a p p l y i n g the p e n a l t y
i n a c c o r d a n c e w i t h the p r e c e d i n g r u l e s , a c c o r d i n g
to the result of s u c h c o m p e n s a t i o n .
• What are the two kinds of penalties in this Article?
They are the following:
1. Single indivisible penalty of reclusion perpetua [or death]

where the penalty imposed shall be applied regardless of
the presence any mitigating or aggravating circumstances.
However, "mitigating" here does not include privileged
mitigating circumstances for these are always considered
even in case of single indivisible penalty.
Even assuming that aggravating or mitigating

circumstances have been proven, the same cannot be
taken into account because the penalty for qualified rape
is single and indivisible. (People v. Palermo, G.R. No.
120630, June 28, 2001)
2. T w o indivisible penalties of reclusion perpetua to

death where the higher penalty shall be imposed when
an aggravating circumstance is present or left after
offsetting. This paragraph is now inoperative due to R . A .
9346 that abolished the death penalty; there is now only
one indivisible penalty of reclusion perpetua.
286
• Why is reclusion perpetua still an indivisible penalty when it has

now a fixed duration?
If reclusion perpetua were reclassified as a divisible

penalty, then Article 63 would lose its reason and basis for
existence. T h e r e w e r e only two indivisible penalties — death
and reclusion perpetua. Since the death penalty has been
abolished, only reclusion perpetua is left as an indivisible
penalty. W e r e it considered as divisible in v i e w of its having
now a fixed period, A r t i c l e 63 w i l l have no more applicability.
Since reclusion perpetua is an indivisible penalty, it has

no m i n i m u m , medium or maximum period. A n d where the
l a w prescribes a single indivisible penalty, it shall be applied,
regardless of any modifying circumstance that attended the
commission of the crime. Thus, the I S L is not applied when
reclusion perpetua is imposed as a single indivisible penalty
by virtue of A r t i c l e 63(1). (Infra)
• To what kind of mitigating circumstances do Articles 63 and 64

refer?
T h e mitigating circumstances referred to in Articles

63 and 64 are ordinary mitigating circumstances because
privileged mitigating circumstances are always considered
whether the penalty imposable is divisible or indivisible. Thus,
privileged mitigating circumstances are first considered before
the rules in said articles are applied to determine the proper
penalty and/or period to be imposed on the convict.
A r t . 64. Rules for the application of penalties which contain

three periods. — In cases in w h i c h the penalties p r e s c r i b e d by
l a w contain three p e r i o d s , w h e t h e r it be a single divisible
penalty or c o m p o s e d of three different penalties, each one
of w h i c h forms a p e r i o d in a c c o r d a n c e w i t h the provisions of
Articles 76 a n d 77, the courts shall o b s e r v e for the applica-
tion of the penalty the f o l l o w i n g rules, a c c o r d i n g to whether
there a r e or a r e no mitigating or a g g r a v a t i n g circumstances:
1. W h e n there a r e neither a g g r a v a t i n g nor mitigating
circumstances, they shall impose the penalty pre-
scribed by l a w in its m e d i u m period.
287
2. W h e n only a mitigating circumstance is present in

the commission of the act, they shall impose the
penalty in its minimum period.
3. W h e n only an a g g r a v a t i n g circumstance is present
in the commission of the act, they shall impose the
penalty in its m a x i m u m p e r i o d .
4. W h e n both mitigating a n d a g g r a v a t i n g c i r c u m -
stances a r e present, the c o u r t shall r e a s o n a b l y
offset those of one class a g a i n s t the other a c c o r d i n g
to their relative w e i g h t .
5. W h e n there are t w o o r m o r e mitigating circumstances

a n d no a g g r a v a t i n g circumstances a r e present, the
court shall impose the penalty next l o w e r to that
p r e s c r i b e d by l a w , in the p e r i o d that it m a y d e e m
applicable, a c c o r d i n g to the n u m b e r a n d n a t u r e of
such circumstances.
6. W h a t e v e r m a y be the n u m b e r a n d n a t u r e of the
a g g r a v a t i n g circumstances, the courts shall not
impose a g r e a t e r p e n a l t y t h a n that p r e s c r i b e d by
l a w , in its m a x i m u m p e r i o d .
7. W i t h i n the limits of e a c h p e r i o d , the courts shall

d e t e r m i n e the extent of the p e n a l t y a c c o r d i n g to
the n u m b e r a n d n a t u r e o f the a g g r a v a t i n g a n d
m i t i g a t i n g c i r c u m s t a n c e s a n d the g r e a t e r o r lesser
extent of the evil p r o d u c e d by the c r i m e .
Summary of the rules when the penalty imposed is divisible.
Modifying Circumstances Proper Period
1. No aggravating and no — medium

mitigating
2. Mitigating only minimum

3. Aggravating only maximum
4. Some of both present — offset then apply
above rules
288
5. T w o or more mitigating — lower the penalty

with no aggravating by one degree in the
proper period
• What can the courts not do under these rules?

Courts cannot:
a. L o w e r the penalty by a degree when there is an

aggravating circumstance even if the net effect
of the offsetting is that two or more mitigating
circumstances are left;
b. L o w e r by two degrees when there are four mitigating

circumstances and no aggravating;
c. Impose a greater penalty than that prescribed by

l a w no matter how many aggravating circumstances
are present.
T h e penalties in Book II are the maximum for the

specific crimes. To impose a higher penalty, the crime must
be upgraded by a qualifying circumstance but in such case,
there is a different crime altogether. For instance, homicide
can only be penalized with reclusion temporal. To increase it
to reclusion perpetua, there must be a qualifying circumstance
but the crime will no longer be homicide but murder.
• What is the relationship between Article 64 and the Indetermi-

nate Sentence Law?
Article 64 is important in the application of the I S L
because the modifying circumstances are first considered
in determining the maximum penalty. On the basis of the
computed maximum penalty, the minimum penalty shall be
within the whole range of the penalty next lower in degree in
the period which the court may deem proper.
Article 64 is not considered in determining the minimum

penalty. Rather, the minimum is the whole range of the penalty
next lower in degree than the computed maximum penalty.
• When there are two or more mitigating, without any aggravating,

what is the proper penalty?
289
The penalty next lower to that prescribed by the R P C shall

be imposed in the period that the Court may deem applicable
depending upon the number and nature of mitigating
circumstances pursuant to Article 64 (5). Thus, in homicide
which carries reclusion temporal, where there are present
two mitigating without any aggravating circumstances, the
maximum penalty should be one degree lower or prision
mayor. Applying the I S L , the convict must suffer the penalty
the minimum of which must be within the range of prision
correccional and the maximum within prision mayor. (People
v. Germina, May 1998)
• Do the rules under Article 64 apply to quasi-offenses under

Article 365?
N o , for paragraph 5 of Article 365 provides that in the
imposition of the penalties for the quasi-offense, the courts
shall exercise their sound discretion without regard to the rules
prescribed in Article 64. Modifying circumstances substitute
for the discretion of the judge in the imposition of the penalties
such that when these circumstances are not applicable, the
judge is given leeway to exercise his sound discretion. (People v.
Simon) Modifying circumstances relate to the moral attribute
of the offender which is irrelevant in quasi-offenses, intent
being absent.
A r t . 65. Rule in cases in which the penalty is not composed

of three periods. — In cases in w h i c h the p e n a l t y p r e s c r i b e d
by l a w is not c o m p o s e d of t h r e e p e r i o d s , the courts shall
a p p l y the rules c o n t a i n e d in the f o r e g o i n g articles, d i v i d i n g
into three e q u a l portions the time i n c l u d e d in the p e n a l t y
p r e s c r i b e d , a n d f o r m i n g one p e r i o d o f e a c h o f the t h r e e
portions.
• What is the rule when a divisible penalty is imposed upon an

offender?
Article 76 gives the legal duration of divisible penalties,

i.e., it shall be considered as divided into three periods:
minimum, medium and maximum. W h e n the law prescribes
a penalty that does not comply with this requirement, Article
65 directs that the penalty shall be made to comply therewith
290
by dividing it into three periods to conform to the rule that

divisible penalty shall be deemed as divided into three periods.
Robbery in an uninhabited place is penalized by prision

correccional in its medium and maximum periods. T h e duration
of this penalty is 2 years, 4 months and 1 day to 6 years. To
conform to the rule under Article 76 on divisible penalties, the
following steps are followed:
a. Get the duration of the penalty.

6 yrs minus 2 yrs, 4 mos.
= 3 yrs, 8 mos. or 44 mos.
b. Divide by 3 the result in (a) to get the duration of

each period.
44 mos. /3 = 14 mos., 10 days per period or 1 yr, 2
mos. and 10 days
c. A d d the quotient to the minimum of each period:
M i n i m u m period 2 yrs, 4 mos

Duration per period + 1 yr, 2 mos 10 days
M a x i m u m of minimum period 3 yrs 6 mos. 10 days
Thus,
Period From To
Minimum 2 yr 4 mo. 1 day — 3 yr. 6 mo. 10 days
Medium 3 yr. 6 mo. 11 day — 4 yr. 8 mo. 20 days
Maximum 4 yr. 8 mo. 21 day — 6 yr.
This is also true if two full divisible penalties are
imposable, e.g., arresto mayor to prision correccional. The same
rule and procedure shall be followed.
What is the significance of one day in the beginning of each

penalty?
One day separates the duration of penalty:
a. Between two periods, e.g., between arresto menor, mini-
mum and arresto menor, medium
b. Between two degrees, viz., 6 years of prision correccional
from 6 years and 1 day of prision mayor
291
c. Between divisible and indivisible penalties, thus up to 20

years is divisible (reclusion temporal). A d d one day and it
becomes indivisible - reclusion perpetua
The effects of this are whether or not: offender is qualified
for probation as the probationable penalty is up to six years
or prision correccional; subsidiary penalty can be imposed or
not, since it applies only if the prison term is not more than six
years; Article 64 on divisible penalty (up to reclusion temporal)
or Article 63 on indivisible penalty (up to reclusion perpetua)
should apply. In the latter, modifying circumstances other
than privileged mitigating affect the penalty whereas in the
former, they do not.
A r t . 66. Imposition of fines. — In i m p o s i n g the fines, the

courts m a y f i x a n y a m o u n t w i t h i n the limits e s t a b l i s h e d b y
l a w ; i n f i x i n g the a m o u n t i n e a c h case a t t e n t i o n shall b e
given, not o n l y t o the m i t i g a t i n g a n d a g g r a v a t i n g c i r c u m -
stances, b u t m o r e p a r t i c u l a r l y t o the w e a l t h o r m e a n s o f
the c u l p r i t .
• What factors are considered in the imposition of fines to the

culprit?
1. Presence of modifying circumstances. In one case, the

P10,000 fine was reduced to P2,000 in v i e w of three
mitigating circumstances. (Nizurtado v. Sandiganbayan)
2. More particularly, the wealth or means of culprit. Thus,

the fine to be imposed may be reduced if, notwithstanding
the presence of aggravating circumstance, the culprit
cannot afford the correct fine.
A r t . 67. Penalty to be imposed when not all the requisites

of exemption of the fourth circumstance of Art. 12 are present. —
W h e n all the conditions r e q u i r e d i n c i r c u m s t a n c e n u m b e r
4 of A r t i c l e 12 of this C o d e to e x e m p t f r o m c r i m i n a l liability
a r e not present, the p e n a l t y of arresto mayor in its m a x i m u m
p e r i o d to prision correccional in its m i n i m u m p e r i o d shall
be imposed u p o n the culprit, if he shall h a v e b e e n guilty of a
g r a v e felony, a n d arresto mayor in its m i n i m u m a n d m e d i u m
periods, if of a less g r a v e felony.
292
A r t . 68. Penalty to be imposed upon a person under eighteen

years of age. — W h e n the o f f e n d e r is e i g h t e e n y e a r s of a g e a n d
his case is o n e c o m i n g u n d e r the p r o v i s i o n s of the p a r a g r a p h
next to the last of A r t . 80 of this C o d e , the f o l l o w i n g rules
shall b e o b s e r v e d :
1. U p o n a p e r s o n u n d e r fifteen b u t o v e r nine years of
a g e , w h o i s not e x e m p t e d f r o m liability b y reason
of the c o u r t h a v i n g d e c l a r e d that he acted with
d i s c e r n m e n t , a d i s c r e t i o n a r y penalty shall be
i m p o s e d , b u t a l w a y s l o w e r b y t w o d e g r e e s a t least
t h a n that p r e s c r i b e d b y l a w for the crime w h i c h h e
committed.
2. U p o n a p e r s o n o v e r fifteen a n d u n d e r e i g h t e e n
y e a r s o f a g e the p e n a l t y n e x t l o w e r t h a n that p r e -
s c r i b e d b y l a w s h a l l b e i m p o s e d , b u t a l w a y s i n the
p r o p e r p e r i o d . proper = medium
R . A . 9344 is wholly repugnant to Article 68 for the new

law made a child 15 years of age or under at the time of the
commission of the offense absolutely exempt from criminal
liability. Instead he shall be subject to an intervention
program. Thus, Article 68(1) is impliedly repealed for utter
incompatibility with R . A . 9344.
On the other hand, R . A . 9344 exempts a child 15 years old
but under 18 from criminal liability. Instead he shall be subject
to an intervention program unless he acted with discernment
in which case he shall undergo diversion program. In effect,
Article 68(2) is modified in that the minor shall only be crimi-
nally liable if he acted with discernment. The age of discern-
ment was increased from nine to 15 years by the new law.
If a child is criminally responsible and the diversion
program does not apply, the case shall proceed as in other cases.
In such event, the child shall enjoy the privileged mitigating
circumstance under Article 68.
• Who has the burden of proving the circumstance of minority?

Prior to R . A . 9344, Mendoza, July 1998, stated that the
burden of proof that accused was a minor at the time of the
293
commission of the offense is on him. Upon the law's effectivity,

the minor need not prove his minority because he enjoys the
presumption of minority pursuant to Section 7 thereof. In case
of doubt as to age, it shall be resolved in favor of minority.
The law provides that the age of a child may be determined

from the child's birth or baptismal certificate or any other
pertinent documents. In the absence of documentary evidence,
the age may be determined from information supplied by the
child himself, testimonies of other persons, physical appearance
of the child and other relevant evidence.
A n y person contesting the age of the child in conflict with

the law prior to the filing of the information in court may file
a case in a summary proceeding for the determination of the
age of the child before the Family Court which shall decide the
case within 24 hours from receipt of the appropriate pleadings
of all interested parties; or a motion in the court if and where a
case is already pending. It shall suspend the proceedings in the
main case while the motion is being heard.
On March 28, 1981, when the crime was committed,

accused was only 17 years old. In many cases, if the accused
alleges minority and the prosecution does not disprove his
claim by contrary evidence, such allegation can be accepted
as a fact. In Bergantino, G.R. No. L-1441, December 29, 1903,
the accused testified that she was below 15 when the crime
was committed. This was corroborated by her mother and her
husband. No other evidence such as baptismal certificate was
presented to support her claim. T h e prosecution did not offer
any contradictory evidence. It was held therein that while
the evidence to this point is not entirely satisfactory, yet it
is sufficient to raise a reasonable doubt upon this material
question in the case, to the benefit of which the defendant is
entitled. T h e baptismal certificate or other evidence of this
character would have been much more satisfactory to the court,
and if obtainable, should have been introduced. (David v. CA,
July 1998)
A r t . 69. Penalty to be imposed when the crime committed is

not wholly excusable. — A p e n a l t y l o w e r by o n e or t w o d e g r e e s
than that p r e s c r i b e d by l a w shall be i m p o s e d if the d e e d is
not w h o l l y e x c u s a b l e by r e a s o n of the lack of some of the
294
conditions r e q u i r e d to justify the s a m e or to exempt f r o m

c r i m i n a l liability in the s e v e r a l cases m e n t i o n e d in Articles
11 a n d 12, p r o v i d e d that the m a j o r i t y of such conditions be
present. T h e c o u r t s shall i m p o s e the penalty in the p e r i o d
w h i c h m a y b e d e e m e d p r o p e r , i n v i e w o f the n u m b e r a n d
n a t u r e of the conditions of e x e m p t i o n p r e s e n t or lacking.
• What kind of a mitigating circumstance is lack of complete

requirement to exempt or justify?
It is a privileged mitigating circumstance because the

penalty may be reduced by one or two degrees if majority of
the conditions required to justify the act committed or to ex-
empt from criminal liability are present. Consequently, such
mitigating circumstance cannot be offset by any aggravating
circumstance.
In the circumstance of defense of self, relatives or strangers

under Article 11, if there is no unlawful aggression, Article 69
is not applicable because this is the condition sine qua non to
justify the act. Without unlawful aggression there is nothing to
defend; there is no justifying circumstance of defense, complete
or incomplete.
If there is present less than a majority of the conditions, it

will be an ordinary mitigating circumstance, which will lower
the penalty to the minimum period, under Article 13(1).
Appellant is guilty of two homicides, there being no

qualifying or aggravating circumstance, but extenuated by the
privileged mitigating circumstance of incomplete self-defense
— in view of the unlawful aggression on the part of the victims
and lack of sufficient provocation on the part of the appellant —
by two generic mitigating circumstance of voluntary surrender
and passion and obfuscation.
The penalty for homicide is reclusion temporal. Pursuant
to Article 69, the penalty lower by one or two degrees shall be
imposed if the deed is not wholly excusable. Considering that
the majority of the requirements for defense of property are
present, the penalty may be lowered by two degrees to prision
correccional. A n d under Article 64(5), the same may further be
reduced by one degree, that is, arresto mayor, because of the
295
presence of two mitigating circumstances and no aggravating

circumstance. (People v. Narvaez, 121 SCRA)
A r t . 70. Successive service of sentences. — W h e n the culprit

has to serve t w o or m o r e penalties he shall serve t h e m
simultaneously if the n a t u r e of the penalties w i l l so permit;
otherwise, the following rules shall be o b s e r v e d :
In the imposition of the penalties, the o r d e r of their
respective severity shall be f o l l o w e d so that they m a y be
executed successively or as n e a r l y as m a y be possible, s h o u l d
a p a r d o n have b e e n g r a n t e d as to the penalty or penalties
first imposed, or should they h a v e b e e n s e r v e d out.
F o r p u r p o s e s of a p p l y i n g the p r o v i s i o n s of the next
p r e c e d i n g p a r a g r a p h , the respective severity of the penalties
shall be d e t e r m i n e d in a c c o r d a n c e w i t h the f o l l o w i n g scale:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision Correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. P e r p e t u a l a b s o l u t e disqualification,
10. T e m p o r a r y a b s o l u t e disqualification,
11. S u s p e n s i o n f r o m p u b l i c office, the r i g h t to vote
a n d be voted for, the r i g h t to f o l l o w a p r o f e s s i o n or
calling, a n d
12. Public censure.
N o t w i t h s t a n d i n g the p r o v i s i o n s of the r u l e next

p r e c e d i n g , the m a x i m u m d u r a t i o n of the convict's
sentence shall not be m o r e t h a n t h r e e f o l d the length of
time c o r r e s p o n d i n g to the most s e v e r e of the penalties
imposed upon him. No other penalty to which he may
be liable shall be inflicted after the s u m total of those
imposed e q u a l s the s a m e m a x i m u m p e r i o d .
296
S u c h m a x i m u m p e r i o d shall in no case exceed forty

years.
In a p p l y i n g the p r o v i s i o n s of this r u l e , the d u r a t i o n
of p e r p e t u a l penalties (pena perpetua) shall be comput-
ed at thirty y e a r s . (As amended by Commonwealth Act
No. 217.)
• What is the rule when a convict is given multiple sentences?
T h e general rule is that he shall serve them simultaneously

if the nature of the penalties permits simultaneous service of
sentence. Otherwise, the penalties shall be served successively
in the order of severity as prescribed in this article. For
instance, imprisonment and fine, multiple death sentences,
and imprisonment and disqualification, among others shall
be served simultaneously because these penalties permit
simultaneous service. But several terms of imprisonment like
several reclusion perpetua cannot be served simultaneously
hence, they should be served successively, starting from the
most severe.
• When is simultaneous service of sentence allowed? What

penalties can be served simultaneously?
A r t i c l e 70 allows simultaneous service of two or more

penalties only if the nature thereof so permits. T h e penalties
that can be simultaneously served are: (1) perpetual abso-
lute disqualification, (2) perpetual special disqualification,
( 3 ) temporary absolute disqualification, (4) temporary spe-
cial disqualification, (5) suspension, (6) destierro, (7) public
censure, (8) fine and bond to keep the peace, (9) civil interdic-
tion, and (10) confiscation and payment of costs. These pen-
alties, except destierro, can be served simultaneously with
imprisonment. T h e penalties consisting in deprivation of lib-
erty cannot be served simultaneously by reason of the nature
of such penalties. W h e r e the accused is sentenced to two or
more terms of imprisonment, the terms should be served suc-
cessively.
Petitioner was sentenced to one year imprisonment for
every count of the offense committed. The nature of the sen-
tence does not allow him to serve all the prison terms simul-
297
taneously. (In Re: Petition for Habeas Corpus of Pete Lagran,

G.R. No. 147270, August 15, 2001)
• What are the limitations on the service of sentence?

a. The t h r e e - f o l d r u l e - the maximum duration of the
convict's sentence shall not be more than three-fold the
length of time corresponding to the most severe of the
penalties imposed upon him. No other penalty to which
he may be liable shall be inflicted after the sum total of
those imposed equals the same maximum period. In other
words, the maximum penalty is three times the most
severe or the total of the penalties imposed, whichever is
lower.
b. Such maximum period shall in no case exceed 40 years.

Whatever is lowest between the sum of the penalties and
three times the most severe, it shall not be more than 40
years.
• How is the three-fold penalty computed?
Step 1 — Get the most severe penalty imposed following

Article 70
2 — Multiply by 3 the duration of the most severe
penalty
3 — A d d the duration of all the different sentences
4 — Compare the results of steps 2 and 3 and
5 — Accused to serve the lesser period which in no case
shall exceed 40 years
When the most severe penalty is reclusion perpetua, the
imputed duration shall be 30 years, thus 30 x 3 = 90 years. T h e
culprit shall serve not 90 but 40 years pursuant to Article 70.
• What is the significance of the 30-year duration of penal

perpetua in Article 70?
Article 70 pertinently provides that in applying the three-

fold rule, the duration of perpetual penalties (pena perpetua)
shall be computed at 30 years. But the imputation of the 30-
year duration to reclusion perpetua is only to serve as a basis
29B
for determining the convict's eligibility for pardon or for the

application of the three-fold rule in the service of multiple
penalties. (People v. Tena, October 1992) Pena perpetua covers
reclusion perpetua and life imprisonment.
• When the penalty is indeterminate, how is the three-fold

penalty computed?
It is three times the indeterminate sentence also. For

instance, in the service of 12 penalties meted to defendant,
the maximum penalty that he should serve is three times the
indeterminate sentence of 12 years to 17 years, or 36 years to
51 years. T h e maximum duration of his sentence should not
exceed 40 years. (People v. Sendaydiego, G.R. Nos. L-33252-54,
January 20, 1978)
• Should the judge refrain from imposing the correct penalties if

these would exceed the limitation of penalties in this article?
N o . This article deals with service of sentence and not

with imposition, hence, it is for the Director of Prisons to
follow. T h e court should impose the correct penalties even if
these will amount to more than the lifetime of the prisoner.
Consequently, all the sentences on the prisoner imposed by any
court for whatever crimes whenever decided should be covered
by this rule. T h e Director of Prisons must have a record of all
such sentences on a convict.
T h e rationale for imposing the correct penalty is that
when the convict is pardoned for one, he will still serve the
other sentences meted on him.
• If the penalties imposed are all equal, how should the three-
fold rule operate?
If the penalties imposed are all equal, for instance, seven
reclusion perpetua, the period thereof shall be considered as the
most severe penalty for the purpose of applying the three-fold
rule. Thus, 3 x 30 = 90, but the culprit is to serve a maximum of
40 years only.
A r t . 71. Graduated scales. — In the cases in which the l a w

prescribes a penalty l o w e r or higher by one or more degrees
299
than another given penalty, the rules p r e s c r i b e d in Article

61 shall be o b s e r v e d in g r a d u a t i n g such penalty.
The l o w e r or higher penalty shall be taken f r o m the
g r a d u a t e d scale in w h i c h is c o m p r i s e d the given penalty.
T h e courts, in a p p l y i n g such l o w e r or h i g h e r penalty,
shall observe the f o l l o w i n g g r a d u a t e d scales:
SCALE NO. 1
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine.
SCALE NO. 2
1. P e r p e t u a l a b s o l u t e disqualification,
2. T e m p o r a r y a b s o l u t e disqualification,
3. S u s p e n s i o n f r o m p u b l i c office, the r i g h t to
vote a n d be voted for, the r i g h t to f o l l o w a
profession or calling,
4. Public censure,
5. Fine.
(See notes under Articles 50 - 57 and Article 61.)
What is the effect of R.A. 9346 as to the scale of penalty under

this article?
R . A . 9346 has expressly repealed all provisions of law

in so far as they apply or impose the death penalty. Thus, it
300
has in effect deleted the penalty of death under the scales of

penalty provided in the R P C . Hence, its effect is to reckon the
lower degree of penalty for accomplices and accessories from
the penalty actually imposed. For instance, for qualified rape
punishable with death originally, the penalty on the principal
under the amendatory law shall be reclusion perpetua; for the
accomplice, it shall be reclusion temporal and for the accessory,
prision mayor.
• Compare Articles 70 and 71; Destierro and Arresto Mayor.
Article 70 is relevant to multiple service of sentence;

Article 71 to graduating penalties in relation to Article 61.
Under Article 71, the penalty next lower than arresto mayor is
destierro and not arresto menor. On the other hand, in Article
70, destierro follows arresto menor in the degree of severity.
T h e rationale for this is explained in Duarte, G.R. No. 88232,
February 26, 1990.
Destierro is not a higher penalty than arresto mayor

which is imprisonment or complete deprivation of liberty,
whereas destierro means banishment or only a prohibition
from residing w i t h i n a radius of 25 kilometers from the
actual residence of the accused for a specified length of time.
T h e respective severities of arresto mayor and destierro must
not be judged by the duration of each of these penalties, but
by the degree of deprivation of liberty involved. Penologists
have always considered destierro lighter than arresto mayor.
Such criterion is reflected both in the old Spanish Penal
Code and in the R P C . In the graduated scale of Article 71 the
l a w m a k e r has placed destierro below arresto mayor. There is,
therefore, no basis in fact or in law for holding that destierro
is a higher penalty than arresto mayor and that an offense
penalized w i t h destierro falls under the jurisdiction of the
court of first instance.
A r t . 72. Preference in the payment of the civil liabilities. —

T h e civil liabilities of a p e r s o n f o u n d guilty of t w o or more
offenses shall be satisfied by f o l l o w i n g the chronological
o r d e r of the dates of the final j u d g m e n t s r e n d e r e d against
him, b e g i n n i n g w i t h the first in o r d e r of time.
301
Section T h r e e . — Provisions common to the last

two preceding sections
Art. 73. Presumption in regard to the imposition of accessory
penalties. — W h e n e v e r the courts shall impose a penalty which,
by provision of l a w , carries with it other penalties, according
to the provisions of Articles 40, 41, 42, 43, 44, a n d 45 of this
Code, it must be understood that the accessory penalties are
also imposed upon the convict.
• Should a decision impose accessory penalties?

No, for accessory penalties are automatically imposed by
authority of Article 73, which declares that whenever principal
penalties are imposed, it is understood that the accessory
penalties are likewise meted on the accused.
A r t . 74. Penalty higher than reclusion perpetua in certain

cases. — In cases in w h i c h the l a w p r e s c r i b e s a p e n a l t y
h i g h e r t h a n a n o t h e r g i v e n p e n a l t y , w i t h o u t specifically
d e s i g n a t i n g the n a m e o f the f o r m e r , i f s u c h h i g h e r p e n a l t y
s h o u l d b e that o f d e a t h , the s a m e p e n a l t y a n d the a c c e s s o r y
penalties of A r t i c l e 40, s h a l l be c o n s i d e r e d as the n e x t
higher penalty.
A r t . 75. Increasing or reducing the penalty of fine by one or

more degrees. — W h e n e v e r it m a y be n e c e s s a r y to i n c r e a s e or
r e d u c e the penalty of fine by o n e or m o r e d e g r e e s , it shall be
increased or r e d u c e d , respectively, for e a c h d e g r e e , by 1/4 of
the m a x i m u m a m o u n t p r e s c r i b e d b y l a w , w i t h o u t h o w e v e r ,
c h a n g i n g the m i n i m u m .
T h e same rules shall b e o b s e r v e d w i t h r e g a r d t o f i n e s that

do not consist of a fixed a m o u n t , b u t a r e m a d e p r o p o r t i o n a l .
• How is the penalty of fine increased or reduced?
Fines are reduced by one or two degrees when the felony is

attempted or frustrated or when imposed upon the accessory or
the accomplice. For each degree, 1/4 of the maximum amount
is taken. T h e penalty as computed shall in no case be lower
than the minimum prescribed by law. For instance, if the fine
prescribed by law is P200 to P600, 1/4 of the maximum amount
302
of P600 or P150 is taken. If the penalty is to be reduced by two

degrees, the penalty is computed as follows:
Step 1 — P600 divided by 4 = P150

2 — P150 x 2 degrees = P300
3 — P600-P300 = P300
T h e penalty lowered by two degrees is P200 to P300.
A r t . 76. Legal period of duration of divisible penalties. —

T h e l e g a l p e r i o d o f d u r a t i o n o f d i v i s i b l e penalties shall
b e c o n s i d e r e d a s d i v i d e d into t h r e e p a r t s , f o r m i n g three
p e r i o d s , the m i n i m u m , the m e d i u m , a n d the m a x i m u m i n
the m a n n e r s h o w n i n the f o l l o w i n g table:
• How are the periods of a divisible penalty computed?
Using as an example prision mayor with a period of 6

years and 1 day to 12 years, the period is determined as follows:
Step 1 — Get the duration of the penalty:

End of the period [12 years] minus its beginning
[6 years] = 6 years
Step 2 — Divide by 3 periods the duration.
6 years divided by 3 = 2 years.
Each period is 2 years long.
Step 3 — A d d the quotient in step B to the beginning of
each period.
6 years + 2 years = 8 years.
Hence:
Minimum — 6 years and 1 day to 8 years
Medium — 8 years and 1 day to 10 years
Maximum — 10 years and 1 day to 12 years
A r t . 77. When the penalty is a complex one composed of three

distinct penalties. — In cases in w h i c h the l a w prescribes a
penalty c o m p o s e d of three distinct penalties, each one shall
f o r m a p e r i o d ; the lightest of them shall be the minimum, the
next the m e d i u m , a n d the most severe the m a x i m u m period.
W h e n e v e r the penalty p r e s c r i b e d does not have one of

the forms specially p r o v i d e d for in this Code, the periods
303
shall be distributed, a p p l y i n g by analogy the p r e s c r i b e d

rules.
• What is a complex penalty?

A complex penalty is one composed of three distinct
penalties, each one forming a period, the lightest being the
minimum; the next, the medium; and the most severe, the
maximum. (This should not be confused with complex crime
under Article 48.)
• How is a law, which prescribes four distinct penalties, construed?
It must be construed as a legislative oversight. Simon

noted in R . A . 6425, an overlapping of penalties.' W h e r e the
quantity of drugs is less than the limit in Section 20, the penalty
prescribed was prision correccional to reclusion perpetua,
whereas violations involving more than the limit in Section
20 is penalized with reclusion perpetua to death. Clearly,
the overlapping of reclusion perpetua was a mere oversight.
Moreover, it violates the rule in Section 77 on complex penalty
which provides for only three separate and distinct penalties
for a crime. Hence, Simon corrected the patent oversight in the
law to conform to Article77.
• What kind of penalty is reclusion temporal in its maximum

period to reclusion perpetua?
T h e first paragraph of Section 1 of P . D . 1866, prior to R . A .

8294 punishes the crime of simple illegal possession of firearm
with reclusion temporal in its maximum period to reclusion
perpetua. This is a complex and divisible penalty consisting of
three periods.
T h e second paragraph of Article 77 which deals with com-

plex penalties, provides that "whenever the penalty prescribed
does not have one of the forms specially provided for in this
Code, the periods shall be distributed, applying by analogy the
prescribed rules," that is, those in Articles 61 and 76. Hence,
the minimum of the penalty of reclusion temporal maximum
period to reclusion perpetua, is 17 years, 4 months and 1 day
to 20 years; and the maximum period is reclusion perpetua.
(People v. Lian)
304
INDETERMINATE SENTENCE LAW

( A c t 4103, as a m e n d e d by A c t 4225;
Section 1. Hereafter, in imposing a prison sentence

for an offense punishable by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the
minimum which shall be within the range of the penalty next
lower to that prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall sentence
the accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed by said law
and the minimum shall not be less than the minimum term
prescribed by the same.
Section 2. This Act shall not apply to persons convicted of

offenses punished with death penalty or life-imprisonment; to
those convicted of treason, conspiracy or proposal to commit
treason; to those convicted of misprision of treason, rebellion,
sedition or espionage; to those convicted of piracy; to those
who are habitual delinquents; to those who shall have escaped
from confinement or evaded sentence; to those who having
been granted conditional pardon by the Chief Executive shall
have violated the terms thereof; to those whose maximum
term of imprisonment does not exceed one year, nor to those
already sentenced by final judgment at the time of approval
of this Act, except as provided in Section 5 hereof.
x x x x x x xxx
Section 6. Every prisoner released from confinement on
parole by virtue of this Act shall, at such times and in such
manner as may be required by the conditions of his parole,
as may be designated by the said Board for such purpose,
report personally to such government officials or other parole
officers hereafter appointed by the Board of Indeteminate
Sentence for a period of surveillance equivalent to the
remaining portion of the maximum sentence imposed upon
him or until final release and discharge by the Board of
Indeterminate Sentence as herein provided. The officials so
305
designated shall keep such records and make such reports

and perform such other duties hereunder as may be required
by the Board. The limits of residence of such paroled prisoner
during his parole may be fixed and from time to time changed
by the said Board in its discretion. If during the period of
surveillance such paroled prisoner shall show himself to be
a law-abiding citizen and shall not violate any of the laws of
the Philippine Islands, the Board of Indeterminate Sentence
may issue a final certification of release in his favor, which
shall entitle him to final release and discharge.
xxx xxx xxx
Section 8. Whenever any prisoner released on parole by
virtue of this Act shall, during the period of surveillance,
violate any of the conditions of his parole, the Board of
Indeterminate Sentence may issue an order for his arrest
which may be served in any part of the Philippine Islands
by any police officer. In such case the prisoner so re-
arrested shall serve the remaining unexpired portion of the
maximum sentence for which he was originally committed
to prison, unless the Board of Indeterminate Sentence shall,
in its discretion, grant a new parole to the said prisoner.
xxx xxx xxx
• What is the Indeterminate Sentence Law?

It is a law which modified the imposition of penalties
under the R P C and special laws. T h e courts are mandated in
imposing a sentence to fix a minimum and a maximum period of
penalty. The minimum sentence must be served and thereupon,
the convict becomes eligible for parole. W h e n released, he is
not actually discharged for the rest of his sentence is served out
of prison under the supervision of a parole officer.
• What are the objectives of the law?

It is to avoid the unnecessary, prolonged imprisonment of
convicts which may result in economic wastefulness. That is why
after the prisoner has served the minimum and has shown that
he has reformed, he is given parole. T h e philosophy underlying
the I S L is that of redeeming valuable human material and
preventing unnecessary deprivation of personal liberty and
306
economic usefulness with due regard to the protection of the

social order. (Vaca v. CA, G.R. No. 131714, November 16, 1998)
Why is there a need to specify the minimum and maximum

periods?
T h e need for specifying the minimum of the indeter-

minate sentence is to prevent the unnecessary and excessive
deprivation of liberty and to enhance the economic usefulness
of the accused, since he may be exempted from serving the en-
tire sentence, depending upon his behavior and his physical,
mental, and moral record. T h e requirement of imposing an
indeterminate sentence in all criminal offenses with definite
maximum and minimum terms, as the court may deem proper
within the legal range of the penalty specified by the law, is
mandatory. (Bacar v. de Guzman, Jr., 271 SCRA 328, 1997)
After having served the minimum penalty, the convict

shall be eligible for parole, and if qualified, may be exempt
from serving the entire sentence in tail. The maximum penalty
is necessary for purposes of the accessory penalties and in case
the convict is not given parole because his conduct in prison
did not show that he is worthy to be released from prison. The
I S L is not only for the benefit of the convict but also the society
in general whose welfare should not be prejudiced by his early
release from jail.
When is the law not applicable [What are the exceptions to the
Indeterminate Sentence Law] [When shall a straight penalty be
imposed] [Who are not covered by the Indeterminate Sentence
Law]?
T h e I S L is mandatory except in the following cases:
a. Offenses punished by death or life imprisonment;
b. Those convicted of treason, conspiracy or proposal to
commit treason [Articles 114 - 115];
c. Those convicted of misprision of treason [Article
116], rebellion [Article 134], sedition [Article 139],
or espionage [Article 117];
d. Those convicted of piracy [Article 132];
e. Habitual delinquents [Article 62, par. 5];
307
Recidivists are entitled to an indeterminate

sentence. (People v. Jaranilla, February 22, 1974)
Offender is not disqualified even if the crime is
committed while he is on parole. (People v. Calreon,
C.A., 78 O.G. 6701, November 11, 1982);
f. Those who escaped from confinement or those who
evaded sentence;
g. Those granted conditional pardon and who violated
its terms. (People v. Corral, 74 Phil. 359);
h. Those whose maximum period of imprisonment does
not exceed one year;
Where the penalty imposed does not exceed
one year, the accused cannot avail of the benefits
of the law, the application of which is based upon
the penalty actually imposed in accordance with
law and not upon that which may be imposed in the
discretion of the court.
T h e I S L applies even if the penalty is a result
of plea bargaining.
i. Those who are already serving final judgment upon
the approval of the I S L .
It is error to impose a straight penalty of 20 years of

imprisonment for the crime of illegal fishing with the use of
explosive. T h e I S L provides that if the offense is punished by a
law other than the R P C , the court shall sentence the accused
to an indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by the said law and the
minimum shall not be less than the minimum term prescribed
by the same. (Argoncillo v. CA, G.R. No. 118816, July 10, 1998)
Since Section 1 states, "in imposing a prison sentence,"

therefore, when the penalty is other than prison sentence such
destierro, suspension, and the like, the I S L does not apply,
hence, there is no minimum and maximum penalty.
T h e exceptions can be grouped into the following:
a. Penalties: death and life imprisonment; prison terms

the maximum of which is not more than one year
(one year or less); reclusion perpetua imposed as a
308
single indivisible penalty under Article 63; and non-

prison sentences of fine, destierro, disqualification,
etc. (Section 1).
b. Offenses: Treason, Proposal or Conspiracy to
Commit Treason, Misprision of Treason, Rebellion,
Espionage, Sedition, Piracy.
c. Offenders: habitual delinquents, escapees from con-
finement, evaders of sentence, violators of condition-
al pardon granted by the Chief Executive.
• When the penalty imposed is reclusion perpetua, is the law

applicable?
For offenses in which the law prescribes the single,

indivisible penalty of reclusion perpetua, it is the first paragraph
of Article 63 and not the I S L that applies. Said article provides
that "in all cases in which the law prescribes a single and
indivisible penalty, it shall be applied by the courts regardless
of any mitigating or aggravating circumstances that may have
attended the commission of the deed." (People v. Romua, G.R.
No. 126175, May 29, 1997)
• Is the requirement to impose an indeterminate sentence

discretionary or mandatory?
Since the requirement is to impose an indeterminate
sentence in all criminal offenses whether punishable by the
R P C or by special laws, with definite minimum and maximum
terms, as the Court deems proper within the legal range of
the penalty specified by the law, it must therefore be deemed
mandatory.
• How does the law operate?

a. T h e sentence must state: "Within the range of (for
instance) prision mayor as minimum, and within the
range of reclusion temporal as maximum." This is
necessary because of the accessory penalties.
b. The maximum period is determined by considering the
presence of modifying circumstances applying the rules
on Article 64. Privileged mitigating circumstances must
first be considered before applying the said rules.
309
c The minimum is fixed at one degree lower than that

provided by the R P C . The minimum is within the whole
range of the next lower penalty; not necessarily in the
same period as the maximum penalty. In other words, the
period of the minimum and the maximum penalty need
not be the same.
The penalty is indeterminate not indeterminable. Once,
a judge imposed a sentence where both the minimum and
maximum penalty had minimum and maximum period. It was
deemed ignorance of the law.
• What rules govern the computation of the penalty?

In crimes punishable under the R P C , the maximum term
of the indeterminate penalty is determined in accordance with
the rules and provisions of the R P C exactly as if the I S L had
never been enacted.
The rules to determine the maximum term of the indeter-

minate penalty are those in Articles 46, 48, 50 to 57, 61, 62, 64,
65, 68, 69, and 71.
However, the said rules, particularly those in Articles 50

to 57, 62, 64 and 65, are not applicable in fixing the minimum
term of the indeterminate penalty. T h e Court has unqualified
discretion to fix the term of the minimum. T h e only limitation
is that it is within the range of the penalty next lower to that
prescribed by the R P C for the offense committed, without
regard to its three periods.
T a k e for example homicide in which two mitigating cir-

cumstances. T h e penalty prescribed is reclusion temporal. Since
two mitigating circumstances and no aggravating circumstance
attended the commission of the offense, said penalty shall be
lowered by one degree pursuant to Article 64 (5) or is prision
mayor. This penalty shall be imposed in its medium period
considering that no other modifying circumstance attended the
commission of the offense, the two mitigating circumstances
having been already taken into account in reducing the penalty
by one degree. (Basan v. People, L-39483, November 29, 1974)
Applying the I S L , the minimum of the penalty shall be within
the range of the penalty next lower in degree which is prision
correccional and the maximum of which shall be within the
310
range of the medium period of prision mayor. (Nadjirul Takil

v. Esina, 65 SCRA 378 [1975]; Bacar v. de Guzman Jr A M
No. RTJ-96-1349, April 18, 1997)
A t t e m p t e d homicide is punishable with prision correccio-

nal. A p p l y i n g the I S L , the minimum penalty should be any-
where within the range of 1 month and 1 day to 6 months of
arresto mayor, and the maximum should be within the range of
6 months and 1 day to 6 years of prision correccional. Consider-
ing that no aggravating or mitigating circumstance attended
the commission of the crime, the accused shall be sentenced
to an indeterminate prison term of 2 months and 1 day of ar-
resto mayor as minimum, to 2 years, and 4 months of prision
correccional medium as maximum. (People v. Albacin, G.R. No.
133918, September 13, 2000)
For offenses punished by special law, following the doctrine

explained in Simon, a special law which uses the penalties
under the R P C shall be covered by its rules for graduating
by degrees for determining the proper period. (People v. Lian,
G.R. No. 115988, March 29, 1996)
• Where should the penalty next lower than that prescribed by

the Revised Penal Code for the offense be based?
Gabres explains that under the I S L , the maximum term
of the penalty shall be 'that which, in view of the attending
circumstances, could be properly imposed' under the R P C ,
and the minimum shall be 'within the range of the penalty
next lower to that prescribed' for the offense. The penalty
next lower should be based on the penalty prescribed by the
R P C for the offense, without first considering any modifying
circumstance attendant to the commission of the crime. The
determination of the minimum penalty is left by law to the
sound discretion of the court and it can be anywhere within
the range of the penalty next lower without any reference to
the periods into which it might be subdivided. The modifying
circumstances are considered only in the imposition of the
maximum term of the indeterminate sentence. The fact that
the amounts involved here exceed P22.000 should not be
considered in the initial determination of the indeterminate
penalty; instead, the matter should be so taken as analogous
to modifying circumstances in the imposition of the maximum
311
term of the full indeterminate sentence. T h e interpretation

of the law accords with the rule that penal laws should be
construed in favor of the accused. (People v. Saley, G.R. No.
121179, July 2, 1998)
When the penalty is originally exempt from the Indeterminate

Sentence Law, and after lowering it, the penalty is now within
the law, shall the law apply?
Yes, because what controls is the penalty imposed not
what is imposable. Take the case of a 17 year-old boy who
committed with discernment incestuous rape on his six-year
old sister. The penalty therefor is now reclusion perpetua.
Assume that he voluntarily surrendered and pleaded guilty to
the felony. What is the proper penalty? (Although the penalty
is single and indivisible, it shall be lowered notwithstanding
Article 63, paragraph 1 because the mitigating circumstance of
minority is privileged which is always considered.)
In v i e w of his minority, pursuant to Article 68 ( 2 ) , his

penalty should be lowered one degree to reclusion temporal.
T w o mitigating without any aggravating circumstance is
another degree reduction under Article 64 (5) or prision mayor.
Since there is no more mitigating or aggravating circumstances
left, the penalty should be in the medium period. T h e penalty
should follow the I S L and the minimum penalty would be
anywhere within the range of prision correccional.
When the crime is a complex one, how should the penalty next
lower in degree be determined?
For purposes of determining the next lower degree, the

full range of the penalty prescribed by law for the offense, not
merely the imposable penalty because of its complex nature,
should, a priori, be considered. T h e ruling in Gonzales, 73
Phil. 549, as opposed to that of Fulgencio, 92 Phil. 1069, is
the correct rule. In fine, the one degree lower than prision
mayor maximum to reclusion temporal minimum is prision
mayor minimum to prision mayor medium the full range of
which is 6 years and 1 day to 10 years. T h i s one degree lower
penalty should, conformably w i t h A r t i c l e 48, be imposed in
its maximum period or from 8 years and 1 day to 10 years.
T h e presence of the third m i t i g a t i n g circumstance of praeter
312
intentionem would result in imposing a period the court may

deem applicable. Considering, however, that the penalty
has to be imposed in the m a x i m u m period, the only effect
of this additional m i t i g a t i n g circumstance is to impose only
the m i n i m u m portion of that m a x i m u m period, that is from
8 years, 8 months and 1 day to 9 years, 6 months and 10
days, from which r a n g e the m a x i m u m of the indeterminate
sentence shall be taken. (Nizurtado v. Sandiganbayan)
• Is the Indeterminate Sentence Law applicable when the penalty

imposed resulted from plea bargaining?
T h e fact that the lesser offense, and its necessarily lower

penalty, resulted from a plea bargaining agreement is of no
moment as far as the penalty to be imposed is concerned. Plea-
bargaining is authorized by the Rules and is required to be
considered at the pre-trial conference. T h e felony which must
constitute the basis for the penalty to be imposed having been
agreed upon among the parties and approved by the trial court,
that downgraded offense and its lower penalty shall control the
adjudgment of and any further proceedings before the court a
quo.
It follows that the I S L , shall necessarily apply. Also, the

determination of whether an indeterminate sentence and not
a straight penalty is proper, what is considered is the penalty
actually imposed by the trial court, after considering the
attendant circumstances, and not the imposable penalty. It
would be an unduly strained postulate that a sentence arrived
at by a court after a valid plea bargaining should constitute an
exception to the I S L in addition to those enumerated in Section
2 thereof. (Ladino v. Garcia)
• Does the Indeterminate Sentence Law cover offenses involving

the Dangerous Drugs Law?
Y e s , since drug offenses are not included in the exceptions
to the application of the I S L as long as the penalty to be
imposed does not involve life imprisonment or death, and
that the penalty as ultimately resolved will exceed one year
imprisonment. Moreover, the second clause of Section 1
provided for sentences under "any other law," hence, special
laws are covered.
313
• Compare parole and pardon.

1. In parole, the minimum sentence must be served; in
pardon, service is not required for the grant thereof.
2. Parole is a benefit granted by law, specifically the ISL;
pardon is an exercise of the power of the President under
the Constitution.
PROBATION LAW
P . D . 968, as a m e n d e d by P . D . 1257, B . P . 76 a n d
P . D . 1990
Section 1. Title and Scope of the Decree. — T h i s D e c r e e

shall b e k n o w n a s the P r o b a t i o n L a w o f 1976. I t shall a p p l y
to all offenders except those entitled to the benefits u n d e r
the p r o v i s i o n s o f P . D . N o . 603 a n d s i m i l a r l a w s .
Sec. 2. Purpose. — This D e c r e e shall be interpreted so as

to:
a. P r o m o t e the c o r r e c t i o n a n d r e h a b i l i t a t i o n of an
offender b y p r o v i d i n g h i m w i t h i n d i v i d u a l i z e d
treatment;
b. P r o v i d e an o p p o r t u n i t y for the r e f o r m a t i o n of a
penitent offender w h i c h m i g h t b e less p r o b a b l e i f
he w e r e to s e r v e a p r i s o n sentence; a n d
c. P r e v e n t the c o m m i s s i o n of offenses.
Sec. 3. Meaning of Terms. — As u s e d in this D e c r e e , the

f o l l o w i n g shall, unless the context o t h e r w i s e r e q u i r e s , b e
construed thus:
a. " P r o b a t i o n " is a disposition u n d e r w h i c h a defen-
dant, after conviction a n d sentence, is r e l e a s e d
subject to conditions i m p o s e d by the c o u r t a n d to
the s u p e r v i s i o n of a p r o b a t i o n officer.
b. " P r o b a t i o n e r " m e a n s a p e r s o n p l a c e d on p r o b a t i o n .
c. " P r o b a t i o n Officer" m e a n s one w h o investigates for
the court a r e f e r r a l for p r o b a t i o n or s u p e r v i s e s a
probationer or both.
Sec. 4. Grant of Probation. — S u b j e c t to the p r o v i s i o n s of

this D e c r e e , the trial court m a y , after it shall h a v e convicted
314
a n d sentenced a d e f e n d a n t a n d u p o n a p p l i c a t i o n by said de-

f e n d a n t w i t h i n the p e r i o d for perfecting a n a p p e a l , suspend
the e x e c u t i o n of the sentence a n d p l a c e the defendant on
p r o b a t i o n for such p e r i o d a n d u p o n such terms a n d condi-
tions as it m a y d e e m best: Provided, T h a t no application for
p r o b a t i o n shall b e e n t e r t a i n e d o r g r a n t e d i f the defendant
has perfected the a p p e a l f r o m the j u d g m e n t of conviction.
P r o b a t i o n m a y b e g r a n t e d w h e t h e r the sentence imposes
a t e r m of i m p r i s o n m e n t or a fine only. An application for
p r o b a t i o n shall be filed w i t h the trial court. T h e filing of the
a p p l i c a t i o n shall be d e e m e d a w a i v e r of the r i g h t to a p p e a l .
A n o r d e r g r a n t i n g o r d e n y i n g the p r o b a t i o n shall not b e
a p p e a l a b l e . ( A s a m e n d e d b y P . D . N o . 1257 a n d P . D . N o . 1990.)
Sec. 5. Post-sentence Investigation. — No p e r s o n shall be

p l a c e d o n p r o b a t i o n except u p o n p r i o r investigation b y the
p r o b a t i o n officer a n d a d e t e r m i n a t i o n by the court that the
e n d s of justice a n d the best interest of the p u b l i c as well as
that o f the d e f e n d a n t w i l l b e s e r v e d t h e r e b y .
xxx xxx xxx
Sec. 8. Criteria for Placing an Offender on Probation. — In
determining whether an offender may be placed on proba-
tion, the c o u r t shall c o n s i d e r all i n f o r m a t i o n r e l a t i v e to the
c h a r a c t e r , a n t e c e d e n t s , e n v i r o n m e n t , m e n t a l a n d physical
c o n d i t i o n o f the o f f e n d e r , a n d a v a i l a b l e institutional a n d
c o m m u n i t y r e s o u r c e s . P r o b a t i o n shall be d e n i e d if the court
finds that:
a. T h e offender is in need of correctional treatment
that c a n be p r o v i d e d most effectively by his com-
mitment to an institution; or
b. T h e r e is an u n d u e risk that d u r i n g the period of
p r o b a t i o n the offender will commit another crime;
or
c. P r o b a t i o n w i l l depreciate the seriousness of the
offense committed.
Sec. 9. Disqualified Offenders. — T h e benefits of this Decree
shall not be extended to those:
a. Sentenced to serve a m a x i m u m term of imprison-
ment of m o r e than six (6) years;
315
b. Convicted of subversion or any crime against the

national security or the p u b l i c o r d e r ;
c. W h o have previously b e e n convicted by final
j u d g m e n t of an offense p u n i s h e d by i m p r i s o n m e n t
of not less than one month a n d one d a y a n d / o r a
fine of not less than 200 pesos;
d. W h o have b e e n once o n p r o b a t i o n u n d e r the
provisions of this D e c r e e ; a n d
e. W h o a r e a l r e a d y s e r v i n g sentence at the time the
substantive p r o v i s i o n s of this D e c r e e b e c a m e
a p p l i c a b l e p u r s u a n t to Section 33 hereof. ( A s
a m e n d e d b y P . D . N o . 1990.)
Sec. 10. Conditions of Probation. — E v e r y p r o b a t i o n o r d e r

issued by the court shall contain conditions r e q u i r i n g that
the p r o b a t i o n e r shall:
a. P r e s e n t himself to the p r o b a t i o n officer d e s i g n a t e d
to u n d e r t a k e his s u p e r v i s i o n at such p l a c e as m a y
be specified in the o r d e r w i t h i n 72 h o u r s f r o m
receipt of said o r d e r ;
b. R e p o r t to the p r o b a t i o n officer at least once a
m o n t h at s u c h time a n d p l a c e as specified by s a i d
officer.
T h e court m a y also r e q u i r e the p r o b a t i o n e r to:
a) Cooperate with a p r o g r a m of supervision;
b) M e e t his family responsibilities;
c) D e v o t e h i m s e l f to a specific e m p l o y m e n t a n d not to
c h a n g e said e m p l o y m e n t w i t h o u t the p r i o r w r i t t e n
a p p r o v a l of the p r o b a t i o n officer;
d) U n d e r g o medical, psychological o r psychiatric
examination a n d treatment a n d enter a n d r e m a i n
in a specified institution, w h e n r e q u i r e d for that
purpose;
e) P u r s u e a p r e s c r i b e d s e c u l a r study or v o c a t i o n a l
training;
f) A t t e n d or r e s i d e in a facility e s t a b l i s h e d f o r in-
struction, r e c r e a t i o n o r r e s i d e n c e o f p e r s o n s o n
probation;
316
g) R e f r a i n f r o m visiting houses o f ill-repute;
h) A b s t a i n f r o m d r i n k i n g intoxicating b e v e r a g e s t o
excess;
i) P e r m i t the p r o b a t i o n officer or an a u t h o r i z e d social

w o r k e r t o visit his h o m e a n d place o f w o r k ;
j) R e s i d e a t p r e m i s e s a p p r o v e d b y i t a n d not t o change
his r e s i d e n c e w i t h o u t its p r i o r w r i t t e n a p p r o v a l ; or
k) Satisfy a n y o t h e r condition r e l a t e d to the rehabili-
tation of the d e f e n d a n t a n d not u n d u l y restrictive
of his l i b e r t y or i n c o m p a t i b l e w i t h his f r e e d o m of
conscience.
Sec. 11. Effectivity of Probation Order. — A p r o b a t i o n o r d e r

shall t a k e effect u p o n its issuance, at w h i c h time the court
shall i n f o r m the o f f e n d e r of the c o n s e q u e n c e s thereof a n d
e x p l a i n that u p o n his f a i l u r e to c o m p l y w i t h any of the
conditions p r e s c r i b e d in the said o r d e r or his commission of
a n o t h e r offense, he shall serve the penalty imposed for the
offense u n d e r w h i c h h e w a s p l a c e d o n p r o b a t i o n .
xxx xxx xxx
Sec. 14. Period of Probation. —

a. T h e p e r i o d of p r o b a t i o n of a defendant sentenced to
a t e r m of imprisonment of not m o r e than one year
shall not exceed t w o years, a n d in all other cases,
said p e r i o d shall not exceed six years.
b. W h e n the sentence imposes a fine only a n d the
offender is m a d e to serve s u b s i d i a r y imprisonment
in case of insolvency, the p e r i o d of p r o b a t i o n shall
not be less t h a n n o r m o r e t h a n twice the total
n u m b e r of d a y s of s u b s i d i a r y imprisonment as
c o m p u t e d at the rate established in A r t . 39 of the
Revised Penal Code, as amended.
Sec. 15. Arrest of Probationer; Subsequent Dispositions. — At
any time d u r i n g p r o b a t i o n , the court may issue a w a r r a n t
for the a r r e s t of a p r o b a t i o n e r for any serious violation of
the conditions of p r o b a t i o n . T h e p r o b a t i o n e r , once arrested
a n d detained, shall immediately be b r o u g h t before the court
317
for a h e a r i n g of the violation c h a r g e d . T h e defendant m a y

be admitted to bail p e n d i n g such h e a r i n g . In such case, the
provisions r e g a r d i n g release on b a i l of persons c h a r g e d w i t h
a crime shall be a p p l i c a b l e to p r o b a t i o n e r s a r r e s t e d u n d e r
this provision.
In the h e a r i n g , w h i c h shall be s u m m a r y in n a t u r e ,
the p r o b a t i o n e r shall have the right to be i n f o r m e d of the
violation c h a r g e d a n d to a d d u c e evidence in his favor. T h e
court shall not be b o u n d by the technical rules of evidence
but m a y inform itself of all the facts w h i c h a r e m a t e r i a l a n d
relevant to ascertain the veracity of the c h a r g e . T h e State
shall be represented by a p r o s e c u t i n g officer in a n y contested
h e a r i n g . If the violation is e s t a b l i s h e d , the c o u r t m a y r e v o k e
or continue his p r o b a t i o n a n d modify the conditions thereof.
If r e v o k e d , the court shall o r d e r the p r o b a t i o n e r to s e r v e the
sentence o r i g i n a l l y i m p o s e d . A n o r d e r r e v o k i n g the g r a n t
o f p r o b a t i o n o r m o d i f y i n g the t e r m s a n d c o n d i t i o n s t h e r e o f
shall not b e a p p e a l a b l e . ( A s a m e n d e d b y P . D . N o . 1257.)
Sec. 16. Termination of Probation. — A f t e r the p e r i o d

o f p r o b a t i o n a n d u p o n c o n s i d e r a t i o n o f the r e p o r t a n d
r e c o m m e n d a t i o n of the p r o b a t i o n officer, the c o u r t m a y
o r d e r the final d i s c h a r g e of the p r o b a t i o n e r u p o n finding
that he has fulfilled the terms a n d conditions of his p r o b a t i o n
a n d t h e r e u p o n , the case is d e e m e d t e r m i n a t e d .
T h e final d i s c h a r g e of the p r o b a t i o n e r shall o p e r a t e to

restore h i m to all civil rights lost or s u s p e n d e d as a r e s u l t of
his conviction a n d to fully d i s c h a r g e his liability for a n y fine
imposed a s t o the offense for w h i c h p r o b a t i o n w a s g r a n t e d .
T h e p r o b a t i o n e r a n d the p r o b a t i o n officer shall e a c h b e

f u r n i s h e d w i t h copy o f such o r d e r .
xxx xxx xxx
• What is the nature of the benefit of probation?
Probation is a privilege, not a right. Its benefits cannot

extend to those expressly excluded. Probation is not a right of the
accused, but rather an act of grace and clemency or immunity
conferred by the State which may be granted by the court to a
deserving defendant who thereby escapes the extreme rigors of
318
the penalty imposed by law for the offense of which he stands

convicted. (Francisco v. CA, G.R. No. 108747, April 6, 1995)
It is a disposition under which the defendant after convic-
tion and sentence is released to serve his sentence outside of
prison subject to the conditions imposed by the court and to the
supervision by a probation officer.
T h e Probation L a w is not a penal statute; the principle

of liberal interpretation in favor of the accused does not apply.
(Pablo v. Judge Castillo)
» What conditions should accompany a grant of probation?
A. Mandatory conditions which are:

1. To report to the designated probation officer within
72 hours after receipt of the order; and
2. To report periodically to the officer at least once a
month or sooner as the latter may deem.
B. Discretionary conditions which the court may impose.
These must be constructive and not unduly restrictive of
the liberty of the offender and not inconsistent with his
conscience.
» What are the objectives of Probation Law?

a. To promote correction and rehabilitation of the offender
by giving him individualized treatment;
b. To provide a better opportunity for the penitent offender
to reform;
c. To prevent further commission of crimes as he is placed
under the supervision of probation officer;
d. To decongest jails; and
e. To save the government funds which would be spent on
maintaining him inside the jail.
• What is the probationable penalty?

T h e penalty imposed must not exceed six years (prision
correccional) imprisonment. An additional one day (prision
mayor) would disqualify the offender from probation.
319
Because the accused is earlier imposed a fine of more than

P200 in the first of the three cases charged against him arising
from one act of issuing three bad checks, he is disqualified
under Section 9(c) of P.D. 968. The word "previous" therein
refers to conviction, not to the commission of the offense,
notwithstanding the fact that the crime arose out of a single
transaction. (Pablo v. Judge Castillo)
• Who are the disqualified offenders?

Those who had been:
a. Sentenced to a maximum term of more than 6 years
imprisonment;
b. Convicted of subversion or any crime against national
security or the public order;
c. Previously convicted by final judgment of offense punished
by imprisonment of not less than 1 month and 1 day and/
or fine of not less than P200;
d. Granted probation for it is available only once;
e. Already serving sentence upon the effectivity of the law;
f. Perfected an appeal for appeal and probation are mutually
exclusive remedies.
Disqualification is different from denial of the application.
A qualified offender should not expect that his application w i l l
be granted ipso facto.
Petitioner is not entitled to probation because she has
displayed a dubious and reprehensible character in trying
to evade the implementation of the decision rendering the
judgment against her ineffective. She executed a simulated
deed of sale over her property. Instead of complying with the
orders of the trial courts in the 54 counts of violations of B.P. 22,
she resorted to artifice to evade the implementation of a writ of
execution against her. To allow her to be placed on probation
would be to depreciate the seriousness of her wrongdoing.
(Santos v. CA, December 1999)
• M a y a convict who appealed his conviction still be qualified for

probation?
N o . Section 4 of the law is clear that "no application for

probation shall be entertained or granted if the defendant
320
has perfected the appeal from the judgment of conviction."

Therefore, that an appeal should not bar the accused from
applying for probation if the appeal is taken solely to reduce
the penalty to "qualify" for probation is contrary to the clear
and express mandate of the law. (Francisco v. CA)
T h e spirit of probation is irreconcilable and repugnant to
appeal. T h e application for probation is akin to admission of
guilt and manifestation of remorse whereas appeal is insistence
of innocence on the part of the convict. Thus, they are mutually
exclusive remedies. Probation forecloses the right to appeal.
• When shall the application for probation be filed?
T h e application for probation must be filed within the pe-

riod for perfecting an appeal (15 days). If the application was
filed after the lapse of that period, the decision had attained
finality; no appeal therefrom is possible under the law. The
law simply does not allow probation after an appeal has been
perfected for appeal and probation are mutually exclusive rem-
edies, (id.)
• Should multiple terms imposed against an accused in one

decision be added up for purposes of probation?
N o . Multiple prison terms are distinct from each other,

and if none of the prison terms exceeds the limit set out in the
law, that is, not more than six years, then he is entitled to pro-
bation, unless otherwise specifically disqualified. T h e number
of offenses is immaterial as long as all the penalties imposed,
taken separately, are within the probationable period. For, Sec-
tion 9(a), P . D . 968, as amended, uses the word maximum, not
total, when it says that the "benefits of this Decree shall not be
extended to those x x x sentenced to serve a maximum prison
term of imprisonment of more than six years." (id.)
• To what does the word "previous" in the law refer?

"Previous" in Section 9(c) refers to conviction, not to the
commission of the offense. Where the accused issued three bad
checks to one and the same complainant, three separate infor-
mations were filed and the three cases were not consolidated,
one case was assigned to one Branch which convicted the ac-
cused and imposed a fine of P4.648, while the two other cases
321
were assigned to another Branch of the same court, which also

found the accused guilty of the same violation and imposed a
prison term of 30 days in each case, the accused should be dis-
qualified for probation. The earlier conviction imposed a fine
of more than P200 and under Section 9(c), the accused should
be disqualified as the word "previous" refers to the conviction,
not to the commission of the offense, notwithstanding that the
crime arose out of a single act or transaction. T h e probation
law is not a penal statute; the principle of liberal interpretation
does not apply. (Pablo v. Judge Castillo)
• Does the grant of probation affect the applicability of Section

40(a) on disqualification of the Election Code?
N o . The legal effect of probation is only to suspend the

execution of the sentence. T h e conviction for fencing which in-
volves moral turpitude subsists and remains totally unaffected
notwithstanding the grant of probation. In fact, a judgment
of conviction in a criminal case becomes ipso facto final when
the accused applies for probation, although it is not executory
pending resolution of his application. (Dela Torre v. Comelec)
• Distinguish Probation and Indeterminate Sentence Law.
Probation ISL
1. Sentence must not be more than maximum period must
6 years be more than 1 year
2. Penalty imprisonment or fine imprisonment only
3. Disposition sentence is suspended minimum to be served
4. Violation entire sentence shall be unexpired portion
served shall be served
5. Appeal forecloses probation no effect on the
operation of ISL
6. Availability Only once Every time as long as
offender is not
disqualified
7. Nature a privilege; convict mandatory; convict
must applied for it need not apply for it
322
Chapter Five
EXECUTION A N D SERVICE OF PENALTIES
Section O n e . — General Provisions
A r t . 78. When and how a penalty is to be executed. — No

p e n a l t y shall be e x e c u t e d unless by v i r t u e of a final j u d g m e n t .
A p e n a l t y shall not be executed in a n y other f o r m than
that p r e s c r i b e d b y l a w , n o r w i t h a n y other circumstances o r
incidents t h a n those e x p r e s s l y a u t h o r i z e d t h e r e b y .
In a d d i t i o n to the p r o v i s i o n s of the l a w , the special
r e g u l a t i o n s p r e s c r i b e d for the g o v e r n m e n t of the institutions
i n w h i c h the penalties t o b e suffered shall b e o b s e r v e d w i t h
r e g a r d to the c h a r a c t e r of the w o r k to be p e r f o r m e d , the time
of its p e r f o r m a n c e , a n d o t h e r incidents connected t h e r e w i t h ,
the relations of the convicts a m o n g themselves a n d other
p e r s o n s , the relief w h i c h they m a y receive, a n d their diet.
T h e r e g u l a t i o n s shall m a k e p r o v i s i o n for the separation
of the sexes in different institutions, or at least into different
d e p a r t m e n t s , a n d also for the correction a n d r e f o r m of the
convicts.
A r t . 79. Suspension of the execution and service of the penalties
in case of insanity. — W h e n a convict shall become insane or
an imbecile after final sentence has b e e n p r o n o u n c e d , the
execution of the said sentence shall be s u s p e n d e d only with
r e g a r d to the p e r s o n a l penalty, the provisions of the second
p a r a g r a p h of circumstance n u m b e r 1 of Article 12 being
o b s e r v e d in the c o r r e s p o n d i n g cases.
If at any time the convict shall recover his reason, his
sentence shall be executed, unless the penalty shall have
p r e s c r i b e d in a c c o r d a n c e with the provisions of this Code.
T h e r e s p e c t i v e p r o v i s i o n s of this section shall also
be o b s e r v e d if the insanity or imbecility occurs while the
convict is s e r v i n g his sentence.
[Art. 80. — REPEALED BY P.D. 603.]
323
Section T w o . — Execution of Principal Penalties
A r t . 81. When and how the death penalty is to be executed. —

The death sentence shall be executed w i t h p r e f e r e n c e to any
other penalty a n d shall consist in putting the p e r s o n u n d e r
the sentence to death by lethal injection. T h e death sentence
shall be executed u n d e r the authority of the D i r e c t o r of
the B u r e a u of Corrections, e n d e a v o r i n g so far as possible
to mitigate the sufferings of the p e r s o n u n d e r the sentence
d u r i n g the lethal injection as w e l l as d u r i n g the p r o c e e d i n g s
p r i o r to the execution.
T h e D i r e c t o r of the B u r e a u of C o r r e c t i o n s shall take
steps to ensure that the lethal injection to be a d m i n i s t e r e d is
sufficient to cause the instantaneous d e a t h of the convict.
P u r s u a n t to this, all p e r s o n n e l i n v o l v e d in the a d m i n i s -

tration of lethal injection shall be t r a i n e d p r i o r to the p e r f o r -
mance of such task.
T h e a u t h o r i z e d p h y s i c i a n o f the B u r e a u o f C o r r e c t i o n s ,
after t h o r o u g h e x a m i n a t i o n , shall officially m a k e a
p r o n o u n c e m e n t of the convict's d e a t h a n d shall certify
thereto in the r e c o r d s of the B u r e a u of C o r r e c t i o n s .
T h e death sentence shall b e c a r r i e d out not e a r l i e r t h a n

one (1) y e a r n o r later t h a n e i g h t e e n (18) m o n t h s after the
j u d g m e n t has b e c o m e final a n d e x e c u t o r y w i t h o u t p r e j u d i c e
to the exercise by the P r e s i d e n t of his executive c l e m e n c y
p o w e r s at all times.
A r t . 82. Notification and execution of the sentence and

assistance to the culprit. — T h e c o u r t shall d e s i g n a t e a w o r k i n g
d a y for the execution, b u t not the h o u r thereof; a n d such
designation shall not be c o m m u n i c a t e d to the o f f e n d e r b e f o r e
sunrise of said d a y , a n d the execution shall not t a k e p l a c e
until after the e x p i r a t i o n of at least 8 h o u r s f o l l o w i n g the
notification, b u t b e f o r e sunset. D u r i n g the i n t e r v a l b e t w e e n
the notification a n d the execution, the c u l p r i t shall, i n s o f a r
as possible, be f u r n i s h e d s u c h assistance as he m a y r e q u e s t
in o r d e r to be a t t e n d e d in his last m o m e n t s by priests or
ministers of the r e l i g i o n he professes a n d to consult l a w y e r s ,
as w e l l as in o r d e r to m a k e a w i l l a n d confer w i t h m e m b e r s
324
of his family or p e r s o n in c h a r g e of the m a n a g e m e n t of his

b u s i n e s s , of the a d m i n i s t r a t i o n of his p r o p e r t y , or of the care
of his d e s c e n d a n t s .
?? conjugal visits allowed?
A r t . 83. Suspension of the execution of the death sentence.
— T h e d e a t h sentence shall not be inflicted u p o n a w o m a n
w h i l e she is p r e g n a n t or w i t h i n 1 y e a r after delivery, nor
u p o n a n y p e r s o n o v e r 70 y e a r s of a g e . In this last case, the
d e a t h sentence shall be c o m m u t e d to the penalty of reclusion
perpetua w i t h the a c c e s s o r y penalties p r o v i d e d in Article 40.
In all cases w h e r e the d e a t h sentence has b e c o m e final,

the r e c o r d s of the case shall be f o r w a r d e d immediately by
the S u p r e m e C o u r t to the Office of the P r e s i d e n t for possible
exercise of the p a r d o n i n g p o w e r . (As amended by Sec. 25,
R.A. No. 7659.)
A r t . 84. Place of execution and persons who may witness the

same. — T h e e x e c u t i o n shall take place in the penitentiary
or B i l i b i d in a space closed to the p u b l i c v i e w a n d shall be
w i t n e s s e d only by the priests assisting the offender a n d by
his l a w y e r s a n d by his relatives, not e x c e e d i n g six, if he so
requests, by the p h y s i c i a n a n d the necessary personnel of
the p e n a l establishment, a n d by such p e r s o n s as the D i r e c t o r
of Prisons may authorize.
A r t . 85. Provision relative to the corpse of the person executed

and its burial. — U n l e s s c l a i m e d by his family, the corpse of
the c u l p r i t shall, u p o n completion of the legal p r o c e e d i n g s
s u b s e q u e n t to the execution, be t u r n e d o v e r to the institute
of l e a r n i n g or scientific r e s e a r c h first a p p l y i n g for it, for
the p u r p o s e of study a n d investigation, p r o v i d e d that
such institute shall take c h a r g e of the decent b u r i a l of the
remains. O t h e r w i s e , the D i r e c t o r of P r i s o n s shall o r d e r the
b u r i a l of the b o d y of the culprit at g o v e r n m e n t expense,
g r a n t i n g p e r m i s s i o n to be present thereat to the members
of the family of the culprit a n d the friends of the latter. In
no case shall the b u r i a l of the b o d y of a person sentenced to
d e a t h b e held w i t h p o m p .
A r t . 86. Reclusion perpetua, reclusion temporal, prision
mayor, prision correccional and arresto mayor. — The penalties
of reclusion perpetua, reclusion temporal, prision mayor,
prision correccional a n d arresto mayor, shall be executed and
325
served in the places a n d penal establishments p r o v i d e d by

the Administrative C o d e in force or w h i c h m a y be p r o v i d e d
by l a w in the future.
• What is the constitutional policy on penalty as a whole?

No excessive fines or cruel or inhuman punishment should
be imposed.
The counterpart of Section 19(1) in the 1935 Constitution
reads: 'Excessive fines shall not be imposed, nor cruel and
inhuman punishment inflicted.' In the 1973 Constitution, the
phrase became 'cruel or unusual punishment.' The Bill of Rights
Committee of the 1986 Constitutional Commission read the
1973 modification as prohibiting 'unusual' punishment even if
not 'cruel.' It was thus seen as an obstacle to experimentation in
penology. Consequently, the Committee reported out the present
text which prohibits cruel, degrading or inhuman punishment as
more consonant with the meaning desired and with jurisprudence
on the subject. (Echegaray v. Sec. of Justice)
A r t . 87. Destierro. — A n y p e r s o n sentenced to destierro

shall not be p e r m i t t e d to enter the p l a c e or places d e s i g n a t e d
in the sentence, n o r w i t h i n the r a d i u s t h e r e i n specified, w h i c h
shall be not m o r e t h a n 250 a n d not less t h a n 25 k i l o m e t e r s
from the place d e s i g n a t e d .
• To what does the limitation of distance in the law pertain?
It pertains to the place designated by the court in the

decision. This means that the convict can go farther than the
distance but not nearer than that specified by the court. Thus,
if the court imposed the maximum of 250 km., the offender can
go 300 km. away from the restricted area but not nearer. If he
was restricted to 50 km., he can go 75 km. away but not within
50 km. The court cannot impose a distance lower than 25 km.
or higher than 250 km.
• If the offender violates the limitation of distance, is this evasion

of service of sentence?
At first blush, it would appear that this is not evasion

for Articles 156 to 159 refer to evasion of sentence served
326
by confinement in prison or penal institution. However,

considering that destierro is a penalty, it should be considered
mandatory. Therefore, the violation of distance by the offender
getting within the prohibited area should be considered as
evasion for otherwise, the offender would be encouraged to
violate his penalty.
A r t . 88. Arresto menor. — T h e penalty of arresto menor

shall be s e r v e d in the m u n i c i p a l j a i l , or in the house of the
d e f e n d a n t h i m s e l f u n d e r the s u r v e i l l a n c e of an officer of the
l a w , w h e n the c o u r t so p r o v i d e s in its decision, t a k i n g into
c o n s i d e r a t i o n the h e a l t h of the offender a n d other reasons
w h i c h m a y s e e m satisfactory to it.
T h e author believes that arresto menor should no longer

be served in jail in keeping with the spirit and intent of the
Probation L a w and the I S L . Rather, it should be converted to
community service or fine as the court deems fit.
327
TITLE FOUR
EXTINCTION OF CRIMINAL LIABILITY
Chapter One
TOTAL EXTINCTION OF CRIMINAL LIABILITY
A r t . 89. How criminal liability is totally extinguished. —

C r i m i n a l liability is totally extinguished:
1. By the d e a t h of the convict, as to the p e r s o n a l
penalties; a n d as to p e c u n i a r y penalties, liability
therefor is e x t i n g u i s h e d o n l y w h e n the d e a t h of the
offender occurs b e f o r e final j u d g m e n t ;
2. By service of the sentence;
3. By amnesty, w h i c h completely e x t i n g u i s h e s the
penalty a n d all its effects;
4. By absolute p a r d o n ;
5. By p r e s c r i p t i o n of the c r i m e ;
6. By p r e s c r i p t i o n of the penalty;
7. By the m a r r i a g e of the o f f e n d e d w o m a n , as p r o v i d e d
in A r t i c l e 344 of this C o d e .
[ A r t . 36. Pardon; its effects. — A p a r d o n shall not w o r k

the restoration of the r i g h t to h o l d p u b l i c office, or the r i g h t
o f s u f f r a g e , unless s u c h r i g h t s b e e x p r e s s l y r e s t o r e d b y the
terms of the p a r d o n .
A p a r d o n shall in no case e x e m p t the c u l p r i t f r o m the

p a y m e n t o f the civil i n d e m n i t y i m p o s e d u p o n h i m b y the
sentence.
A r t . 23. Effect of pardon by the offended party. — A p a r d o n

b y the offended p a r t y does not e x t i n g u i s h c r i m i n a l action
except as p r o v i d e d in A r t i c l e 344 of this C o d e ; b u t civil
328
TOTAL EXTINCTION OF C R I M I N A L LIABILITY
liability w i t h r e g a r d to the interest of the i n j u r e d p a r t y i

e x t i n g u i s h e d b y his e x p r e s s w a i v e r . ]
• What causes the total extinction of criminal liability?

a. Death of convict (pecuniary liability is extinguished if
death occurs before final judgment)
b. Service of the sentence
c. Amnesty
d. Absolute pardon
e. Prescription of crime
f. Prescription of penalty and
g- M a r r i a g e of the offended woman under Articles 266-C
and 344
Express repeal of penal law will also extinguish criminal

liability subject to the provisions of Article 22, as the act is
decriminalized.
Death
• What is the effect of death of the offender on his criminal and

civil liabilities?
Death of convict extinguishes criminal liability at
any stage of the proceeding but his civil liability shall be
extinguished if death occurs before final judgment. T h e reason
is that the penalty requires personal service of sentence. If
death occurs, there will be nobody to serve the penalty for the
crime (People v. Bayotas, G.R. No. 102007, September 2, 1994).
T h e rule is that a person can act personally or thru an agent
but there are certain acts which can only be done personally
such as service of sentence, personal military service, and
contracting marriage.
• What is the final judgment in paragraph 1 of Article 89?

"Sentencia firma" should be understood as one which is
definite. Because it is only then that such judgment is confirmed.
When a defendant dies before judgment is executory, there
cannot be any determination by final judgment whether or not
329
the felony upon which the civil action might arise exists for the
reason that there is no party defendant, (id.)
The legal import of the term final judgment is similarly
reflected in Articles 72 and 78, which mention the term final
judgment in the sense that it is already enforceable. Also
Section 7 of Rule 116 of the R R C P which states that a judgment
in a criminal case becomes final after the lapse of the period for
perfecting an appeal or when the sentence has been partially
or totally satisfied or served or the defendant has expressly
waived in writing the right to appeal, (id.) Or by applying for
probation because that constitutes an express waiver of the
right to appeal.
The term final judgment means judgment beyond recall.
As long as the judgment has not become executory, it cannot be
truthfully said that the accused is definitely guilty of the felony
charged against him. (id.)
Does Article 30 of the Civil Code authorize the appellate court to

continue exercising jurisdiction over the civil liability ex-delicto
when death occurs during appeal?
N o . W h a t A r t i c l e 30 recognizes is an alternative and

separate civil action, which may be brought to demand civil
liability arising from a criminal offense independently of any
criminal action. In the event that no criminal proceedings are
instituted during the pendency of the civil case, the quantum
of evidence needed to prove the criminal act w i l l have to
be that which is compatible with civil liability and that is
preponderance of evidence and not guilt beyond reasonable
doubt. Whether asserted in a criminal action or in a separate
civil action, civil liability ex-delicto is extinguished by the death
of the accused while his conviction is on appeal. In recovering
civil liability ex-delicto, the same has to be determined in a
criminal action rooted as it is in the court's pronouncement of
the guilt or innocence of the accused, (id.)
What is the intendment of Article 100 on civil liability?
Civil liability ex-delicto must be rooted in the court's

pronouncement of the guilt or innocence of the accused. In such
cases, extinction of the criminal action due to the death of the
330
accused pending appeal inevitably signifies the concomitant

extinction of the civil liability. Mors omnia solvi. Death dissolves
all things. In sum, in pursuing recovery of civil liability arising
from crime, the final determination of the criminal liability is
a condition precedent to the prosecution of the civil action such
that when the criminal action is extinguished by the death of
the accused pending appeal, said civil action cannot survive
(id.)
• Relate Article 30 of the Civil Code to Articles 89(1) and 100 of

the Revised Penal Code.
Article 30 of the N C C refers to the institution of a

separate civil action that does not draw its life from a criminal
proceeding. T h e claim for civil action survives notwithstanding
the death of the accused if the same may also be predicated
on a source of obligation other than delict (e.g., quasi-delict,
law, contract, quasi-contract.) (id.). Article 100 is civil liability
based on delict or crime.
Accused died while under detention. His death was re-

ported by the provincial warden to the trial court, which should
have dismissed the case against said accused. Under Article
89(1), the criminal liability of an offender is totally extin-
guished by his death as to the personal penalties; while the
pecuniary liability therefor is extinguished when the offend-
er dies before final judgment. (People v. Villagracia, G.R. No.
94311, September 14, 1993)
Service of Sentence
• Should the period of time during which the evader of sentence

was at large be included in the service of his sentences?
The period during which petitioner was not inside prison
walls cannot be regarded as service of sentence. The sentences
imposed on the petitioner consist of deprivation of his liberty.
He cannot be said to have been deprived of his liberty during
the periods he was at large. Moreover, Article 89 stipulates that
penalties like those meted on the petitioner "shall be executed
and served in the places and penal establishments provided
by the Administrative Code in force or which may be provided
by law in the future." The Code thus requires that the service
331
of sentence be in a penal institution. (Martin v. Eduardo, 121

SCRA)
• In what instances may the sentence be served outside of prison?

A convict may serve his sentence outside of prison if his
penalty is destierro, arresto menor pursuant to Article 88, when
he is granted probation or parole.
Pardon
• What are the effects of pardon by the offended party?

It does not extinguish criminal liability. T h e only exception
is valid marriage in Article 266-C and Article 344 between the
offender and the victim to effect an extinguishment of criminal
liability. But civil liability is extinguished by express waiver of
the offended.
• Compare pardon by the offended and pardon by the President.

Pardon by the President extinguishes the criminal
liability but not the civil; on the other hand, pardon by the
offended does not so extinguish the liability except by the valid
marriage of the victim and the offender in rape and in crimes
against chastity under Articles 266-C and 344. But the offended
can waive the civil liability. Pardon by the President is given
after final judgment; that of the offended party must be given
prior to the institution of the criminal case to be effective. But
Article 266-C now allows pardon even after final judgment by
the valid marriage between the offended and the offender.
An affidavit of desistance is merely an additional ground

to buttress the accused's defenses, not the sole consideration
that can result in acquittal. T h e r e must be other circumstances
which, when coupled with the retraction or desistance, create
doubts as to the truth of the testimony given by the witnesses
at the trial. (People v. Ballabare) A l l that the accused offered
as defenses mainly consisted of denial and alibi which cannot
outweigh the positive identification and convincing testimonies
given by the prosecution. Hence, the affidavit of desistance
which the victim herself intended to disregard must have no
bearing on the prosecution against the accused particularly on
the trial court's jurisdiction over the case. (People v. Echegaray)
332
What are the limitations on the pardoning power of the Chief

Executive?
1. That the power be exercised after final conviction, and

2. That such power does not extend to cases of impeachment.
When does a judgment of conviction become final?
1. W h e n no appeal is seasonably perfected

2. W h e n the accused commences to serve the sentence
3. W h e n the r i g h t to appeal is expressly w a i v e d in writing,
(People v. Salle, Jr., G.R. No. 103567, December 4, 1995)
and
4. W h e n the accused applies for probation, thereby waiving
his right to appeal.
What is the effect of an appeal on the power of the President to

extend pardon?
An appeal brings the entire case within the exclusive

jurisdiction of the appellate court. The doctrine of separation
of powers demands that such exclusive authority of the
appellate court be fully respected and kept unimpaired. Had
not the present Constitution adopted the "conviction by final
judgment" limitation, the President could, at any time and
even without the knowledge of the court, extend executive
clemency to anyone whom he in good faith or otherwise believes
to merit presidential mercy. There could be the risk not only of
a failure of justice but also a frustration of administration of
justice in v i e w of the derogation of the jurisdiction of the trial
or appellate court. W h e r e the President is not so prevented by
the Constitution, not even Congress can impose any restriction
to prevent a presidential folly, (id.)
What procedure should be followed in the grant of pardon to a

convict who appealed his judgment?
Before an appellant may be validly granted pardon, he
must first ask for the withdrawal of his appeal, i.e., the appealed
conviction must first be brought to finality. The "conviction by
final judgment" limitation under Section 19, Article V I I of the
Constitution prohibits the grant of pardon, whether full or
333
conditional, to an accused during the pendency of his appeal

from his conviction by the trial court. Any application therefor
should not be acted upon or the process toward its grant should
not be begun unless the appeal is withdrawn. The agencies
must require proof from the accused that he has not appealed
from his conviction or that he has withdrawn his appeal. The
acceptance of the pardon shall not operate as an abandonment
or waiver of the appeal and the release of an accused by virtue
of a pardon, commutation of sentence, or parole before the
withdrawal of an appeal shall render those responsible therefor
administratively liable. Accordingly, those who have custody of
the accused must not solely rely on the pardon as a basis for
the release of the accused from confinement, (id)
• In rape cases, does the pardon of the parents, without the

concurrence of the minor victim herself effective?
N o , pardon must be granted not only by the parents but
also by the offended minor herself to be effective as an express
pardon. Lacson, Jr., (CA) 55 OG 9460, held: "Neither must
we be understood as supporting the v i e w that the parents
alone can extend a valid pardon. Far from it, for we too are
of the belief that the pardon by the parents, standing alone,
is inefficacious." It was also held in another case that: "The
express pardon of a person guilty of attempted abduction of
a minor, granted by the latter's parents, is not sufficient to
remove criminal responsibility, but must be accompanied by
the express pardon of the girl herself." (US v. Luna, 1 Phil.
360) The supposed pardon of the accused was granted by the
mother without the concurrence of the minor. Hence, even if
it be assumed that the initial desistance of the mother from
taking any action against the accused constitutes pardon, such
pardon is ineffective without the express concurrence of the
minor herself. (People v. Tadulan, G.R. No. 117407, April 15,
1997).
Amnesty
• What is amnesty? What are its effects?
Amnesty is one of the presidential prerogatives besides

reprieve, commutation of sentence, pardon and remittance
334
of fines and forfeitures. But unlike the latter prerogatives,

amnesty requires congressional action. It is an act of grace,
which relieves the offender not only from suffering the penalty
but obliterates the effects of the conviction as if the act were
not criminal. It is usually given to political offenders.
A m n e s t y looks backward and abolishes and puts into

oblivion the offense itself; it so overlooks and obliterates the
offenses with which he is charged that the person released
by amnesty stands before the law precisely as though he had
committed no offense. (People v. Casido, G.R. No. 116512,
March 7, 1997) It is a public act of the President which courts
take judicial notice of especially since it is concurred to by
Congress.
Distinguish amnesty and absolute pardon.
AMNESTY PARDON
1. Application generally to political generally to ordinary

crimes and offenders crimes and offenders
2. Effect obliterates the effects relieves the offender

of conviction as if the of penalty but the
act were not criminal effects of conviction
3. Congress stay concurrence not

concurrence required needed
4. When given after final conviction

even before conviction
5. Beneficiary usually a class of a specific individual
persons
6. Nature public act of the Presi- private act of the

dent; courts must take President; no judicial
judicial notice notice
"Pardon is given by the Chief Executive and as such it is

a private act which must be pleaded and proved by the person
pardoned, because the courts take no notice thereof; while
amnesty is by Proclamation of the Chief Executive with the
concurrence of Congress, and it is a public act of which the
courts should take judicial notice.
335
"Pardon is granted to one after conviction; while amnesty

is granted to classes of persons or communities who may
be guilty of political offenses, generally before or after the
institution of the criminal prosecution and sometimes after
conviction.
"Pardon looks forward and relieves the offender from the
consequences of an offense of which he has been convicted, that
is, it abolishes or forgives the punishment, and for that reason
does 'not work the restoration of the rights to hold public
office, or the rights of suffrage, unless such rights be expressly
restored by the terms of the pardon,' and it 'in no case exempts
the culprit from the payment of the civil indemnity imposed
upon him by the sentence.' W h i l e amnesty looks backward and
abolishes and puts into oblivion the offense itself, it so overlooks
and obliterates the offenses with which he is charged that the
person released by amnesty stands before the law precisely as
though he had committed no offense." (People v. Casido)
• Is novation a means of extinguishing criminal liability?
N o . It is not a mode of extinguishing criminal hability. It

may prevent the rise of criminal liability as long as it occurs
prior to the filing of the criminal information in court. Here, the
new agreement which petitioner claims he entered into with the
complainant before the filing of the information in court never
took effect, as petitioner did not comply with his undertaking
to pay or make good the bad checks. (Diongzon v. CA, G.R. No.
114823, December 23, 1999)
A r t . 90. Prescription of crimes. — C r i m e s p u n i s h a b l e by

death, reclusion perpetua or reclusion temporal shall p r e -
scribe in 20 years.
C r i m e s p u n i s h a b l e b y o t h e r afflictive penalties shall

p r e s c r i b e in 15 years.
T h o s e p u n i s h a b l e by a c o r r e c t i o n a l p e n a l t y shall
p r e s c r i b e in 10 years; w i t h the e x c e p t i o n of those p u n i s h a b l e
by arresto mayor, w h i c h shall p r e s c r i b e in 5 y e a r s .
T h e crime of libel or other similar offenses shall

p r e s c r i b e in 1 y e a r .
336
T h e offenses o f o r a l d e f a m a t i o n a n d s l a n d e r b y d e e d
shall p r e s c r i b e in 6 months.
L i g h t offenses p r e s c r i b e in 2 months.
W h e n the p e n a l t y fixed by l a w is a c o m p o u n d one, the

highest p e n a l t y shall be m a d e the basis of the application of
the rules c o n t a i n e d in the first, second, a n d t h i r d p a r a g r a p h s
of this article. (As amended by R.A. No. 4661, June 19, 1966)
A r t . 91. Computation of prescription of offenses. — T h e

p e r i o d of p r e s c r i p t i o n shall c o m m e n c e to r u n f r o m the day
on w h i c h the c r i m e is d i s c o v e r e d by the offended party, the
authorities, o r t h e i r agents, a n d shall b e i n t e r r u p t e d b y the
filing of the c o m p l a i n t or i n f o r m a t i o n , a n d shall commence
t o r u n a g a i n w h e n such p r o c e e d i n g s terminate w i t h o u t the
a c c u s e d b e i n g convicted o r acquitted, o r a r e unjustifiably
s t o p p e d for a n y r e a s o n not i m p u t a b l e to him.
T h e t e r m o f p r e s c r i p t i o n shall not r u n w h e n the offender

i s a b s e n t f r o m the P h i l i p p i n e A r c h i p e l a g o .
• What is prescription of crime?
Prescription of crime refers to the loss of the right of the

State to prosecute offenders. It is not waivable. Since it is for
the benefit of the accused, the period of prescription cannot be
extended. Once prescription has set in, the courts automatically
lose jurisdiction over the case. The basis of prescription is the
higher penalty if several were imposed pursuant to the last
paragraph of Article 90.
• What are the laws on prescription of crimes?

For felonies under the R P C , the governing law on
prescription is Articles 90 and 91. For offenses under special
laws, the penal law may provide for the period and the rules for
prescription of violations thereof. Otherwise, Act 3326, "An Act
to Establish Periods of Prescription for Violations Penalized by
Special Acts and Municipal Ordinances and to Provide When
Prescription Shall Begin to Run" applies.
Act 3326 governs the commencement of prescription of any
act in violation of R . A . 3019:
337
"Sec. 2. Prescription shall begin to run from the day of the

commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and the institution
of judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when the proceedings
are instituted against the guilty person, and shall begin to
run again if the proceedings are dismissed for reasons not
constituting jeopardy" (Presidential Ad Hoc Committee on
Behest Loans v. Ombudsman, August 2001).
• When does the period of prescription start to run?

The running of the period starts from the discovery of
the crime by the offended or the authorities or their agents.
This list is exclusive; discovery by other than the persons
enumerated will not even make the period start to run. For
instance, the discovery of the crime by a neighbor of the victim
will not commence the running of the period.
• What causes the interruption and the resumption of the running

of the period?
The running of the period is interrupted by the filing

of the complaint or information or when the offender is out
of the country. T h e period runs again when the proceedings
are terminated without acquittal or conviction for reasons not
attributable to the offender.
T h e duration of the resumed period should be the

unexpended portion only for to give the period a fresh start
every time it is interrupted is prejudicial to the offender.
• Where should the complaint or information be filed to cause

the interruption of the running of the period?
In declaring that the prescriptive period "shall be

interrupted by the filing of the complaint or information,"
Article 91 does not distinguish whether the complaint is filed
for preliminary examination or investigation only or for an
action on the merits. Francisco and Cuaresma, said that the
filing of the complaint even with the fiscal's office suspends the
running of the statute of limitations. (Reodica v. CA)
338
Zaldivia involved violation of a municipal ordinance.

Thus, the applicable law was not Article 91, but Act 3326,
as amended. Under its Section 2, the period of prescription
is suspended only when judicial proceedings are instituted
against the guilty party. Accordingly, it was held that the
prescriptive period was not interrupted by the filing of the
complaint with the Office of the Provincial Prosecutor, as
such did not constitute a judicial proceeding; what could have
tolled the prescriptive period there was only the filing of the
information in the proper court, (id.)
• Relate Section 9 of the Rule on Summary Procedure on

commencement of prosecution to the rules on prescription.
Section 9 of the Rule on Summary Procedure, which

provides that in cases covered thereby, such as offenses
punishable by imprisonment not exceeding six months,
"the prosecution commences by the filing of a complaint or
information directly with the M e T C , R T C or M C T C without
need of a prior preliminary examination or investigation;
provided that in Metropolitan Manila and Chartered Cities,
said cases may be commenced only by information." However,
this Section cannot be taken to mean that the prescriptive
period is interrupted only by the filing of a complaint or
information directly with said courts.
Prescription in criminal cases is a matter of substantive

law. Pursuant to Section 5(5), Article V I I I of the Constitution,
the Supreme Court, in the exercise of its rule-making power, is
not allowed to diminish, increase or modify substantive rights.
Hence, the R P C prevails in case of conflict with the Rule on
Summary Procedure.
• What is the effect of the delay in the reporting of crimes to its

prosecution?
None. T h e law on prescription would be meaningless if
the proposition that delay in the prosecution of crimes would
be fatal to the State and the offended party is countenanced.
In fixing the different prescriptive periods on the basis of the
gravity of the penalty prescribed, the law takes into account
or allows reasonable delays in the prosecution thereof. In a
number of cases, a delay of 17 days, 35 days or even six months
339
by a victim of rape in reporting the crime does not detract from

the veracity of her charge. (People v. Gecomo, G.R. No. 115035-
36, February 23, 1996)
Who is the offended party in Article 91?

Article 91 does not define the term offended party but its
definition is found in Section 12, Rule 110 of the R R C P as "the
person against whom or against whose property the offense
was committed." More specifically, it is reasonable to assume
that the offended is the party to whom the offender is civilly
liable, in the light of Article 100 of the Code, which expressly
provides that every person criminally liable for a felony is also
civilly liable. Invariably then, the private individual to whom
the offender is civilly liable is the offended party.
It is true that bigamy is a public offense. But, it is entirely

incorrect to state that only the State is the offended party in
such case, as well as in other public offenses, and therefore, only
the State's discovery of the crime could effectively commence
the running of the period of prescription. Article 91 provides
that the period of prescription shall commence to run from the
day on which the crime is discovered by the offended party,
the authorities, or their agents. This rule makes no distinction
between a public crime and a private crime. In both cases then,
the discovery may be by the offended party, the authorities, or
their agents. (Garcia v. CA, January 1997)
Can brief trips abroad qualify as "absence" in Article 91?
N o . These trips were very brief, and in every case, the

private respondent returned to the Philippines. Besides, these
were made long after the petitioner discovered the offense
and even if the aggregate number of days of these trips were
considered, still the information was filed well beyond the
prescriptive period, (id.)
What rule on prescriptive period applies in reckless imprudence

resulting to variant felonies?
Pursuant to Article 90, reckless imprudence resulting in

slight physical injuries, being a light felony, prescribes in two
months. On the other hand, reckless imprudence resulting in
340
damage to property in the amount of P8,542, being a less grave

felony whose penalty is arresto mayor in its minimum and
medium periods, prescribes in five years.
• Will the principle of constructive notice by registration apply to

the crime of bigamy?
N o , as judicial notice may be taken of the fact that a

bigamous marriage is generally entered into by the offender
in secrecy from the spouse of the previous subsisting marriage.
Also, a bigamous marriage is generally entered into in a place
where the offender is not known to be still a married person,
in order to conceal his legal impediment to contract another
marriage.
In the case of real property, the registration of any

transaction involving any right or interest therein is made
in the Register of Deeds of the place where the said property
is located. Verification in the Office of the Register of Deeds
concerned of the transactions involving the said property
can easily be made by any interested party. In the case of a
bigamous marriage, verification by the offended person or the
authorities of the same would indeed be quite difficult as such
a marriage may be entered into in a place where the offender is
not known to be still a married person.
It should be noted that in the criminal cases cited by the

petitioner wherein constructive notice was applied, involved
therein were land or property disputes and certainly, marriage
is not property. (People v. Reyes, July 1989)
• Is the non-application to bigamy of the rule on constructive

notice not contrary to the liberal construction of penal laws?
N o , for to compute the prescriptive period for the offense
of bigamy from registration would amount to almost absolving
the offenders from liability therefor. While the celebration of
the bigamous marriage may be open and of public record by
its registration, the offender, however, is not truthful as he
conceals from the officiating authority and those concerned
the existence of his previous subsisting marriage. He does not
reveal to them that he is still a married person. He likewise
conceals from his legitimate spouse his bigamous marriage.
341
And for these, he contracts the bigamous marriage in a place

where he is not known to be still a married person. A n d such a
place may be anywhere making the discovery of the bigamous
marriage quite difficult and would take time.
It is thus reasonable that the prescriptive period for
bigamy should be counted from the day of its discovery.
Considering such concealment of the bigamous marriage, if
the prescriptive period were to be counted from the date of
registration, its prosecution would almost be impossible. Such
interpretation would encourage fearless violations of a social
institution cherished and protected by law. (id.)
While Section 52 of P . D . 1529 provides for constructive

notice to all persons of every conveyance, mortgage, lease, lien,
attachment, order, judgment, instrument or entry affecting
registered land filed or entered in the office of the Register of
Deeds for the province or city where the land to which it relates
lies from the time of such registering, filing or entering, there
is no counterpart provision either in A c t 3753 (Act to Establish
a Civil Register) or in Articles 407 to 413 of the N C C , which
leads to the conclusion that there is no legal basis for applying
the constructive notice rule to the documents registered in the
Civil Register.
A r t . 92. When and how penalties prescribe. — T h e penalties

imposed by final sentence p r e s c r i b e as follows:
1. D e a t h a n d reclusion perpetua, in 20 y e a r s ;
2. O t h e r afflictive penalties, in 15 y e a r s ;
3. C o r r e c t i o n a l penalties, in 10 y e a r s , w i t h the
exception of the p e n a l t y of arresto mayor, w h i c h
p r e s c r i b e s in 5 years;
4. L i g h t penalties, in 1 y e a r .
A r t . 93. Computation of the prescription of penalties. — T h e
period of prescription of penalties shall c o m m e n c e to r u n
from the date w h e n the culprit s h o u l d e v a d e the service of his
sentence, a n d it shall be i n t e r r u p t e d if the d e f e n d a n t s h o u l d
give himself u p , be c a p t u r e d , should go to some f o r e i g n
country w i t h w h i c h his G o v e r n m e n t has no extradition
treaty, or should commit a n o t h e r crime b e f o r e the e x p i r a t i o n
of the period of prescription.
342
What is prescription of penalty?
It is the loss of the right of the State to enforce the sentence

imposed on the convict by the lapse of time. Prescription of
penalty becomes operative when the convict escapes from
detention or evades the service of his sentence.
What are the prescriptive periods of felonies?
a. Reclusion perpetua — 20 years
b. Reclusion temporal, disqualification,

and prision mayor — 15 years
c. Prision correccional,
suspension and destierro — 10 years
d. Arresto mayor — 5 years
e. Arresto menor, public censure — 1 year
How is the running of the period of prescription of penalty

commenced? Tolled?
T h e period of prescription begins to run when the convict

evades service of sentence by escaping during the term of his
sentence. If the convict has not suffered deprivation of liberty
before his arrest and as a consequence, never evaded sentence
by escaping during the term of his sentence, the period of
prescription never began. (Pangan v. Gabalite, G.R. No.
141718, January 21, 2005)
T h e tolling of period of prescription of penalty occurs
when the convict:
a. gives himself up;
b. is captured;
c. goes to another country with which the Philippines
has no extradition treaty; and
d. commits another crime before the expiration of the
period of prescription.
Compare prescription of crime and of penalty.

Prescription of crime is the loss of the right to prosecute
the offender whereas prescription of penalty is the loss of the
343
right to enforce the penalty for the crime committed. In the

former, prosecution has not yet begun, whereas in the latter,
trial on the merits has already been concluded. In prescription
of crime, the culprit may not have been apprehended or taken
into custody yet whereas in prescription of penalty, the convict
has been under the custody of the law. In the former, the
condition precedent is the discovery of the crime whereas in
the latter, it is the evasion of service of sentence.
• What are the two kinds of repeal and their effect on the criminal
liability of the accused/convict?
1. Express or total repeal of penal laws, which decriminalizes

the act such as repeal of the anti-squatting law or the
anti-subversive law. Such repeal extinguishes criminal
liability for the act is no longer criminal and its effect
shall retroact favorably to offenders whose sentence has
become final and even to those who are already serving
sentence provided they are not habitual delinquents.
(Article 22)
2. Implied or partial repeal of penal laws which has favorable

effect on the accused or convict such as R . A . 8294 which
lowered the penalty on the basis of the caliber of the
guns possessed. This has the effect of partial extinction
of criminal liability for it reduces the penalty imposed on
the accused or convict.
Chapter Two
P A R T I A L EXTINCTION OF CRIMINAL
LIABILITY
A r t . 94. Partial extinction of criminal liability. — Criminal

liability is e x t i n g u i s h e d partially:
1. By c o n d i t i o n a l p a r d o n ;
2. By c o m m u t a t i o n of the sentence; a n d
3. F o r g o o d c o n d u c t a l l o w a n c e s w h i c h the culprit
m a y e a r n w h i l e h e i s s e r v i n g his sentence.
• What are the causes of partial extinction of criminal liabilities?

Under Section 94:
a. Conditional pardon;
b. Commutation of sentence; and
c. Good conduct allowance.
In addition:
d. Parole under the I S L ;
e. Probation under P . D . 968;
f. Partial repeal of penal law.
A r t . 95. Obligation incurred by a person granted conditional

pardon. — A n y p e r s o n w h o has b e e n g r a n t e d conditional
p a r d o n shall i n c u r the obligation of c o m p l y i n g strictly
w i t h the conditions i m p o s e d therein; otherwise, his non-
compliance w i t h any of the conditions specified shall result
in the revocation of the p a r d o n a n d the provisions of Article
159 shall be a p p l i e d to him.
• What are the requisites for conditional pardon?

It must be given after final judgment and must be accepted
because of the conditions which must be complied with strictly.
For, if the offender violates the condition of his pardon and the
penalty remitted is less than six years, he shall be meted an
additional penalty, viz.:
345
"Art. 159. Other cases of evasion of service of sentence. —

xxx. However, if the penalty remitted by the granting of such
pardon be higher than six years, the convict shall then suffer the
unexpired portion of his original sentence."
What are the nature and effects of a conditional pardon?

A conditional pardon is a contract between the Chief
Executive and the convicted criminal to the effect that the
former will release the latter subject to the condition that if
he does not comply with the terms of the pardon, he will be
recommitted to prison to serve the unexpired portion of the
sentence or an additional one. (Alvarez v. Director of Prison,
80 Phil. 50) By the pardonee's consent to the terms stipulated
in this contract, he has thereby placed himself under the
supervision of the Chief Executive or his delegate who is duty-
bound to see to it that the pardonee complies with the terms and
conditions of the pardon. Section 64(1) of the R A C , authorizes
the Chief Executive to order "the arrest and reincarceration of
any such person who, in his judgment, shall fail to comply with
the condition, or conditions of his pardon, parole, or suspension
of sentence." (Torres v. Dir. of Bureau of Corrections, G.R. No.
122338, December 29, 1995)
Is the grant of pardon subject to judicial review?
N o , this exercise of presidential judgment is beyond

judicial scrutiny. T h e determination of the violation of the
conditional pardon rests exclusively in the sound judgment
of the Chief Executive. T h e pardonee, having consented to
place his liberty on conditional pardon upon the judgment
of the power that has granted it cannot invoke the aid of the
courts, however erroneous the findings may be upon which his
recommitment was ordered.
It matters not that TT had allegedly been acquitted in two

of the three criminal cases filed against him subsequent to his
conditional pardon, and that the third case remains pending
for 13 years in apparent violation of his right to a speedy trial.
(Tesoro v. Dir. of Prisons, 68 Phil. 154)
Is a petition for writ of habeas corpus the remedy for a person

incarcerated for violation of conditional pardon?
346
PARTIAL EXTINCTION OF C R I M I N A L LIABILITY
Habeas corpus lies only where the restraint of a person's

liberty has been judicially adjudged as illegal or unlawful. The
incarceration of TT remains legal considering that, were it not
for the grant of conditional pardon which had been revoked
because of a breach thereof, the determination of which is
beyond judicial scrutiny, he would have served his final
sentence for his first conviction until November 2, 2000.
Ultimately, solely vested in the Chief Executive, who in

the first place was the exclusive author of the conditional par-
don and of its revocation, is the corollary prerogative to rein-
state the pardon if in his own judgment, the acquittal of the
pardonee from the subsequent charges filed against him, war-
rants the same. Courts have no authority to interfere with the
grant by the President of a pardon to a convicted criminal, (id.)
• What are the effects of conditional pardon on civil liability?

A conditional pardon does not extinguish the civil liability
arising from the crime. (Monsanto v. Factoran, Jr., 170 SCRA
[1989]; People v. National, G.R. Nos. 111294-95, September 7,
1995)
• W h o determines if there is violation of conditional pardon?

T h e President solely determines if there is violation
of conditional pardon. He can order the offender's arrest
and incarceration pursuant to the R A C ; or offender can be
prosecuted under Article 159.
It has been the court's fortified ruling that a final judicial
pronouncement as to the guilt of a pardonee is not a requirement
for the President to determine whether or not there has been a
breach of the terms of a conditional pardon. There is likewise
nil a basis for the courts to effectuate the reinstatement of a
conditional pardon revoked by the President in the exercise of
powers undisputedly solely and absolutely lodged in his office.
(Petition for habeas corpus of Wilfredo Torres)
A r t . 96. Effect of commutation of sentence.—The commutation

of the o r i g i n a l sentence for another of a different length and
n a t u r e shall h a v e the legal effect of substituting the latter in
the place of the former.
347
A r t . 97. Allowance for good conduct. — T h e good conduct of

any prisoner in any penal institution shall entitle h i m to the
following deductions f r o m the p e r i o d of his sentence:
1. D u r i n g the first t w o y e a r s of his imprisonment, he
shall be a l l o w e d a deduction of five d a y s for each
month of good b e h a v i o r ;
2. D u r i n g the 3rd to the 5th y e a r , inclusive, of his
imprisonment, he shall be a l l o w e d a d e d u c t i o n of
eight days for each m o n t h of g o o d b e h a v i o r ;
3. D u r i n g the f o l l o w i n g y e a r s until the 10th y e a r ,
inclusive, of his i m p r i s o n m e n t , he shall be a l l o w e d
a d e d u c t i o n of ten d a y s for e a c h m o n t h of g o o d
behavior; and
4. D u r i n g the 11th a n d successive y e a r s of his
i m p r i s o n m e n t , he shall be a l l o w e d a d e d u c t i o n of
fifteen d a y s for each m o n t h of g o o d b e h a v i o r .
A r t . 98. Special time allowance for loyalty. — A d e d u c t i o n

of 1/5 of the p e r i o d of his sentence shall be g r a n t e d to a n y
p r i s o n e r w h o , h a v i n g e v a d e d the service o f his sentence
u n d e r the circumstances m e n t i o n e d in A r t i c l e 158 of this
C o d e , gives himself up to the a u t h o r i t i e s w i t h i n 48 h o u r s
f o l l o w i n g the issuance of a p r o c l a m a t i o n a n n o u n c i n g the
passing a w a y o f the c a l a m i t y o r c a t a s t r o p h e r e f e r r e d t o i n
said article.
A r t . 99. Who grants time allowances. — W h e n e v e r l a w f u l l y

justified, the D i r e c t o r of P r i s o n s shall g r a n t a l l o w a n c e s for
g o o d conduct. S u c h a l l o w a n c e s once g r a n t e d shall not b e
revoked.
• In what instances can a convict be released before he serves the

full term of his sentence?
A convict's release from prison before he serves the full

term of his sentence is either due to good conduct allowances, as
provided under A c t 1533 and Article 97 of the R P C , or through
the approval of the convict's application for parole. A good
conduct allowance may be granted by the Director of Prisons
while the approval of an application for parole is sanctioned by
the Board of Pardons and Parole. In addition, a convict may
348
PARTIAL EXTINCTION OF C R I M I N A L LIABILITY
be released from prison in cases where he is granted pardon

by the President pursuant to Section 19, Article V I I of the
Constitution.
T h e provisions of Sections 5 and 16, Rule 114 of the
R R C P on bail apply only to an accused undergoing preventive
imprisonment during trial or on appeal. T h e y do not apply
to a person convicted by final judgment and already serving
sentence. (White v. Bugtas)
• When is special time allowance given?

T h e r e must be the following requisites:
1. T h e occurrence of disorder resulting from a conflagration,
earthquake, explosion or similar catastrophe or a mutiny
in which the prisoner did not participate;
2. T h e convict must evade the service of his sentence;
3. He must give himself up within 48 hours after the issuance
of a proclamation by the Chief Executive announcing the
passing a w a y of such calamity.
T h e offender who shall give himself up under those
conditions shall be given a loyalty award equivalent to 1/5 of
the period of his sentence by the Director of Prisons.
• What is the condition precedent for entitlement to the loyalty

time allowance?
To be entitled to the time allowance, the prisoner must
evade his sentence by leaving the prison. If he does not leave,
he does not belong to the class of convicts who, having evaded
the service of their sentences by leaving the penal institution
give themselves up within 48 hours. There is no assurance that
had they left the penal institution, they would have returned
voluntarily to take up the privations of prison life impelled
by that sense of loyalty to the Government, which ought to be
rewarded.
• What calamities are covered in Article 158?

Article 158 covers disorders resulting from conflagration,
earthquake, explosion, or similar catastrophe (such as
volcanic eruption, landslide) and mutiny. Under the principle
of ejusdem generis, only circumstances of a nature similar to
349
those previously enumerated shall be covered by the general

term of "similar catastrophe." Notice that mutiny is not given
any analogous situation, hence, riots are not included in this
provision but in Article 157 which uses "violence" as a means
of escaping.
• How is evasion committed in Article 158?

Evasion lies in the failure to return, not in leaving the
penal establishment because leaving is encouraged in cases of
disorders enumerated therein. This is shown by the fact that
there is premium for those who leave and thereafter return
after the disorder ceases but none for those who did not leave.
Thus:
1. Leaving without returning within the time period
prescribed — 1/5 addition to the remaining sentence
which should not be more than six months, that is, 1/5
of the balance of the sentence to be served or six months
whichever is lesser.
2. N o t leaving — no deduction, no addition to the penalty;
3. L e a v i n g and returning within the period prescribed — 1/5

deduction from his sentence as provided under Article 98.
• Compare the increase/decrease of penalty under Articles 158

and 159.
Article 98 granting loyalty allowance states that the

decrease in the penalty of the loyal convict shall be "1/5 of
the period of his sentence," whereas A r t i c l e 158 imposes "an
increase of one-fifth of the time still remaining to be served
under the original sentence." W h e n the l a w is clear, there is no
room for interpretation, only application. Moreover, if there be
any doubt, it should be construed in favor of the offender and
of the lesser penalty.
350
TITLE FIVE
CIVIL LIABILITY
Chapter One
PERSONS C I V I L L Y L I A B L E FOR FELONIES
A r t . 100. Civil liability of a person guilty of felony. — E v e r y

p e r s o n c r i m i n a l l y l i a b l e for a felony is also civilly liable.
• What is the basic principle in civil liability ex-delicto?

Every person criminally liable is also civilly liable, crime
being one of the five sources of obligation under the Civil Code.
However, if a person is acquitted from a criminal charge, it
does not mean that he is civilly free also because the quantum
of proof required in criminal prosecution is beyond reasonable
doubt whereas, in civil liability, it is merely preponderance of
evidence. To be free from civil liability on account of acquittal,
therefore, this must be based on the fact that he did not commit
the offense. For, if his acquittal is based merely on reasonable
doubt, he may still be liable. In such case, it does not mean
that he did not do the act complained of. It may only be that
the facts proved did not constitute the offense charged or the
prosecution failed to prove an element of the crime.
Civil liability may be expressly waived by the offended.
• What are the two kinds of acquittal and their effects on the civil
liability of the accused?
First is an acquittal on the ground that the accused is not
the author of the act or omission complained of. This instance
closes the door to civil liability, for a person who has been
found to be not the perpetrator of any act or omission cannot be
held liable for such act or omission. There being no delict, civil
liability ex-delicto is out of the question, and the civil action,
351
which may be instituted must be based on grounds other than

the debet complained of. This is the situation contemplated in
Rule 111 viz.:
"Sec. 2. Institution of separate civil action. —
xxx
(b) Extinction of the penal action does not carry with
it extinction of the civil, unless the extinction proceeds from a
declaration in a final judgment that the fact from which the
civil might arise did not exist."
The second instance is an acquittal based on reasonable
doubt on the guilt of the accused. In this case, even if the guilt
of the accused has not been satisfactorily established, he is not
exempt from civil liability, which may be proved by preponder-
ance of evidence only. This is the situation contemplated in
Article 29, where the civil action for damages is "for the same
act or omission." Although the two actions have different pur-
poses, the matters discussed in the civil case are similar to
those discussed in the criminal case. H o w e v e r , the judgment in
the criminal proceeding cannot be read in evidence in the civil
action to establish any fact there determined, even though both
actions involve the same act or omission. T h e reason for this
rule is that the parties are not the same and secondarily, dif-
ferent rules of evidence are applicable. Hence, notwithstanding
petitioner's acquittal, the CA in determining whether Article
29 applied, was not precluded from looking into the question of
petitioner's negligence or reckless imprudence. (Manantan v.
CA, January 29, 2001)
Article 29 of the N C C provides:
"When the accused in a criminal prosecution is acquitted on

the ground that his guilt has not been proved beyond reasonable
doubt, a civil action for damages for the same act or omission
may be instituted. Such action requires only a preponderance of
evidence, xxx
If in a criminal case the judgment of acquittal is based

upon reasonable doubt, the court shall so declare. In the absence
of any declaration to that effect, it may be inferred from the
text of the decision whether or not the acquittal is due to that
ground."
352
P E R S O N S CIVILLY LIABLE FOR FELONIES
T h e acquittal of accused extinguished both criminal and

civil liability as it is clear from the order acquitting them that
the issuance of the checks did not constitute a violation of B.P.
22. Consequently, no civil liability arising from the alleged
delict may be awarded. (Mansion Biscuit Corp. v. CA, G.R. No.
94713, November 23, 1995)
Compare the effect of death on civil liability ex-delicto and civil

liability based on quasi-delict.
"Acquittal of the accused, even if based on a finding that
he is not guilty, does not carry with it the extinction of the civil
liability based on quasi-delict. vicarious liability
" A separate civil action lies against the offender in a

criminal act, whether or not he is criminally prosecuted and
found guilty or acquitted, provided that the offended party
is not allowed, if he is actually charged also criminally to
recover damages on both scores. In such eventuality, he would
be entitled only to the bigger award of the two, assuming the
awards made in the two cases vary.
"In other words, the extinction of civil liability referred

to in paragraph [b], Section 2, Rule 111, refers exclusively to
civil liability founded in Article 100 of the R P C . Whereas, the
civil liability for the same act considered quasi-delict only and
not as a crime is not extinguished even by a declaration in the
criminal case that the criminal act charged has not happened
or has not been committed by the accused.
' T h e civil case for damages is not barred since the cause
of action of the heirs is based on quasi-delict. Even if the
damages are sought on the basis of crime and not quasi-delict,
the acquittal of the bus driver will not bar recovery of damages
because the acquittal was based not on a finding that he was
not guilty but only on reasonable doubt." (Guaring, Jr. v. CA,
March 1997)
What is the effect of acquittal of the accused in a criminal

action?
Acquittal in a criminal action bars the civil action arising
therefrom where the judgment of acquittal holds that:
1. T h e accused did not commit the acts imputed to him;
353
2. He was not guilty of criminal or civil negligence.

But, his acquittal will N O T bar a civil action in the
following cases:
1. Where the acquittal is based on reasonable doubt as only
a preponderance of evidence is required in civil cases;
2. Where the court declared that accused's liability is not
criminal but only civil in nature;
3. Where the civil liability does not arise from or is not based
upon the criminal act of which the accused was acquitted.
An accused acquitted of a criminal charge may never-
theless be held in the same case civilly liable where the facts
established by the evidence so warrants. (Sesbreno v. CA;
Salazar v. People, G.R. No. 151931, September 23, 2003)
Can the court trying a criminal case award damages to the

accused in a counterclaim in the same case?
N o . A court trying a criminal case cannot award damages
in favor of the accused because its task is limited to determining
the guilt of the accused and if proper, to determine his civil
liability. A criminal case is not the proper proceeding to
determine the private complainant's civil liability, if any. T h e
trial court erred in ordering the petitioner and the prosecution
witness, as part of the judgment in the criminal case, to
reimburse the expenses and pay damages to the accused.
Cabaero, 271 SCRA 391 (1997) directed the trial court to limit
itself to the criminal and civil liability of the accused; the
counterclaim and cross-claim or third party complaint should
be set aside or refused cognizance without prejudice to their
filing in separate proceedings at the proper time. (Maccay v.
Nobela, G.R. No. 145823, March 31, 2005)
The R R C P prohibit counterclaims in criminal cases. Sec-

tion 1 of Rule 111 provides that no counterclaim, cross-claim
or third-party complaint may be filed by the accused in the
criminal case, but any cause of action which could have been
the subject thereof may be litigated in a separate civil action.
This paragraph addresses the lacuna mentioned in Cabaero on
the "absence of clear-cut rules governing the prosecution of im-
pliedly instituted civil action and the necessary consequences
354
and implications thereof." T h e civil liability of petitioners for

swindling respondent and for maliciously filing a baseless suit
must be litigated in a separate proceeding, (id.)
A r t . 101. Rules regarding civil liability in certain cases. — T h e

e x e m p t i o n f r o m c r i m i n a l liability established in subdivisions
1, 2, 3, 5, a n d 6 of A r t i c l e 12 a n d in s u b d i v i s i o n 4 of Article 11
of this C o d e does not i n c l u d e e x e m p t i o n f r o m civil liability,
w h i c h shall be e n f o r c e d subject to the f o l l o w i n g rules:
First: In cases of s u b d i v i s i o n s 1, 2, a n d 3 of Article 12,

the civil liability for acts committed by an imbecile or insane
p e r s o n , a n d by a p e r s o n u n d e r 9 y e a r s of a g e , or o v e r 9 b u t
u n d e r 15 y e a r s of a g e , w h o h a s acted w i t h o u t discernment,
shall d e v o l v e u p o n those h a v i n g such a p e r s o n u n d e r their
l e g a l a u t h o r i t y or control, unless it a p p e a r s that there w a s
n o fault o r n e g l i g e n c e o n their p a r t . vicarious liability
S h o u l d t h e r e b e n o p e r s o n h a v i n g such insane, imbecile,

o r m i n o r u n d e r his a u t h o r i t y , legal g u a r d i a n s h i p , o r control,
or if such p e r s o n be insolvent, said insane, imbecile, or m i n o r
shall r e s p o n d w i t h their o w n p r o p e r t y , excepting p r o p e r t y
e x e m p t f r o m execution, in a c c o r d a n c e w i t h the civil l a w .
Second: In cases falling w i t h i n s u b d i v i s i o n 4 of Article 11,

the p e r s o n s for w h o s e benefit the h a r m has b e e n p r e v e n t e d
shall be civilly l i a b l e in p r o p o r t i o n to the benefit w h i c h they
m a y h a v e r e c e i v e d . unjust enrichment
T h e courts shall d e t e r m i n e , in their s o u n d discretion,
the p r o p o r t i o n a t e a m o u n t for w h i c h each one shall be liable.
W h e n the respective s h a r e s cannot b e equitably deter-
m i n e d , e v e n a p p r o x i m a t e l y , or w h e n the liability also attach-
es to the G o v e r n m e n t , or to the majority of the inhabitants of
the t o w n , a n d , in all events, w h e n e v e r the d a m a g e has been
c a u s e d w i t h the consent of the authorities or their agents,
indemnification shall be m a d e in the m a n n e r prescribed by
special l a w s or regulations.
Third: In cases falling within subdivisions 5 and 6 of
Article 12, the persons using violence or causing the fear
shall be p r i m a r i l y liable a n d secondarily, or, if there be
no such persons, those doing the act shall be liable, saving
355
always to the latter that p a r t of their p r o p e r t y exempt f r o m

execution.
A r t . 102. Subsidiary civil liability of innkeepers, tavernkeepers,
and proprietors of establishments. — In default of the persons
criminally liable, innkeepers, t a v e r n k e e p e r s , a n d any other
persons or corporations shall be civilly liable for crimes
committed in their establishments, in all cases w h e r e a
violation of municipal o r d i n a n c e s or some g e n e r a l or special
police regulations shall h a v e b e e n committed by t h e m or
their employees.
I n n k e e p e r s a r e also s u b s i d i a r i l y l i a b l e for the restitution
of goods taken by r o b b e r y or theft w i t h i n their houses f r o m
guests l o d g i n g therein, or for the p a y m e n t of the v a l u e thereof,
p r o v i d e d that such guests shall h a v e notified in a d v a n c e the
innkeeper himself, or the p e r s o n r e p r e s e n t i n g h i m , of the
deposit of such goods w i t h i n the inn; a n d shall f u r t h e r m o r e
have f o l l o w e d the directions w h i c h such i n n k e e p e r o r his
representative m a y h a v e g i v e n t h e m w i t h respect t o the c a r e
o f a n d vigilance o v e r such g o o d s . N o liability shall attach
in case of r o b b e r y w i t h violence a g a i n s t or i n t i m i d a t i o n of
persons unless committed by the innkeeper's e m p l o y e e s .
• Give the rules on civil liability in particular cases.

A. A person insane, imbecile, under 9, or over 9 but under 15
(Article 12, nos. 1, 2, and 3):
1. Primary liability is on the person who has control

or authority over them, unless he is without fault or
negligence;
2. Secondary liability is on the property of the minor

or insane, if there be no such person, or if he is
insolvent, except property exempt from liability.
B. One who avoided a greater evil or injury (Article 11, no.
4):
Primary liability is on the one who benefited from

such avoidance. If there were several persons benefited,
the court shall determine their proportionate share.
356
C. In irresistible force or uncontrollable fear (Article 12, nos

5 and 6):
1. P r i m a r y liability is on the person employing the

force or causing the fear;
2. Secondary liability is on the person doing the act,
save for their property exempt from execution.
A r t . 103. Subsidiary civil liability of other persons. — T h e

s u b s i d i a r y civil liability e s t a b l i s h e d in the next p r e c e d i n g
article shall also a p p l y t o e m p l o y e r s , teachers, persons, a n d
c o r p o r a t i o n s e n g a g e d i n a n y k i n d o f i n d u s t r y for felonies
c o m m i t t e d b y t h e i r s e r v a n t s , p u p i l s , w o r k m e n , apprentices,
or e m p l o y e e s in the d i s c h a r g e of their duties.
• W h o are the persons subsidiarily liable for criminal offenses?

T h e y are innkeepers, tavern keepers and proprietors of
establishments (Article 102); employers, teachers, persons,
and corporations engaged in any kind of industry for crimes
committed by their servants, pupils, workmen or employees,
respectively (Article 103). This subsidiary liability is based
on employer-employee relationship. T h e employer should
be engaged in any kind of industry, which means a habitual
undertaking for profit where labor and capital are utilized.
• What is the statutory basis for an employer's subsidiary liability?

T h e statutory basis is found in Article 103. Courts have
since sanctioned the enforcement of this subsidiary liability
in the same criminal proceedings in which the employee is
adjudged guilty, on the thesis that it really is a part of, and
merely an incident in, the execution process of the judgment.
Unacceptable is the assumption that since the petitioner
did not aver any exculpatory facts in her motions which could
have saved her from liability a hearing would be futile and a
sheer rigmarole. T h e employer must be given her full day in
court. (Yonaha v. CA, G.R. No. 112346, March 29, 1996)
• What are the requirements for subsidiary civil liability of the

employer?
The employer's subsidiary liability authorized under
Article 103 is enforceable in the same criminal proceeding
357
where the award is made. Before execution against an employer

ensues, there must be a hearing set to determine:
1) The existence of an employer-employee relationship
2) That the employer is engaged in some kind of
industry
3) That the employee is adjudged guilty of the wrongful
act and found to have committed the offense in the
discharge of his duties (not necessarily any offense
he commits while in the discharge of such duties)
4) That said employee is insolvent as shown by the non-
satisfaction of the execution against the employee
(Basilio v. CA, March 2001), and
5) The decision of conviction must have attained
finality.
There must be proof that the employee is insolvent
which can be supplied by the sheriffs return showing the non-
satisfaction of the writ of execution. T h e decision of conviction
must have attained finality, otherwise, execution against the
employer is premature. (Pangoronom v. People)
Should a hearing for employer's subsidiary civil liability be

conducted?
Y e s . Execution against the employer must not issue as
just a matter of course. It behooves the court, as a measure
of due process to the employer, to determine and resolve a
priori, in a hearing set for the purpose, the legal applicability
and propriety of the employer's liability. T h e requirement is
mandatory even when it appears, prima facie that execution
against the employee cannot be satisfied. T h e Court must
convince itself that the convicted employee is in truth in
the employ of the employer; that the latter is engaged in an
industry of some kind; that the employee has committed the
crime to which civil liability attaches while in the performance
of his duty as such; and that execution against the employee is
unsuccessful by reason of insolvency. (Yonaha v. CA)
What is the nature of the subsidiary liability of the persons

secondarily liable?
358
T h e liability can either be [1] direct and criminal or [2]

subsidiary and civil.
It is a basic postulate in criminal law that the criminal act

of one person cannot be charged to another without a showing
that the other participated directly or constructively in the act
or that the act was done in furtherance of a common design or
purpose for which the parties w e r e united in intention. In cases
of employer-employee relations, an employer is not criminally
liable for the acts of his employee or agent unless he, in some
ways, participates in, counsels or abets his employee's acts
or omissions. In such case, the employer himself becomes a
participant to the criminal act of his employee. His liability
under the circumstances is direct and criminal.
H o w e v e r , under Article 102, in relation to Article 103, the

employer's liability for the criminal negligence of his employee
is subsidiary in nature and is limited only to civil indemnity.
(Fernando v. Ocampo) Thus, an employer is party to a criminal
case for the criminal negligence of his employee by reason of
his subsidiary civil liability under the law. (Yusay v. Adil)
In what instances may the existence of the employer-employee

relationship determined?
There are two instances when the existence of an
employer-employee relationship of an accused driver and the
alleged vehicle owner may be determined — during the criminal
proceeding and during the proceeding for the execution of the
judgment. In both instances, petitioner should be given the
opportunity to be heard, which is the essence of due process.
(Basilio v. CA)
Is there a need for the court to pronounce subsidiary liability of

the employer?
No because the provisions of Articles 102 and 103 are ipso
facto applicable once the requisites therefor are satisfied. These
provisions are deemed written into the judgments in cases to
which they are applicable. (Pangoronom v. People)
359
Chapter Two
WHAT CIVIL LIABILITY INCLUDES
Art. 104. What is included in civil liability. — T h e civil liability

established in Articles 100, 101, 102, a n d 103 of this C o d e
includes:
1. Restitution;
2. R e p a r a t i o n of the d a m a g e caused;
3. Indemnification for c o n s e q u e n t i a l d a m a g e s .
A r t . 105. Restitution — How made. — T h e restitution of the
thing itself must be m a d e w h e n e v e r possible, with a l l o w a n c e
for any deterioration or diminution of v a l u e as d e t e r m i n e d by
the court.
T h e thing itself shall be r e s t o r e d , e v e n t h o u g h it be
found in the possession of a t h i r d p e r s o n w h o a c q u i r e d it
by l a w f u l means, s a v i n g to the latter his action a g a i n s t the
proper person w h o may be liable to him.
This p r o v i s i o n is not a p p l i c a b l e in cases in w h i c h the

thing has b e e n a c q u i r e d b y the t h i r d p e r s o n i n the m a n n e r
a n d u n d e r the r e q u i r e m e n t s w h i c h , b y l a w , b a r a n action for
its recovery.
A r t . 106. Reparation — How made. — T h e c o u r t shall

determine the a m o u n t o f d a m a g e , t a k i n g into c o n s i d e r a t i o n
the price of the thing, w h e n e v e r p o s s i b l e , a n d its special
sentimental v a l u e t o the i n j u r e d p a r t y , a n d r e p a r a t i o n shall
be made accordingly.
A r t . 107. Indemnification — What is included. — Indemnifi-

cation of consequential d a m a g e s shall i n c l u d e not only those
c a u s e d the i n j u r e d p a r t y , b u t also those s u f f e r e d b y his f a m -
ily or by a t h i r d p e r s o n by r e a s o n of the c r i m e .
360
W H A T CIVIL LIABILITY INCLUDES
There are only two pecuniary liabilities in favor of

the offended party — [1] Restitution or reparation and [2]
indemnification. Reparation shall only be made if restitution
is not possible. This is in accord with Article 38, which states
that the pecuniary liabilities owing to the offended party
are reparation of the damage caused and indemnification of
consequential damages.
• What are included in civil liability?
1. Restitution which is the return of the thing itself whenever

possible.
2. If restitution is not possible, reparation of the damage

caused shall be made. T h e court shall determine the
amount of damage, taking into consideration the price of
the thing, whenever possible, and its special sentimental
value to the injured party.
3. Indemnification for consequential damages which shall

include not only those caused the injured party, but also
those suffered by his family or by a third person by reason
of the crime. T h e N C C enumerates cases when third
persons can recover damages by reason of the crime.
Every person criminally liable for a felony is also civilly

liable (Article 100). This civil liability, in case the felony
involves death, includes indemnification for consequential
damages (Article 104) and said consequential damages in turn
include those suffered by his family or by a third person by
reason of the crime. (Article 107)
• What is the relationship between the Civil Code and the Revised
Penal Code on civil liability for the commission of crime?
Article 2206 provides for the amount of damages for
death caused by a crime or quasi-delict. In addition, it grants
to the offended and others affected indemnity for loss of the
earning capacity of the deceased paid to the heirs of the latter;
support, if the deceased was obliged to give it according to
Article 291; and moral damages to the spouse, legitimate and
361
illegitimate descendants and ascendants of the deceased for

mental anguish by reason of death.
Article 2219 provides for the situations when moral
damages may be recovered such as:
(1) A criminal offense resulting in physical injuries
(2) Quasi-delicts causing physical injuries
(3) Seduction, abduction, rape, or other lascivious acts
(4) Adultery or concubinage
(5) Illegal or arbitrary detention or arrest
(6) Illegal search and
(7) Libel, slander or any other form of defamation.
It also provides that the parents of the female seduced,
abducted, raped, or abused in N o . 3 may also recover moral
damages.
When an unlawful act results in death, what are the civil

obligations of the offender?
When the commission of a crime results in death, the civil

obligations are governed by penal laws, subject to the provisions
of Article 2177, and of the pertinent provisions of Chapter 2,
Preliminary Title on Human Relations, and of Title X V I I I of
Book I V , regulating damages. (Article 1161). T h e following are
the items of damages the offender shall be liable to the offended
party:
1. Indemnity for the death of the victim of the offense —

fixed by the Court without the need of any evidence
or proof of damages, and even though there may
have been mitigating circumstances attending the
crime
2. Indemnity for loss of earning capacity of the de-

ceased — fixed according to the circumstances of the
deceased related to his actual income at the time of
death and his probable life expectancy.The indemni-
ty is assessed and awarded by the court as a matter
of duty, unless the deceased had no earning capacity
362
at said time on account of permanent disability not

caused by the accused.
If the deceased was obliged to give support,

under Article 291, Civil Code, the recipient who is
not an heir, may demand support from the accused
for not more than five years, the exact duration to be
fixed by the court.
3. M o r a l damages for mental anguish — may be

recovered even by the illegitimate descendants and
ascendants of the deceased.
4. Exemplary damages, when the crime is attended by

one or more aggravating circumstances — fixed in
the discretion of the court, to be considered separate
from fines.
5. Attorney's fees and expenses of litigation — the

actual amount thereof (but only when a separate
civil action to recover civil liability has been filed or
when exemplary damages are awarded.)
T h e recovery of attorney's fees in the concept

of actual or compensatory damage is allowed under
the circumstances provided for in Article 2208 of the
Civil Code, one of which is when the court deems it
just and equitable that attorney's fees and expenses
of litigation should be recovered. (People v. Bergante,
G.R. Nos. 120369-70, February 27, 1998)
6. Interests in proper cases.

In addition to the above is either of the following
alternative items of damages:
7. Actual damages which must be supported by receipts
such as hospitalization and funeral expenses, or
temperate damages to substitute for actual damages.
T h e indemnities for loss of earning capacity of the
deceased and for moral damages are recoverable separately
from and in addition to the fixed sum corresponding to the
indemnity for the sole fact of death, and that these damages
may be increased or lessened according to the mitigating or
aggravating circumstances. (People v. Teehankee, Jr.)
363
If the heirs cannot produce receipts to prove actual damages,

what may be granted by the court as substitute?
Temperate damages may be granted instead. T h e trial
court erred in granting the heirs of the deceased victim an
additional amount of P21.307 representing funeral expenses.
Under Article 2199 of the Civil Code, a party is entitled to
compensation only for such pecuniary loss suffered by him as
proven. (People v. Lopez, 312 SCRA, 1999) T h e recovery thereof
must be premised upon competent proof and the best evidence
obtainable, such as receipts, by the injured party showing the
actual expenses incurred in connection with the death, w a k e
or burial of the victim. T h e list of expenses incurred for the
wake, funeral, and burial of the victim amounting to P21,307
submitted by A A ' s father was not proved. (People v. Ereno 326
SCRA; People u. Nullan, 305 SCRA)
However, A A ' s father was unable to present the receipt
for the funeral parlor refused to issue a receipt until he had
fully paid the entire amount, which he had not done at the
time of the trial. Under Article 2224, temperate damages
may be recovered if it is shown that such party suffered some
pecuniary loss but the amount cannot, from the nature of the
case, be approved with certainty. As there is no doubt the heirs
of the victim incurred funeral expenses, although the amount
thereof has not been proved, it is appropriate to award P15.000
by way of temperate damages. (People v. Principe, G.R. No.
135862, May 2, 2002)
How is life expectancy computed? Net earning capacity?
The life expectancy [ L E ] is equivalent to 2/3 the difference

of 80 and the age of the deceased. Thus,
LE = \ x [80 - age at death]
N e t earning capacity [ N E C ] is the remainder if the

gross annual income [ G A I ] is reduced by the necessary living
expenses [ N L E ] which is 50% of the G E C . Thus,
NEC = GEC - N L E
N L E = G E C X 50% (or ^ )
364
T h e life expectancy is then multiplied by the net earning

capacity to determine the total net earning capacity. (People v.
Dando, February 2000)
Formula for computing said damages: net earning

capacity = life expectancy multiplied by gross annual income
less necessary living expenses which is 50% of G A I (People v.
More, December 1999), viz.:
N E C = LE x N L E
= {J-x[80-age] X {GAI-
GAI
or -f- x [80 - age] X
2
• What is loss of earning capacity? When is it awarded?
A w a r d for the loss of earning capacity partake of the

nature of damages and must thus be proved not only by credible
and satisfactory evidence but also by unbiased proof. (People v.
Cotas, 332 SCRA)
T h e loss or damage that dependents and intestate heirs

of the deceased may sustain by reason of the latter's death is
not the full amount of the deceased earnings, but the support
they received or would have received from him had he not died.
(People v. Alvero, Jr., June 1993)
T h e heirs are also entitled to moral damages of P50.000
in accordance with Article 2219 for the physical suffering,
mental anguish, serious anxiety, and moral shock caused
by the manner by which AA was raped and killed. (People v.
Ronas, G.R. No. 128088 & 146639, January 2001)
• Is it correct to award lump sum for actual and moral damages?

N o . T h e two awards — one for actual damages and
the other for moral damages — cannot be dealt with in the
aggregate; neither being kindred terms nor governed by a
coincident set of rules, each must be separately identified and
independently justified. A requirement common to both is
that an injury must have been sustained by the claimant. The
365
nature of that injury, however, differs for while it is pecuniary

in actual or compensatory damages, it is nonpecuniary in the
case of moral damages.
Actual and moral damages belong to different planes:
1. In actual or compensatory damages
a. The pecuniary loss must not only be capable of
proof but must actually be proved with a reasonable
degree of certainty.
b. Actual damages cannot be presumed and the courts
in making an award must point out specific acts
which could afford a basis for measuring whatever
compensatory or actual damages are borne.
2. In moral damages —
a. The loss is incapable of exactness and no proof of
pecuniary loss is necessary in order that moral
damages may be awarded.
b. T h e amount of indemnity is left to the discretion of
the court. It is imperative, however, that
1. Injury must have been suffered by the claimant
and
2. Such injury must have sprung from any of
the cases in Articles 2219 and 2220. (People v.
Morales)
T h e lower court erred in categorizing the award of
P50,000 to the offended party as moral damages. In Gementiza,
January 1998, the indemnity categorized by criminal law as
civil liability ex-delicto for the offended party, in the amount
authorized by the prevailing judicial policy and aside from
other proven actual damages, is itself equivalent to actual or
compensatory damages in civil law. It is not to be considered
as moral damages, the latter being based on different jural
foundations and assessed by the court in the exercise of sound
discretion. (People v. Victor, G.R. No. 127903, July 9, 1998)
T h e award of the civil indemnity for cases not calling
for the application of death penalty is fixed by current
jurisprudence at P50,000 (People v. Espanola, 271 SCRA),
no other proof is necessary than the fact of the death of
the victim and the accused's responsibility therefor. M o r a l
366
damages can be awarded only when the same is supported by

evidence in the records. (People v. Ortega, Jr.)
As to civil indemnity, payment should be made not only
to the mother of each victim but also to all his heirs. (People v.
Rimorin)
M o r a l damages may not be imposed in substitution for
civil indemnity. (People v. Maramara, October 1999)
How much should be awarded as moral damages?
Indictments for rape continue unabated and the

legislative response has been in the form of higher penalties.
On like considerations, the jurisprudential path on the civil
aspect should also follow the same direction. Hence, if the
crime of rape is committed or effectively qualified by any of the
circumstances under which the death penalty is prescribed,
the indemnity for the victim shall be in the increased amount
of not less than P75,000. This is not only a reaction to the
apathetic societal perception of the penal law and the financial
fluctuations over time, but also an expression of the displeasure
over the incidence of heinous crimes against chastity, (id.)
T h e recent case law on rape permits the automatic grant
of civil indemnity and moral damages to the victim once the
fact of rape has been established. T h e award of civil indemnity
is mandatory upon the finding of the fact of rape. The
indemnification for the victim shall be in the increased amount
of P75,000 if the crime of rape is effectively qualified by any of
the circumstances under which the death penalty is authorized,
and that moral damages may additionally be awarded to the
rape victim without need of pleading or proof of the basis thereof
as has heretofore been practiced. (People v. Palermo, G.R. No.
120630, June 28, 2001). T h e fact that complainant in rape has
suffered the trauma of mental, physical, and psychological
suffering which constitute the basis for moral damages are too
obvious to still require recital thereof at the trial by the victim.
(People v. Libo-on, G.R. No. 136737, May 23, 2001). (R.A. 9346
did not affect the categorization of heinous crimes for purposes
of the award of proper amount of civil indemnity and moral
damages.)
T h e amount of P30.000 as indemnity for death should
be increased to P50.000 pursuant to current rulings. But
367
the award of P37.000 for actual damages should be reduced

to P22,000 supported by a receipt for funeral expenses. As
held in Fuentes, Jr., only expenses supported by receipts and
which appear to have been actually expended in connection
with the death of the victim should be allowed. The award of
actual damages cannot be based on the allegation of a witness
without any tangible document to support such claim. (David
v. CA, June 1998). But the award of civil indemnity needs no
documentary evidence to support such award except for the
occurrence of such death. (People v. Sol, May 1997)
• When are moral damages not imposed on the convict for

homicide?
Zulueta, 43 SCRA 397, reduced the moral damages
because the plaintiff contributed to the gravity of the
defendant's reaction. In the case at bar, the victims not only
contributed but they actually provoked the attack by damaging
appellant's property and business. Considering appellant's
standing in the community, being married to a municipal
councilor, the victims' actuations were designed to humiliate
him and destroy his reputation. Thus, the moral and material
suffering of the appellant and his family deserves leniency as
to his civil liability. (People v. Narvaez)
• When is exemplary damages imposed?
Where the crime resulted in the death of the victim,

the civil indemnity granted by the Court has commonly been
P50,000 in the absence of unusual circumstances warranting
a higher indemnity. In thfc instant case, a heavier indemnity
is appropriate, bearing in mind the tender age of the victim
and the close blood relationship (uncle and niece) that existed
between appellant and the victim. These circumstances
indicate an unusual degree of moral depravity. Accordingly, the
grant of exemplary damages of P20.000 and moral damages, in
addition to the regular indemnity for death of P50.000. (People
v. Remolle, October 1993)
T h e grant of exemplary damages is called for by the

circumstances of the case. Under Article 2229, in addition
to the award of moral damages, exemplary or corrective
damages may be adjudged in order to deter the commission of
368
similar acts in the future. T h e award for exemplary damages

is designed to permit the courts to mould behavior that has
socially deleterious consequences. Its imposition is required by
public policy to suppress the wanton acts of an offender.
Appellant's unprovoked aggression snuffed the life of M M ,
a girl in the prime of her youth who as well as her companions
was gunned down by appellant in cold-blood. Appellant's
vicious criminality led to the suffering of his victims and their
families. Considering the soaring crime rate, the imposition
of exemplary damages to deter others from taking the lives
of people without any sense of sin is proper. Moreover, since
the killing was attended by treachery and pursuant to Article
2229 an award of P2 Million as exemplary damages is proper.
(People vs. Teehankee, Jr.)
Is relationship an aggravating circumstance that justifies the grant

of exemplary damages?
Even for the purpose of awarding exemplary damages,

there was "lingering doubt" whether the alternative circum-
stance of relationship should be considered an aggravating
circumstance to justify such an award. Catubig settled the
"lingering doubt." T h e attendance of aggravating circumstanc-
es serves to increase the penalty (the criminal liability aspect),
as w e l l as to justify an award of exemplary or corrective dam-
ages (the civil liability aspect), moored on the greater perver-
sity of the offender manifested in the commission of the felony
such as may be shown by (1) the motivating power itself, (2) the
place of commission, (3) the means and ways employed, (4) the
time, or (5) the personal circumstances of the offender or the
offended party or both. There are various types of aggravating
circumstances, among them, the ordinary and the qualifying.
As a rule, relationship is held to be aggravating in crimes
against chastity, such as rape and acts of lasciviousness,
whether the offender is a higher or a lower degree relative of
the offended party.
Somehow doubts linger on whether relationship may then
be considered to warrant an award for exemplary damages
where it is used to qualify rape as a heinous crime, thereby
becoming an element thereof, as would subject the offender
to the maximum penalty. Heretofore, there has been no
369
categorical specific rule thereon, the issue treated on a case to

case basis.
Fundano, Ramos, Medina, Dimapilis, Calayca, Tabion,
Bayona, Bayya, and Nunez, almost invariably appreciated
relationship as an ordinary aggravating circumstance in
simple rape and thereby imposed exemplary damages upon the
offender whether or not the offense has been committed prior
to or after the effectivity of R . A . 7659. Exceptionally, Decena,
Perez, and Ambray denied the award of exemplary damages
following the effectivity of that law. In qualified rape cases,
Magdato, Arizapa, and Alicante, allowed exemplary damages
to the offended party but it did not so do as in Alba, Mengote,
and Maglente.
Orilla abandoned the pro hac vice stance and provided a
kind of standard on the matter.
Also known as punitive or vindictive damages, exemplary
or corrective damages are intended to serve as a deterrent to
serious wrongdoings and as a vindication of undue sufferings
and wanton invasion of the rights of an injured or a punishment
for those guilty of outrageous conduct. These terms are generally,
but not always, used interchangeably.
In common law, there is preference in the use of exemplary
damages when the award is to account for injury to feelings and
for the sense of indignity and humiliation suffered by a person
as a result of an injury that has been maliciously and wantonly
inflicted, the theory being that there should be compensation
for the hurt caused by the highly reprehensible conduct of the
defendant — associated with such circumstances as willfulness,
wantonness, malice, gross negligence or recklessness, oppres-
sion, insult or fraud or gross fraud — that intensifies the injury.
The terms punitive or vindictive damages are often used to
refer to those species of damages that may be awarded against a
person to punish him for his outrageous conduct. In either case,
these damages are intended in good measure to deter similar
conduct in the future.
The term "aggravating circumstances" used by the Civil

Code, the law not having specified otherwise, is to be understood
in its broad or generic sense. T h e commission of an offense has
a two-pronged effect, one on the public as it breaches the social
370
order and the other upon the private victim as it causes personal
sufferings, each of which is addressed by, respectively, the
prescription of heavier punishment for the accused and by an
award of additional damages to the victim. The increase of the
penalty or a shift to a graver felony underscores the exacerbation
of the offense by the attendance of aggravating circumstances,
whether ordinary or qualifying, in its commission. Unlike the
criminal liability, which is basically a State concern, the award
of damages, however, is likewise, if not primarily, intended for
the offended party who suffers thereby. It would make little
sense for an award of exemplary damages to be due the private
offended party when the aggravating circumstance is ordinary
but to be withheld when it is qualifying. Withal, the ordinary or
qualifying nature of an aggravating circumstance is a distinction
that should only be of consequence to the criminal, rather than
to the civil, liability of the offender.
In fine, relative to the civil aspect of the case, an aggra-
vating circumstance, whether ordinary or qualifying, should
entitle the offended party to an award of exemplary damages
within the unbridled meaning of Article 2230.
In Catubig, the alternative circumstance of relationship
serves as basis for an award of exemplary damages because
the term "aggravating circumstances" must be understood
in its broad or generic sense. However, this interpretation
is only applicable to the civil aspect, not the criminal aspect
of rape, which involves the imposition of the proper penalty.
W h e n the penalty to be imposed on the accused is teetering
between reclusion perpetua and death, the term "aggravating
circumstance" in Article 63 must be understood in the strictest
sense. T h e "aggravating circumstance" that would spell the
difference between life and death for the accused must be that
specifically listed in Article 14. Of course, the death penalty has
been outlawed.)
Relationship in this case serves to justify the award of
exemplary damages of P25,000 plus P50.000 moral damages
and P50.000 civil indemnity. Case law requires the automatic
award of moral damages to a rape victim without need of proof
because from the nature of the crime it can be assumed that
she has suffered moral injuries entitling her to such award.
Such award is separate and distinct from civil indemnity,
371
which case law also automatically awards upon proof of the

commission of the crime. (People v. Orilla)
What is the effect of the Revised Rules on Criminal Procedure on

exemplary damages?
Dalisay, G.R. N o . 188106, November 25, 2009 clarified
the basis for and the amount of the exemplary damages
Article 2229 provides that exemplary or corrective damages
are imposed, by way of example or correction for the public
good, in addition to the moral, temperate, liquidated or
compensatory damages. Article 2230 states that in criminal
offenses, exemplary damages as a part of the civil liability may
be imposed when the crime was committed with one or more
aggravating circumstances. Such damages are separate and
distinct from fines and shall be paid to the offended party.
Prior to the effectivity of the R R C P , courts generally
awarded exemplary damages in criminal cases when an
aggravating circumstance, whether ordinary or qualifying,
had been proven to have attended the commission of the crime,
even if the same was not alleged in the information. This is in
accordance with Article 2230. However, with the promulgation
of the Revised Rules, courts no longer consider the aggravating
circumstances not alleged although proved in the determination
of the penalty and in the award of damages.
Nevertheless, Catubig laid down the principle that courts
may still award exemplary damages based on Article 2230,
even if the aggravating circumstance has not been alleged, so
long as it has been proven, in criminal cases instituted before
the effectivity of the Revised Rules which remained pending
thereafter. Catubig reasoned that the retroactive application of
the Revised Rules should not adversely affect the vested rights
of the private offended party.
Nevertheless, by focusing only on Article 2230 as the

legal basis for the grant of exemplary damages—taking into
account simply the attendance of an aggravating circumstance
in the commission of a crime, courts have lost sight of the very
reason why exemplary damages are awarded. Also known as
"punitive" or "vindictive" damages, exemplary or corrective
damages are intended to serve as a deterrent to serious wrong
372
doings, and as a vindication of undue sufferings and wanton

invasion of the rights of an injured or a punishment for those
guilty of outrageous conduct.
Being corrective in nature, exemplary damages, therefore,
can be awarded, not only in the presence of an aggravating
circumstance, but also where the circumstances of the case
show the highly reprehensible or outrageous conduct of the
offender. In much the same w a y as Article 2230 prescribes
an instance when exemplary damages may be awarded,
Article 2229, the main provision, lays down the very basis of
the award. Thus, Matrimonio imposed exemplary damages
to deter other fathers with perverse tendencies or aberrant
sexual behavior from sexually abusing their own daughters.
A l s o , Cristobal awarded exemplary damages on account of the
moral corruption, perversity and wickedness of the accused
in sexually assaulting a pregnant married woman. Recently,
Canada awarded exemplary damages to set a public example,
to serve as deterrent to elders who abuse and corrupt the
youth, and to protect the latter from sexual abuse. The Court
used as basis Article 2229, rather than Article 2230, to justify
the award of exemplary damages.
• What are the civil liabilities in rape?
In rape, civil indemnity to the offended woman for the

wrong done to her is separate and distinct from the award of
moral damages. T h e indemnity provided in criminal law as civil
liability, is the equivalent of actual or compensatory damages
in civil law, and is distinct from moral damages. As currently
fixed, the indemnity for rape is P50,000 but if qualified by any
of the circumstances which would justify the imposition of the
[death] penalty, the indemnity shall be not less than P75,000.
T h e offended party in the crime of rape is entitled to moral
damages in the amount of at least P50,000. Where multiple
rapes were committed, as where the victim suffered four rapes
by four men, the victim should be awarded no less than the
amount of P200.000 [4 x P50.000] as moral damages. (People v.
Malapo, G.R. No. 123115, August 25, 1988)
• Can moral damages be increased if the victim dies, but the

information charges forcible abduction with rape?
373
In spite of the death of the victim in this case, the heirs

cannot get the higher amount of P100.000, the civil indemnity
awarded in rape with homicide. The information in the case is
for forcible abduction with rape, not for rape with homicide.
Moral damages in the amount of P50,000 should also be
granted to the heirs of the victim. T h e award of moral damages
may be made to the heirs in a criminal proceeding without the
need for pleading or proof of the basis thereof. The fact that they
suffered the trauma of mental or physical and psychological
sufferings which constitute the basis for moral damages are too
obvious to still require recital thereof at trial. Here, the mother
testified as to the inconsolable loss that she felt when her only
daughter was abducted, ravished and killed. (People v. Magat,
332 SCRA 517)
• What is the civil liability of a person convicted of the crime of rape

when an offspring results from the rape?
Article 345 provides that persons guilty of rape, seduction

or abduction shall be sentenced to:
(a) indemnify the offended woman;
(b) acknowledge the offspring, unless the l a w should
prevent him from doing so; and
(c) in every case to support the offspring.
Under Article 283, the father is obliged to recognize the
child as his natural child in cases of rape, abduction, and
seduction when the period of the offense coincides, more or less,
with the period of conception. It has been held, however, that
acknowledgment is disallowed if the offender is a married man,
with only support for the offspring as part of the sentence.
Article 176 of the Family Code confers parental authority
over illegitimate children on the mother and likewise provides
for their entitlement to support in conformity therewith.
As such there is no more need for the prohibition against
acknowledgment of the offspring of the offender who is a
married man, which would vest parental authority in him.
Therefore, under Article 345, a married offender in a rape case
can only be sentenced to indemnify the victim and support the
offspring, if there be any. In the instant case then, the accused
should also be ordered to support his illegitimate offspring but
374
W H A T CIVIL LIABILITY I N C L U D E S
in the light of Article 201 of the Family Code, the amount and
terms thereof are to be determined by the trial court only after
due notice and hearing. (People v. Bayani, G.R. No. 120894
October 3, 1996)
T h e award of civil indemnity is mandatory upon the find-
ing of the fact of rape (People v. de Leon, December 1999) and
in statutory rape (People v. Narido, October 1999). It should be
awarded, without need of further evidence, except the convic-
tion of the accused. (People v. Santiago, December 1999)
• When is compulsory acknowledgment of the offspring of rape

proper?
Compulsory acknowledgment, as well as the support of
the child is indeed proper there being no legal impediment in
doing so, as it appears that complainant and appellant are both
single. T h e crime of rape committed by the accused carries with
it, among others, the obligations to acknowledge the offspring
if the character of its origin does not prevent it and to support
the same. (People v. Namayan, July 1995)
A r t . 108. Obligation to make restoration, reparation for dam-

ages, or indemnification for consequential damages and action to
demand the same — Upon whom it devolves. — T h e obligation to
m a k e r e s t o r a t i o n o r r e p a r a t i o n for d a m a g e s a n d indemnifi-
cation for c o n s e q u e n t i a l d a m a g e s devolves u p o n the heirs of
the p e r s o n liable.
T h e action t o d e m a n d restoration, r e p a r a t i o n a n d
indemnification l i k e w i s e descends to the heirs of the person
injured.
A r t . 109. Share of each person civilly liable. — If there are
t w o or m o r e p e r s o n s civilly liable for a felony, the courts
shall d e t e r m i n e the a m o u n t for w h i c h each must respond.
A r t . 110. Several and subsidiary liability of principals,
accomplices, and accessories of a felony — Preference inpayment. —
N o t w i t h s t a n d i n g the provisions of the next preceding article,
the principals, accomplices, a n d accessories, each within
their respective class, shall be liable severally (in solidum)
a m o n g themselves for their quotas, a n d subsidiarily for
those of the other persons liable.
375
The subsidiary liability shall be enforced, first against

the p r o p e r t y of the principals; next, against that of the
accomplices; a n d lastly, against that of the accessories.
W h e n e v e r the liability in solidum or the s u b s i d i a r y
liability has b e e n e n f o r c e d , the p e r s o n b y w h o m p a y m e n t
has b e e n m a d e shall h a v e a r i g h t of a c t i o n a g a i n s t the
others for the a m o u n t of t h e i r r e s p e c t i v e s h a r e s .
• What is the nature of the civil liability of co-conspirators?

When conspiracy among the accused was clearly
established, each of the conspirators is liable for the criminal
act of the others. The appellants should each suffer a three-
fold penalty of reclusion perpetua, as well as be held solidarily
liable for the civil indemnity which, by reason of the added
repugnance of the bestial act being committed on a pregnant
woman in the presence of her husband, is increased to P50,000
for each rape committed on her. (People v. Reyes, July 1995)
A r t . 111. Obligation to make restitution in a certain case.

— A n y p e r s o n w h o has p a r t i c i p a t e d g r a t u i t o u s l y in the
proceeds of a felony shall be b o u n d to m a k e restitution in an
a m o u n t e q u i v a l e n t to the extent of such p a r t i c i p a t i o n .
376
Chapter Three
EXTINCTION A N D SURVIVAL OF CIVIL
LIABILITY
A r t . 112. Extinction of civil liability. — Civil liability

e s t a b l i s h e d in A r t i c l e s 100, 101, 102, a n d 103 of this C o d e
shall b e e x t i n g u i s h e d i n the s a m e m a n n e r as obligations, i n
a c c o r d a n c e w i t h the p r o v i s i o n s o f the Civil L a w .
A r t . 113. Obligation to satisfy civil liability. — E x c e p t in

case of extinction of his civil liability as p r o v i d e d in the next
p r e c e d i n g article the o f f e n d e r shall continue to be o b l i g e d to
satisfy the civil liability r e s u l t i n g f r o m the crime committed
by h i m , n o t w i t h s t a n d i n g the fact that he has not b e e n
r e q u i r e d t o s e r v e the s a m e b y r e a s o n o f amnesty, p a r d o n ,
c o m m u t a t i o n o f sentence o r a n y other reason.
• What should be the effect of a decision in a criminal prosecution

on the criminal and civil liability of the accused?
As a rule, a criminal prosecution includes a civil action

for the recovery of indemnity. Hence, a decision in such case
disposes of both the criminal as well as the civil liabilities of an
accused.
In one case, the trial court promulgated only the civil
aspect of the case, but not the criminal, thus, the promulgation
of the decision was not merely incomplete; it was also void. In
excess of its jurisdiction, the trial judge rendered a substantially
incomplete promulgation on April 4, 1995, and he repeated
his mistake in his A p r i l 12, 1996 Order. Thus, grave abuse of
discretion rendered the aforementioned act of the trial court
void. Since the criminal cases have not yet been terminated,
the first jeopardy has not yet attached. Hence, double jeopardy
cannot prosper as a defense. (Cuison v. Court of Appeals, G.R.
No. 128540, April 15, 1998)
377
Is a court-approved compromise agreement as to the civil

liability entered into by the culprit's lawyer without his express
authorization valid?
Without a special power of attorney, the counsel for the
accused cannot bind nor compromise his client's civil liability.
Both Article1878 of the Civil Code and Section 23 of Rule 138
o the Rules of Court require a special authority from the client
for an attorney to validly compromise his client's liability. That
the trial court approved the compromise did not legalize it and
should not be given force and effect for being violative of law
and jurisprudence. (People v. Carpo, April 2001)
BOOK TWO
Crimes and Penalties

380
TITLE ONE
CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
Chapter One
CRIMES A G A I N S T N A T I O N A L SECURITY
What are the crimes comprising Title I of Book II?

a. Treason (114);
b. Conspiracy and proposal to commit treason (115);
c. Misprision of treason (116);
d. Espionage (117);
e. Inciting to war and giving motives for reprisal (118);
f. Violation of neutrality (119);
g- Correspondence with hostile country (120);
h. Flight to enemy country (121);
i. Piracy and mutiny (122); and
J- Qualified piracy (123)
• Is rebellion a crime against national security?

N o . Rebellion is included in crimes against public order.
As such, it is not among the exceptions to the territoriality rule
under Article 2 (5) which covers crime under this Title. Hence,
rebellion planned and carried out outside of the Philippines is
not within this jurisdiction.
Section O n e . — Treason and Espionage

A r t . 114. Treason. — A n y Filipino citizen w h o levies w a r
against the P h i l i p p i n e s or a d h e r e s to her enemies, giving
t h e m aid or comfort w i t h i n the Philippines or elsewhere,
381
shall be punished by reclusion perpetua to death a n d shall

pay a fine not to exceed 100,000 pesos.
No person shall be convicted of treason unless on the
testimony of t w o witnesses at least to the same overt act or
on confession of the accused in o p e n court.
L i k e w i s e , an alien, r e s i d i n g in the P h i l i p p i n e s , w h o
commits acts of treason as defined in p a r a g r a p h 1 of this
Article shall be p u n i s h e d by reclusion temporal to d e a t h a n d
shall p a y a fine not to exceed 100,000 pesos. (As amended by
Sec. 2, R.A. No. 7659.)
• Who can be liable for the crime of treason?

Both citizens and aliens can be liable for treason; for
citizens, as they owe permanent allegiance to the Philippines
as such. For aliens, because for their presence here, they owe
temporary allegiance to this country which is bound to extend
to them the same protection accorded its citizens.
• What kind of allegiance do citizens and aliens owe this country?
A citizen or subject owes, not a qualified or temporary,

but an absolute and permanent allegiance, which consists in
the obligation of fidelity and obedience to his government or
sovereign; and that this absolute and permanent allegiance
should not be confused with the qualified and temporary
allegiance which a foreigner owes to the government or
sovereign of the territory wherein he resides, so long as he
remains there, in return for the protection he receives and
which consists in the obedience to the laws of the government
or sovereign. (Laurel v. Misa, January 1947)
• What is allegiance?
Allegiance is the obligation for fidelity and obedience

which the individual owes to his government or to his sovereign
in return for the protection which he receives, (id.)
• What is the two-witness rule?
No person shall be convicted of treason unless on the

testimony of two witnesses to the same overt act. If the overt
382
C R I M E S A G A I N S T NATIONAL SECURITY
act is separable, two witnesses must also testify to each part of

the overt act for conviction. (People v. Adriano, 44 O.G • People
v. Abad, 78 Phil.)
T h e accused may also be convicted upon his confession in

open court.
• When can the crime of treason be committed?
A l l crimes against national security such as treason can

only be committed in times of war except the following:
1. Espionage;
2. Inciting to w a r or giving motives for reprisal;
3. Violation of neutrality; and
4. M u t i n y and piracy.
• What are acts of treason?
"Acts of treason" include levying war against the Philip-

pines or adhering to her enemies, giving them aid or comfort
within the Philippines or elsewhere, (id.)
• W h o are the enemies of State?
T h e word "enemy" in Article 114 should refer to a foreign

country (U.S. v. Lagnayon, 3 Phil 478), because this Article
treats of circumstance of war. It cannot refer to rebels who are
covered under Article 135.
A r t . 115. Conspiracy and proposal to commit treason—Penalty.

— T h e c o n s p i r a c y or p r o p o s a l to commit the crime of treason
shall be p u n i s h e d respectively, by prision mayor a n d a fine
not e x c e e d i n g 10,000 pesos, a n d by prision correccionaland a
fine not e x c e e d i n g 5,000 pesos.
A r t . 116. Misprision of treason. — E v e r y person o w i n g
allegiance to the G o v e r n m e n t of the P h i l i p p i n e Islands,
w i t h o u t b e i n g a foreigner, a n d h a v i n g k n o w l e d g e of any
conspiracy against them, w h o conceals or does not disclose
a n d m a k e k n o w n the same, as soon as possible to the governor
or fiscal of the province, or the m a y o r or fiscal of the city in
w h i c h he resides, as the case m a y b e , shall be punished as an
accessory to the crime of treason.
383
• What kind of conspiracy is treated in Article 115?

Article 115 treats of conspiracy as a crime by itself. The
acts are not yet carried out. When the treasonous acts are
executed, the conspiracy becomes a means to commit treason
and shall be penalized as treason under Article 114.
• Where are crimes against the law of nations triable?

Crimes against the law of nations may be punished
anywhere because they are considered crimes against the
family of nations, such as piracy (Hosteshumani generis). Those
against national security may be punished only in the country
whose national security was offended.
• What is misprision of treason?

It is the failure of a citizen to report as soon as possible
a conspiracy, which comes to his knowledge, against the
government. But there must be a war in which the Philippines
is involved. T h e offender shall be "punished as an accessory to
the crime of treason."
A r t . 117. Espionage. — T h e p e n a l t y of prision correccio-

nal shall be inflicted u p o n a n y p e r s o n w h o :
1. W i t h o u t a u t h o r i t y t h e r e f o r , enters a w a r s h i p , fort,
or naval or military establishment or reservation
to obtain any information, plans, photographs, or
other d a t a of a confidential n a t u r e r e l a t i v e to the
defense o f the P h i l i p p i n e A r c h i p e l a g o ; o r
2. B e i n g in possession, by r e a s o n of the p u b l i c office he

holds, of the articles, d a t a , or i n f o r m a t i o n r e f e r r e d
to in the p r e c e d i n g p a r a g r a p h s , discloses their
contents to a r e p r e s e n t a t i v e of a f o r e i g n nation.
T h e penalty next h i g h e r i n d e g r e e shall b e i m p o s e d i f

the offender be a p u b l i c officer or e m p l o y e e .
Section T w o . — Provoking war and disloyalty

in case of war
A r t . 118. Inciting to war or giving motives for reprisals. — T h e
penalty of reclusion temporal shall be i m p o s e d u p o n a n y
384
p u b l i c officer or e m p l o y e e , a n d that of prision mayor u p o n

any private individual, w h o , by unlawful or unauthorized
acts, p r o v o k e s or gives occasion for a w a r i n v o l v i n g or liable
to i n v o l v e the P h i l i p p i n e I s l a n d s or exposes Filipino citizens
to reprisals on their persons or property.
A r t . 119. Violation of neutrality. — T h e penalty of prision

correccional shall be inflicted u p o n a n y o n e w h o , on the
occasion of a w a r in w h i c h the G o v e r n m e n t is not involved,
violates a n y r e g u l a t i o n issued b y competent authority for
the p u r p o s e of e n f o r c i n g neutrality.
A r t . 120. Correspondence with hostile country. — A n y person,

w h o i n time o f w a r , shall h a v e c o r r e s p o n d e n c e w i t h a n
e n e m y c o u n t r y o r t e r r i t o r y o c c u p i e d b y e n e m y troops shall
be punished:
1. By prision correccional, if the c o r r e s p o n d e n c e has

b e e n p r o h i b i t e d b y the G o v e r n m e n t ;
2. By prision mayor, if such c o r r e s p o n d e n c e be c a r r i e d

on in c i p h e r s or conventional signs; a n d
3. By reclusion temporal, if notice or information be

g i v e n t h e r e b y w h i c h m i g h t be useful to the enemy.
If the o f f e n d e r intended to aid the enemy by g i v i n g
such notice or information, he shall suffer the
penalty of reclusion temporal to death.
A r t . 121. Flight to enemy's country. — T h e penalty of

a r r e s t o m a y o r shall b e inflicted u p o n a n y p e r s o n w h o , o w i n g
allegiance to the G o v e r n m e n t , attempts to flee or go to an
enemy c o u n t r y w h e n p r o h i b i t e d b y competent authority.
This provisions should be reconciled with the policy on renun-

ciation of war under the Incorporation Clause in Section 2, Article
II of the 1987 Constitution that, "The Philippines renounces war as
an instrument of national policy, adopts the generally accepted prin-
ciples of international law as part of the law of the land, and adheres
to the policy of peace, equality, justice, freedom, cooperation and
amity with all nations." However, what is renounced is only the dec-
laration of war, for Congress is empowered in Section 23, Article V I I
to declare the existence of a state of war. Nonetheless, the outlawing
of war itself is a United Nations declaration and thus is a generally
385
accepted principle of international law which is incorporated in our

Constitution.
Section T h r e e . — Piracy and mutiny on the high seas or in

Philippine Waters
A r t . 122. Piracy in general and mutiny on the high seas or in
Philippine waters. — T h e penalty of reclusion perpetua shall
be inflicted u p o n any p e r s o n w h o , on the h i g h seas or in
P h i l i p p i n e w a t e r s shall attack or seize a vessel or, not b e i n g
a m e m b e r of its complement n o r a p a s s e n g e r , shall seize the
w h o l e or p a r t of the c a r g o of said vessel, its e q u i p m e n t , or
personal b e l o n g i n g s of its c o m p l e m e n t or p a s s e n g e r s .
The same penalty shall be inflicted in case of m u t i n y on

the high seas or in P h i l i p p i n e w a t e r s . (As amended by Sec. 3,
R.A. No. 7659.)
• Distinguish piracy and mutiny.
1. In piracy, the offenders are neither members of the

complement of the vessel nor passengers. In mutiny, they
are the members of the complement of the vessel.
2. T h e essence of piracy is robbery and consists of the sei-
zure of the vessel or cargo or personal belongings of the
passengers. In mutiny, the members of the complement
raise commotion to protest or go against the lawful com-
mand of the captain employing violence and endangering
the safety of passengers. A n y gain derived by the offend-
ers is merely incidental.
P R E S I D E N T I A L D E C R E E N O . 532
ANTI-PIRACY A N D ANTI-HIGHWAY ROBBERY
L A W O F 1974
xxx XXX xxx
Sec. 2. Definition of Terms. — T h e f o l l o w i n g shall m e a n

a n d be u n d e r s t o o d , as follows:
a. Philippine Waters. — It shall r e f e r to all b o d i e s of

w a t e r , such as b u t not limited to seas, gulfs, b a y s
a r o u n d , b e t w e e n a n d c o n n e c t i n g e a c h o f the
386
I s l a n d s o f the P h i l i p p i n e A r c h i p e l a g o , irrespective
of its d e p t h , b r e a d t h , l e n g t h or dimension, a n d
all o t h e r w a t e r s b e l o n g i n g to the P h i l i p p i n e s by
historic or l e g a l title, i n c l u d i n g territorial sea, the
s e a - b e d , the i n s u l a r shelves, a n d other s u b m a r i n e
a r e a s o v e r w h i c h the P h i l i p p i n e s h a v e sovereignty
or jurisdiction.
b. Vessel. — A n y vessel or w a t e r c r a f t u s e d for t r a n s p o r t

o f p a s s e n g e r s a n d c a r g o f r o m one p l a c e t o another
t h r o u g h P h i l i p p i n e W a t e r s . I t shall include all
k i n d s a n d types o f vessels o r boats u s e d i n f i s h i n g .
xxx xxx xxx
d. Piracy. — A n y attack u p o n or seizure of a n y vessel,

o r the t a k i n g a w a y o f the w h o l e o r p a r t t h e r e o f o r
its c a r g o , e q u i p m e n t , or the p e r s o n a l b e l o n g i n g s
of its c o m p l e m e n t or p a s s e n g e r s , irrespective of
the v a l u e thereof, by m e a n s of violence against
or i n t i m i d a t i o n of p e r s o n s or force u p o n things,
committed by a n y p e r s o n , i n c l u d i n g a p a s s e n g e r
or m e m b e r of the c o m p l e m e n t of said vessel, in
P h i l i p p i n e w a t e r s , shall b e c o n s i d e r e d a s piracy.
T h e offenders shall b e c o n s i d e r e d a s pirates a n d
punished as hereinafter provided.
xxx xxx xxx
Sec. 3. Penalties. — A n y p e r s o n w h o commits p i r a c y or

h i g h w a y r o b b e r y / b r i g a n d a g e a s h e r e i n defined, shall, u p o n
conviction by competent court be p u n i s h e d by:
a. Piracy. — T h e penalty of reclusion temporal in its

m e d i u m a n d m a x i m u m periods shall b e imposed.
If physical injuries or other crimes a r e committed
as a result or on the occasion thereof, the penalty
of reclusion perpetua shall be imposed. If r a p e ,
m u r d e r or homicide is committed as a result or
on the occasion of piracy, or w h e n the offenders
a b a n d o n e d the victims without means of saving
themselves, on w h e n the seizure is accomplished
by firing u p o n or b o a r d i n g a vessel, the mandatory
penalty of death shall be imposed.
387
xxx xxx xxx

Sec. 4. Aiding pirates or highway robbers / brigands or abetting
piracy or highway robbery/brigandage. — A n y p e r s o n w h o
k n o w i n g l y a n d in any m a n n e r aids or protects pirates or
h i g h w a y r o b b e r s / b r i g a n d s , such as g i v i n g t h e m information
about the movement of police or other peace officers of the
government, or a c q u i r e s or receives p r o p e r t y t a k e n by such
pirates or b r i g a n d s or in any m a n n e r d e r i v e s a n y benefit
therefrom; or any p e r s o n w h o directly or indirectly abets
the commission o f p i r a c y o r h i g h w a y r o b b e r y o r b r i g a n d a g e ,
shall be considered as an accomplice of the p r i n c i p a l
offenders a n d be p u n i s h e d in a c c o r d a n c e w i t h the R u l e s
p r e s c r i b e d b y the R e v i s e d P e n a l C o d e .
I t shall b e p r e s u m e d that a n y p e r s o n w h o does a n y o f the
acts p r o v i d e d in this Section has p e r f o r m e d t h e m k n o w i n g l y ,
unless the c o n t r a r y is p r o v e n .
xxx xxx xxx
• Compare piracy in the Revised Penal Code and in P.D. 532.
In P . D . 532, the culprits include the crew members or

passengers and the concept of vessel in Section 2[b] "shall
include all kinds and types of vessels or boats used in fishing''
such as banca or raft. Hence, when robbery is committed in
a banca or raft in Philippine waters, it is piracy. T h e situs is
Philippine waters; abbettors are penalized as accomplices.
In the R P C , the pirates are not crew members or

passengers; they are "outsiders." T h e situs includes the high
seas and Philippine waters. Abettors are accessories, unless
charged as fence in which case they are principal for fencing,
the essence of piracy being robbery.
Upon its amendment by R . A . 7659 on January 1, 1994,

the coverage of Article 122 was widened to include offenses
committed "in Philippine waters." On the other hand, under
P . D . 532 (issued in 1974), the coverage of the law embraces any
person including "a passenger or member of the complement
of said vessel in Philippine waters." Hence, passenger or not,
a member of the complement or not, any person is covered by
P . D . 532. (People v. Tulin, G.R. No. 111709, August 30, 2001)
388
Did R.A. 7659 obliterate the crime of piracy under P.D. 532?
No. R.A. 7659 neither superseded nor amended the

provisions on piracy under P.D. 532. There is no contradiction
between the two laws. There is likewise no ambiguity and
hence, there is no need to construe or interpret the law. All
the P . D . did was to widen the coverage of the law, in keeping
with the intent to protect the citizenry as well as neighboring
states from crimes against the law of nations. As expressed in
one of the "whereas" clauses of P.D. 532, piracy is "among the
highest forms of lawlessness condemned by the penal statutes
of all countries." For this reason, piracy under Article 122, as
amended and piracy under P.D. 532 exist harmoniously as
separate laws, (id.)
If piracy was committed outside the Philippine waters, will the

Philippine courts have jurisdiction over the offense?
Yes, for piracy falls under Title I of Book 2. As such, it is an

exception to the rule on territoriality in criminal law. The same
principle applies even if the offenders were charged, not with a
violation of qualified piracy under the RPC but under P.D. 532
which penalizes piracy in Philippine waters. Verily, P.D. 532
should be applied with more force since its purpose is precisely
to discourage and prevent piracy in Philippine waters. (People
v. Catantan, 278 SCRA 761) Regardless of the law penalizing
the same, piracy is a reprehensible crime against the whole
world (hosteshumani generis). (People v. Lol-lo, 43 Phil. 19)
Thus, as regards the contention that the trial court did
not acquire jurisdiction over the person of H H since the crime
was committed outside Philippine waters, unquestionably,
the attack on and seizure of "M/T Tabangao" (renamed
"M/T Galilee" by the pirates) and its cargo were committed
in Philippine waters, although the captive vessel was later
brought by the pirates to Singapore where its cargo was off-
loaded, transferred, and sold. And such transfer was done under
HH's direct supervision. Although P.D. 532 requires that the
attack and seizure of the vessel and its cargo be committed in
Philippine waters, the disposition by the pirates of the vessel
and its cargo is still deemed part of the act of piracy, hence, the
same need not be committed in Philippine waters. (People v.
Tulin)
389
• Can the accused be convicted as an accomplice in an information

that charges him as a principal?
Yes. If there is lack of evidence of conspiracy, the liability
is that of an accomplice and not as principal (People v. Tolen-
tino, 40 SCRA 514). A n y doubt as to the participation of an
individual in the commission of the crime is always resolved in
favor of lesser responsibility (People v. Corbes, 270 SCRA 465).
Hence, the constitutional right of accused to be informed of the
nature and cause of accusation against him was not violated.
• What is presumption under Section 4, P.D. 532?
Section 4 presumes that any person who does any of the

acts provided in said section has performed them knowingly,
unless the contrary is proved. In the case at bar, HH failed
to overcome the legal presumption that he knowingly abetted
or aided in the commission of piracy, received property taken
by such pirates and derived benefit therefrom. T h e record
discloses that he aided the pirates in disposing of the stolen
cargo by personally directing its transfer from " M / T Galilee" to
"M/T N a v i Pride." He profited therefrom by buying the hijacked
cargo for N a v i M a r i n e Services, Pty., L t d . (id.)
Art. 123. Qualified piracy. — T h e p e n a l t y of reclusion

perpetua to d e a t h shall be i m p o s e d u p o n those w h o commit
any of the crimes r e f e r r e d to in the p r e c e d i n g article, u n d e r
any of the f o l l o w i n g circumstances:
1. W h e n e v e r they h a v e seized a vessel by b o a r d i n g or

f i r i n g u p o n the same;
2. W h e n e v e r the p i r a t e s h a v e a b a n d o n e d t h e i r victims
w i t h o u t m e a n s o f s a v i n g themselves; o r
3. W h e n e v e r the c r i m e is a c c o m p a n i e d by m u r d e r ,
homicide, physical i n j u r i e s , or r a p e . (As amended
by Sec. 3, R.A. No. 7659.)
• What is qualified piracy (Article 123)?
Qualified piracy is committed under any of the following

circumstances:
1. Offenders seized the vessel by boarding or firing

upon the same
2. T h e y abandoned the victims without means of

saving themselves
3. T h e crime is accompanied by murder, homicide,

physical injuries or rape
and carries the penalty of reclusion perpetua to death. R . A .

9346 deleted the death penalty, hence, Article 123 has become
inoperative as simple piracy carriers reclusion perpetua also.
• Is there qualified mutiny?
Y e s . Article 123 specifies that it covers "any of the crimes

referred to in the preceding article." Thus, it covers not only
qualified piracy but also qualified mutiny. However, the first
circumstance applies only to piracy because in mutiny, the
offenders are "insiders" of the vessel.
T h e second and third circumstances apply both to

mutiny and piracy. T h e murder, homicide, rape, or physical
injuries committed in the third circumstance are not crimes
in themselves, but are qualifying circumstances. T h e crime
is not complex under Article 48 but a special complex crime
or composite crime. W h e n crimes, other than homicide, rape,
murder or physical injuries are committed, such are crimes in
themselves and not qualifying circumstances. Example: piracy
with direct assault.
Anti-Hijacking L a w
S E C T I O N 1. It shall be unlawful for any person to compel

a change in the course or destination of an aircraft of Philippine
registry, or to seize or usurp the control thereof, while it is in flight.
An aircraft is in flight from the moment all its external doors are
closed following embarkation until any of such doors is opened for
disembarkation.
It shall likewise be unlawful for any person to compel an
aircraft of foreign registry to land in Philippine territory or to seize
or usurp the control thereof while it is within the said territory.
391
S E C T I O N 2. A n y person violating any provision of the

foregoing section shall be punished by an imprisonment of not less
than twelve years but not more than twenty years, or by a fine of not
less than twenty thousand pesos but not more than forty thousand
pesos.
The penalty of imprisonment of fifteen years to death, or a fine
of not less than twenty-five thousand pesos but not more than fifty
thousand pesos shall be imposed upon any person committing such
violation under any of the following circumstances:
1. Whenever he has fired upon the pilot, member of the crew
or passenger of the aircraft;
2. Whenever he has exploded or attempted to explode any
bomb or explosive to destroy the aircraft; or
3. Whenever the crime is accompanied by murder, homicide,
serious physical injuries or rape.
S E C T I O N 3. It shall be unlawful for any person, natural or

juridical, to ship, load or carry in any passenger aircraft operating
as a public utility within the Philippines, any explosive, flammable,
corrosive or poisonous substance or material.
S E C T I O N 4. T h e shipping, loading or carrying of any substance

or material mentioned in the preceding section in any cargo
aircraft operating as a public utility within the Philippines shall
be in accordance with regulations issued by the Civil Aeronautics
Administration.
S E C T I O N 5. As used in this A c t —
(1) "Explosive" shall mean any substance, either solid or liq-

uid, mixture or single compound, which by chemical reaction liber-
ates heat and gas at high speed and causes tremendous pressure
resulting in explosion. T h e term shall include but not limited to dy-
namites, firecrackers, blasting caps, black powders, bursters, per-
cussions, cartridges and other explosive materials, except bullets for
firearm.
(2) "Flammable" is any substance or material that is highly

combustible and self-igniting by chemical reaction and shall include
but not limited to acrolein, allene, aluminum dyethylmonochloride,
and other aluminum compounds, ammonium chlorate and other
ammonium mixtures and other similar substances or materials.
392
(3) "Corrosive" is any substance or material, either liquid, solid

or gaseous, which through chemical reaction wears away, impairs
or consumes any object. It shall include but not limited to alkaline
battery fluid packed with empty storage battery, allylchloroformate,
allytrichlorosilane, ammonium dinitro-orthocresolate and other
similar materials and substances.
(4) "Poisonous" is any substance or materials, except

medicinal drug, either liquid, solid or gaseous, which through
chemical reactions kills, injures or impairs a living organism or
person, and shall include but not limited to allylisothiocyanate,
ammunition (chemical, non-explosive but containing Class A, B or
poison), aniline oil, arsine, bromobenzyle cyanide, bromoacetone
and other similar substances or materials.
S E C T I O N 6. A n y violation of Section three hereof shall be

punishable by an imprisonment of at least five years but not more
than ten years or by a fine of not less than ten thousand pesos but
not more than twenty thousand pesos: Provided, That if the violation
is committed by a juridical person, the penalty shall be imposed
upon the manager, representative, director, agent or employee
who violated, or caused, directed, cooperated or participated in
the violation thereof: Provided, further, That in case the violation
is committed in the interest of a foreign corporation legally doing
business in the Philippines, the penalty shall be imposed upon its
resident agent, manager, representative or director responsible for
such violation and in addition thereto, the license of said corporation
to do business in the Philippines shall be revoked.
A n y violation of Section four hereof shall be an offense

punishable with the minimum of the penalty provided in the next
preceding paragraph.
S E C T I O N 7. For any death or injury to persons or damage to

property resulting from a violation of Sections three and four hereof,
the person responsible therefor may be held liable in accordance
with the applicable provisions of the Revised Penal Code.
S E C T I O N 8. Aircraft companies which operate as public
utilities or operators of aircraft which are for hire are authorized
to open and investigate suspicious packages and cargoes in the
presence of the owner or shipper, or his authorized representatives
if present; in order to help the authorities in the enforcement of the
393
provisions of this Act: Provided, That if the owner, shipper or his

representative refuses to have the same opened and inspected, the
airline or air carrier is authorized to refuse the loading thereof.
S E C T I O N 9. Every ticket issued to a passenger by the airline
or air carrier concerned shall contain among others the following
condition printed thereon: "Holder hereof and his hand-carried
luggage(s) are subject to search for, and seizure of, prohibited
materials or substances. Holder refusing to be searched shall not be
allowed to board the aircraft," which shall constitute a part of the
contract between the passenger and the air carrier.
X XX xxx xxx
Approved: June 19, 1971
• What acts are punished under the Anti-Hijacking Law?
1. Compelling the pilot of an aircraft of Philippine registry

to change course or destination or otherwise usurping or
seizing control while it is in flight.
The aircraft is "in flight" when all the exterior doors

thereof are closed following embarkation until opened for
disembarkation (although it has not moved a w a y ) .
2. Compelling an aircraft of foreign registry to land in any

part of Philippine territory or usurping or seizing control
of such, while it is within Philippine territory. (There is
no requirement that it be in flight.)
In usurping control, it is not required that the
aircraft be a public utility.
T h e following are the qualifying circumstances in
nos. (1) and (2):
a) Firing upon the pilot, crew, or passenger;
b) Exploding or attempting to explode any bomb
or explosive to destroy the aircraft; or
c) T h e crime is accompanied by murder, homicide,
serious physical injuries, or rape.
3. Carrying or loading on board a passenger aircraft oper-
ating as a public utility in the Philippines, substances
which are corrosive, flammable, explosive, or poisonous.
394
Here, mere carrying or loading of explosive, corrosive,

etc. brings about criminal liability, unlike in N o . 4.
4. Shipping or loading such substances on a cargo aircraft

operating as public utility in the Philippines in a manner
not in accordance with the rules and regulations issued
by the A i r Transportation Office ( A T O ) .
W h a t is penalized here is carrying substances listed

in N o . 3 not in accordance with the rules and regulations
prescribed b y the A T O .
What are the four kinds of aircraft and their treatment in the
law?
1. Aircraft of Philippine registry - it must be in flight
2. Aircraft of foreign registry - it need not be in flight
3. Public utility passenger aircraft - mere carrying of

prohibited substance is criminal
4. Public utility cargo aircraft - non-compliance with the
A T O rules and regulations constitutes the criminal act
395
TITLE TWO
C R I M E S A G A I N S T THE FUNDAMENTAL L A W S
OF THE STATE
• Who are the offenders in Title II of Book II?

A l l offenses other than those regarding religion require
that the principal offender is a public officer. T h e civilians are
merely accomplices or accessories.
The crimes covered are:

a. Arbitrary detention (124)
b. Delay in the delivery of detained persons to the
proper judicial authorities (125)
c. Delaying release (126)
d. Expulsion (127)
e. Violation of domicile (128)
f. Search warrants maliciously obtained and abuse in
the service of those legally obtained (129)
g. Searching domicile without witnesses (130)
h. Prohibition, interruption, dissolution of peaceful
meetings (131)
i. Interruption of religious worship (132)
j. Offending the religious feelings (133)
Chapter One
ARBITRARY D E T E N T I O N OR EXPULSION,
VIOLATION OF D W E L L I N G , PROHIBITION,
INTERRUPTION, A N D D I S S O L U T I O N OF
PEACEFUL MEETINGS A N D CRIMES AGAINST
RELIGIOUS W O R S H I P
Section O n e . — Arbitrary Detention and Expulsion
ARBITRARY DETENTION OR EXPULSION
A r t . 124. Arbitrary detention. — A n y p u b l i c officer or

e m p l o y e e w h o , w i t h o u t legal g r o u n d s , detains a p e r s o n , shall
suffer:
1. T h e p e n a l t y of arresto mayor in its m a x i m u m p e r i o d

to prision correccional in its m i n i m u m p e r i o d , if
the detention has not e x c e e d e d three days;
2. T h e p e n a l t y of prision correccional in its m e d i u m

a n d m a x i m u m p e r i o d s , if the detention has con-
t i n u e d m o r e t h a n t h r e e b u t not m o r e t h a n f i f t e e n
days;
3. T h e p e n a l t y of prision mayor, if the detention has

c o n t i n u e d for m o r e t h a n f i f t e e n d a y s b u t not m o r e
t h a n six months; a n d
4. T h a t of reclusion temporal, if the detention shall

h a v e e x c e e d e d six months.
T h e c o m m i s s i o n of a c r i m e , or violent insanity or any

other a i l m e n t r e q u i r i n g the c o m p u l s o r y confinement of the
patient in a hospital, shall be c o n s i d e r e d legal g r o u n d s for
the detention of a n y p e r s o n .
• W h o can commit the crime of arbitrary detention (Article 124)?
Arbitrary detention can be committed by public officers

whose official duties give them the authority to effect arrest
and detain persons such as barangay chairman and police
officers. If committed by other kinds of public officers, the crime
is illegal detention. But a person is deemed a public officer only
when he is acting within the bounds of his official authority or
function. If not, he acts in his private capacity.
T h e accused, being members of the C A F G U at the time

the alleged crime was committed, should not be charged of
kidnapping and serious illegal detention under Article 267 for
the reason that they are not private individuals, but public
officers. They can only be liable for the crime of arbitrary
detention defined in Article 124. It is essential, however, that
there is actual confinement or restriction of the person of the
offended party. There must be uncontroverted proof of both
intent to deprive the victim of his liberty and actual confinement
397
or restriction. The fact that the aggrieved party has not been
seen or heard of since he was last seen with the accused, does
not prove that he has been detained and deprived of his liberty.
(People v. Flores, G.R. No. 116488, May 31, 2001)
• How is arbitrary detention committed?

The detention at the very start is unlawful because there
is no warrant of arrest and there is no lawful cause as provided
in the R R C P on warrantless arrests.
A detention without lawful cause by barangay officials
constitutes arbitrary detention because they are persons in
authority or agents of persons in authority. T h e y are vested
with authority to cause arrests in the maintenance of peace
and order in the barangay.
If the offender falsely imputes a crime against a person

to be able to arrest him and appears not determined to file a
charge against him, the crime is arbitrary detention through
unlawful arrest. (Article 269) If they planted evidence to effect
the arrest, it is arbitrary detention through incriminating
innocent persons. (Article 363)
• Compare arbitrary detention with unlawful arrest.
Arbitrary detention is committed by a public officer

authorized to arrest and detain a person but he does so without
lawful cause. W h i l e unlawful arrest (Article 269) is by either
private individual or public officer who feigned to arrest
a person without any legal cause, the purpose, which is the
essence of unlawful arrest is to bring him to authority and
file a charge. If a charge is filed, the detention is deemed an
incident of the arrest and the filing of charges against him. It
is the arrest that is penalized in Article 269.
A r t . 125. Delay in the delivery of detained persons to the proper

judicial authorities. — T h e penalties p r o v i d e d in the next
p r e c e d i n g article shall b e i m p o s e d u p o n the p u b l i c officer o r
employee w h o shall detain a n y p e r s o n for some l e g a l g r o u n d
a n d shall fail to d e l i v e r such p e r s o n to the p r o p e r j u d i c i a l
authorities w i t h i n the p e r i o d of: t w e l v e (12) h o u r s , for c r i m e s
or offenses p u n i s h a b l e by light penalties, or their e q u i v a l e n t ;
398
eighteen (18) h o u r s , for c r i m e s or offenses p u n i s h a b l e by

c o r r e c t i o n a l penalties, or their e q u i v a l e n t ; a n d thirty-six
(36) h o u r s , for c r i m e s or offenses p u n i s h a b l e by afflictive or
capital penalties, o r their e q u i v a l e n t .
I n e v e r y case, the p e r s o n d e t a i n e d shall b e informed o f

the c a u s e o f his detention a n d shall b e a l l o w e d , u p o n his re-
quest, to c o m m u n i c a t e a n d confer at a n y time w i t h his attor-
n e y or counsel. (As amended by E.O. No. 272, July 25, 1987.)
In both, there is no warrant of arrest but in Article 124

there are no legal ground; while in Article 125 there is a legal
ground as provided by Rule 113(5) of the R R C P . If the cause of
arrest without warrant is not any of such situations, the crime
is arbitrary detention.
A warrantless arrest under the circumstances contem-

plated under Section 5(a), Rule 113 has been denominated as
one "in flagrante delicto," while that under Section 5(b) as a
"hot pursuit" arrest. V a l i d warrantless searches, on the other
hand, are limited to the following: (a) customs searches; (b)
search of moving vehicles; (c) seizure of evidence in plain view;
(d) consent searches; (e) a search incidental to a lawful arrest;
and (f) a "stop and frisk." (Malacat v. CA, G.R. No. 123595, De-
cember 12, 1997)
• How is the arrestee "delivered" as provided in Article 125?
T h e article does not cover arrests pursuant to a warrant

because a warrant is issued when there is already a case
against the person hence, there is no need to deliver him to
the court. "Deliver" means the filing of correct information
with the proper court (or constructive delivery — turning over
the arrestee to the jurisdiction of the court). T h e purpose is
to determine whether the offense is bailable or not. If with
warrant, the arresting officer need only make a return, not file
a charge. T h e return should be made within a reasonable time
after the arrest.
The delivery of a detained person is a legal one and

consists in making a charge or filing a complaint against the
399
prisoner with the proper justice of the peace or judge of Court

of First Instance in provinces, and in filing by the city fiscal
of an information with the corresponding city courts after an
investigation if the evidence against said person warrants.
(Sayo v. Chief of Police, 80 Phil.)
Article 125 applies to persons arrested for violating both
the R P C and special penal laws because of the phrase "or their
equivalent."
• When does the detention become arbitrary?

In Article 125, the detention becomes arbitrary only when
the time required for the delivery of prisoner to the judicial
authority lapses. T h e article contemplates that there was a
legal cause for arresting but without a warrant of arrest. If
the arrest is on the strength of a warrant, Article 125 does not
apply.
The 12-18-36 hours (for offenses punishable with light,

correctional, and capital penalties, respectively) do not run
when the courts are not open to receive the complaint or
information being filed.
• What is the rationale for the provision of Article 125?
To prevent any abuse resulting from confining a person

without informing him of his offense and without permitting
him to go on bail. M o r e specifically, it punishes public officials
or employees who shall detain any person for some legal ground
and shall fail to deliver such person to the proper judicial au-
thorities within the periods prescribed by law. T h e continued
detention of the accused becomes illegal upon the expiration of
the periods provided for by Article 125 without such detainee
having been delivered to the corresponding judicial authori-
ties. (Agbay v. Omb., G.R. No. 134503, July 2, 1999)
• To what do the words "judicial authority" refer?
"Judicial authority" means "the courts of justices or judg-

es of said courts vested with judicial power to order the tempo-
rary detention or confinement of a person charged with having
committed a public offense, that is, 'the Supreme Court and
other such inferior courts as may be established by law."' (id.)
400
• When a municipal trial court judge conducts a preliminary

investigation, is he taken out of the ambit of the "judicial
authority"?
N o . T h e power to order the release or confinement of an

accused is determinative of the issue. In contrast with a city
fiscal, a municipal court judge, even in the performance of his
function to conduct preliminary investigations, retains the
power to issue an order of release or commitment. Furthermore,
upon the filing of the complaint with the Metropolitan Circuit
T r i a l Court ( M C T C ) , the intent behind Article 125 is satisfied
considering that by such act, the detained person is informed
of the crime imputed against him and, upon his application
with the court, he may be released on bail. Petitioner himself
acknowledged this power of the M C T C to order his release
when he applied for and was granted his release upon posting
bail. Thus, the v e r y purpose underlying Article 125 has been
duly served with the filing of the complaint with the M C T C .
Such filing of the complaint with the M C T C interrupted the
period prescribed in said Article.
Section 1. Statement of Policy. — It is the policy of the State

t o v a l u e the d i g n i t y o f e v e r y h u m a n b e i n g a n d g u a r a n t e e full
respect for h u m a n rights.
Sec. 2. Rights of Persons Arrested, Detained, or Under

Custodial Investigation; Duties of Public Officers. — ( a ) A n y person
a r r e s t e d , d e t a i n e d or u n d e r custodial investigation shall at
all times be assisted by counsel.
( b ) A n y p u b l i c officer o r employee, o r anyone acting
u n d e r his o r d e r or in his place, w h o arrests, detains, or
investigates a n y p e r s o n for the commission of an offense shall
i n f o r m the latter, in a l a n g u a g e k n o w n to a n d understood by
him, of his rights to r e m a i n silent a n d to have competent and
i n d e p e n d e n t counsel, p r e f e r a b l y of his o w n choice, w h o shall
at all times be a l l o w e d to confer privately with the person
a r r e s t e d , detained or u n d e r custodial investigation. If such
p e r s o n cannot afford the services of his o w n counsel, he must
be p r o v i d e d w i t h a competent a n d independent counsel by
the investigating officer.
401
(c) T h e custodial investigation r e p o r t shall be r e d u c e d

to w r i t i n g by the investigating officer, p r o v i d e d that b e f o r e
such r e p o r t is signed, or t h u m b m a r k e d if the p e r s o n a r r e s t e d
or detained does not k n o w h o w to r e a d a n d w r i t e , it shall be
read a n d adequately e x p l a i n e d to h i m by his counsel or by
the assisting counsel p r o v i d e d by the investigating officer in
the l a n g u a g e or dialect k n o w n to such a r r e s t e d or d e t a i n e d
person, otherwise, such investigation r e p o r t shall be null
a n d void a n d of no effect w h a t s o e v e r .
( d ) A n y extrajudicial confession m a d e by a p e r s o n
arrested, detained o r u n d e r custodial investigation shall b e
in w r i t i n g a n d signed by such p e r s o n in the p r e s e n c e of his
counsel or in the latter's a b s e n c e , u p o n a v a l i d w a i v e r , a n d
in the presence of a n y of the p a r e n t s , o l d e r b r o t h e r s a n d
sisters, his spouse, the m u n i c i p a l m a y o r , the m u n i c i p a l j u d g e ,
district school s u p e r v i s o r , or priest or minister of the g o s p e l
as chosen by him; o t h e r w i s e , such e x t r a j u d i c i a l confession
shall be inadmissible in e v i d e n c e in a n y p r o c e e d i n g .
(e) A n y waiver by a person arrested or detained under

the provisions of A r t i c l e 125 of the R e v i s e d P e n a l C o d e , or
u n d e r custodial investigation, shall b e i n w r i t i n g a n d s i g n e d
by such p e r s o n in the p r e s e n c e of his counsel; o t h e r w i s e
such w a i v e r shall b e null a n d v o i d a n d o f n o effect.
(f) A n y p e r s o n a r r e s t e d o r d e t a i n e d o r u n d e r c u s t o d i a l
investigation shall b e a l l o w e d visits b y o r c o n f e r e n c e s w i t h
any m e m b e r o f his i m m e d i a t e family, o r a n y m e d i c a l d o c t o r
o r priest o r r e l i g i o u s minister c h o s e n b y h i m o r b y a n y
m e m b e r o f his i m m e d i a t e f a m i l y o r b y his counsel, o r b y a n y
national n o n - g o v e r n m e n t a l o r g a n i z a t i o n d u l y a c c r e d i t e d b y
the Commission o n H u m a n R i g h t s o r b y a n y i n t e r n a t i o n a l
n o n - g o v e r n m e n t a l o r g a n i z a t i o n d u l y a c c r e d i t e d b y the
Office of the P r e s i d e n t . T h e person's "immediate family"
shall include his o r h e r spouse, f i a n c e o r f i a n c e e , p a r e n t o r
child, b r o t h e r o r sister, g r a n d p a r e n t o r g r a n d c h i l d r e n , u n c l e
o r aunt, n e p h e w o r niece, a n d g u a r d i a n o r w a r d .
As u s e d in this A c t , "custodial investigation" shall

include the practice of issuing an "invitation" to a p e r s o n w h o
is investigated in connection w i t h an offense he is s u s p e c t e d
402
to h a v e committed, w i t h o u t p r e j u d i c e to the liability of the

"inviting" officer for a n y violation of l a w .
Sec. 3. Assisting Counsel. — A s s i s t i n g counsel is any

l a w y e r , except those directly affected by the case, those
c h a r g e d w i t h c o n d u c t i n g p r e l i m i n a r y investigation o r those
c h a r g e d w i t h the p r o s e c u t i o n o f crimes.
x XX xxx xxx
In the a b s e n c e of a n y l a w y e r , no custodial investigation

shall be c o n d u c t e d a n d the suspected p e r s o n can only be
d e t a i n e d by the i n v e s t i g a t i n g officer in a c c o r d a n c e with the
p r o v i s i o n of A r t i c l e 125 of the R e v i s e d P e n a l C o d e .
Sec. 4. Penalty Clause. — ( a ) A n y a r r e s t i n g p u b l i c officer

or e m p l o y e e , or a n y i n v e s t i g a t i n g officer, w h o fails to
i n f o r m a n y p e r s o n a r r e s t e d , d e t a i n e d o r u n d e r custodial
investigation of his r i g h t s to r e m a i n silent a n d to have
c o m p e t e n t a n d i n d e p e n d e n t counsel p r e f e r a b l y o f his o w n
choice, shall suffer a fine of six t h o u s a n d pesos (P6,000.00)
or a p e n a l t y of i m p r i s o n m e n t of not less t h a n eight (8) years
b u t not m o r e t h a n ten (10) years, or both. T h e penalty of
p e r p e t u a l a b s o l u t e disqualification shall also be imposed
u p o n the investigating officer w h o has b e e n previously
convicted of a similar offense.
T h e same penalties shall be imposed u p o n a public

officer or e m p l o y e e , or a n y o n e acting u p o n o r d e r s of such
investigating officer or in his place, w h o fails to p r o v i d e a
competent a n d i n d e p e n d e n t counsel to a p e r s o n arrested,
d e t a i n e d or u n d e r custodial investigation for the commission
of an offense if the latter cannot afford the services of his
o w n counsel.
( b ) A n y p e r s o n w h o obstructs, prevents o r prohibits
any l a w y e r , any m e m b e r of the immediate family of a person
arrested, detained or u n d e r custodial investigation, or any
m e d i c a l doctor or priest or religious minister or by his
counsel, f r o m visiting a n d c o n f e r r i n g privately chosen by
h i m or by any m e m b e r of his immediate family with him, or
f r o m e x a m i n i n g a n d treating him, or from ministering to his
spiritual needs, at any h o u r of the day or, in urgent cases, of
the night shall suffer the penalty of imprisonment of not less
403
than four (4) years nor more than six (6) years, a n d a fine of
F o u r thousand pesos (P4,000.00).
The provisions of the a b o v e Section notwithstanding,
any security officer with custodial responsibility o v e r any
detainee o r p r i s o n e r m a y u n d e r t a k e such r e a s o n a b l e mea-
sures as m a y be necessary to secure his safety a n d p r e v e n t
his escape.
• What is custodial investigation?

Custodial investigation involves any questioning initiated
by law enforcement authorities after a person is taken into
custody or otherwise deprived of his freedom of action in
any significant manner. T h e rules on custodial investigation
begin to operate as soon as the investigation ceases to be a
general inquiry into an unsolved crime and begins to focus on a
particular suspect. W h e n the suspect is taken into custody and
the police carry out a process of interrogations that tends itself
to elicit incriminating statements, the rule begins to operate.
R . A . 7438, reinforced the constitutional mandate protect-

ing the rights of persons under custodial investigation, by pro-
viding that: "As used in this Act, 'custodial investigation' shall
include the practice of issuing an invitation to a person who is
being investigated in connection with an offense he is suspect-
ed to have committed, without prejudice to the liability of the
'inviting' officer for any violation of law." (People v. Tan, G.R.
No. 117321, February 11, 1998)
• What is the mandatory duty of arresting officers in R.A. 7438?
R . A . 7438 makes it mandatory for any officer to inform the

arrested of his right to avail of the services of an independent
and competent counsel. (But note the section of R . A . 7438 on
confession without the presence of counsel.)
R . A . 7438 provides the following:
1. A n y public officer who, by himself or through another,
causes the arrest, detention and investigation of any
person should at all times have the latter be assisted
by counsel preferably of his own choice. He shall inform
the person arrested, detained, and investigated that he
has the right: (a) to remain silent; (b) to be assisted by
404
ARBITRARY D E T E N T I O N OR EXPULSION
counsel; and (c) to be provided with counsel if he cannot

afford one.
2. A n y report in custodial investigation of person so
arrested, detained, and investigated must be in writing
and explained to him before he is required to sign thereon.
Otherwise, the report is null and void.
3. If extra-judicial confession is made in the counsel's
absence, it must be signed before his spouse, parents,
older brothers or sisters or his priest. (This provision of
allowing waiver without counsel but in the presence of
relatives is of doubtful validity.)
4. Person arrested, detained and investigated must be
allowed visits with any members of his family, doctors,
priest, and non-government organization ( N G O ) members
duly accredited by the Commission on Human Rights
( C H R ) or international N G O accredited by the Office of
the President.
How are persons under custody of the law variously classified?
1. Subjects — those covered by a general inquiry into an

unsolved crime; respondent = preliminary
investigation, not yet an accused.
2. Suspects — it ceases to be a general inquiry and focuses
on the person as the probable criminal agent. T h e rights
on custodial investigation begins to operate;
3. Accused — preliminary investigation may have been
completed and an information filed in court. The right
against self-incrimination, the right to be informed of the
nature and cause of accusation against him, and similar
rights under the Constitution accrue;
4. Detainee or detention prisoner — one who is in prison

who has yet to be charged or one whose case has not been
terminated or decided;
5. Convict — accused who was found guilty beyond
reasonable doubt.
Is an invitation equivalent to arrest?

Y e s . Application of actual force, manual touching of the
body, physical restraint or a formal declaration of arrest is not
405
required. It is enough that there be an intent on the part of

one of the parties to arrest the other and an intent on the part
of the other to submit, under the belief and impression that
submission is necessary. Where the invitation comes from a
powerful group composed predominantly of ranking military
officers and the designated interrogation site is a military
camp, the same can be easily taken, not as a strictly voluntary
invitation which it purports to be, but as an authoritative com-
mand which he can only defy at his peril. N o t e that under R . A .
7438, the requisites of custodial investigation are applicable
to a person "invited" for questioning. (Sanchez v. Demetriou,
November 1993)
• What are the elements of custodial investigation?

1. A person is detained or deprived of his liberty in a
significant manner;
2. The questioning has ceased to be a general inquiry but
has become inculpatory in nature and indicates that the
detainee is considered as a suspect; and
3. The inquiry is conducted by police officers.
• What is the nature of searches, arrests and seizure from the

Constitutional point of view?
T h e Constitution provides that "the right of the people to

be secured in their persons, houses, papers and effects against
unreasonable search and seizure of whatever nature and for
any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched
and the persons or things to be seized." T h e plain import is
that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or
warrant of arrest. Thus, the fundamental protection given by
this provision is that between person and police must stand
the protective authority of a magistrate clothed with power to
issue or refuse to issue search warrants or warrants of arrest.
(David v. Arroyo, G.R. No. 171396, May 2006)
406
People v. Uy, Jr., G.R. No. 157399, November 2005
• Describe the circumstances occurring during custodial

investigation.
Custodial investigation refers to the stage when the

investigation ceases to be a general inquiry into an unsolved
crime but has begun to focus on a particular person as a suspect.
After a person is arrested and his custodial investigation

begins a confrontation arises which is unequal. T h e detainee
is brought to an army camp or police headquarters and there
questioned and cross-examined not only by one but as many
investigators as may be necessary to break down his morale.
He finds himself in a strange and unfamiliar surrounding,
and every person he meets he considers hostile to him. The
investigators are well-trained and seasoned in their work.
T h e y employ all the methods and means that experience and
study has taught them to extract the truth, or what may pass
for it, out of the detainee. Most detainees are unlettered and
are not aware of their constitutional rights. A n d even if they
were, the intimidating and coercive presence of the officers of
the law in such an atmosphere overwhelms them into silence.
• What situations are n o t covered by custodial investigation?
T h e rights enumerated by the constitutional provision are

not available before government investigators enter the picture.
Admissions made during the course of an administrative
investigations do not come within the purview of Section 12.
T h e protective mantle of the constitutional provision also does
not extend to admissions or confessions made to a private
individual, or to a verbal admission made to a radio announcer
who was not part of the investigation, or even to a mayor
approached as a personal confidante and not in his official
capacity.
A videotaped interview showing the accused unburdening
his guilt willingly, openly and publicly in the presence of
newsmen is not covered by the provision although in so ruling,
trial courts should take extreme caution in further admitting
similar confessions because of the distinct possibility that
the police, with the connivance of unscrupulous media
407
practitioners, may attempt to legitimize coerced extrajudicial

confessions and place them beyond the exclusionary rule by
having an accused admit an offense on television.
Neither does the constitutional provision on custodial
investigation extend to a spontaneous statement, not elicited
through questioning by the authorities, but given in an ordinary
manner whereby the accused orally admits having committed
the crime, nor to a person undergoing an audit examination
because an audit examiner is not a law enforcement officer.
Thus, the flaw in appellant's argument in this regard

becomes immediately apparent considering that his statement
was taken during the administrative investigation of N P C ' s
audit team and before he was taken into custody. As such, the
inquest was still a general inquiry into an unsolved offense at
the time and there was, as yet, no specific suspect.
Appellant cannot claim that he was in police custody

because he was confined at the P H C and he gave this statement
to N P C personnel, not to police authorities. Appellant can
hardly claim that, under the prevailing circumstances at the
time, whatever degree of compulsion may have existed went
beyond the borders of the unobjectionable w h e r e impermissible
levels of duress would force him into making false and
incriminating declarations against his interest. W h i l e he may
have been persuaded into doing so, he cannot feign that he was
intimidated in such a w a y as to bring his statements within the
ambit of the exclusionary constitutional provision.
What is the essence of the constitutional safeguard?
The essence of the constitutional safeguard is protection

from coercion. T h e interview where the sworn statement
is based was conducted by N P C personnel for the N P C ' s
administrative investigation. A n y simultaneous investigation
conducted by the N B I is a proceeding separate, distinct and
independent from the N P C inquiry and should not be confused
or lumped together with the latter.
Although in Galman, the constitutional protection covers

not only confessions but admissions as well, it qualified the
ruling with the statement that what is being eschewed is the
evil of "extorting" a confession from the mouth of the person
408
being interrogated. As denned, "extortion" is an act or practice

of taking or obtaining anything from a person by illegal use of
fear, whether by force, threats or any undue exercise of power.
In the context of obtaining an admission, "extorting" means
"compelling or coercing a confession or information by any
means serving to overcome his power of resistance, or making
the confession or admission involuntary."
W h i l e Galman taken together with the 1986 deliberations

on what was later to become Section 12(1) of the 1987
Constitution may lead to the conclusion that the rights are
available when the person is already in custody as a suspect,
or if the person is a suspect even if he is not yet deprived
in any significant w a y of his liberty, Fr. Bernas said that
"[Jurisprudence under the 1987 Constitution, however, has
consistently held, following Escobedo, the stricter view, that the
rights begin to be available only when the person is already in
custody."
habeas corpus. Art. 124. Arbitrary detention

A r t . 126. Delaying release. — T h e penalties p r o v i d e d for
in A r t i c l e 124 shall be i m p o s e d u p o n a n y p u b l i c officer or
e m p l o y e e w h o d e l a y s for the p e r i o d of time specified therein
the p e r f o r m a n c e of a n y j u d i c i a l or executive o r d e r for the
release of a p r i s o n e r or detention p r i s o n e r , or u n d u l y delays
the service of the notice of s u c h o r d e r to s a i d p r i s o n e r or
the p r o c e e d i n g s u p o n a n y petition for the l i b e r a t i o n of such
person.
• What acts constitute delaying release under Article 126?

This article deals with petitions for the release of detained
person, e.g., habeas corpus proceeding. The same penalties
provided for in Article 124 shall be imposed upon any public
officer or employee who for the period of time specified therein
delays:
1. T h e performance of any judicial or executive order
for the release of a prisoner or detention prisoner; or
2. T h e service of the notice of such order to said
prisoner; or
409
3. The proceedings upon any petition for the liberation

of such person.
A r t . 127. Expulsion. — T h e penalty of prision correccional

shall be imposed u p o n any p u b l i c officer or employee w h o ,
not b e i n g thereunto a u t h o r i z e d by l a w , shall expel a n y per-
son from the P h i l i p p i n e Islands or shall compel such p e r s o n
to c h a n g e his residence.
• What is the crime of expulsion?

This is a crime committed against the constitutional
rights of abode and changing the same under the Bill of Rights.
Villauicencio v. Lukban, 39 Phil. 778, warned that "Philippine
penal law specifically punishes any public officer who, not
being expressly authorized by law or regulation, compels any
person to change his residence." Thus, the Manila Mayor's
act of "deporting" 170 women believed to be of ill-repute
was reversed. It is also violated when citizens or aliens are
deported without an order of the President or Commissioner
of Immigration and Deportation after due proceedings and for
cause.
• Who are the persons authorized by law to expel or compel

persons to change abode?
Only the President of the Philippines in the exercise of

his power of deportation and the courts after final judgment
sentencing the accused to destierro or as a condition in his
probation.
Section T w o . — Violation of Domicile
A r t . 128. Violation of domicile. — T h e p e n a l t y of prision

correccional in its m i n i m u m p e r i o d shall be i m p o s e d u p o n
a n y p u b l i c officer o r e m p l o y e e w h o , not b e i n g a u t h o r i z e d b y
j u d i c i a l o r d e r , shall enter a n y d w e l l i n g a g a i n s t the w i l l o f the
o w n e r thereof, s e a r c h p a p e r s o r o t h e r effects f o u n d t h e r e i n
w i t h o u t the p r e v i o u s consent o f such o w n e r , or, h a v i n g
surreptitiously e n t e r e d s a i d d w e l l i n g , a n d b e i n g r e q u i r e d t o
leave the premises, shall refuse to do so.
If the offense be committed in the nighttime, or if a n y

p a p e r s or effects not constituting e v i d e n c e of a c r i m e be not
410
r e t u r n e d i m m e d i a t e l y after the s e a r c h m a d e b y the offender,

the p e n a l t y shall be prision correccional in its m e d i u m a n d
maximum periods.
• How is violation of domicile committed and by whom?
This crime may be committed by a public officer authorized

to implement a search warrant or warrant of arrest but at the
time of the incident he is not authorized to do so by judicial
order. In other words, he is not armed with a warrant.
T h e r e are three acts of violation of domicile, viz.:
1. T h e public officer enters any dwelling against the

will of the owner thereof.
2. He searches papers or other effects found therein

without the previous consent of the owner.
3. H a v i n g surreptitiously entered said dwelling, and

being required to leave the premises, he refuses to
do so.
Entry in a domicile is "against the will" when the offender

ignores the prohibition of the owner which may be express or
implied as when the door is closed even though not locked. When
a person who admitted the public officer is one with sufficient
discretion, the right to privacy is waived; hence, prohibition
thereafter made can no longer constitute the crime of violation
of domicile. Permission once given cannot be recalled as to
constitute violation of the article. W h e n he is asked to leave
and refuses to leave, it is unjust vexation.
W h e n he is admitted and he starts to search, the owner

must stop him; otherwise, permission is deemed granted and
it will be construed as a consented search, which is one of the
valid warrantless searches. If he stops the public officer and
the latter continues to search, there is violation of domicile.
W h e n the entry is done surreptitiously, and the owner
ordered the public officer to leave, refusal to leave would
amount to violation of domicile. surreptitious = stealth, secret
If the public officer is one whose function does not include
the duty to effect search and seizure the crime is trespass to
dwelling.
411
one specific offense for each search warrant.

A r t . 129. Search warrants maliciously obtained, and abuse in
the service of those legally obtained. — In addition to the liability
attaching to the offender for the commission of any other
offense, the penalty of arresto mayor in its m a x i m u m p e r i o d
to prision correccional in its m i n i m u m p e r i o d a n d a fine
not exceeding 1,000 pesos shall be imposed u p o n a n y p u b l i c
officer or employee w h o shall p r o c u r e a s e a r c h w a r r a n t
without just cause, or, h a v i n g legally p r o c u r e d the same,
shall exceed his authority or use u n n e c e s s a r y severity in
executing the same.
A r t . 130. Searching domicile without witnesses. — T h e p e n a l t y

of arresto mayor in its m e d i u m a n d m a x i m u m p e r i o d s shall
be imposed u p o n a p u b l i c officer or e m p l o y e e w h o , in cases
w h e r e a s e a r c h is p r o p e r , shall s e a r c h the domicile, p a p e r s
or other b e l o n g i n g s of a n y p e r s o n , in the a b s e n c e of the
latter, any m e m b e r of his family, or in their default, w i t h o u t
the presence of t w o witnesses r e s i d i n g in the s a m e locality.
• Compare Article 128 with Articles 129 and 130.
In Article 128, there is no warrant; in Article 129, the

public officer is armed with a warrant but it was maliciously
obtained; in Article 130, there was abuse in the implementation
of a valid warrant.
Even if the search warrant is valid there is violation of
domicile in the following situations where:
a. T h e public officer exceeded his authority under the
search warrant.
b. T h e searching officer employed excessive severity or

destruction in the house.
c T h e search was made when the occupants w e r e

absent and the search conducted without compliance
with the requirement that it be made in the presence
of at least two witnesses, who must come within the
locality where the search was made. ( A r t . 130)
T h e law imposes additional liability for the perjury

resorted to by the public officer in obtaining search warrant
without probable cause.
412
• Cite examples of provisions imposing additional liability?
T h e R P C allows multiple prosecutions through the use of

words: "besides," "in addition," "without prejudice," viz.:
1. Article 129 on search warrants maliciously obtained in

addition to the perjury;
2. Article 160 on quasi-recidivism besides the provision on

habitual delinquency;
3. Article 209 on betrayal of public trust by an attorney or
solicitor in addition to the proper administrative action;
4. Article 210 on direct bribery in addition to the penalty to
the crime agreed upon;
5. Article 214 on other frauds in addition to the penalties
prescribed in the provisions of Chapter 6, Title X;
6. Article 235 on maltreatment of prisoners in addition to
the liability for the physical injuries or damage caused;
7. Article 279 on additional penalties for other offenses
besides the penalties imposed on abandonment and
exploitation of minors under Articles 275 to 278;
8. Article 312 on occupation of real property in addition to
the penalty incurred for the acts of violence executed;
9. Article 315 which shall be without prejudice to the
prosecution for B.P. 22, and illegal recruitment as
expressly provided in such special laws;
10. Article 330 on damage and obstruction to means of
communication without prejudice to the criminal liability
for the consequences of criminal act committed.
• What procedures must be followed in searches and seizures?

Rule 126 of the R R C P lays down the steps in the conduct
of search and seizure:
1. A search warrant is issued upon probable cause in
connection with one specific offence to be determined
personally by the judge after examination under oath
or affirmation of the complainant and the witnesses
he may produce (Section 4);
413
2. The search of a house, room, or any other premise be

made in the presence of the lawful occupant thereof
or any member of his family or in the absence of the
latter, in the presence of two witnesses of sufficient
age and discretion residing in the same locality
(Section 8); and
3. The warrant must direct that it be served in the
daytime, unless the property is on the person or in
the place ordered to be searched, in which case a
direction may be inserted that it be served at any
time of the day or night. (Section 9) (David v. Arroyo)
follow what is in the search warrant.
lifetime ofSection
search warrant
T h r e e . is
— 10 days.
Prohibition, interruption, and
dissolution of peaceful meetings
A r t . 131. Prohibition, interruption, and dissolution of peaceful

meetings. — T h e penalty of prision correccional in its m i n i m u m
p e r i o d shall b e i m p o s e d u p o n a n y p u b l i c officer o r e m p l o y e e
w h o , w i t h o u t legal g r o u n d , shall p r o h i b i t o r i n t e r r u p t the
h o l d i n g of a peaceful meeting, or shall dissolve the s a m e .
T h e same p e n a l t y shall be i m p o s e d u p o n a p u b l i c officer

o r employee w h o shall h i n d e r a n y p e r s o n f r o m j o i n i n g a n y
l a w f u l association or f r o m a t t e n d i n g a n y of its meetings.
T h e same p e n a l t y shall b e i m p o s e d u p o n a n y p u b l i c
officer o r employee w h o shall p r o h i b i t o r h i n d e r a n y p e r s o n
from a d d r e s s i n g , either a l o n e o r t o g e t h e r w i t h others, a n y
petition to the authorities for the c o r r e c t i o n of a b u s e s or
redress of g r i e v a n c e s .
• What are the acts punished under Article 131?
1. Prohibiting or interrupting or dissolving the holding of a

peaceful meeting.
2. Hindering any person from joining any lawful association

or from attending any of its meetings.
3. Prohibiting or hindering any person from addressing,

alone or with others, any petition to the authorities for
the correction of abuses or redress of grievances.
414
T h e assembly must be: a) peaceful; b) for legal purpose; c) the

officer is not a member thereof; and d) he disturbs the same.
T h e assembly must be a peaceful one because otherwise, the
public officer is duty-bound to dissolve the same. It must be
for a legal purpose otherwise the crime under Article 146 is
committed. If initially peaceful and thereafter, the meeting
becomes illegal, Article 146 is also violated and the meeting
may be dissolved.
Art. 146. Illegal assemblies
T h e right of the government to require permit for
regulatory purposes has been upheld by the Supreme Court.
T h e regulatory purpose covers the right to define the time and
place where assembly is held to safeguard the right of the public
and to protect them from inconvenience. (Reyes v. Bagatsing,
125 SCRA 553 [1983]; Tanada v. Bagatsing, August 1984)
S e c t i o n F o u r . — Crimes against religious worship
A r t . 132. Interruption of religious worship. — T h e penalty of

prision correccional in its m i n i m u m p e r i o d shall be imposed
u p o n a n y p u b l i c officer o r e m p l o y e e w h o shall p r e v e n t o r
d i s t u r b the c e r e m o n i e s or manifestations of a n y religion.
If the c r i m e shall h a v e b e e n committed w i t h violence

or threats, the p e n a l t y shall be prision correccional in its
medium and m a x i m u m periods.
A r t . 133. Offending the religious feelings. — T h e penalty of

arresto mayor in its m a x i m u m p e r i o d to prision correccional
in its m i n i m u m p e r i o d shall be i m p o s e d u p o n anyone
w h o , in a place d e v o t e d to religious w o r s h i p or d u r i n g the
c e l e b r a t i o n of a n y religious c e r e m o n y shall p e r f o r m acts
notoriously offensive to the feelings of the faithful.
• What are the religious ceremonies or manifestations covered by

Articles 132 and 133?
These articles refer to the exercise of religious ceremonies
or manifestations. It does not cover quasi-religious ceremonies
such as house-blessing. The crime under Article 133 is an
exception in this Title where the offenders are public officers
for it allows prosecution of private person ("anyone").
415
• What is required for the act to constitute crimes against religious

worship?
If the act is directed to the religious belief itself and the
act is notoriously offensive, the crime is offending the religious
feelings. Otherwise, it is only unjust vexation. T h e construction
of a fence, even though irritating and vexatious under the
circumstances to those present, is not such an act as can be
designated as "notoriously offensive to the faithful," as normally
such an act would be a matter of complete indifference to those
not present, no matter how religious a turn of mind they might
be. (People v. Reyes, August 1934)Where the act is not directed
to the belief itself and the meeting is interrupted by a public
officer, the violation is against Article 132.
• What is the meaning of the phrase "notoriously offensive"?
"Notoriously offensive" is v i e w e d from the standard of any

religion as being offensive. T h e act is offensive to a religious
whether he is a member of the particular religion concerned or
not; whether he is present or absent thereat. If it is offensive
to a particular religion only, or only to those present at the
religious meeting, the offense is unjust vexation.
T h e disturbance or interruption of any ceremony of a

religious character under the old Penal Code was denounced by
Article 571 and was punished by arrest from 1 to 10 days and
a fine of from 15 to 125 pesetas. But this article was omitted
from the R P C and the offense, if any was committed by the
appellants, is denounced in Article 287 as an "unjust vexation."
(id.)
what about satanism? if the act is
not offensive to the religion of
satanism?
416
TITLE THREE
C R I M E S AGAINST PUBLIC ORDER
• What are included in Crimes against Public Order?
1. Rebellion, insurrection, coup d'etat, sedition (134-142)

2. Crimes against legislative bodies and similar bodies (143-
145)
3. Illegal assemblies and associations (146-147)
4. Direct/Indirect assault, resistance and disobedience (148-
152)
5. Public disorders, tumults, alarms and scandals, delivery
of prisoners (153-156)
6. Evasion of service of sentence (157-159) and
7. Quasi-recidivism (160)
Chapter One
R E B E L L I O N , SEDITION, A N D DISLOYALTY
A r t . 134. Rebellion or insurrection — How committed. — T h e
c r i m e of r e b e l l i o n or i n s u r r e c t i o n is committed by rising
p u b l i c l y a n d t a k i n g a r m s a g a i n s t the G o v e r n m e n t for the
p u r p o s e of r e m o v i n g f r o m the allegiance to said G o v e r n m e n t
or its l a w s , the territory of the R e p u b l i c of the Philippines or
a n y p a r t thereof, or a n y b o d y of l a n d , n a v a l or other a r m e d
forces, or d e p r i v i n g the C h i e f Executive or the Legislature,
w h o l l y or partially, of a n y of their p o w e r s or prerogatives.
(As amended by R.A. No. 6968.) prerogative = exclusive right
A r t . 134-A. Coup d'etat — How committed. — T h e crime
of coup d'etat is a swift attack, a c c o m p a n i e d by violence,
intimidation, threat, strategy or stealth, directed against duly
constituted authorities of the R e p u b l i c of the Philippines, or
destablized, immobilized, paralyzed.
417
any military c a m p or installation, communications n e t w o r k s ,

public utilities or other facilities n e e d e d for the exercise a n d
continued possession of p o w e r , singly or simultaneously
carried out a n y w h e r e in the P h i l i p p i n e s by any p e r s o n or
persons, b e l o n g i n g to the military or police or h o l d i n g any
public office or employment, w i t h or w i t h o u t civilian s u p p o r t
or participation, for the p u r p o s e of seizing or d i m i n i s h i n g
state p o w e r . (R.A. No. 6968)
A r t . 135. Penalty for rebellion, insurrection or coup d'etat. —
A n y person w h o promotes, m a i n t a i n s o r h e a d s a r e b e l l i o n o r
insurrection shall suffer the penalty of reclusion perpetua.
A n y p e r s o n m e r e l y p a r t i c i p a t i n g o r e x e c u t i n g the
commands of others in a r e b e l l i o n or i n s u r r e c t i o n shall
suffer the penalty of reclusion temporal.
A n y p e r s o n w h o leads o r i n a n y m a n n e r directs o r
c o m m a n d s others to u n d e r t a k e a coup d'etat shall suffer the
penalty of reclusion perpetua.
A n y p e r s o n i n the g o v e r n m e n t service w h o p a r t i c i p a t e s ,
or executes directions or c o m m a n d s of others in u n d e r t a k i n g
a coup d'etat shall suffer the p e n a l t y of reclusion temporal in
its m a x i m u m p e r i o d .
A n y p e r s o n not i n the g o v e r n m e n t service w h o partici-
pates, or in a n y m a n n e r s u p p o r t s , finances, a b e t s or a i d s in
u n d e r t a k i n g a coup d'etat shall suffer the p e n a l t y of prision
mayor in its m a x i m u m p e r i o d .
W h e n the r e b e l l i o n , i n s u r r e c t i o n , o r coup d'etat shall b e
u n d e r the c o m m a n d o f u n k n o w n l e a d e r s , a n y p e r s o n w h o i n
fact directed the others, s p o k e for t h e m , s i g n e d receipts a n d
other documents issued in their n a m e , or p e r f o r m e d s i m i l a r
acts, on b e h a l f of the r e b e l s shall be d e e m e d a l e a d e r of such
r e b e l l i o n , i n s u r r e c t i o n , or coup d'etat. (As amended by R.A.
No. 6968.)
A r t . 136. Conspiracy and proposal to commit coup d'etat,

rebellion or insurrection. — T h e c o n s p i r a c y a n d p r o p o s a l to
commit coup d'etat shall be p u n i s h e d by prision mayor in
its m i n i m u m p e r i o d a n d a fine w h i c h shall not e x c e e d eight
t h o u s a n d pesos (P8,000.00).
418
REBELLION, S E D I T I O N , A N D DISLOYALTY
T h e c o n s p i r a c y a n d p r o p o s a l t o commit r e b e l l i o n o r
i n s u r r e c t i o n shall be p u n i s h e d , respectively, by prision
correccional in its m a x i m u m p e r i o d a n d a fine w h i c h shall
not e x c e e d five t h o u s a n d pesos (P5,000.00), a n d by prision
correccional in its m e d i u m p e r i o d a n d a fine not exceeding
t w o t h o u s a n d pesos (P2,000.00). (As amended by R.A. No.
6968.)
A r t . 137. Disloyalty of public officers or employees. — T h e

p e n a l t y of prision correccional in its m i n i m u m p e r i o d shall
b e i m p o s e d u p o n p u b l i c officers o r e m p l o y e e s w h o have
failed to resist a r e b e l l i o n by all the m e a n s in their p o w e r , or
shall continue to d i s c h a r g e the duties of their offices u n d e r
the c o n t r o l of the r e b e l s or shall accept a p p o i n t m e n t to office
u n d e r them. (Restored by E.O. No. 187.)
A r t . 138. Inciting to rebellion or insurrection. — T h e penalty

of prision mayor in its m i n i m u m p e r i o d shall be imposed
upon any person who, without taking arms or being in
o p e n hostility a g a i n s t the G o v e r n m e n t , shall incite others
to the e x e c u t i o n of a n y of the acts specified in Article 134
of this C o d e , by m e a n s of speeches, p r o c l a m a t i o n s , writings,
e m b l e m s , b a n n e r s or o t h e r r e p r e s e n t a t i o n s t e n d i n g to the
s a m e end. (Restored E.O. No. 187.)
• How is the crime of rebellion committed?

T h e crime of rebellion is committed by rising publicly and
taking up arms against the government for any of the purposes
specified in Article 134 which are political in nature. Rising
publicly and taking up arms against the Government is the
very element of the crime of rebellion. It is a crime against
public order. (People v. Asuncion, April 22, 1992) Thus, even
without the amendatory law on illegal possession of firearm,
the use of unlicensed firearm in the commission of rebellion or
insurrection is absorbed as its element.
• Compare rebellion and subversion.

If it is conceded that force and violence are the very
essence of subversion, then it loses its distinction from rebellion.
Liwanag distinguished subversion from rebellion viz.:
419
1. Rebellion is committed by rising publicly and taking up

arms against the Government for any of the purposes
under Article 134; while subversion is affiliation or
membership in a subversive organization. Taking up
arms against the government is but a circumstance which
raises the penalty to be imposed upon the subversive.
2. Subversion is a crime against national security; rebellion,
against public order. Rising publicly and taking arms
against the government is the very element of the crime
of rebellion whereas R . A . 1700 was enacted to outlaw
the C P P , other similar associations and its successors
because their existence and activities constitute a clear,
present and grave danger to national security. (R.A. 7636
repealed R.A. 1700 decriminalizing subversion.)
3. Rebellion makes use of force and violence whereas

subversive acts do not only constitute force and violence
but may partake of other form as well, (id.)
What amendments were introduced by R.A. 6968 on rebellion?
R . A . 6968 deleted the following acts from Article 135:
a. The offenders engage in war against the forces of

government;
b. The offenders being public officers commit serious

violence or destruction of property;
c. T h e offenders being public officers exact contribution

for the support of rebellion; and
d. The offenders being public officers divest public

funds from the purposes for which these w e r e
appropriated.
T h e deletion is significant in that it signifies the intention

to treat common crimes as distinct from rebellion.
T h e amendment by deletion of certain words or phrases

in a statute indicates that the legislature intended to change
itsmeaning. T h e presumption is that the legislature would not
have made the deletion had the intention been not to effect a
change in its meaning. T h e amended statute should accordingly
420
be given a construction different from that previous to its

amendment. (Gloria v. CA, G.R. No. 131012, April 21, 1999)
• What is the nature of the crime of rebellion?
Rebellion is a continuing crime hence rebels can be

arrested at anytime without a warrant. (Garcia-Padilla v.
Enrile, 121 SCRA 472; Umil v. Ramos, 187SCRA 211). (Justice
Isagani Cruz decried this as a dangerous doctrine for it allows
warrantless arrest despite the innocence of the acts of accused
at the time they are arrested.)
Office of the Provincial Prosecutor v. CA, December 2000
• In order to make out a case of rebellion, what must be the

motivation for the killing of the victim?
It must be made in furtherance of rebellion. Merely

because it is alleged in the affidavit that respondents were
members of the C C P / N P A who engaged government troops in
a firefight resulting in the death of a government trooper and
the wounding of four others does not necessarily mean that the
killing and wounding of the victims were made in furtherance
of a rebellion. Indeed, Ompad, 233 SCRA 1994 convicted an
N P A commander of murder for the killing of a person suspected
of being a government informer.
• When a criminal act has elements common to more than one

offense, who has the option to choose the case to file?
T h e public prosecutor has the option to ascertain which
prosecutions should be initiated on the basis of the evidence at
hand. That a criminal act may have elements common to more
than one offense does not rob the prosecutor of that option
(or discretion) and mandatorily require him to charge the
lesser offense although the evidence before him may warrant
prosecution of the more serious one.
It is the R P C in relation to the evidence in the hands of
the public prosecutor, and not the latter's whim or caprice,
which gives the choice. The R P C allows separate prosecutions
for either murder or rebellion, although not for both where
the indictment alleges that the former has been committed in
furtherance of or in connection with the latter.
421
Who has the burden of proving the political motivation?

The burden of proving that the motivation for the crime is
political and not private is on the defense. Lovedorio, 250 SCRA
1995 held that in deciding if the crime is rebellion, not murder,
it becomes imperative for the courts to ascertain whether or not
the act was done in furtherance of a political end. T h e political
motive of the act should be conclusively demonstrated.
The burden of demonstrating political motive falls on

the defense, motive being a state of mind which the accused
better than any individual knows. It is not enough that the
overt acts of rebellion are proven. Both purpose and overt
acts are essential components of the crime. W i t h either of
these elements wanting, the crime of rebellion legally does
not exist. But a matter of defense should not be alleged in the
information. If element of rebellion.why should the offender
have the burden of proving political motivation?
Enrile v. Salazar noted that in the light of contemporary

events, the act of rebellion has lost that quintessentially
quixotic quality that justifies the relative leniency with which
it is regarded and punished by law, that present-day rebels are
less impelled by love of country than by lust for power and have
become no better than mere terrorists to whom nothing, not
even the sanctity of human life, is allowed to stand in the w a y
of their ambitions. Nothing so underscores these aberrations
as the rash of senseless killings, bombings, kidnappings
and assorted mayhem as often perpetrated against innocent
civilians as against the military, but by and large, attributable
to or even claimed by rebels to be part of an ongoing rebellion.
M a y offenders be charged for "common crimes" such as murder

and illegal possession of firearms separately from rebellion?
Y e s . The R P C treats rebellion or insurrection as a crime

distinct from murder, homicide, arson and other felonies that
might conceivably be committed in the course of a rebellion.
It allowsseparate prosecutions for either murder or rebellion,
although not for both where the indictment alleges that the
former has been committed in furtherance of, or in connection
with the latter. It is within the power of the legislature to
determine what acts or omissions other than that set out
422
in the R P C or other existing statutes are to be condemned

as separate, individual crimes and what penalties should
be attached thereto. T h e power is not diluted or improperly
wielded just because at some prior time, the act or omission
was but an element or ingredient of another offense, or might
usually have been connected with another crime. (Baylosis v.
Chavez)
T h e ratio of Hernandez and Enrile is that Article 48

cannot be invoked as the basis for charging and prosecuting
the complex crime of rebellion with homicide for the purpose
of obtaining imposition of the penalty for the more serious
offense in its maximum period. Said cases did not proscribe
the legislative authority from validly enacting statutes that
would define and punish, as offenses sui generis crimes which,
in the context of Hernandez may be viewed as a complex of
rebellion with other offenses. W h a t the court stated about
rebellion "absorbing" common crimes committed in its course
or furtherance may be viewed in light of the fact that at the
time they w e r e decided, there were no penal provisions defining
and punishing, as specific offenses, crimes like murder, etc.
committed in the course or as part of a rebellion. This is no
longer true as far as this case is concerned, and there being no
question that P . D . 1866 is a valid statute.
How is the crime of coup d'etat committed?

T h e crime of coup d'etat is committed:
1. How — by a swift attack accompanied by violence,
intimidation, threat, strategy or stealth
2. Against — the duly constituted authorities or any military
camp or installation, communications networks, public
utilities or other facilities needed for the exercise and
continued possession of power
3. Number of offenders — singly or simultaneously carried
out anywhere in the Philippines
4. By whom — by any person or persons, belonging to the
military or police or holding any public office or employ-
ment, with or without civilian support or participation
5. Purpose — to seize or diminish state power
423
• Distinguish rebellion from coup.

In rebellion:
a. The essence is rising publicly and taking up arms against
the government;
b. It involves a multitude of people;
c. It does not require that the principal participants be
members of the AFP, PNP, or any public officers;
d. Criminal objective is to overthrow the government and
the offenders to establish their own;
e. It is always committed through force and violence.
In coup:
a. The essence is a swift attack against the government, its
military camps or installations, communication network,
public facilities and utilities essential to the continued
exercise of governmental powers;
b. It may be committed singly or collectively;
c. Requires as a principal offender a member of the AFP,
PNP or a public officer, with or without civilian support;
d. Criminal objective is to destabilize, immobilize or paralyze
the existing government by taking over such facilities and
utilities;
e. May be committed not only through force or violence but
also by threat, intimidation, strategy or stealth.
(Note: No crime of inciting to coup d'etat.)
PEReDeS
Art. 139. Sedition — How committed. — T h e c r i m e of sedition
i s committed b y p e r s o n s w h o rise p u b l i c l y a n d t u m u l t u o u s l y
i n o r d e r t o attain b y force, i n t i m i d a t i o n , o r b y o t h e r m e a n s
outside of legal m e t h o d s , a n y of the f o l l o w i n g objects:
1. To p r e v e n t the p r o m u l g a t i o n or e x e c u t i o n of a n y
l a w o r the h o l d i n g o f a n y p o p u l a r election;
2. To p r e v e n t the N a t i o n a l G o v e r n m e n t , or a n y p r o -
vincial o r m u n i c i p a l g o v e r n m e n t , o r a n y p u b l i c
officer t h e r e o f f r o m freely e x e r c i s i n g its or his
functions, o r p r e v e n t the e x e c u t i o n o f a n y a d m i n i s -
trative o r d e r ;
424
3. To inflict a n y act of hate or r e v e n g e u p o n the p e r s o n

o r p r o p e r t y o f a n y p u b l i c officer o r employee;
4. To commit, for a n y political or social end, any act

of hate or r e v e n g e a g a i n s t p r i v a t e persons or any
social class; a n d
5. To despoil, for a n y political or social end, any

p e r s o n , m u n i c i p a l i t y or p r o v i n c e , or the N a t i o n a l
G o v e r n m e n t ( o r the G o v e r n m e n t of the U n i t e d
States) of all its p r o p e r t y or a n y p a r t thereof. (As
amended by Com. Act No. 202.)
A r t . 140. Penalty for sedition. — T h e l e a d e r of a sedition

shall suffer the p e n a l t y of prision mayor in its m i n i m u m
p e r i o d a n d a fine not e x c e e d i n g 10,000 pesos.
O t h e r p e r s o n s p a r t i c i p a t i n g t h e r e i n shall suffer the

p e n a l t y of prision correccional in its m a x i m u m p e r i o d a n d a
fine not e x c e e d i n g 5,000 pesos. (Restored by E.O. No. 187.)
A r t . 141. Conspiracy to commit sedition. — P e r s o n s

c o n s p i r i n g to c o m m i t the c r i m e of sedition shall be punished
by prision correccional in its m e d i u m p e r i o d a n d a fine not
e x c e e d i n g 2,000 pesos. (Restored by E.O. No. 187.)
A r t . 142. Inciting to sedition. — T h e penalty of prision

correccional in its m a x i m u m p e r i o d a n d a fine not exceeding
2,000 pesos shall be i m p o s e d u p o n any p e r s o n w h o ,
w i t h o u t t a k i n g a n y direct p a r t in the crime of sedition,
should incite others to the a c c o m p l i s h m e n t of any of the
acts w h i c h constitute sedition, by m e a n s of speeches,
p r o c l a m a t i o n s , w r i t i n g s , e m b l e m s , cartoons, b a n n e r s , or
other r e p r e s e n t a t i o n s t e n d i n g to the same end, or u p o n
a n y p e r s o n o r p e r s o n s w h o shall utter seditious w o r d s o r
speeches, w r i t e , p u b l i s h , or circulate scurrilous libels against
the G o v e r n m e n t (of the U n i t e d States or the G o v e r n m e n t of
the C o m m o n w e a l t h ) of the Philippines, or any of the duly
constituted authorities thereof, or w h i c h tend to disturb
or obstruct any l a w f u l officer in executing the functions
of his office, or w h i c h tend to instigate others to cabal and
meet together for u n l a w f u l purposes, or which suggest or
incite rebellious conspiracies or riots, or which lead or tend
to stir up the people against the lawful authorities or to
425
disturb the peace of the community, the safety a n d o r d e r of

the Government, or w h o shall k n o w i n g l y conceal such evil
practices. (As amended by Com. Act No. 202.)
• What is the nature of sedition?

Sedition is a crime of dissent or protest by means outside
of legal methods. The offenders rise publicly and tumultuously
to attain their purpose by force, intimidation, or by other means
outside of legal methods. It is done in excess of the legal means
authorized under the freedoms of expression and assembly
clauses of the Constitution.
• Compare rebellion and sedition.
In rebellion:
a. The purpose is political — to overthrow the duly consti-
tuted government.
b. The use of firearm is essential; it is an ingredient of
rebellion because the law specifies "taking arms against
the government."
c. The offender cannot be prosecuted for illegal possession of
firearms because this is absorbed in rebellion.
In sedition:
a. T h e purpose may be political or social for carrying out
protest or disobedience from a governmental action and
not for the purpose of overthrowing the government. T h e
act may be against a social class.
b. The use of firearm is not an essential ingredient of
sedition. ( H o w e v e r , R . A . 8294 included sedition among
the crimes which absorb the use of unlicensed firearm as
an element thereof.)
c. In view of R . A . 8294, the offenders can no longer be
prosecuted for illegal possession of firearm, for it made
the use of unlicensed firearm to be absorbed in sedition.
• When disorderly conduct occurs during a rally, will it always

result to sedition?
Such instances of disorderly conduct by individual
members of the crowd should not be seized as an excuse to
characterize the assembly as a seditious and tumultuous
426
rising against the authorities and render illusory the right to

peaceable assembly. It is to be expected that disorder will mark
the public assembly of the people to protest against grievances
whether real or imaginary, because on such occasion, feeling is
always wrought to a high pitch of excitement, and the greater
the grievance and the more intense the feeling, the less perfect,
as a rule, will the disciplinary control of the leaders over the
irresponsible followers.
If the prosecution be permitted to seize upon every in-
stance of disorderly conduct by individual members of a crowd
as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities, then the right to
assembly and to petition for redress of grievances would be-
come a delusion and snare and the attempt to exercise it on
the most righteous occasion and in the most peaceable manner
would expose all those who took part therein to the severest
and most unmerited punishment, if the purposes which they
have sought to attain did not happen to be pleasing to the pros-
ecuting authorities. If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and
punished therefor. [Justice Teehankee, dissenting opinion in
Reyes v. Bagatsing][See David v. Arroyo]
• W h o can commit inciting to rebellion or sedition?

Inciting to rebellion or sedition can be committed only by
civilians who do not take part therein. If he does, his crime is
rebellion or sedition. Rebels cannot commit this crime.
T h e r e is no crime as proposal to incite to sedition, but
only conspiracy. If the proposal is accepted, it is conspiracy.
• Can direct assault be committed during a rebellion or sedition?

N o , direct assault cannot be committed when there
is rebellion or sedition as public uprising is an element of
rebellion or sedition which should be absent in direct assault.
Article 148 defines direct assault as "without public uprising."
• Compare inciting to sedition (Article 142), tumults (Article 153),

and direct assault (Article 148).
In Article 153, the intent is not really to incite to sedition
but to disturb public performance or create disturbance in
427
a public place. If any of the acts employed is one of those in

Article 142 and the objective is any of those in Article 139, it is
not merely disturbance but is elevated to inciting to sedition.
Sedition is committed by those who: (a) rise publicly
and tumultuously; (b) to attain by force, intimidation, or by
other means outside of legal methods; (c) any of the objectives
enumerated in Article 139.
Direct assault of the first form is committed by those
who: (a) without a public uprising; (b) shall employ force or
intimidation; (c) for the attainment of any of the purposes
enumerated in defining the crimes of rebellion and sedition.
• Does wearing t-shirts printed with anti-government invectives

amount to inciting to sedition?
N o . During the inquest for the charges, all that the
arresting officers could invoke was their observation that some
rallyists were wearing t-shirts with the invective "Oust Gloria
Now" and their erroneous assumption that petitioner D a v i d
was the leader of the rally. Such fact is insufficient to charge
him with inciting to sedition. (David v. Arroyo)
• Is the warrantless arrest of persons suspected of rebellion valid?
In quelling or suppressing the rebellion, the authorities

may only resort to warrantless arrests of persons suspected of
rebellion, as provided under Section 5, Rule 113 of the R R C P ,
if the circumstances so warrant. T h e warrantless arrest feared
by petitioners is not based on the declaration of a "state of
rebellion" for Proclamation N o . 38 has been lifted. (Lacson v.
Reyes, G.R. No. 147780, May 20, 2001)
• What remedies are available to one suspected of rebellion and

arrested without warrant?
Petitioners' contention that they are under imminent

danger of being arrested without warrant do not justify resort
to the extraordinary remedies of mandamus and prohibition
since an individual subjected to warrantless arrest has
adequate remedies in the ordinary course of law. He may ask
for a preliminary investigation where he may adduce evidence
428
in his defense, or he may submit himself to inquest proceedings

to determine whether or not he should remain under custody
and correspondingly be charged in court.
Further, a person subject of a warrantless arrest must be

delivered to the proper judicial authorities within the periods
provided in A r t i c l e 125, otherwise the arresting officer could be
held liable for delay in the delivery of detained persons. Should
the detention be without legal ground, the person arrested can
charge the arresting officer with arbitrary detention. A l l this
is without prejudice to his filing an action for damages against
the arresting officer under Article 32 of the N C C . (id.)
Art. 32. Any public officer or

employee, or any private individual,
who directly or indirectly obstructs,
defeats, violates or in any manner
impedes or impairs any of the
following rights and liberties of
another person shall be liable to the
latter for damages:
429
Chapter T w o
CRIMES AGAINST P O P U L A R
REPRESENTATION
Section O n e . — Crimes against legislative bodies

and similar bodies
A r t . 143. Acts tending to prevent the meeting of the Assembly

and similar bodies. — T h e penalty of prision correccional or a
fine r a n g i n g f r o m 200 to 2,000 pesos, or both, shall be i m p o s e d
u p o n any p e r s o n w h o , b y force o r f r a u d , p r e v e n t s the m e e t i n g
of the N a t i o n a l A s s e m b l y ( C o n g r e s s of the P h i l i p p i n e s ) or
of any of its committees or subcommittees, constitutional
commissions or committees or divisions thereof, or of a n y
provincial b o a r d or city or m u n i c i p a l council or b o a r d . (As
amended by Com. Act No. 264) (Restored by E.O. No. 187.)
A r t . 144. Disturbance of proceedings. — T h e p e n a l t y of

arresto mayor or a fine f r o m 200 to 1,000 pesos shall be
imposed u p o n a n y p e r s o n w h o d i s t u r b s the m e e t i n g s o f
the N a t i o n a l A s s e m b l y ( C o n g r e s s of the P h i l i p p i n e s ) or
of any of its committees or s u b c o m m i t t e e s , constitutional
commissions or committees or divisions thereof, or of a n y
p r o v i n c i a l b o a r d o r city o r m u n i c i p a l council o r b o a r d , o r
in the presence of a n y such b o d i e s s h o u l d b e h a v e in s u c h
m a n n e r as to i n t e r r u p t its p r o c e e d i n g s or to i m p a i r the
respect d u e it. (As amended by Com. Act No. 264.)(Restored by
E.O. No. 187.)
Section T w o . — Violation of parliamentary immunity
Art. 145. Violation of parliamentary immunity. —The

penalty of prision mayor shall be i m p o s e d u p o n a n y p e r s o n
w h o shall use force, intimidation, t h r e a t s or f r a u d to p r e v e n t
any m e m b e r of the N a t i o n a l A s s e m b l y ( C o n g r e s s of the
P h i l i p p i n e s ) f r o m a t t e n d i n g the m e e t i n g s o f the A s s e m b l y
( C o n g r e s s ) or of any of its committees or subcommittees,
constitutional commissions or committees or divisions
430
C R I M E S A G A I N S T POPULAR REPRESENTATION
thereof, f r o m e x p r e s s i n g his o p i n i o n s or casting his vote;

a n d the p e n a l t y of prision correccional shall be imposed
u p o n a n y p u b l i c officer o r e m p l o y e e w h o shall, w h i l e the
A s s e m b l y ( C o n g r e s s ) is in r e g u l a r or special session, arrest
o r s e a r c h a n y m e m b e r thereof, except i n case such m e m b e r
h a s c o m m i t t e d a c r i m e p u n i s h a b l e u n d e r this C o d e by a
p e n a l t y h i g h e r t h a n prision mayor. (As amended by Com. Act
No. 264.)
431
Chapter Three
ILLEGAL ASSEMBLIES A N D ASSOCIATIONS
A r t . 146. Illegal assemblies. — T h e penalty of prision

correccional in its m a x i m u m p e r i o d to prision mayor in its
m e d i u m period shall b e i m p o s e d u p o n the o r g a n i z e r s o r
leaders of any meeting attended by a r m e d p e r s o n s for the
p u r p o s e of committingany of the crimes p u n i s h a b l e u n d e r
this C o d e , or of any meeting in w h i c h the a u d i e n c e is incited
to the commission of the c r i m e of t r e a s o n , r e b e l l i o n or
insurrection, sedition or assault u p o n a p e r s o n in a u t h o r i t y
or his agents. P e r s o n s m e r e l y p r e s e n t at such m e e t i n g shall
suffer the penalty of arresto mayor, unless they a r e a r m e d , in
w h i c h case the penalty shall be prision correccional.
I f a n y p e r s o n p r e s e n t a t the m e e t i n g c a r r i e s a n
unlicensed firearm, it shall be p r e s u m e d that the p u r p o s e of
said meeting, insofar as he is c o n c e r n e d , is to c o m m i t acts
p u n i s h a b l e u n d e r this C o d e , a n d he shall be c o n s i d e r e d a
l e a d e r o r o r g a n i z e r o f the m e e t i n g w i t h i n the p u r v i e w o f the
preceding p a r a g r a p h .
A s used i n this article, the w o r d "meeting" shall b e

u n d e r s t o o d to i n c l u d e a g a t h e r i n g or g r o u p , w h e t h e r in a
fixed place or m o v i n g . (As amended by R.A. No. 12, September
5, 1946; Restored by E.O. No. 187.)
• What is the gravamen of illegal assembly?
The gravamen of the offense is mere gathering for the

unlawful purpose relating to a crime under the R P C . If the
offense is punishable under special law, illegal assembly is not
committed.
• What are the two ways of committing illegal assembly?
a. Gathering of persons any or some of whom are armed for

the purpose of committing any crime under the R P C .
432
ILLEGAL A S S E M B L I E S A N D A S S O C I A T I O N S
b. Gathering of persons where the audience is incited to

commit treason, rebellion or insurrection, sedition or
assault upon a person in authority or his agent even
without the attendance of armed men.
If the intent of the leader or organizer in organizing

the meeting is to incite the audience to sedition, the crime is
inciting to sedition. If the inciting utterances were injected
during and incidental to such meeting, it is illegal assembly.
• What are the penalties imposable for illegal assembly?

1. On the organizers or leaders of any meeting, if attended
by armed persons — prision correccional in its maximum
period to prision mayor in its medium period;
2. Persons merely present but armed — prision correccional
3. Persons merely present but not armed — arresto mayor
T h e presence of any armed person at such meeting shall

give rise to the twin presumptions that:
1. T h e meeting, as far as he is concerned, is illegal; and
2. He is a leader or organizer of such meeting.
B. P. 880 - P U B L I C A S S E M B L Y A C T OF 1985
xxx
Sec. 3. Definition of terms. — F o r p u r p o s e s of this Act:
( a ) " P u b l i c assembly" m e a n s a n y rally, demonstra-

tion, m a r c h , p a r a d e , procession or a n y other f o r m of mass
or concerted action held in a p u b l i c place for the p u r p o s e of
p r e s e n t i n g a l a w f u l cause; or e x p r e s s i n g an opinion to the
g e n e r a l p u b l i c on a n y p a r t i c u l a r issue; or protesting or in-
fluencing a n y state of affairs w h e t h e r political, economic or
social; or petitioning the g o v e r n m e n t for redress of g r i e v -
ances.
T h e processions, rallies, p a r a d e s , demonstrations,
p u b l i c meetings a n d assemblages for religious purposes
shall be g o v e r n e d by local ordinances: P r o v i d e d , however,
T h a t the declaration of policy as p r o v i d e d in Section 2 of this
A c t shall be faithfully observed.
433
The definition herein contained shall not include

picketing a n d other concerted action in strike a r e a s by
w o r k e r s a n d employees resulting f r o m a l a b o r dispute as
denned by the L a b o r C o d e , its implementing rules a n d
regulations, a n d by the B a t a s P a m b a n s a B i l a n g 227.
( b ) "Public place" shall include a n y h i g h w a y , b o u l e v a r d ,
avenue, r o a d , street, b r i d g e o r other t h o r o u g h f a r e , p a r k ,
plaza, s q u a r e , a n d / o r a n y o p e n space o f p u b l i c o w n e r s h i p
w h e r e the people a r e a l l o w e d access.
(c) " M a x i m u m tolerance" m e a n s the highest d e g r e e of

restraint that the military, police a n d other p e a c e k e e p i n g
authorities shall o b s e r v e d u r i n g a p u b l i c a s s e m b l y or in the
dispersal of the same.
x xx xxx xxx
Sec. 4. P e r m i t w h e n r e q u i r e d a n d w h e n not r e q u i r e d . —
A written p e r m i t shall b e r e q u i r e d for a n y p e r s o n o r p e r s o n s
to o r g a n i z e a n d h o l d a p u b l i c a s s e m b l y in a p u b l i c place.
H o w e v e r , n o p e r m i t shall b e r e q u i r e d i f the p u b l i c a s s e m b l y
shall be done or m a d e in a f r e e d o m p a r k d u l y e s t a b l i s h e d
b y l a w o r o r d i n a n c e o r i n p r i v a t e p r o p e r t y , i n w h i c h case
only the consent of the o w n e r or the o n e entitled to its l e g a l
possession is r e q u i r e d , or in the c a m p u s of a g o v e r n m e n t -
o w n e d a n d o p e r a t e d e d u c a t i o n a l institution w h i c h shall
be subject to the r u l e s a n d r e g u l a t i o n s of s a i d e d u c a t i o n a l
institution. Political m e e t i n g s o r r a l l i e s h e l d d u r i n g a n y
election c a m p a i g n p e r i o d a s p r o v i d e d for b y l a w a r e not
covered by this Act.
X XX xxx xxx
Sec. 6. A c t i o n to be t a k e n on the a p p l i c a t i o n . —
( a ) It shall be the d u t y of the m a y o r or a n y official

acting in his b e h a l f to issue or g r a n t a p e r m i t unless t h e r e
is clear a n d c o n v i n c i n g e v i d e n c e that the p u b l i c a s s e m b l y
will create a clear a n d p r e s e n t d a n g e r to p u b l i c o r d e r , p u b l i c
safety, p u b l i c convenience, p u b l i c m o r a l s o r p u b l i c health.
( b ) T h e m a y o r o r a n y official a c t i n g i n his b e h a l f shall

act o n the a p p l i c a t i o n w i t h i n t w o (2) w o r k i n g d a y s f r o m the
date the a p p l i c a t i o n w a s f i l e d , f a i l i n g w h i c h , the p e r m i t shall
434
ILLEGAL A S S E M B L I E S A N D ASSOCIATIONS
b e d e e m e d g r a n t e d . S h o u l d for a n y r e a s o n the m a y o r o r any

official a c t i n g in his b e h a l f refuse to accept the application
for a p e r m i t , s a i d a p p l i c a t i o n shall be posted by the a p p l i c a n t
on the p r e m i s e s of the office of the m a y o r a n d shall be d e e m e d
to h a v e b e e n filed.
( c ) If the m a y o r is of the v i e w that there is imminent

a n d g r a v e d a n g e r of a s u b s t a n t i v e evil w a r r a n t i n g the denial
or modification of the p e r m i t , he shall immediately inform
the a p p l i c a n t w h o m u s t b e h e a r d o n the matter.
( d ) T h e action o n the p e r m i t shall b e i n w r i t i n g a n d

s e r v e d o n the a p p l i c a t i o n w i t h i n t w e n t y - f o u r h o u r s .
( e ) If the m a y o r or a n y official acting in his b e h a l f

denies the a p p l i c a t i o n or modifies the terms thereof in
his p e r m i t , the a p p l i c a n t m a y contest the decision in an
appropriate court of law.
(f) In case suit is b r o u g h t b e f o r e the M e t r o p o l i t a n

T r i a l C o u r t , the M u n i c i p a l T r i a l C o u r t , the M u n i c i p a l Circuit
T r i a l C o u r t , the R e g i o n a l T r i a l C o u r t , o r the Intermediate
A p p e l l a t e C o u r t , its decisions m a y be a p p e a l e d to the
a p p r o p r i a t e c o u r t w i t h i n forty-eight (48) h o u r s after receipt
o f the s a m e . N o a p p e a l b o n d a n d r e c o r d o n a p p e a l shall b e
r e q u i r e d . A decision g r a n t i n g such p e r m i t or modifying it
in terms satisfactory to the a p p l i c a n t shall, be immediately
executory.
( g ) A l l cases filed in court u n d e r this section shall be

d e c i d e d w i t h i n t w e n t y - f o u r (24) h o u r s f r o m date of filing.
Cases filed h e r e u n d e r shall be immediately e n d o r s e d to the
executive j u d g e for disposition or, in his absence, to the next
in r a n k .
( h ) In all cases, any decision may be a p p e a l e d to the
Supreme Court.
( i ) T e l e g r a p h i c a p p e a l s to be followed by formal
appeals are hereby allowed.
Sec. 7. U s e of p u b l i c t h o r o u g h f a r e . — Should the
p r o p o s e d p u b l i c assembly involve the use, for an appreciable
length of time, of any public h i g h w a y , b o u l e v a r d , avenue,
r o a d or street, the m a y o r or any official acting in his behalf
435
may, to prevent g r a v e p u b l i c inconvenience, designate the

route thereof w h i c h is convenient to the participants or
reroute the v e h i c u l a r traffic to a n o t h e r direction so that
there will be no serious or u n d u e interference w i t h the free
flow of commerce a n d t r a d e .
Sec. 8. Responsibility of applicant. — It shall be the duty
a n d responsibility of the l e a d e r s a n d o r g a n i z e r s of a p u b l i c
assembly to take all r e a s o n a b l e m e a s u r e s a n d steps to the
end that the intended p u b l i c a s s e m b l y shall be c o n d u c t e d
peacefully in a c c o r d a n c e w i t h the terms of the permit. T h e s e
shall include b u t not be limited to the following:
(a) T o i n f o r m the p a r t i c i p a n t s o f their r e s p o n s i b i l i t y
u n d e r the permit;
( b ) To police the r a n k s of the d e m o n s t r a t o r s in o r d e r
to p r e v e n t n o n - d e m o n s t r a t o r s f r o m d i s r u p t i n g the
l a w f u l activities of the p u b l i c assembly;
(c) T o confer w i t h local g o v e r n m e n t officials c o n c e r n e d
a n d l a w e n f o r c e r s t o the e n d that the p u b l i c
a s s e m b l y m a y b e h e l d peacefully;
( d ) To see to it that the p u b l i c a s s e m b l y u n d e r t a k e n
shall not go b e y o n d the time stated in the p e r m i t ;
and
(e) T o take positive steps that d e m o n s t r a t o r s d o not
molest a n y p e r s o n o r d o a n y act u n d u l y i n t e r f e r i n g
w i t h the r i g h t s of other p e r s o n s not p a r t i c i p a t i n g
in the p u b l i c a s s e m b l y .
Sec. 9. N o n - i n t e r f e r e n c e by l a w e n f o r c e m e n t authorities.
— L a w enforcement a g e n c i e s shall not i n t e r f e r e w i t h the
h o l d i n g of a p u b l i c a s s e m b l y . H o w e v e r , to a d e q u a t e l y e n s u r e
p u b l i c safety, a l a w e n f o r c e m e n t c o n t i n g e n t u n d e r the
c o m m a n d of a r e s p o n s i b l e police officer m a y be d e t a i l e d a n d
stationed in a place at least o n e h u n d r e d (100) m e t e r a w a y
f r o m the a r e a o f activity r e a d y t o m a i n t a i n p e a c e a n d o r d e r
at all times.
Sec. 10. Police assistance w h e n r e q u e s t e d . — It shall

b e i m p e r a t i v e for l a w e n f o r c e m e n t a g e n c i e s , w h e n their
assistance is r e q u e s t e d by the l e a d e r s or o r g a n i z e r s , to
p e r f o r m their duties a l w a y s m i n d f u l that their r e s p o n s i b i l i t y
436
to p r o v i d e p r o p e r protection to those exercising their r i g h t

p e a c e a b l y to a s s e m b l e a n d the f r e e d o m of expression is
p r i m o r d i a l . T o w a r d s this e n d , l a w enforcement agencies
shall o b s e r v e the f o l l o w i n g guidelines:
( a ) M e m b e r s o f the l a w e n f o r c e m e n t contingent w h o
d e a l w i t h the d e m o n s t r a t o r s shall be in complete u n i f o r m
w i t h their n a m e p l a t e s a n d units t o w h i c h they b e l o n g
d i s p l a y e d p r o m i n e n t l y on the front a n d d o r s a l parts of their
u n i f o r m a n d m u s t o b s e r v e the policy o f " m a x i m u m tolerance"
as herein denned;
( b ) T h e m e m b e r s o f the l a w e n f o r c e m e n t contingent
shall not c a r r y a n y k i n d o f firearms b u t m a y b e e q u i p p e d
w i t h b a t o n o r riot sticks, shields, c r a s h helmets w i t h visor,
g a s m a s k s , boots o r a n k l e h i g h shoes w i t h shin g u a r d s ;
( c ) T e a r gas, s m o k e g r e n a d e s , w a t e r cannons, o r any

s i m i l a r anti-riot d e v i c e shall not be u s e d unless the p u b l i c
a s s e m b l y is a t t e n d e d by actual violence or serious threats of
violence, or d e l i b e r a t e destruction of p r o p e r t y .
Sec. 11. D i s p e r s a l of p u b l i c a s s e m b l y w i t h permit. — No

p u b l i c a s s e m b l y w i t h a p e r m i t shall be d i s p e r s e d . H o w e v e r ,
w h e n a n a s s e m b l y b e c o m e s violent, the police m a y disperse
such p u b l i c a s s e m b l y as follows:
( a ) At the first sign of i m p e n d i n g violence, the r a n k i n g

officer of the l a w e n f o r c e m e n t contingent shall call the
attention of the l e a d e r s of the p u b l i c assembly a n d ask the
latter to p r e v e n t a n y possible d i s t u r b a n c e ;
( b ) If actual violence starts to a point w h e r e rocks or

other h a r m f u l objects f r o m the participants a r e t h r o w n at the
police or at the non-participants, or at any p r o p e r t y causing
d a m a g e to such p r o p e r t y , the r a n k i n g officer of the l a w
enforcement contingent shall a u d i b l y w a r n the participants
that if the d i s t u r b a n c e persists, the p u b l i c assembly will be
dispersed;
(c) If the violence or disturbances p r e v a i l i n g as stated
in the p r e c e d i n g s u b p a r a g r a p h should not stop or abate,
the r a n k i n g officer of the l a w enforcement contingent shall
a u d i b l y issue a w a r n i n g to the participants of the public
437
assembly, a n d after a l l o w i n g a r e a s o n a b l e p e r i o d of time to

lapse, shall immediately o r d e r it to forthwith disperse;
( d ) N o arrest o f any leader, o r g a n i z e r o r p a r t i c i p a n t

shall also be m a d e d u r i n g the p u b l i c assembly unless he
violates d u r i n g the assembly a l a w , statute, o r d i n a n c e or
any provision of this Act. S u c h a r r e s t shall be g o v e r n e d by
Article 125 of the Revised P e n a l C o d e , as a m e n d e d :
( e ) Isolated acts or incidents of d i s o r d e r or b r e a c h of

the peace d u r i n g the p u b l i c a s s e m b l y shall not constitute a
g r o u n d for dispersal.
Sec. 12. D i s p e r s a l of p u b l i c a s s e m b l y w i t h o u t permit. —

W h e n the p u b l i c a s s e m b l y is h e l d w i t h o u t a p e r m i t w h e r e
a permit is r e q u i r e d , the said p u b l i c a s s e m b l y m a y be
peacefully dispersed.
Sec. 13. P r o h i b i t e d acts. — T h e f o l l o w i n g shall constitute

violations of this Act:
( a ) T h e h o l d i n g o f a n y p u b l i c a s s e m b l y a s defined i n
this A c t b y any l e a d e r o r o r g a n i z e r w i t h o u t h a v i n g f i r s t
secured that w r i t t e n p e r m i t w h e r e a p e r m i t is r e q u i r e d
f r o m the office c o n c e r n e d , or the use of s u c h p e r m i t for
such p u r p o s e s in a n y p l a c e other t h a n those set out in s a i d
permit: P r o v i d e d , h o w e v e r , T h a t n o p e r s o n c a n b e p u n i s h e d
o r held c r i m i n a l l y l i a b l e for p a r t i c i p a t i n g i n o r a t t e n d i n g a n
o t h e r w i s e peaceful assembly;
( b ) A r b i t r a r y a n d unjustified d e n i a l o r modification
of a p e r m i t in violation of the p r o v i s i o n s of this A c t by the
m a y o r or any other official acting in his behalf.
( c ) T h e unjustified a n d a r b i t r a r y r e f u s a l t o a c c e p t o r
a c k n o w l e d g e receipt of the a p p l i c a t i o n for a p e r m i t by the
m a y o r or a n y official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise

d e n y i n g the exercise of the r i g h t to p e a c e f u l assembly;
( e ) T h e u n n e c e s s a r y firing of f i r e a r m s by a m e m b e r of
any l a w e n f o r c e m e n t a g e n c y o r a n y p e r s o n t o d i s p e r s e the
p u b l i c assembly;
438
ILLEGAL A S S E M B L I E S A N D A S S O C I A T I O N S
(f) A c t s in violation of Section 10 hereof;
( g ) A c t s d e s c r i b e d h e r e u n d e r i f committed w i t h i n one
h u n d r e d (100) m e t e r s f r o m the a r e a of activity of the p u b l i c
a s s e m b l y or on the occasion thereof:
1. the c a r r y i n g of a d e a d l y or offensive w e a p o n or
d e v i c e such as f i r e a r m , p i l l b o x , b o m b , a n d the like;
2. the c a r r y i n g of a b l a d e d w e a p o n a n d the like;
3. the m a l i c i o u s b u r n i n g of a n y object in the streets

or thoroughfares;
4. the c a r r y i n g of firearms by m e m b e r s of the l a w

e n f o r c e m e n t unit;
5. the i n t e r f e r i n g w i t h or intentionally d i s t u r b i n g the

h o l d i n g of a p u b l i c a s s e m b l y by the use of a motor
vehicle, its h o r n s a n d l o u d s o u n d systems.
Sec. 14. P e n a l t i e s . — A n y p e r s o n found guilty a n d

convicted of a n y of the p r o h i b i t e d acts d e n n e d in the
i m m e d i a t e l y p r e c e d i n g section shall be p u n i s h e d as follows:
( a ) violation o f s u b p a r a g r a p h ( a ) shall b e p u n i s h e d b y
i m p r i s o n m e n t of one m o n t h a n d one d a y to six months;
( b ) violations o f s u b p a r a g r a p h s ( b ) , ( c ) , ( d ) , ( e ) , ( f ) , a n d
item 4, s u b p a r a g r a p h ( g ) shall be p u n i s h e d by imprisonment
of six m o n t h s a n d one d a y to six years;
( c ) violation of item 1, s u b p a r a g r a p h ( g ) shall be

p u n i s h e d by i m p r i s o n m e n t of six months a n d one d a y to six
y e a r s w i t h o u t p r e j u d i c e to prosecution u n d e r Presidential
D e c r e e N o . 1866;
( d ) violations of item 2, item 3, or item 5 of s u b p a r a g r a p h
( g ) shall be p u n i s h e d by i m p r i s o n m e n t of one day to thirty
days.
xxx
xxx
Approved: October 22,1985
439
• What is the meaning of "assembly"?

" A s s e m b l y means a right of the citizens to meet peaceably
for consultation in respect to public affairs. It is a necessary
consequence of being a republican institution and complements
the right of speech. (David v. Arroyo)
• What is the only limitation on the freedom of assembly?

Like freedom of expression, this right is not to be limited,
much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent.
Just like other rights embraced in the freedom of expression,
the right to assemble is not subject to previous restraint or
censorship. It may not be conditioned upon the prior issuance
of a permit or authorization from the government authorities
except if the assembly is intended to be held in a public place, a
permit for the use of such place, and not for the assembly itself,
may be validly required, (id.)
• Can participation in a peaceable assembly be a basis for

warrantless arrest on a charge of sedition?
N o . In 2006, DD was with others who w e r e exercising

their right to peaceful assembly. T h e y w e r e not committing
any crime, neither was there a showing of a clear and present
danger that warranted the limitation of that right. T h e charges
of inciting to sedition and violation of BP 880 w e r e mere
afterthought. Peaceable assembly for lawful discussion cannot
be made a crime. T h e holding of meetings for peaceable political
action cannot be proscribed. Those who assist in the conduct of
such meetings cannot be branded as criminals on that score.
The question is not as to the auspices under which the meeting
was held but as to its purpose; not as to the relations of the
speakers, but whether their utterances transcend the bounds
of the freedom of speech which the Constitution protects. If the
persons assembling have committed crimes elsewhere, if they
have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or
other violations of valid laws. But it is a different matter when
the State, instead of prosecuting them for such offenses, seizes
upon mere participation in a peaceable assembly and a lawful
public discussion as the basis for a criminal charge.
440
Tolerance is the rule and limitation is the exception. Only

upon a showing that an assembly presents a clear and present
danger that the State may deny the citizens' right to exercise it.
Indeed, respondents failed to show that the rallyists committed
acts amounting to lawless violence, invasion or rebellion. With
the blanket revocation of permits, the distinction between
protected and unprotected assemblies was eliminated.
Moreover, under B.P. 880, the authority to regulate
assemblies and rallies is lodged with the local government
units. They have the power to issue permits and to revoke such
permits after due notice and hearing on the determination of
the presence of clear and present danger. Here, petitioners
were not even notified and heard on the revocation of their
permits. The first time they learned of it was at the time of
the dispersal. Such absence of notice is a fatal defect. When a
person's right is restricted by government action, it behooves a
democratic government to see to it that the restriction is fair,
reasonable, and according to procedure, (id.)
A r t . 147. Illegal association. — T h e penalty of prision

correccional in its m i n i m u m or m e d i u m p e r i o d s a n d a fine not
e x c e e d i n g 1,000 pesos shall be i m p o s e d u p o n the founders,
directors, a n d p r e s i d e n t s of associations totally or partially
o r g a n i z e d for the p u r p o s e of committing a n y of the crimes
p u n i s h a b l e u n d e r this C o d e o r for some p u r p o s e contrary
to p u b l i c m o r a l s . M e r e m e m b e r s of said associations shall
suffer the p e n a l t y of arresto mayor. (Restored by E.O. No.
187.)
• What is the essence of illegal association?

The gravamen of the offense is the forming of an
organization, corporation, or association, for the purpose of
criminal activities prohibited by the RPC or by special laws
against public morals or any act prejudicial to public welfare.
"Public morals" should be construed as a crime under
special penal law because the preceding phrase already refers
to "any of the crimes punishable under this Code." In view of
the multi-million peso industry involving e-pornography, this
provision should be made more relevant today.
441
Chapter Four
ASSAULT U P O N A N D RESISTANCE A N D
DISOBEDIENCE TO PERSONS IN AUTHORITY
A N D THEIR AGENTS
A r t . 148. Direct assaults. — A n y p e r s o n or p e r s o n s w h o ,

without a public u p r i s i n g , shall e m p l o y force or intimidation
for the attainment of a n y of the p u r p o s e s e n u m e r a t e d
in defining the crimes of r e b e l l i o n a n d sedition, or shall
attack, employ force, or seriously intimidate or resist a n y
person in authority or a n y of his agents, w h i l e e n g a g e d in
the p e r f o r m a n c e of official duties, or on occasion of such
p e r f o r m a n c e , shall suffer the p e n a l t y of prision correccional
in its m e d i u m a n d m a x i m u m p e r i o d s a n d a fine not e x c e e d i n g
1,000 pesos, w h e n the assault is committed w i t h a w e a p o n or
w h e n the offender is a p u b l i c officer or e m p l o y e e , or w h e n
the offender lays h a n d s u p o n a p e r s o n in a u t h o r i t y . If none
of these circumstances be p r e s e n t , the p e n a l t y of prision
correccional in its m i n i m u m p e r i o d a n d a fine not e x c e e d i n g
P500 shall be imposed.
A r t . 149. Indirect assaults. — T h e p e n a l t y of prision

correccional in its m i n i m u m a n d m e d i u m p e r i o d s a n d a fine
not exceeding 500 pesos shall be i m p o s e d u p o n a n y p e r s o n
w h o shall m a k e use o f force o r i n t i m i d a t i o n u p o n a n y p e r s o n
coming to the aid of the authorities or their a g e n t s on
occasion of the commission of a n y of the crimes defined in
the next p r e c e d i n g article.
A r t . 150. Disobedience to summons issued by the National

Assembly, its committees or subcommittees, by the Constitutional
Commissions, its committees, subcommittees or divisions. —
T h e penalty of arresto mayor or a fine r a n g i n g f r o m t w o
h u n d r e d t o one t h o u s a n d pesos, o r b o t h such f i n e a n d
imprisonment, shall b e i m p o s e d u p o n a n y p e r s o n w h o ,
h a v i n g b e e n d u l y s u m m o n e d to attend as a w i t n e s s b e f o r e
442
ASSAULT U P O N A N D RESISTANCE A N D D I S O B E D I E N C E
TO P E R S O N S IN AUTHORITY A N D THEIR AGENTS
the N a t i o n a l A s s e m b l y , its special or s t a n d i n g committees

a n d subcommittees, the Constitutional Commissions a n d
its committees, subcommittees, or divisions or before any
commission o r committee c h a i r m a n o r m e m b e r authorized
to s u m m o n witnesses, refuses, w i t h o u t legal excuse, to obey
such s u m m o n s , o r b e i n g p r e s e n t b e f o r e a n y such legislative
or constitutional b o d y or official, refuses to be s w o r n or
p l a c e d u n d e r affirmation o r t o a n s w e r a n y legal i n q u i r y o r
to p r o d u c e a n y b o o k s , p a p e r s , d o c u m e n t s , or r e c o r d s in his
possession, w h e n r e q u i r e d by t h e m to do so in the exercise
o f t h e i r functions. T h e s a m e penalty shall b e i m p o s e d u p o n
a n y p e r s o n w h o shall r e s t r a i n a n o t h e r f r o m attending as a
witness, or w h o shall i n d u c e d i s o b e d i e n c e to a s u m m o n or
refusal to be s w o r n by a n y such b o d y or official. (As amended
by Com. Act No. 52.)
A r t . 151. Resistance and disobedience to a person in authority

or the agents of such person. — T h e penalty of arresto mayor
a n d a fine not e x c e e d i n g 500 pesos shall be imposed u p o n
a n y p e r s o n w h o not b e i n g i n c l u d e d in the provisions of
the p r e c e d i n g articles shall resist or seriously disobey any
p e r s o n in authority, or the agents of such person, while
e n g a g e d in the p e r f o r m a n c e of official duties.
W h e n the disobedience to an agent of a person in author-
ity is not of a serious n a t u r e , the penalty of arresto menor or
a fine r a n g i n g f r o m 10 to 100 pesos shall be imposed u p o n the
offender.
A r t . 152. Persons in authority and agents of persons in authority
— Who shall be deemed as such. — In a p p l y i n g the provisions
of the p r e c e d i n g a n d other articles of this C o d e , any person
directly vested w i t h jurisdiction, w h e t h e r as an individual
or as a m e m b e r of some court or g o v e r n m e n t a l corporation,
b o a r d or commission, shall be d e e m e d a person in authority.
A b a r a n g a y captain a n d a b a r a n g a y c h a i r m a n shall also be
d e e m e d a p e r s o n in authority.
A n y p e r s o n w h o , b y direct provision o f l a w o r b y election
or by a p p o i n t m e n t by competent authority, is charged with
the maintenance of public o r d e r a n d the protection and
security of life a n d property, such as a b a r r i o councilman,
b a r r i o policeman a n d b a r a n g a y leader, and any person w h o
443
comes to the aid of persons in authority, shall be d e e m e d an

agent of a person in authority.
In a p p l y i n g the provisions of Articles 148 a n d 151
of this C o d e , teachers, professors, a n d persons c h a r g e d
with the supervision of p u b l i c or duly r e c o g n i z e d p r i v a t e
schools, colleges a n d universities, a n d l a w y e r s in the actual
p e r f o r m a n c e of their professional duties or on the occasion
of such p e r f o r m a n c e shall be d e e m e d p e r s o n s in authority.
(As amended by B.P. Big. 837, approved June 12, 1985.)
• What is the rationale for penalizing direct assault?

Direct Assault ( D A ) is a crime manifesting offender's
spirit of lawlessness displayed in the commission of an act
indicative of utter lawlessness or spirit against the rule of law.
This is shown by accused in attacking, injuring or assaulting
a person in authority ( P A ) or an agent of a person in authority
( A P A ) who are the visible representatives of the law.
• How is direct assault committed?

There are two ways of committing D A :
a. By employing violence or force with for the purpose of
attaining any of the objectives of rebellion or sedition
except that the offenders are not numerous enough to
constitute public uprisings. (Hence, this is also called
rebellion by a handful.) T h e offended party or victim need
not be a public officer but may be a certain social class.
b. By attacking or laying hands upon a PA or an A P A .
There are two ways of committing atentados contra la
autoridad o susagentes. T h e first is not a true atentadoas it
is tantamount to rebellion or sedition, except that there is no
public uprising. On the other hand, the second mode is the
more common way of committing assault and is aggravated
when: (1) there is a weapon employed in the attack, or (2) the
offender is a public officer, or (3) the offender lays hands upon
a public authority. (People v. Abalos, July 1996)
• Define (a) person in authority; (b) agent of a person in authority.

Person in authority — any public officer vested with
jurisdiction recognized in law and clothed with authority in
444
TO P E R S O N S IN AUTHORITY A N D THEIR A G E N T S
law, whether individually or as a member of board or corporate

body.
Section 388 of the Local Government Code expanded the
definition of a P A by expressly providing that for purposes of the
R P C , the punong barangay, sangguniang barangay members,
and members of the lupongtagapamayapa in each barangay
shall be deemed as persons in authority in their jurisdictions.
(People v. Sion, G.R. No. 109617, August 11, 1997)
Teachers, lawyers and heads of schools recognized by the
government are PA solely for purposes of Articles 148 and 151
and in connection with their duties. Outside of this, they are
not considered P A .
A g e n t of a person in authority — A n y person who, by
direct provision of law, by election or appointment by competent
authority is charged with the maintenance of order and the
protection and security of life and property, e.g., councilman
or policeman and any person who comes to the aid of a person
in authority. Security guards are not included for they are not
public officials.
• What are the elements of the common form of direct assault?

T h e elements of DA of the second form are:
(1) there must be an attack, use of force or serious intimidation
or resistance upon a PA or his agent;
(2) the assault was made when the P A or A P A was performing
his duties or on the occasion of such performance; and
(3) the accused knew that the victim is a PA or A P A , that is,
that the accused must have the intention to offend, injure
or assault the offended party as a PA or an A P A . (id.)
• Can direct assault be committed during rebellion or sedition?

N o . This crime cannot be committed in times of rebellion
or sedition because DA requires that there is no public
uprising. Article 148 requires that the assault be "without a
public uprising." (id.)
• What is the effect of direct assault, on the felony?

Generally, DA is complexed with other crimes resulting
from the assault, e.g., DA with murder to be charged in one
445
information only. But when the consequence of the act is slight

physical injury, it is DA only because the latter is the principal
offense and the material result of the act (the slight physical
injury) cannot be separated from the assault, as the defiant
conduct against the law is the spirit behind the act.
DA is a crime brought about by the spirit of lawlessness
displayed in the commission of the act. The act must be
indicative that the offender is utterly lawless or against the
rule of law. When an attack is made to a PA or A P A while in
the performance of duty, DA is committed whatever may be the
offender's reason for attacking.
• Relate less serious physical injuries to direct assault.
Article 265 makes the laying of hands upon a PA ( A P A not

included) qualifying provided that the crime thereby committed
is not D A . That is, if the laying of hands is not by reason of his
being a PA or due to the performance of his function, the crime
is qualified less serious physical injuries. If the laying of hands
is during or by reason of the performance of duties of a PA and
results to less serious physical injuries, a complex crime of DA
with less serious physical injuries is committed. If the injury is
other than less serious physical in griefs, and if is not D A , the
generic aggravating circumstance of rank may be appreciated.
• When the assault on the person in authority or his agent results

to death, what crime is committed?
T h e assault resulting in the killing of the PA or A P A ,

gives rise to the complex crime of DA with murder or homicide.
LL was a member of the then I N P and thus was an A P A .

He was in the actual performance of his duties when assaulted
for he was maintaining peace and order during the fiesta. TT
personally knew LL to be a policeman who in fact was wearing
his uniform. LL was struck from behind while he was being
confronted at the same time by the appellant's father. He delib-
erately went behind the victim whom he then hit with a piece
of wood he deliberately got for the purpose. TT resorted to such
means to avoid any risk to him knowing that his quarry was
a policeman who could readily mount a defense. These should
have sufficiently deterred the appellant from attacking him,
TO P E R S O N S IN AUTHORITY A N D THEIR A G E N T S
and defiant conduct clearly demonstrates that he really had

the criminal intent to assault and injure an agent of the law
(id.)
• Relate "ignorance of law" and "ignorance of fact" to direct

assault.
Generally, the offender must be aware that the offended

is possessed of authority. Hence, if he does not know that the
offended is a public officer, direct assault is not committed. This
is subject, however, to the rule of "ignorance of the law excuses
no one": whether a public officer is a PA or an A P A within the
meaning of Article 152 is a question of law, ignorance of which
is not excused. T h a t means the offender does not have to know
that victim is included in Article 152 as long as he knows that
he is a public officer which is a question of fact, ignorance of
which negatives liability for DA but not for the material result
of the assault.
• The qualifying circumstance of laying hand applies to whom?
T h e circumstance applies to a PA only as expressly

provided in the law. It does not include laying hand upon an
A P A . Hence, physical violence such as pushing a PA qualifies
the D A ; this is not necessarily true to an A P A .
Under Article 151, resistance and disobedience to a PA
is always serious; whereas, to an A P A , it may or may not
be serious (paragraph 2). T h e act of the offender is merely a
reaction not an aggression required in D A .
• When is laying of hands upon a public officer not direct assault?

Exceptionally, if in the exercise of his function, the PA or
A P A acted illegally by overstepping the bounds of his authority,
there is no DA because by so acting irregularly and illegally, he
ceases to be a public officer. One is deemed a public officer only
when acting within the scope of his authority.
If the public officer assaulted is not a P A , (for example,
a municipal accountant) the assault on him is an aggravating
circumstance under Article 14(2). If he is a P A , the crime is DA,
thus, not anymore aggravating for the assault is the basis of
DA and Article 62, no. 2 provides that circumstances which are
crimes by themselves shall no longer be considered.
447
• Who can become an agent of a person in authority?

Article 152 says that a civilian who comes to the aid of a
PA becomes an A P A . It did not mention A P A . It appears that
if he came to the aid of an A P A , he does not become an A P A .
But Article 149 says that indirect assault ( I A ) is committed
by attacking or assaulting any PA or A P A showing that the
civilian becomes an A P A even if the one aided is an A P A .
Article 149 should prevail as far as criminal liability for

IA is concerned for that article is the specific provision on how
IA is committed whereas Article 152 is a general provision on
who is an A P A .
• When the offended is a civilian who aids a person in authority

or his agent, what crime or crimes are committed?
W h e n the civilian comes to the aid of a PA or an A P A ,

he himself becomes an A P A . Consequently, the assault on
him constitutes IA under Article 149. Therefore, for IA to be
committed there must be D A . Without D A , there can be no IA
for there would be no occasion for the civilian to extend aid to
a PA or A P A . Thus, two crimes committed — DA for the attack
on the PA or A P A and IA for the attack on the aiding civilian.
In fine, for IA to be committed there must be:
1. Assault on the PA or A P A ( D A ) ;
2. A civilian comes to the aid of the PA or A P A on the

occasion of the assault on them; and
3. T h e civilian who pro hac vice becomes an A P A is also

assaulted.
Chapter Five
P U B L I C DISORDERS
A r t . 153. Tumults and other disturbances of public orders —

Tumultuous disturbance or interruption liable to cause disturbance.
— T h e p e n a l t y of arresto mayor in its m e d i u m p e r i o d to pri-
sion correccional in its m i n i m u m p e r i o d a n d a fine not ex-
c e e d i n g 1,000 pesos shall be i m p o s e d u p o n a n y p e r s o n w h o
shall c a u s e a n y s e r i o u s d i s t u r b a n c e in a p u b l i c place, office,
o r establishment, o r shall i n t e r r u p t o r d i s t u r b p u b l i c perfor-
m a n c e s , functions or g a t h e r i n g s , or peaceful meetings, if the
act is not i n c l u d e d in the p r o v i s i o n s of Articles 131 to 132.
T h e p e n a l t y next h i g h e r i n d e g r e e shall b e imposed

u p o n p e r s o n s c a u s i n g a n y d i s t u r b a n c e or i n t e r r u p t i o n of a
tumultuous character.
T h e d i s t u r b a n c e o r i n t e r r u p t i o n shall b e d e e m e d t o b e
t u m u l t u o u s i f c a u s e d b y m o r e t h a n three persons w h o a r e
a r m e d o r p r o v i d e d w i t h m e a n s o f violence.
T h e p e n a l t y of arresto mayor shall be imposed u p o n any

p e r s o n w h o i n a n y meeting, association, o r p u b l i c place, shall
m a k e a n y o u t c r y t e n d i n g to incite r e b e l l i o n or sedition or in
such place shall d i s p l a y p l a c a r d s o r e m b l e m s w h i c h p r o v o k e
a d i s t u r b a n c e of the p u b l i c o r d e r .
T h e p e n a l t y of arresto menor a n d a fine not to exceed 200
pesos shall be i m p o s e d u p o n those persons w h o in violation
of the provisions contained in the last clause of Article 85,
shall b u r y w i t h p o m p the b o d y of a p e r s o n w h o has been
legally executed.
A r t . 154. Unlawful use of means of publication and unlawful
utterances. — T h e penalty of arresto mayor a n d a fine r a n g i n g
f r o m 200 to 1,000 pesos shall be imposed upon:
1. A n y p e r s o n w h o by means of printing, lithography,
or any other means of publication shall publish or
449
cause to be p u b l i s h e d as n e w s any false n e w s w h i c h

m a y e n d a n g e r the p u b l i c o r d e r , or cause d a m a g e to
the interest or credit of the State;
2. A n y person w h o by the same means, or by w o r d s ,
utterances or speeches, shall e n c o u r a g e disobedi-
ence to the l a w or to the constituted authorities or
praise, justify, or extol a n y act p u n i s h e d by l a w ;
3. A n y person w h o shall maliciously p u b l i s h or cause

to be p u b l i s h e d a n y official resolution or d o c u m e n t
without p r o p e r authority, o r b e f o r e they h a v e b e e n
p u b l i s h e d officially; or
4. A n y p e r s o n w h o shall p r i n t , p u b l i s h , or distribute
or cause to be p r i n t e d , p u b l i s h e d , or d i s t r i b u t e d
books, p a m p h l e t s , p e r i o d i c a l s , o r leaflets w h i c h d o
not b e a r the r e a l printer's n a m e , o r w h i c h a r e clas-
sified as a n o n y m o u s . (As amended by Com. Act No.
202.)
• What crimes are treated in Article 153?
There are four acts constituting tumults and other

disturbance of public order:
a. Serious disturbance in any public place, office or

establishment.
b. Interruption or disturbance of public performance,

function, or gathering if the act is not covered by:
Article 131 — interruption of peaceful meeting or
Article 132 — interruption of religious worship
In Articles 131 and 132, the offender is a public

officer and the act is prohibiting, preventing, or dissolving
peaceful meeting or religious worship.
When the acts in [a] and [b] are committed by more

than three [at least four] armed persons or provided with
means of violence the crime is tumultuous disturbance.
c. M a k i n g any outcry tending to incite to rebellion or

sedition, displaying placards or emblems which disturb
public order; and
PUBLIC D I S O R D E R S
d. Burying with pomp the body of a person legally

executed (death penalty).
• Acts of disturbance or interruption could result in what crimes?

T h e disturbance is either of public order (Article 153)
or inciting to rebellion or sedition (Articles 138, 142). If the
person w h o makes statements tending to incite the listeners to
rise to rebellion or sedition had that original criminal intent,
it is inciting to rebellion or sedition; otherwise, it is simply
disturbance of public order.
• What is public disorder?

Public disorder is a serious disturbance in a place where
performance of public function is being held, if the disturbance
is not covered by Articles 131 and 132. If the disturbance is not
serious, the crime is alarms and scandals under Article 155.
If the offenders are armed, the disturbance is designated
tumultuous. "Arms" refers to clubs, stones, or any means of
fatal violence, not exclusively firearms.
• Burying a person legally put to death constitutes what crime?

It constitutes violation of Article 153 (last paragraph).
"Legally" means that the offender was imposed the death
penalty, the conviction was affirmed with finality by the
Supreme Court, and the convict was executed. This is penalized
because by so burying with pomp a person legally executed, it
shows the defiant attitude of the offenders and their lack of
respect for the rule of law.
However, R . A . 9346 had prohibited the imposition of the
death penalty; thus, this crime can no longer be committed.
A r t . 155. Alarms and scandals. — T h e penalty of arresto

menor or a fine not e x c e e d i n g 200 pesos shall be imposed
upon:
1. A n y p e r s o n w h o , w i t h i n any t o w n or public place,
shall d i s c h a r g e any firearm, rocket, firecracker,
or other explosive calculated to cause a l a r m or
danger;
2. A n y p e r s o n w h o shall instigate or take an active
p a r t in any c h a r i v a r i or other disorderly meeting
451
offensive to another or prejudicial to public

tranquility;
3. A n y person w h o , w h i l e w a n d e r i n g a b o u t at night or
w h i l e e n g a g e d in any other nocturnal amusements,
shall d i s t u r b the p u b l i c peace; or
4. A n y person w h o , w h i l e intoxicated or o t h e r w i s e ,
shall cause a n y d i s t u r b a n c e or s c a n d a l in p u b l i c
places, p r o v i d e d that the circumstances of the
case shall not m a k e the p r o v i s i o n s of A r t i c l e 153
applicable.
• What are the acts penalized as alarms and scandals?

a. Discharge of firearms, firecrackers, and other explosives
in public place;
b. Charivari;
c. Engaging in nocturnal amusement disturbing the public
place; or
d. A n y disturbance or scandal in public places not amounting
to tumults.
• What variant crimes can arise from the use of firearms?
a. Alarms and scandals (Article 155) — offender discharges

a firearm in a public place but the firearm is not pointed
to a particular person when discharged.
b. Illegal discharge of firearm (Article 254) — the firearm

was directed to a particular person who was not hit if
intent to kill is not proved.
c. Attempted or frustrated homicide or murder — the

offended was hit with intent to kill, automatically,
the crime is at least attempted homicide or murder;
frustrated if the wound is mortal. It has been held that
when one uses a lethal weapon against another, intent
to kill is inherent. Even if the offended was not hit, but it
was proved that there was intent to kill, there is at least
attempted homicide.
d. Physical Injuries — if the person was injured but there

was no intent to kill.
452
PUBLIC D I S O R D E R S
e. Threat — if the weapon is not discharged but aimed at

another. (Other light threat if drawn in a quarrel but not
in self-defense.)
f. Grave coercion — if the threat was direct, immediate and

serious and the person is compelled or prevented to do
something against his will.
g. Illegal possession of firearm - if the firearm is unlicensed

provided no other crime is committed by means of such
firearm.
• What is charivari?
Charivari is a mock serenade where the offender actually

disturbs the peace by using cans, pans, utensils, etc. This brings
about the crime of alarms and scandals. This is equivalent to
breach of the peace in municipal ordinances.
• Creating noise and annoyance may bring about what offenses?
a. Alarms and scandals — Disturbing the public in general

by playing or singing karaoke noisily during midnight in
the neighborhood.
b. Unjust vexation — If the noise is directed to a particular

person or family (light coercion under Article 287).
A r t . 156. Delivery of prisoner from jail. — T h e penalty of

i n its m i n i m u m p e r i o d shall b e i m p o s e d u p o n a n y p e r s o n w h o
shall r e m o v e f r o m any j a i l o r p e n a l establishment any person
confined t h e r e i n or shall h e l p the escape of such person, by
m e a n s of violence, intimidation, or b r i b e r y . If other means
a r e used, the penalty of arresto mayor shall be imposed.
If the escape of the p r i s o n e r shall take place outside of
said establishments by t a k i n g the g u a r d s by surprise, the
same penalties shall be i m p o s e d in their m i n i m u m period.
(See notes under Articles 157 to 159.)
453
Chapter Six
EVASION OF SERVICE OF SENTENCE
A r t . 157. Evasion of service of sentence. — T h e penalty of

prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s
shall be imposed u p o n a n y convict w h o shall e v a d e service of
his sentence by escaping d u r i n g the t e r m of his i m p r i s o n m e n t
by reason of final j u d g m e n t . H o w e v e r , if such e v a s i o n or
escape shall h a v e t a k e n place by m e a n s of u n l a w f u l entry,
b y b r e a k i n g d o o r s , w i n d o w s , gates, w a l l s , roofs, floors, o r
by using picklocks, false keys, disguise, deceit, violence or
intimidation, o r t h r o u g h c o n n i v a n c e w i t h o t h e r convicts
or employees of the p e n a l institution, the p e n a l t y shall be
prision correccional in its m a x i m u m p e r i o d .
A r t . 158. Evasion of service of sentence on the occasion of

disorders, conflagrations, earthquakes, or other calamities. —
A convict, w h o shall e v a d e the service of his sentence, by
leaving the p e n a l institution w h e r e h e shall h a v e b e e n
confined, on the occasion of d i s o r d e r r e s u l t i n g f r o m a
conflagration, e a r t h q u a k e , explosion, o r s i m i l a r c a t a s t r o p h e ,
or d u r i n g a mutiny in w h i c h he h a s not p a r t i c i p a t e d , shall
suffer an increase of one-fifth of the time still r e m a i n i n g to
be served u n d e r the o r i g i n a l sentence, w h i c h in no case shall
exceed six months, if he shall fail to g i v e h i m s e l f up to the
authorities w i t h i n forty-eight h o u r s f o l l o w i n g the issuance
of a p r o c l a m a t i o n by the C h i e f E x e c u t i v e a n n o u n c i n g the
passing a w a y o f such calamity.
Convicts, w h o , u n d e r the c i r c u m s t a n c e s m e n t i o n e d i n
the p r e c e d i n g p a r a g r a p h , shall g i v e themselves u p t o the
authorities w i t h i n the a b o v e m e n t i o n e d p e r i o d of 48 h o u r s ,
shall be entitled to the d e d u c t i o n p r o v i d e d in A r t i c l e 98.
A r t . 159. Other cases of evasion of service of sentence. — T h e

penalty of prision correccional in its m i n i m u m p e r i o d shall
b e imposed u p o n the convict w h o , h a v i n g b e e n g r a n t e d
454
E V A S I O N OF SERVICE OF SENTENCE
conditional p a r d o n b y the C h i e f E x e c u t i v e , shall violate any

of the conditions of such p a r d o n . H o w e v e r , if the penalty
remitted b y the g r a n t i n g o f s u c h p a r d o n b e h i g h e r than six
y e a r s , the convict shall then suffer the u n e x p i r e d portion of
his o r i g i n a l sentence.
• W h o is the offender in Article 156 (Delivery of Prisoner)?
T h e offender is any person who is N O T the custodian

of the prisoner. If it w e r e the custodian who connived in the
escape or was negligent, he is liable for infidelity in the custody
of prisoner, either through dolo or negligence under Articles
223, 224, and 225.
• What is the crime if the escapee is a detention prisoner or

serving final judgment?
W h e r e the prisoner is serving sentence by final judgment,

he is liable for evasion of service of sentence. If he is a
detention prisoner, there is no sentence to evade, Article 157
is not applicable, for it specifies "convict." T h e offense of the
detention prisoner should fall under Article 156 which refers to
"any person confined therein" if there was conspiracy between
the detention prisoner and the one who helped in his escape.
T h e detention prisoner in that case is either a principal by
inducement or by direct participation. In the latter case, he is a
principal by direct participation if there was no prior agreement
for his escape but he acquiesced at the time of escape which is
implied conspiracy.
• What is the condition precedent for entitlement to the loyalty

time allowance provided in Article 98 in relation to Article 158?
To be entitled to the time allowance, the prisoner must
evade his sentence by leaving the institution. If he does not
leave, he cannot belong to the class of convicts who, having
evaded the service of their sentence by leaving the penal
institution give up within 48 hours. There is no assurance that
had they left the penal institution, they would have returned
voluntarily to take up the privations of prison life impelled
by that sense of loyalty to the Government which ought to be
rewarded with a special allowance.
455
• What calamities are covered in Article 158?

Article 158 covers disorders resulting from conflagration,
earthquake, explosion, or similar catastrophe (such as lahar
flow, volcanic eruption, landslide), and mutiny. Only circum-
stances of a nature similar to those previously enumerated
shall be covered by the general term of "similar catastrophe."
(ejusdem generis)
• What is mutiny? Does it include riot?

Mutiny is an organized unlawful resistance to a superior;
a sedition; a revolt. (Moreno, Philippine Law Dictionary) Riot
is not included or analogous to mutiny and Article 158 does not
provide for analogous situation for mutiny. Mutiny is the revolt
of subordinates against their superiors. Since prisoners are not
subordinates of prison authorities, riot is not among the causes
for evasion which w i l l entitle the loyal prisoner who returns
after its cessation, to the loyalty time allowance provided in
Article 98. Rather, Article 157 should apply in case of riot for it
uses the word "violence" as a means of escaping.
• How is evasion committed in Article 158?
Evasion lies in the failure to return, not in leaving the

penal establishment because leavingis encouraged in cases of
disorders enumerated therein. This is shown by the fact that
there is premium for those w h o l e a v e and thereafter return
after the disorder ceases. Thus:
1. Leaving without returning - 1/5 addition to the remaining

sentence which should not be more than six months, that
is, 1/5 of the balance of the sentence to be served or six
months whichever is lesser
2. N o t leaving - no deduction, penalty as is
3. L e a v i n g and thereafter returning within 48 hours - 1/5

deduction from his sentence as provided under A r t i c l e 98:
Art. 98. Special time allowance for loyalty. — A deduction

of 1/5 of the period of his sentence shall be granted to any
prisoner who, having evaded the service of his sentence under
the circumstances mentioned in Article 158xxx."
456
E V A S I O N OF SERVICE OF SENTENCE
The deduction for loyalty under Article 98 should be based

on the o r i g i n a l sentence as the article did not qualify the word
"sentence" unlike in Article 158 which expressly stated that
the sentence to be added shall be based on the period "still
remaining to be served." When the law does not qualify, neither
should the court do. Moreover, Article 158 specified that the
additional sentence should not exceed six months showing the
intent of Congress to limit the penalty to the accused, whereas
in Article 98, there is no such qualification. Finally, is all
doubts must be construed in favor of the accused. Since it is
more favorable to him that the lowering is on the basis of the
original sentence, then that construction should be followed.
» Why is violation of conditional pardon an evasion of sentence?
It is evasion because when the prisoner accepted the con-

dition, no matter how onerous, he must respect the condition.
It is a contract between him and the President. Otherwise, he
is deemed to have accepted the conditional pardon only to be
relieved of the penalty. Further, conditional pardon is extend-
ed on the basis of good conduct in prison and the presumption
that the pardonee shall not commit an offense any more. If he
violates the condition of his pardon, it shows that he is not af-
ter all a reformed convict.
• Is violation of conditional pardon a substantive offense?
Violation of conditional pardon is not a substantive

offense if the penalty remitted is more than six years since the
pardonee is merely made to serve the balance of the penalty
for the crime for which he was pardoned. But if the penalty
remitted is six years or less, it is a substantive offense for there
is a new penalty for the violation.
• Summarize the interconnection among Articles 156, 157 and

158 vis-a-vis 223, 224 and 225.
Delivery of prisoner from jail is committed by:
1. Detention prisoner if he participated in the plan to make
him escape or at least acquiesced thereto;
2. A convict whose conviction is not yet final or on appeal
under the same condition; and
457
3. A person rescuing prisoner from jail. He can be a civilian

or a public officer who is not the prisoner's custodian.
Evasion of service of sentence is by:
1. A prisoner in confinement by final judgment;
2. A pardonee violating the conditions of his pardon; and
3. A convict sentenced to destierro who entered the prohibited
area.
Infidelity in the custody of prisoner:
1. A public officer who consented or connived in the escape
of convict or detention prisoner (Article 223) and is the
custodian of the prisoner.
2. A public officer-custodian of the prisoner whose negligence

caused the evasion. (Article 224)
3. A private person to whom the custody of the prisoner

was confided who consented, connived, or was negligent,
causing the evasion. (Article 225)
Thus, when a prisoner by final judgment is rescued from

jail by his allies in connivance with a jail guard, the rescuing
civilians are liable for delivery, the jail guard for infidelity and
the prisoner for evasion.
Chapter Seven
COMMISSION OF A N O T H E R CRIME D U R I N G
SERVICE OF P E N A L T Y IMPOSED FOR
A N O T H E R PREVIOUS OFFENSE
A r t . 160. Commission of another crime during service of

penalty imposed for another previous offense — Penalty. — Besides
the p r o v i s i o n s of R u l e 5 of A r t i c l e 62, a n y p e r s o n w h o
shall commit a felony after h a v i n g b e e n convicted by final
j u d g m e n t , b e f o r e b e g i n n i n g t o s e r v e such sentence, o r w h i l e
s e r v i n g the s a m e , shall b e p u n i s h e d b y the m a x i m u m p e r i o d
o f the p e n a l t y p r e s c r i b e d b y l a w for the n e w felony.
A n y convict of the class r e f e r r e d to in this article, w h o

is not a h a b i t u a l c r i m i n a l , shall be p a r d o n e d at the a g e of
seventy y e a r s if he shall h a v e a l r e a d y s e r v e d out his o r i g i n a l
sentence, or w h e n he shall complete it after r e a c h i n g said
a g e , unless b y r e a s o n o f his c o n d u c t o r other circumstances
h e shall not b e w o r t h y o f such clemency.
• What is quasi-recidivism?
It is the commission by the convict of another felony before
beginning to serve sentence or while serving the same. The
crime must be a felony although not necessary that it be the
same as the original felony. T h e first crime may or may not be a
felony .The liability is besides that for habitual delinquency. Its
effect is to impose on the offender the maximum period of the
penalty prescribed by law for the new felony plus the penalty
for habitual delinquency if applicable.
• Is quasi-recidivism a felony?
N o . It is a special aggravating circumstance against an
offender who has been convicted by final judgment and com-
mits a felony thereafter, since it has no penalty of its own and
its effect is to increase the penalty for the new felony to the
maximum period.
459
TITLE FOUR
C R I M E S AGAINST PUBLIC INTEREST
Chapter One
FORGERIES
Section O n e . — Forging the seal of the Government

of the Philippine Island, the signature or stamp
of the Chief Executive
A r t . 161. Counterfeiting the great seal of the Government of the

Philippine Island, forging the signature of the Chief Executive. —
T h e penalty of reclusion temporal shall be i m p o s e d u p o n a n y
person w h o shall f o r g e the G r e a t S e a l o f the G o v e r n m e n t o f
the P h i l i p p i n e I s l a n d s or the s i g n a t u r e or the s t a m p of the
Chief Executive.
A r t . 162. Using forged signature or counterfeit seal or stamps.

— T h e penalty of prision mayor shall be i m p o s e d u p o n a n y
person w h o shall k n o w i n g l y m a k e use o f the counterfeit seal
o r forged s i g n a t u r e o r s t a m p m e n t i o n e d i n the p r e c e d i n g
article.
utter = put into circulation
Section T w o . — Counterfeiting coins
A r t . 163. Making and importing and uttering false coins. —

A n y p e r s o n w h o m a k e s , imports, o r utters false coins, i n
connivance w i t h counterfeiters, i m p o r t e r s , shall suffer:
1. Prision mayor in its m i n i m u m a n d m e d i u m

p e r i o d s a n d a fine not to e x c e e d 10,000 pesos, if the
counterfeited coin be silver coin of the P h i l i p p i n e s
or coin of the C e n t r a l B a n k of the P h i l i p p i n e s of
ten-centavo d e n o m i n a t i o n o r a b o v e .
2. Prision correccional in its m i n i m u m a n d m e d i u m

p e r i o d s a n d a fine not to exceed 2,000 pesos, if the
460
FORGERIES
counterfeited coins be a n y of the m i n o r coinage

of the P h i l i p p i n e s or of the C e n t r a l B a n k of the
P h i l i p p i n e s b e l o w ten-centavo denomination.
3. Prision correccional in its m i n i m u m p e r i o d a n d a

fine not to e x c e e d 1,000 pesos, if the counterfeited
coin be c u r r e n c y of a f o r e i g n country. (As amended
by R.A. No. 4202, approved June 19, 1965.)
A r t . 164. Mutilation of coins — Importation and utterance of

mutilated coins. — T h e p e n a l t y of prision correccional in its
m i n i m u m p e r i o d a n d a fine not to exceed 2,000 pesos shall be
i m p o s e d u p o n a n y p e r s o n w h o shall mutilate coins o f the legal
c u r r e n c y o f the ( U n i t e d States o r o f the) P h i l i p p i n e I s l a n d o r
i m p o r t o r utter m u t i l a t e d c u r r e n t coins, i n c o n n i v a n c e w i t h
mutilators or importers.
A r t . 165. Selling of false and mutilated coin, without conniv-

ance. — T h e p e r s o n w h o k n o w i n g l y , a l t h o u g h w i t h o u t the
c o n n i v a n c e m e n t i o n e d in the p r e c e d i n g articles, shall pos-
sess false or m u t i l a t e d coin w i t h intent to utter the same, or
shall actually utter such coin, shall suffer a penalty l o w e r by
one d e g r e e t h a n that p r e s c r i b e d i n said articles.
( T h e c r i m e s o f counterfeiting, i m p o r t i n g a n d mutilating
coins h a v e b e e n r e n d e r e d obsolete b y the economic reality
that o u r coins h a v e n o m o r e intrinsic v a l u e . )
Section T h r e e . — Forging treasury or bank notes,

obligations and securities; importing and uttering false or
forged notes, obligations and securities
A r t . 166. Forging treasury or bank notes or other documents

payable to bearer; importing, and uttering such false or forged notes
and documents. — T h e f o r g i n g or falsification of treasury or
b a n k notes or certificates or other obligations a n d securities
p a y a b l e to b e a r e r a n d the importation a n d uttering in
connivance w i t h forgers or importers of such false or forged
obligations a n d notes, shall be p u n i s h e d as follows:
1. By reclusion temporal in its m i n i m u m period and
a fine not to exceed 10,000 pesos, if the document
w h i c h has b e e n falsified, counterfeited, or altered is
an obligation or security of the Philippine Islands.
461
T h e w o r d s "obligation or security [of the

U n i t e d States o r ] of the P h i l i p p i n e Islands" shall be
held to m e a n all b o n d s , certificates of indebtedness,
national b a n k notes, coupons, [ U n i t e d States o r ]
P h i l i p p i n e Islands notes, t r e a s u r y notes, fractional
notes, certificates of deposit, bills, checks, or drafts
for money, d r a w n b y o r u p o n a u t h o r i z e d officers
of the U n i t e d States or of the P h i l i p p i n e I s l a n d s ,
a n d other representatives of v a l u e , of w h a t e v e r
denomination, w h i c h h a v e b e e n o r m a y b e issued
u n d e r any A c t of the C o n g r e s s of the U n i t e d States
or the P h i l i p p i n e L e g i s l a t u r e .
2. By prision mayor in its m a x i m u m p e r i o d a n d a

fine not to exceed 5,000 pesos, w h e n the f o r g e d or
altered d o c u m e n t is a c i r c u l a t i n g note issued by
any b a n k i n g association d u l y a u t h o r i z e d b y l a w t o
issue the same.
3. By prision mayor in its m e d i u m p e r i o d a n d a

fine not to exceed 5,000 pesos, if the falsified or
counterfeited d o c u m e n t w a s issued by a f o r e i g n
government.
4. By prision mayor in its m i n i m u m p e r i o d a n d a

fine not to exceed 2,000 pesos, w h e n the f o r g e d or
altered d o c u m e n t is a c i r c u l a t i n g note or bill issued
by a f o r e i g n b a n k d u l y a u t h o r i z e d thereof.
A r t . 167. Counterfeiting, importing, and uttering instruments

not payable to bearer. — A n y p e r s o n w h o shall f o r g e , i m p o r t
or utter, in c o n n i v a n c e w i t h the f o r g e r s or i m p o r t e r s , a n y
instrument p a y a b l e to o r d e r or o t h e r d o c u m e n t of credit not
p a y a b l e to b e a r e r , shall suffer the penalties of prision cor-
reccional in its m e d i u m a n d m a x i m u m p e r i o d s a n d a fine not
e x c e e d i n g 6,000 pesos.
T h e reference i n the R e v i s e d P e n a l C o d e t o the U n i t e d

States should n o w b e c o n s i d e r e d a s not w r i t t e n b e c a u s e the
P h i l i p p i n e s is no l o n g e r p a r t of the C o m m o n w e a l t h thus
there is no m o r e r e a s o n or l e g a l basis for the p r e f e r e n t i a l
treatment to the U n i t e d States o v e r other countries. T h e
R e p u b l i c of the P h i l i p p i n e s is an i n d e p e n d e n t nation. I n d e e d
it should not be r e f e r r e d to as the P h i l i p p i n e I s l a n d s .
462
FORGERIES
A r t . 168. Illegal possession and use of false treasury or bank

notes and other instruments of credit. — U n l e s s the act be one of
those c o m i n g u n d e r the p r o v i s i o n s of a n y of the p r e c e d i n g
articles, a n y p e r s o n w h o shall k n o w i n g l y use or have in his
possession, w i t h intent to use, a n y of the false or falsified
instruments r e f e r r e d to in this section, shall suffer the
p e n a l t y next l o w e r i n d e g r e e t h a n that p r e s c r i b e d i n said
articles.
A r t . 169. How forgery is committed. — T h e f o r g e r y r e f e r r e d

to in this section m a y be committed by a n y of the following
means:
1. By g i v i n g to a t r e a s u r y or b a n k note or any in-

s t r u m e n t p a y a b l e t o b e a r e r o r t o o r d e r mentioned
t h e r e i n , the a p p e a r a n c e of a t r u e a n d g e n u i n e doc-
ument.
2. By e r a s i n g , substituting, counterfeiting, or altering

b y a n y m e a n s the f i g u r e s , letters, w o r d s , o r signs
contained therein.
• When is counterfeiting not forgery?

T h e subject of forgery should be treasury or bank notes.
If the subject of forgery were a document other than these, the
crime would be falsification.
Section F o u r . — Falsification of legislative, public,

commercial and private documents, and wireless
telegraph and telephone messages
A r t . 170. Falsification of legislative documents. — T h e penalty

of prision correccional in its m a x i m u m p e r i o d a n d a fine not
e x c e e d i n g 6,000 pesos shall be imposed u p o n any person w h o ,
w i t h o u t p r o p e r a u t h o r i t y therefor alters any bill, resolution,
o r o r d i n a n c e enacted o r a p p r o v e d o r p e n d i n g a p p r o v a l b y
either H o u s e of the L e g i s l a t u r e or any provincial b o a r d or
m u n i c i p a l council.
A r t . 171. Falsification by public officer, employee, or notary
or ecclesiastical minister. — T h e penalty of prision mayor and
a fine not to exceed 5,000 pesos shall be imposed upon any
public officer, employee, or notary w h o , taking advantage of
463
his official position, shall falsify a document by committing

any of the following acts:
1. Counterfeiting or imitating any handwriting,
signature, or r u b r i c ;
2. C a u s i n g it to a p p e a r that persons h a v e p a r t i c i p a t e d
in any act or p r o c e e d i n g w h e n they d i d not in fact
so participate;
3. A t t r i b u t i n g to persons w h o h a v e p a r t i c i p a t e d in an
act or p r o c e e d i n g statements other t h a n those in
fact m a d e by them;
4. M a k i n g untruthful statements in a n a r r a t i o n of
facts;
5. A l t e r i n g t r u e dates;
6. M a k i n g a n y alteration or intercalation in a g e n u i n e
d o c u m e n t w h i c h c h a n g e s its m e a n i n g ;
7. Issuing in an a u t h e n t i c a t e d f o r m a d o c u m e n t
p u r p o r t i n g to be a copy of an o r i g i n a l d o c u m e n t
w h e n no such o r i g i n a l exists, or i n c l u d i n g in such
a copy a statement c o n t r a r y to, or different f r o m ,
that of the g e n u i n e o r i g i n a l ; or
8. I n t e r c a l a t i n g a n y i n s t r u m e n t or note r e l a t i v e to the
issuance thereof in a protocol, r e g i s t r y , or official
book. to interpose, insert.
T h e same penalty shall b e i m p o s e d u p o n a n y ecclesias-

tical minister w h o shall commit a n y of the offenses e n u m e r -
ated in the p r e c e d i n g p a r a g r a p h s of this article, w i t h r e s p e c t
to a n y r e c o r d or d o c u m e n t of s u c h c h a r a c t e r that its falsifi-
cation m a y affect the civil status of p e r s o n s .
A r t . 172. Falsification by private individuals and use of

falsified documents. — T h e p e n a l t y of prision correccional in
its m e d i u m a n d m a x i m u m p e r i o d s a n d a fine of not m o r e
than 5,000 pesos shall be i m p o s e d u p o n :
1. A n y p r i v a t e i n d i v i d u a l w h o shall c o m m i t a n y of
the falsifications e n u m e r a t e d in the next p r e c e d i n g
article in a n y p u b l i c or official d o c u m e n t or letter
464
FORGERIES
of exchange or any other kind o f commercial

document; and
2. A n y p e r s o n w h o to the d a m a g e of a third party,

or w i t h the intent to c a u s e such d a m a g e , shall in
a n y p r i v a t e d o c u m e n t commit a n y of the acts of
falsification e n u m e r a t e d in the next p r e c e d i n g
article.
A n y p e r s o n w h o shall k n o w i n g l y introduce i n
e v i d e n c e i n a n y j u d i c i a l p r o c e e d i n g o r t o the d a m a g e o f
a n o t h e r o r w h o , w i t h the intent t o c a u s e such d a m a g e ,
shall use a n y of the false d o c u m e n t s e m b r a c e d in the
n e x t p r e c e d i n g article, or in a n y of the f o r e g o i n g
s u b d i v i s i o n s of this article, shall be p u n i s h e d by the
penalty next l o w e r in degree.
• What is penalized in falsification of public document?
T h e law punish the violation of the faith or trust of the

public and the destruction of the truth as solemnly proclaimed
in the document. T h e revocation of a falsified document is
immaterial to the guilt of the one charged with falsification.
(Hernando v. CA, May 1993) Consequently, damage or intent
to cause damage is immaterial.
T h e document falsified need not be an authentic official

paper since its simulation, in fact, is the essence of falsification.
(Nizurtado v. Sandiganbayan)
• What are the elements of falsification under Article 171?

a. T h e offender is a public officer, a notary public or an
ecclesiastical minister;
b. He takes advantage of his official position; and
c. He falsifies a document by any of the eight ways enumer-
ated therein.
• W h o is a public officer? How does he take advantage of his

official position?
Article 203 defines a public officer as any public servant
from the highest to the lowest who is performing service to the
465
government or any of its branches or instrumentality by virtue

of law, by election or by appointment by a competent authority.
He performs public duties as a subordinate official, employee
or agent whatever may be his rank or class.
The public officer takes advantage of his official position
by falsifying a document over which he has custody or by
either making or preparing or otherwise intervening in the
preparation of a document. Abuse of public office is considered
present when the offender falsifies a document in connection
with the duties of his office. (Enemecio v. Omb)
• What is a document?
A document is any writing capable of creating rights or
extinguishing obligations. It is one that can prove, evidence
or set forth some disposition or agreement. A document is one
admissible in court as evidence. T h e writing must be complete,
otherwise, there is no falsification because this crime can be
committed only with respect to documents and an incomplete or
unfilled-up form is not a document. (Dava v. People, September
1991) T h e crime in this case may only be possession of supplies
and materials which may be used in falsification under Article
176.
• How is a document falsified?
A document is falsified by fabricating a previously

inexistent document or by changing the contents of an existing
one through any of the eight ways listed in Article 171.
• What are the four kinds of documents?
a. Private — a deed between private individuals by which

something is proved, evidenced or set forth and for which
a notary public or authorized person has not intervened.
A private document becomes public it had been notarized
or made part of the public record.
b. Public — a private document that has been notarized; one

that has become part of the public record.
c. Official — its issuance is mandated by law and in the

performance of official duty.
466
FORGERIES
d. Commercial — one that isprepared in accordance with

mercantile laws.
A public document starts as a private document, whereas

an official document is from the start an official document.
Cite examples of public documents.
A driver's license is a public document within the purview

of Articles 171 and 172. T h e blank form of the driver's license
becomes a public document the moment it is accomplished.
Thus, when driver's license N o . 2706887 was filled up with
petitioner's personal data and the signature of the L T O
registrar was affixed therein, even if the same was simulated,
the license became a public document. That being so, proof of
the element of damage caused to another person or intent to
cause such damage is immaterial. In falsification of public or
official documents, the principal thing being punished is the
violation of the public faith and the destruction of the truth
proclaimed therein. (Dava v. People)
T h e Daily T i m e Record that a public officer fills up is a

public document but it has characteristics distinct from other
public documents. T h e purpose of keeping D T R is to show the
attendance of government employees in office and to be paid
accordingly under the policy of no-work, no-pay. It is primarily
intended to prevent damage or loss to the government that
would result when it pays an employee who did not report for
work. T h e integrity of the D T R as an official document is intact
if the damage sought to be prevented has not been produced as
when the employee did not collect salary for the days he did not
work. T h e D T R is an official document but it is not criminally
falsified if it does not pervert the avowed purpose. It is different
in case of other public documents affecting continuing public
interest which is naturally damaged if the document were
falsified. (Layug v. Sandiganbayan, August 2000)
L e a v e forms are public documents. What is in dispute is

whether or not there is the legal requirement to disclose the
reasons for the employee's leave failure of which amounts to
a crime of falsification. There is none. The form itself does not
require stating the reasons for going on leave. An employee
simply indicates through check marks the nature of the leave
467
he is availing of, which in this case, respondent chose to avail

of his forced and vacation leave credits. Nevertheless, the
omission does not affect the validity of its approval. W h a t is
indicated in the leave forms is only the need to specify the
whereabouts of the employee who goes on leave. It is not
required that specifics must be provided. The omission to state
the location of a vacationing employee is not a condition sine
qua non for its approval.
There is no falsification of leave forms where there is no
requirement for the indication of reasons for going on leave.
Regardless of such a requirement, the need to indicate the
whereabouts of a vacationing employee is not a necessity for
its approval. (Enemecio v. Omb., G.R. No. 146731, January 13,
2004)
• In falsification under Article 171(2), should the document be an

authentic official paper?
N o . Paragraph 2 states: "Causing it to appear that persons

have participated in any act or proceeding when they did not
in fact so participate." T h e document need not be an authentic
official paper since its simulation, in fact, is the essence of
falsification. So, also, the signatures appearing thereon need
not necessarily be forged, (id.)
• Is good faith a defense in falsification?
Y e s . There is no falsification of a public document if the acts

of the accused are consistent with good faith. Misstatements or
erroneous assertion in a public document w i l l not give rise to
falsification as long as he acted in good faith and no one was
prejudiced by the alteration or error.
T h e integrity of the D T R as an official document is intact

if the damage sought to be prevented has not been produced
as when the employee did not collect salary for the days he
did not work. T h e accused, in good faith, reported to work and
filled up his D T R but he was not given work as he had been
detailed to another office which he was contesting. (Layug v.
Sandiganbayan)
• What is the presumption in favor of a public document?
468
FORGERIES
It is prima facie evidence of the facts stated therein

T h e same can only be rebutted by other competent evidence
and cannot be overcome by the testimony of a single witness.
Complainant never offered any evidence to contravene the
presumption that the recitals in the municipal payroll giving
his status as a head laborer w e r e true. T h e T i m e and Payroll
Sheet, having been signed by the Municipal Treasurer, is
clothed with the presumption of regularity, particularly since
it was not objected to by the complainant. Complainant signed
the payroll sheet indicating his status as a head laborer.
Therefore, this representation is conclusive upon him and
he cannot deny or disprove the same without violating the
principle of estoppel. (Cosep v. People, G.R. No. 110353, May
21, 1998)
• What are the elements of falsification by making untruthful

statements in a narration of facts?
a. T h e offender makes in a document untruthful statements
in a narration of facts;
b. He has a legal obligation to disclose the truth of the facts
narrated by him; and
c. T h e facts narrated by the offender are absolutely false.
(Layno v. People, September 1992)
Enemecio added the requirement that the perversion of
truth in the narration of facts was made with the wrongful
intent to injure a third person.
• What is meant by "legal obligation to disclose the truth?"

"Legal obligation" means that there is a law requiring the
disclosure of the truth of the facts narrated. BB may not be
convicted of falsification of public document by making false
statements in a narration of facts absent any legal obligation
to disclose where he would spend his vacation and forced
leave. There is no law imposing upon BB the legal obligation to
disclose where he was going to spend his leave of absence, (id.)
• Compare falsification and perjury.

T h e two important lines of demarcation between falsifica-
tion by making untruthful statements, falsification by imitat-
ing a signature, and perjury are:
469
1. Whether or not the document is required by law to be

under oath; and
2. Whether or not the statements on a material matter are
false.
When the answer to both queries is in the affirmative,
the crime is perjury. When either one is in the negative, it
is falsification. The document must be required by law to be
sworn to and was in fact sworn to ("in cases in which the law so
requires" Article 183). If the statements are true, although the
signature is false, even if under oath, the crime is falsification,
not perjury.
Otherwise stated, in falsification, the documents may
or may not be under oath whereas in perjury, the document
must be under oath and required by law to be under oath. In
falsification, the contents of the document may be true but it
is the signature that is false. In perjury, the contents of the
document in its material aspect must be deliberately false.
• Is the fact that the entries in the public document were all true
not exculpatory since there was no damage to the government?
N o . In falsification of a public document, it is immaterial

whether or not the contents set forth therein w e r e false. W h a t
is important is that the signature of another was counterfeited.
In falsification of a public or official document, the principal
thing punished is the violation of the public faith and the
destruction of the truth as therein solemnly proclaimed. Intent
to gain or injure is immaterial. Even more so, the gain or
damage is not necessary. (Caubang v. CA)
• What are the acts punished under Article 172?
a. Falsification of public, official or commercial documents

by a private person,
b. Falsification of private document by any person, and
c. Use of falsified document in (1) a judicial proceeding or (2)
in any other proceedings.
• Can falsification be committed through culpa?

There is no falsification of private document by culpa
because of the element of intent to cause damage. But, there
470
FORGERIES
is falsification of public, official and commercial document by

culpa since intent to cause damage is not an element. (Samson
v. CA, 103 Phil. 277; People v. Reyes, January 20, 1978)
• What are the elements of use of falsified documents?
T h e elements of using a falsified document in any

transaction (other than as evidence in a judicial proceeding)
under the last paragraph of Article 172 are:
(a) Offender knew that a document was falsified by another
person
(b) T h e false document is embraced in Article 171 or in any of
subdivision N o s . 1 and 2 of Article 172;
(c) He used such document (not in judicial proceedings); and
(d) T h e use of the false document caused damage to another
or at least it was used with intent to cause such damage.
• Distinguish Article 171 from Article 172.
a. In 171, the offender is a public officer, notary public

or ecclesiastical minister; in 172, the offender can be a
private individual.
b. In the former, the document falsified is any document; in

the latter, the document falsified is classified into public,
official, and commercial on the one hand, and private, on
the other.
c. In 171, damage is not an element but the erosion of public

faith in the documents; in 172, damage is an element in
the case of falsification of private document and in the use
of falsified document not in judicial proceedings.
A public official who is not included in Article 171 may
be punished under Article 172 because he may not have taken
advantage of his official position in so doing. Moreover, a public
official is considered such only when he is acting within the
scope of his authority. When he falsifies a document, he is
acting beyond his authority and in his private capacity.
Article 171 relative to falsification by public officer or no-
tary public presupposes that the officer or notary public is the
custodian of the document. If he will issue authenticated copy,
471
he is liable under Article 171, not under Article 172. These two
articles are similar except that in Article 172, the offender may
be a public officer, notary public, or a private person.
What is the presumption on the possession and use of falsified

documents?
The possessor and user of a falsified document are
presumed to be the falsifier thereof. No falsifier falsifies in
the open. It could easily be consummated only by the falsifier
alone or in the confidence of persons in connivance with him.
In the absence of a credible and satisfactory explanation on
how the document came into being and then filed with the S E C
the accused is presumed to be the falsifier of the signature of
P P , and the one who prepared doubtful information on the
financial status of the proposed corporation.
The filing of the statement of assets and liabilities
remained unexplained. This fact, together with other proofs
presented by the prosecution, is strong evidence tending to
show that the accused either himself falsified the statements
or caused it to be falsified by someone else. (Caubang v. People,
June 1992)
What crime should the user of falsified document be charged

with?
He should be charged with falsification of documents

because of the presumption that a person using of a falsified
document is deemed to be the falsifier. This is especially true
if the user had benefited from the use thereof and the time
between the falsification and the use is so close. W h e n he is
acquitted therefrom he can be prosecuted for use of falsified
document. These are two different felonies so that there is no
double jeopardy. T h e fact that he is acquitted from falsification
only shows that he was not the one who falsified the same but
he is still liable for use of falsified document.
If the false document w a s used in any judicial proceeding,

criminal liability is incurred even without damage or intent to
cause damage. Damage or intent to cause damage is necessary
only in use of falsified document in any transaction other than
judicial proceedings. W h e n intent to cause damage is absent,
there may only be civil or administrative liability.
472
FORGERIES
» In what instance will falsification not give rise to criminal

liability?
Where the intent to pervert the truth is absent. Intentional

falsification requires criminal intent to falsify. Lack of criminal
intent is shown by the following circumstances:
a. Accused did not benefit out of the falsification, and
b. No damage has been caused either to the government
or third person.
Although generally not an element of falsification, damage
is material in determining whether there is intent to commit
the crime of falsification.
Falsification is also a felony. As such it requires criminal
intent — to pervert the truth. Where: (1) the accused did not
profit, and (2) no damage was caused to any private property
or the government — the intent to pervert the truth is absent.
There may be civil or administrative liability but not crimi-
nal liability. Where the mind is not criminal, the act cannot be
criminal. Actus non facitreum, nisi mens sit rea. (Llamoso v.
Sandiganbayan, August 1985)
• What is the effect when the document is private? public?

If private document was falsified to commit estafa, even
if it were the means to commit the estafa, there is no complex
crime of estafa with falsification because deceit is the common
element of both. One and the same deceit or damage cannot
give rise to more than one crime. It is either estafa or falsifica-
tion.
If public, official or commercial document was falsified to
commit estafa, a complex crime is committed, because damage
is not an element of falsification of these documents. (See notes
under Article 48.)
If the crime was use of falsified document, the nature
of the document is not controlling. In this crime, the purpose
for knowingly using falsified document is essential. But if the
document is presented in court, even if rejected, the mere offer
thereof is criminal.
• In falsification of private documents, what will determine

whether the crime committed is estafa or falsification?
473
The view has been advanced that the criteria to determine

whether the crime is estafa only or falsification only is that: if
the falsification of the private document was essential in the
commission of estafa because without the falsification, estafa
cannot be committed, the crime is falsification; estafa becomes
the consequence of the crime. If the estafa can be committed
even without resorting to falsification which was done only
to facilitate estafa, the main crime is estafa; falsification is
merely incidental, since even without falsification, estafa can
be committed.
• What is the value of the opinions of handwriting experts in

forgery cases?
The opinions of handwriting experts, even those from
the N B I and the Police Commission, are not binding upon
courts. This principle holds true especially when the question
involved is mere handwriting similarity or dissimilarity, which
can be determined by a visual comparison of specimens of the
questioned signatures with those of the currently existing
ones. (Punzalan v. COMELEC, 289 SCRA 702)
Handwriting experts are usually helpful in the examina-
tion of forged documents because of the technical procedure
involved in analyzing them. But resort to these experts is not
mandatory or indispensable to the examination or the compari-
son of handwriting. (Heirs ofGregorio v. CA, 300 SCRA 565) A
finding of forgery does not depend entirely on the testimonies
of handwriting experts, because the judge must conduct an in-
dependent examination of the questioned signature to arrive at
a reasonable conclusion as to its authenticity.
Forgery cannot be presumed. It must be proved by clear,
positive and convincing evidence. T h e burden of proof lies in the
party alleging forgery. (Joven v. Carungin, G.R. No. 140472,
June 10, 2002)
A r t . 173. Falsification of wireless cable, telegraph and tele-

phone messages, and use of said falsified messages. — T h e p e n a l t y
of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s
shall b e i m p o s e d u p o n a n y officer o r e m p l o y e e o f the G o v -
ernment or of any private corporation or concern engaged
in the service of s e n d i n g or r e c e i v i n g w i r e l e s s , c a b l e or tele-
474
FORGERIES
p h o n e m e s s a g e s w h o utters a fictitious w i r e l e s s , t e l e g r a p h or
t e l e p h o n e m e s s a g e of a n y system or falsifies the same.
A n y p e r s o n w h o shall use such falsified dispatch to the

p r e j u d i c e of a t h i r d p a r t y or w i t h the intent to cause such
p r e j u d i c e , shall suffer the p e n a l t y next l o w e r in d e g r e e .
S e c t i o n F i v e . — Falsification of medical certificates,

certificates of merit or service and the like
A r t . 174. False medical certificates, false certificates of merit

or service and the like. — T h e penalties of arresto mayor in
its m a x i m u m p e r i o d to prision correccionalva. its m i n i m u m
p e r i o d a n d a fine not to e x c e e d 1,000 pesos shall be imposed
upon:
1. A n y p h y s i c i a n o r s u r g e o n w h o , i n connection w i t h
the p r a c t i c e of his profession, shall issue a false
certificate; a n d
2. A n y p u b l i c officer w h o shall issue a false certificate
o f m e r i t o r service, g o o d c o n d u c t o r similar circum-
stances.
T h e p e n a l t y of arresto mayor shall be imposed u p o n a n y
p r i v a t e p e r s o n w h o shall falsify a certificate falling w i t h i n
the classes m e n t i o n e d in the t w o p r e c e d i n g subdivisions.
A r t . 175. Using false certificates. — T h e penalty of arresto

menor shall be i m p o s e d u p o n a n y one w h o shall k n o w i n g l y
use a n y of the false certificates mentioned in the next
p r e c e d i n g article.
Section Six. — Manufacturing, importing and possession

of instruments or implements intended for the
commission of falsification
Art. 176. Manufacturing and possession of instruments

or implements for falsification. — T h e penalty of prision
correccional in its m e d i u m a n d m a x i m u m periods a n d a fine
not to exceed 10,000 pesos shall be imposed u p o n any person
w h o shall m a k e or introduce into the P h i l i p p i n e Islands any
stamps, dies, m a r k s , or other instruments or implements
intended to be used in the commission of the offenses of
counterfeiting or falsification mentioned in the preceding
sections of this chapter.
475
C h a p t e r Two
OTHER FALSITIES
Section O n e . — Usurpation of authority, rank, title, and
improper use of names, uniforms, and insignia
A r t . 177. Usurpation of authority or official functions. — A n y

person w h o shall k n o w i n g l y a n d falsely r e p r e s e n t himself
to be an officer, agent or r e p r e s e n t a t i v e of a n y d e p a r t m e n t
o r agency o f the P h i l i p p i n e G o v e r n m e n t o r o f a n y f o r e i g n
government, o r w h o , u n d e r p r e t e n s e o f official position,
shall p e r f o r m a n y act p e r t a i n i n g to a n y p e r s o n in a u t h o r i t y
o r p u b l i c officer o f the P h i l i p p i n e G o v e r n m e n t o r o f a n y
foreign g o v e r n m e n t , o r a n y a g e n c y thereof, w i t h o u t b e i n g
l a w f u l l y entitled to do so, shall suffer the p e n a l t y of prision
correccional in its m i n i m u m a n d m e d i u m p e r i o d s . (As
amended by Rep. Act No. 379.)(Restored by E.O. No. 187.)
What are the forms of usurpation under Article 177?

1) Usurpation of public authority where mere false repre-
sentation sufficient such as misrepresenting oneself as a
B I R examiner.
2) Usurpation of function by performing functions of a
public officer under false pretense of public authority,
such as one pretending to be a judge and solemnizing a
marriage. Without the false pretense, there is no crime
of usurpation of authority but mere civic spiritas when a
civilian directed traffic to unwind traffic mess.
What is the essence of usurpation of public authority under R.A.

10?
R . A . 10 penalizes any person who shall perform any act

pertaining to the government, or to any person in authority
or public officer, without being lawfully entitled to do so.
Compared with Article 177, R . A . 10 does not require false
pretense as an element.
476
OTHER FALSITIES
A r t . llS.Using fictitious name and concealing true name.

T h e p e n a l t y of arresto mayor a n d a fine not to exceed 500
pesos shall b e i m p o s e d u p o n a n y p e r s o n w h o shall publicly
use a fictitious n a m e for the p u r p o s e of concealing a crime,
e v a d i n g the e x e c u t i o n of a j u d g m e n t , or c a u s i n g d a m a g e .
A n y p e r s o n w h o conceals his t r u e n a m e a n d other

p e r s o n a l c i r c u m s t a n c e s shall be p u n i s h e d by arresto menor
or a fine not to e x c e e d 200 pesos.
C O M M O N W E A L T H A C T N O . 142
R E G U L A T I N G THE USE OF ALIASES
Section 1. E x c e p t as a p s e u d o n y m solely for literary,

c i n e m a , television, r a d i o o r other entertainment p u r p o s e s
a n d in athletic events w h e r e the use of p s e u d o n y m is a
n o r m a l l y a c c e p t e d p r a c t i c e , no p e r s o n shall use a n y name
other t h a n his o r i g i n a l or r e a l n a m e unless the same is or
a r e d u l y r e c o r d e d in the p r o p e r local civil registry, or such
substitute n a m e as m a y h a v e b e e n a u t h o r i z e d by a competent
court; Provided, T h a t p e r s o n s , w h o s e b i r t h h a v e not b e e n
r e g i s t e r e d in a n y local civil registry a n d w h o have not b e e n
b a p t i z e d , h a v e o n e y e a r f r o m the a p p r o v a l o f this A c t within
w h i c h to r e g i s t e r their n a m e s in the civil registry of their
resident. T h e n a m e shall c o m p r i s e the p a t r o n y m i c n a m e a n d
one or t w o s u r n a m e s . (As amended by R.A. No. 6085.)
Sec. 2. A n y p e r s o n d e s i r i n g to use an alias shall a p p l y for

authority t h e r e f o r in p r o c e e d i n g s like those legally p r o v i d e d
to obtain j u d i c i a l authority for a c h a n g e of n a m e , a n d no
p e r s o n shall be a l l o w e d to secure j u d i c i a l authority for more
t h a n one alias. T h e petition for an alias shall set forth the
person's b a p t i s m a l a n d family name a n d the name recorded
in the civil registry, if different, his immigrant's name, if an
alien, a n d his p s e u d o n y m , if he has such names other than
his o r i g i n a l or real n a m e specifying the reason or reasons for
the use of the desired alias. T h e judicial authority for the use
of alias, the Christian n a m e a n d the alien immigrant's name
shall be r e c o r d e d in the p r o p e r local civil registry, and no
person shall use any name or names other than his original
or real name unless the same is or are duly registered in the
p r o p e r local civil registry.
477
Sec. 3. No person h a v i n g b e e n b a p t i z e d with a n a m e

different from that with w h i c h he w a s registered at b i r t h in
the office of the local civil registry, or with w h i c h he w a s
baptized for the first time, or in case of an alien, w i t h w h i c h
he w a s registered in the B u r e a u of I m m i g r a t i o n u p o n entry
or any person w h o o b t a i n e d j u d i c i a l authority to use an alias
or w h o uses a p s e u d o n y m , shall r e p r e s e n t himself in any
public or private transaction or shall sign or execute a n y
public or private d o c u m e n t w i t h o u t stating or affixing his
real o r original n a m e a n d all n a m e s o r aliases o r p s e u d o n y m
he is or m a y h a v e b e e n a u t h o r i z e d to use.
xxx
Sec. 5. A n y violation of this A c t shall be p u n i s h e d w i t h
imprisonment of f r o m 1 to 5 y e a r s a n d a fine of P5,000 to
PIO.OOO (id.).
Ursua v. CA, G.R. No. 116607, April 10,1996
• What is the rationale for C A . 142?
C A . 142 as amended was enacted primarily to curb the

practice among the Chinese of adopting different names and
aliases which created tremendous confusion in the field of
trade. Such a practice almost bordered on the crime of using
fictitious names which cannot be successfully maintained
against the Chinese who claim they possessed a thousand and
one names. C A . 142 penalizes using an alias unless the use
of such alias was duly authorized by judicial proceedings and
registered in the civil register.
• How should C A . 142 be construed?
Being a penal statute, it should be construed strictly

against the State and in favor of the accused. The reason for
this principle is the tenderness of the law for the rights of
the individuals and the object to establish a certain rule by
conformity by which mankind would be safe and the discretion
of the court limited. One's mind cannot rest easy on the
proposition that the petitioner should be convicted on a law
that does not clearly penalize the act done by him. There exists
a valid presumption that undesirable consequences were never
478
OTHER FALSITIES
intended by a legislative measure and that a construction for

which will avoid all objectionable, mischievous, indefensible,
wrongful, evil and injurious consequences.
• Will the use of another name in a single instance constitute use

of an alias?
N o . An alias is a name used by a person or intended to

be used by him publicly and habitually, usually in business
transactions in addition to his real name by which he is
registered at birth or baptized the first time or substitute name
authorized by a competent authority. A man's name is simply
the sound or sounds by which he is commonly designated by
others and by which they distinguish him but sometimes a man
is known by several different names known as aliases. Hence,
the use of a fictitious name or a different name belonging to a
single person in a single instance without any sign or indication
that the user intends to be known by this name in addition
to his real name from that day forth does not fall within the
prohibition contained in C A . 142.
OP is not an alias name of petitioner. There is no showing

that he had used or intends to use that name as his second
name or in addition to his real name. T h e use of the name OP
was an isolated transaction where he is not even required to
expose his real identity. For even if he had identified himself
properly at the Office of the Ombudsman, he would still be able
to get a copy of the complaint as a matter of right, and the Office
of the Ombudsman could not refuse him because the complaint
was part of the public record, hence, open to inspection and
examination by anyone under the proper circumstances.
• When can a resident Filipino citizen use an alias legally?

a. As a pseudonym solely for literary, cinema, television,
radio or other entertainment purposes and in athlet-
ic events w h e r e the use of pseudonym is a normally
accepted practice;
b. A n y name other than an original or real name duly
recorded in the proper loval civil registry; and
c. Such substitute name as may have been authorized by a
competent court.
479
A r t . 179. Illegal use of uniform and insignia. —The penalty

of arresto mayor shall be imposed u p o n any p e r s o n w h o shall
publicly a n d i m p r o p e r l y m a k e use of insignia, uniforms or
dress pertaining to an office not held by such p e r s o n or to
a class of persons of w h i c h he is not a m e m b e r . (Restored by
E.O. No. 187.)
Section T w o . — False Testimony
A r t . 180. False testimony against a defendant. — A n y p e r s o n

w h o shall give false testimony a g a i n s t the d e f e n d a n t in a n y
criminal case shall suffer: in a judicial proceeding
1. T h e penalty of reclusion temporal, if the d e f e n d a n t in
said case shall h a v e b e e n sentenced to death;
2. T h e penalty of prision mayor, if the d e f e n d a n t shall

h a v e b e e n sentenced to reclusion temporal or reclusion
perpetua;
3. T h e penalty of prision correccional, if the d e f e n d a n t

shall h a v e b e e n sentenced to a n y o t h e r afflictive
penalty; a n d
4. T h e penalty of arresto mayor, if the d e f e n d a n t shall

h a v e b e e n sentenced to a c o r r e c t i o n a l p e n a l t y or a
f i n e , o r shall h a v e b e e n a c q u i t t e d .
In cases p r o v i d e d in s u b d i v i s i o n s 3 a n d 4 of this article

the offender shall f u r t h e r suffer a fine not to e x c e e d 1,000
pesos.
A r t . 181. False testimony favorable to the defendant. —

A n y p e r s o n w h o shall give false testimony i n f a v o r o f the
d e f e n d a n t in a c r i m i n a l case, shall suffer the penalties of
in its m i n i m u m p e r i o d a n d a fine not to e x c e e d 1,000 pesos,
if the prosecution is for a felony p u n i s h a b l e by an afflictive
penalty, a n d the penalty of arresto mayor in a n y other case.
A r t . 182. False testimony in civil cases. — A n y p e r s o n

found guilty of false testimony in a civil case shall suffer the
penalty of prision correccional in its m i n i m u m p e r i o d a n d a
fine not to exceed 6,000 pesos, if the a m o u n t in c o n t r o v e r s y
shall exceed 5,000 pesos, a n d the p e n a l t y of arresto mayor in
480
OTHER FALSITIES
its m a x i m u m p e r i o d to prision correccional in its m i n i m u m

p e r i o d a n d a fine not to exceed 1,000 pesos, if the a m o u n t
i n c o n t r o v e r s y shall not e x c e e d s a i d a m o u n t o r cannot b e
estimated.
• What are the different forms of false testimony in court?

These are:
1. False testimony in criminal cases either ( a ) in favor or (b)
against the defendant; and
2. False testimony in civil cases.
T h e penalty to the false witness against the defendant
in criminal cases is on the basis of the penalty imposed on
the defendant witnessed against; whereas the penalty on the
favorable testimony is on the basis of the charge against the
defendant, whether it is penalized by an afflictive penalty or
otherwise.
T h e false testimony in civil cases is penalized on the basis

of the amount involved in the civil case which should not exceed
P5,000. This article is one of the many obsolete provisions due
to the amount involved.
• What is the effect on prescriptive period when the false

testimony is in favor of the accused? against the accused?
Whether the testimony is in favor or against the accused
determines when the prescriptive period begins to run, thus:
In favor — right after the witness testified falsely, the period
commences to run because the basis of the penalty
on the false witness is the felony charged to the
accused regardless of whether the accused was
acquitted or convicted or the trial has terminated.
Against — period will not begin to run as long as the case has
not been decided with finality because the basis of
the penalty on the false witness is the sentence on
the accused. When the accused is acquitted, there
is also a corresponding penalty on the false witness
for his false testimony.
A r t . 183. False testimony in other cases and perjury in solemn
affirmation. — T h e penalty of arresto mayor in its m a x i m u m
481
period to prision correccional in its m i n i m u m p e r i o d shall be

imposed u p o n any person w h o , k n o w i n g l y m a k i n g untruthful
statements a n d not b e i n g included in the provisions of the
next preceding articles, shall testify u n d e r oath, or m a k e
an affidavit, u p o n any material matter before a competent
person authorized to administer an oath in cases in w h i c h
the l a w so requires.
A n y person w h o , in case of a solemn affirmation m a d e in
lieu of an oath, shall commit a n y of the falsehoods m e n t i o n e d
in this a n d the three p r e c e d i n g articles of this section, shall
suffer the respective penalties p r o v i d e d therein.
• What are the elements of perjury?

a. The accused made statement under oath or executed an
affidavit upon a material matter;
b. The statement or affidavit was made before a competent
officer authorized to receive and administer oath;
c. In that statement or affidavit, the accused made a willful
and deliberate assertion of a falsehood; and
d. The sworn statement or affidavit containing the falsity is
required by law or made for a legal purpose. (Saavedra v.
DOJ, September 1993)
• Where is perjury committed?

Perjury is committed in forums other than judicial for
this is penalized as false testimony under Articles 180 to
182. Perjury is committed, for instance, in testimonies under
oath given during administrative proceedings, Congressional
hearings, and the like and in sworn statements required by law
such Statement of Assets and Liabilities submitted by public
officials and employees.
• Will the mere assertion of falsehood constitute perjury?

No. Mere assertion of falsehood is not enough to amount to
perjury. The assertion must be deliberate and willful. In a case,
the assertion of SS was done in good faith, in the belief that the
non-payment of the last installment price was justified by the
seller's non-compliance with their warranties. Thus, a finding
of probable cause does not follow as a matter of course even
482
OTHER FALSITIES
if the Securities and Exchange Commission decides adversely

against him, for such essential element of the crime appears to
be wanting, (id)
A mere assertion of a false objective fact, a falsehood,

is not enough. The assertion must be deliberate and willful.
Perjury being dolo, there must be malice on the part of the
accused. Willfully means intentionally; with evil intent and
legal malice, with the consciousness that the alleged perjurious
statement is false with the intent that it should be received
as a statement of what was true in fact. It is equivalent to
"knowingly." "Deliberately" implies meditated as distinguished
from inadvertent acts. The accused must know his statement
to be false or consciously ignorant of its truth. (Villanueva v.
Sec. of Justice, G.R. No. 162187, November 18, 2005)
Will the fact that the document is under oath sufficient to make
the affiant liable for perjury?
No. As a rule, pleadings need not be verified unless
otherwise required by the Rules of Court, and no rule requires
complaints for damages to be under oath. That being so, another
element of perjury is absent — that the sworn statement
containing the falsity is required by law. (Saavedra v. DOJ)
What is the nature of perjury? How should it be treated?

Perjury is the willful and corrupt assertion of a falsehood
under oath or affirmation administered by authority of law on a
material matter. It is an obstruction of justice; its perpetration
may affect the earnest concerns of the parties before a tribunal.
The felony is consummated when the false statement is made.
The seminal modern treatment of the history of perjury

concludes that one consideration of policy overshadows all
others — the measures taken against the offense must not
be so severe as to discourage aggrieved parties from lodging
complaints or testifying. (Villanueva v. Sec. of Justice)
Is statement of belief or conviction considered perjurious?

No. Perjury cannot be willful where the oath is according
to belief or conviction as to its truth. A false statement of a
belief is not perjury. Bona fide belief in the truth of a statement
483
is an adequate defense. A false statement which is obviously

the result of an honest mistake is not perjury, (id.)
When the affiant made two contradictory statements, can

he be convicted of perjury?
A conviction for perjury cannot be sustained merely
upon the contradictory sworn statements of the accused. The
prosecution must prove which of the two statements is false
and must show the statement to be false by other evidence than
the contradicting statement. T h e rationale of this principle is
thus:
... Proof that accused has given contradictory testimony
under oath at a different time will not be sufficient to es-
tablish the falsity of testimony charged as perjury, for this
would leave simply one oath of the defendant as against
another, and it would not appear that the testimony
charged was false rather than the testimony contradic-
tory thereof. The two statements will simply neutralize
each other; there must be some corroboration of the con-
tradictory testimony. Such corroboration, however, may
be furnished by evidence aliunde tending to show perjury
independently of the declarations of testimony of the ac-
cused, (id.)
What is the meaning of the term "material matter" in perjury?

T h e term "material matter" is the main fact subject of
the inquiry, or any circumstance which tends to prove that
fact, or any fact or circumstance which tends to corroborate or
strengthen the testimony related to the subject of the inquiry,
or which legitimately affects the credence of any witness who
testified. In this case, a matter is material if it has a material
effect or tendency to influence the Commission in resolving
the motion of H T C one w a y or the other. T h e effects of the
statement are weighed in terms of potentiality rather than
probability. T h e prosecution need not prove that the false
testimony actually influenced the Commission, (id.)
What are the two essential elements of proof of perjury?

There are two essential elements of proof for perjury: (1)
the statement made by the defendants must be proven false;
484
OTHER FALSITIES
and (2) it must be proven that the defendant did not believe
those statements to be true.
K n o w l e d g e by the accused of the falsity of his statement
is an internal act. It may be proved by his admissions or by
circumstantial evidence. T h e state of mind of the accused may
be determined by the things he says and does, from proof of a
motive to he and of the objective falsity itself, and from other
facts tending to show that the accused really knew the things
he claimed not to know.
A r t . 184. Offering false testimony in evidence. — A n y p e r s o n

w h o shall k n o w i n g l y offer in e v i d e n c e a false witness or
testimony i n a n y j u d i c i a l o r official p r o c e e d i n g , shall b e
p u n i s h e d as guilty of false testimony a n d shall suffer the
r e s p e c t i v e penalties p r o v i d e d in this Section.
• What is subornation of perjury?
Subornation of perjury refers to the act of procuring a

false witness to testify and thereby commit perjury. It is the
act of the procurer. T h e false witness must first be convicted of
perjury before the suborner may be prosecuted for subornation
(Hicks vs. State; State vs. Sailor, 40 Words and Phrases 640).
He stands in the same position as a co-principal by inducement.
This is w h y subornation of perjury is unnecessary because it is
punishable as a crime of perjury via conspiracy.
In Article 184, the law punishes mere offering of a false

testimony or false witness. T h e conviction of the perjurer is
unnecessary, unlike in subornation. In Article 184, the witness
may not have actually perjured but the offeror is still liable for
having offered the false witness.
485
Chapter Three
FRAUDS
Section O n e . — Machinations, monopolies and
combinations
A r t . 185. Machinations in public auctions. — A n y p e r s o n
w h o shall solicit a n y gift or p r o m i s e as a consideration for
r e f r a i n i n g f r o m taking p a r t i n a n y p u b l i c auction, a n d a n y
person w h o shall attempt to c a u s e b i d d e r s to stay a w a y f r o m
an auction by threats, gifts, p r o m i s e s , or a n y other artifice,
with intent to cause the r e d u c t i o n of the p r i c e of the t h i n g
auctioned, shall suffer the p e n a l t y of prision correccional
in its m i n i m u m p e r i o d a n d a fine r a n g i n g f r o m 10 to 50 p e r
centum of the v a l u e of the t h i n g auctioned.
A r t . 186. Monopolies and combinations in restraint of trade.

—The penalty of prision correccional in its m i n i m u m p e r i o d
or a fine r a n g i n g f r o m 200 to 6,000 pesos, or b o t h , shall be
imposed upon:
1. A n y p e r s o n w h o shall enter into contract or a g r e e -

ment o r shall take p a r t i n a n y c o n s p i r a c y o r c o m b i n a t i o n i n
the f o r m of a trust or o t h e r w i s e , in r e s t r a i n t of t r a d e or com-
merce to p r e v e n t by artificial m e a n s free competition in the
market;
2. A n y p e r s o n w h o shall m o n o p o l i z e a n y m e r c h a n d i s e
o r object o f t r a d e o r c o m m e r c e , o r shall c o m b i n e w i t h a n y
other p e r s o n o r p e r s o n s t o m o n o p o l i z e said m e r c h a n d i s e o r
object in o r d e r to alter the p r i c e t h e r e o f by s p r e a d i n g false
r u m o r s or m a k i n g use of a n y o t h e r artifice to r e s t r a i n free
competition in the m a r k e t ;
3. A n y person who, being a manufacturer, producer,

or processor of any merchandise or object of commerce or an
i m p o r t e r o f a n y m e r c h a n d i s e o r object o f c o m m e r c e f r o m a n y
foreign country, either a s p r i n c i p a l o r a g e n t , w h o l e s a l e r o r
retailer, shall c o m b i n e , c o n s p i r e o r a g r e e i n a n y m a n n e r w i t h
a n y p e r s o n l i k e w i s e e n g a g e d i n the m a n u f a c t u r e , p r o d u c t i o n ,
486
FRAUDS
processing, a s s e m b l i n g o r i m p o r t a t i o n o f such m e r c h a n d i s e
or object of c o m m e r c e or w i t h a n y other persons not so
similarly e n g a g e d for the p u r p o s e o f m a k i n g transactions
p r e j u d i c i a l to l a w f u l c o m m e r c e , or of i n c r e a s i n g the m a r k e t
p r i c e i n a n y p a r t o f the P h i l i p p i n e s , o f a n y such m e r c h a n d i s e
o r object o f c o m m e r c e m a n u f a c t u r e d , p r o d u c e d , processed,
a s s e m b l e d in or i m p o r t e d into the P h i l i p p i n e s , or of any
article i n the m a n u f a c t u r e o f w h i c h such m a n u f a c t u r e d ,
p r o d u c e d , p r o c e s s e d , o r i m p o r t e d m e r c h a n d i s e o r object o f
c o m m e r c e is u s e d .
If the offense m e n t i o n e d in this A r t i c l e affects a n y food

substance, m o t o r fuel or l u b r i c a n t s , or other articles of
p r i m e necessity, the p e n a l t y shall be that of prision mayor
in its m a x i m u m a n d m e d i u m p e r i o d s , it b e i n g sufficient for
the imposition t h e r e o f that the initial steps h a v e b e e n taken
t o w a r d c a r r y i n g out the p u r p o s e s o f the combination.
A n y p r o p e r t y possessed u n d e r a n y contract o r b y any

c o m b i n a t i o n m e n t i o n e d i n the p r e c e d i n g p a r a g r a p h s , a n d
b e i n g the subject thereof, shall be forfeited to the G o v e r n m e n t
of the P h i l i p p i n e s .
W h e n e v e r a n y of the offenses d e s c r i b e d a b o v e is commit-

ted by a c o r p o r a t i o n or association, the president a n d each
one of or its a g e n t or r e p r e s e n t a t i v e in the P h i l i p p i n e s in
case of a f o r e i g n c o r p o r a t i o n or association, w h o shall have
k n o w i n g l y p e r m i t t e d or failed to p r e v e n t the commission of
such offenses, shall be h e l d l i a b l e as p r i n c i p a l s thereof. (As
amended by Rep. Act No. 1956.)
Section T w o . — Frauds in commerce and industry
A r t . 187. Importation and disposition of falsely marked articles

or merchandise made of gold, silver, or other precious metals or their
alloys. —The penalty of prision correccional or a fine r a n g i n g
f r o m 200 to 1,000 pesos, or both, shall be imposed upon any
p e r s o n w h o shall k n o w i n g l y import or sell or dispose of any
article or m e r c h a n d i s e m a d e of gold, silver or other precious
metals, or their alloys, with stamps, b r a n d s or m a r k s which
fail to indicate the actual fineness or quality of said metal or
alloys.
487
A n y stamp, b r a n d , label, or m a r k shall be d e e m e d to fail

to indicate the actual fineness of the article on w h i c h it is
e n g r a v e d , printed, stamped, l a b e l e d or attached, w h e n the
test of the article s h o w s that the quality or fineness thereof
is less by m o r e than one-half k a r a t , if m a d e of g o l d , a n d less
by m o r e than four one-thousandth, if m a d e of silver, than
w h a t i s s h o w n b y said stamp, b r a n d , label o r m a r k . B u t i n
case of w a t c h cases a n d flatware m a d e of gold, the actual
fineness of such gold shall not be less by m o r e t h a n three
one-thousandth than the fineness indicated by said stamp,
b r a n d , label o r m a r k .
Articles 188 and 189 were expressly repealed by Republic Act

8293 — the Intellectual Property Code of the Philippines, June 6,
1997.
• What is the purpose of public auction?
Public auction is fraught with public interest because

its purpose is to give the best price to the public. If a person
would manipulate to lower the price attainable, this crime is
committed.
Mere conspiracy or agreement is the essence of the crime.

Where prime commodities are involved, it is enough that initial
steps be taken that would bring about monopoly or restraint of
trade.
The managers or directors of the corporation who despite

knowledge of the plan do not prevent the same are liable
because from their silence can be presumed approval as they
will benefit therefrom.
• What is the new law on public bidding?
R.A. 9184 - the Government Procurement Reform Act of

2002 was enacted to promote the ideals of good governance
in all its branches, departments, agencies, subdivisions and
instrumentalities including government-owned and controlled
corporations and local government units.
The law covers government infrastructure projects, goods

and consulting services regardless of source of funds for all its
agencies, branches and instrumentalities.
488
FRAUDS
• What are the governing principles of R.A. 9184?
1. Transparency in the procurement process and in the

implementation of procurement contracts;
2. Competitiveness by extending equal opportunity to enable

private contracting parties who are eligible and qualified
to participate in public bidding;
3. Streamlined procurement process that will uniformly

apply to all government procurement. T h e procurement
process shall be simple and made adaptable to advances
in modern technology to ensure an effective and efficient
method;
4. System of accountability where both the public officials

directly or indirectly involved in the procurement process
as w e l l as in the implementation of procurement contracts
and the private parties that deal with government are,
when warranted, investigated and held liable for their
actions relative thereto; and
5. Public monitoring of the procurement process and the
implementation of awarded contracts with the end in
v i e w of guaranteeing that these contracts are awarded
pursuant to the provisions of the public bidding law and
its implementing rules and regulations ( I R R ) , and that
all these contracts are performed strictly according to
specifications.
• What are the aims of public bidding?

Public bidding aims to protect public interest by giving the
public the best possible advantages through open competition
that is legitimate, fair and honest; and, to avoid or preclude
suspicion of favoritism and anomalies in the execution of public
contracts. (Oani v. People, G.R. No. 139984, March 31, 2005)
Danville Maritime, Inc. v. COA emphasized that —
... By its very nature and characteristic, a competitive
public bidding aims to protect the public interest by giving
the public the best possible advantages thru open competition.
Another self-evident purpose of public bidding is to avoid or
preclude suspicion of favoritism and anomalies in the execution
489
of public contracts. Public bidding of government contracts and

public bidding for disposition of government assets have the
same purpose and objectives. Their only difference, if at all,
is that in the public bidding for public contracts the award is
generally given to the lowest bidder while in the disposition of
government assets the award is to the highest bidder.
• What are the three principles of public bidding?

In a public bidding, there must be competition that is
legitimate, fair and honest. Thus, the three principles of a
public bidding are:
1. the offer to the public;
2. an opportunity for competition; and
3. a basis for exact comparison of bids.
A contract granted without the competitive bidding
required by law is void, and the party to whom it is awarded
cannot benefit from it.
• What acts are penalized by R.A. 9184?
Without prejudice to R.A. 3019, the acts prohibited by

R.A. 9184 are:
1. Opening any sealed bid and any and all documents

required to be sealed, or divulging their contents
prior to the appointed time for the public opening of
bids and other documents;
2. Delaying, without justifiable cause, the screening

for eligibility, opening of bids, evaluation and post
evaluation of bids, and awarding of contracts beyond
the prescribed periods of action provided for in the
IRR;
3. Unduly influencing or exerting undue pressure on

any member of the Bids and Awards Committee
( B A C ) or any officer or employee of the procuring
entity to take a particular action which favors or
tend to favor a particular bidder;
4. Splitting of contracts which exceed procedural

purchase limits and competitive bidding; and
490
FRAUDS
5. Abuse by the head of agency the exercise of his power

to reject any and all bids with manifest preference
to any bidder who is closely related to him which
shall merit imprisonment of not less than 6 years
and 1 day but not more than 15 years and shall be
meted to private persons colluding with the public
officer. In addition, the latter shall suffer temporary
disqualification from office while the former shall
be permanently barred from transacting with the
government.
Private persons and public officers conniving with them

shall suffer the same penalty for the following acts:
1. Two or more bidders agreeing and submitting

different bids such that the contract will surely be
awarded to the pre-arranged lower bidder.
2. One bidder submitting more than one bid through

different persons or entities to create the appearance
of competition.
3. Agreeing to refrain from bidding or to withdraw bids

already submitted or which are otherwise intended
to secure an advantage to anyone of them.
4. Employing schemes tending to restrain the natural

rivalry of the parties or operating to stifle or suppress
competition.
5. Submitting eligibility requirements containing

false information or false documents to influence
the outcome of the eligibility screening process or
concealing such information which shall result to
declaration of ineligibility from participating in the
bidding.
6. Submitting bidding documents containing false
information or falsified documents or concealing
such information in the bidding documents, in order
to influence the outcome of the public bidding.
7. Participating in a public bidding using the name of
another or allowing another to use one's name for
the purpose of participating in a public bidding, and
491
8. Withdrawing a bid after it shall have qualified as

the Lowest Calculated Bid/Highest Rated Bid or
refusing to accept the award without just cause or
for the purpose of forcing the agency to award the
contract to another bidder. This shall include non-
submission within the prescribed time or delaying
the submission of requirements preparatory to the
final award of contract.
When the bidder is a juridical entity, criminal
liability and the accessory penalties shall be imposed on
its directors, officers or employees who actually committed
the prohibited act.
N.B.: The acts listed in the law do not include the
deliberate act of not conducting public bidding at all. The
acts penalized are mostly those incurred in the course of
or during the public bidding itself.
ITFP v. COMELEC, G.R. No. 159139, January 13, 2004
• When is grave abuse of discretion committed?
There is grave abuse of discretion (1) when an act is done

contrary to the Constitution, the law or jurisprudence; or (2)
when it is executed whimsically, capriciously or arbitrarily out
of malice, ill will or personal bias. The Comelec approved the
assailed Resolution and awarded the subject Contract not only
in clear violation of law and jurisprudence, but also in reckless
disregard of its own bidding rules and procedure. Comelec
awarded the Contract to "Mega Pacific Consortium" an entity
that had not participated in the bidding. Despite this, the poll
body signed the actual automation contract with "Mega Pacific
eSolutions, Inc.," a company that joined the bidding but had
not met the eligibility requirements.
• How was the bidding process violated in the automation

contract?
Comelec awarded this billion-peso undertaking with

inexplicable haste, without adequately checking and observing
mandatory financial, technical and legal requirements. It also
accepted the proffered computer hardware and software even
if, at the time of the award, they had undeniably failed to pass
492
FRAUDS
eight critical requirements designed to safeguard the integrity

of elections, especially the following three items:
T h e y failed to achieve the accuracy rating criteria of

99.9995% set-up by the Comelec itself.
T h e y w e r e not able to detect previously downloaded
results at various canvassing or consolidation levels
and to prevent these from being inputted again.
T h e y w e r e unable to print the statutorily required
audit trails of the count/canvass at different levels
without any loss of data.
W h a t is the effect of such violations on the bidding
process and the award of the contract?
Because of the violations of law and grave abuse of

discretion committed by Comelec, the Court has to void the
Resolution and the Contract. Comelec flagrantly violated the
public policy on public biddings (1) by allowing M P C / M P E I to
participate in the bidding even though it was not qualified to
do so; and (2) by eventually awarding the Contract to M P C /
M P E I . N o w , with the latest explanation given by Comelec, it is
clear that the Commission further desecrated the law on public
bidding by permitting the winning bidder to change and alter
the subject of the Contract (the software), in effect allowing a
substantive amendment without public bidding.
This stance is contrary to settled jurisprudence requiring

the strict application of pertinent rules, regulations and
guidelines for public bidding for the purpose of placing each
bidder, actual or potential, on the same footing. The essence
of public bidding is an opportunity for fair competition, and a
fair basis for the precise comparison of bids. It aims to "level
the playing field." That means each bidder must bid under
the same conditions; and be subject to the same guidelines,
requirements and limitations, so that the best offer or lowest
bid may be determined, all other things being equal.
• What should be done when a substantive amendment to a

contract is made after the bidding process was concluded?
It is contrary to the very concept of public bidding to
permit a variance between the conditions under which bids
are invited and those under which proposals are submitted
493
and approved; or, the conditions under which the bid is won
and those under which the awarded Contract will be complied
with. The substantive amendment of the contract bidded out,
without any public bidding — after the bidding process had
been concluded — is violative of the public policy on public
biddings, as well as the spirit and intent of R . A . 8436. T h e
whole point in going through the public bidding exercise was
completely lost. The very rationale of public bidding was totally
subverted by the Commission.
As a necessary consequence of such nullity and illegality,
the purchase of the machines and all appurtenances thereto
including the still-to-be-produced software, as well as all
the payments made have no basis in law. T h e public funds
expended pursuant to the void Resolution and Contract must
be recovered from the payees and/or from the persons who
made possible the illegal disbursements, without prejudice to
criminal prosecutions against them.
• Who is liable for the amount expended under the void contract?
Comelec and its officials concerned must bear full respon-

sibility for the failed bidding and award, and held accountable
for the electoral mess wrought by their grave abuse of discretion
in the performance of their functions. T h e State is not bound
by the mistakes and illegalities of its agents and servants. T h e
Ombudsman shall determine the criminal liability, if any, of
the public officials (and conspiring private individuals, if any)
involved in the Resolution and Contract. T h e Solicitor General
shall take measures to protect the government and vindicate
public interest from the ill effects of the illegal disbursements
made by reason of the void Resolution and Contract.
• What is the test of unfair competition?
T h e test to determine unfair competition is whether

certain goods have been clothed with an appearance which is
likely to deceive the ordinary purchaser exercising ordinary
care. If the goods allegedly original branded products are so
crudely made and the price so low it is obvious that these are
imitation, the ordinary purchaser cannot possibly be deceived,
there is no unfair competition. (Louis Vuitton S.A. v. Villanueva,
November 1992)
494
TITLE FIVE
CRIMES RELATIVE TO OPIUM AND
OTHER PROHIBITED DRUGS
A r t s . 190-194. Repealed by R.A. No. 6425 as amended by

R.A. 7659 and further amended by R.A. 9165.
xxx xxx xxx
ARTICLE I
DEFINITION OF TERMS
S E C . 3. Definitions. — As used in this Act, the following terms

shall mean:
(a) Administer — A n y act of introducing any dangerous drug

into the body of any person, with or without his/her knowledge, by
injection, inhalation, ingestion or other means, or of committing
any act of indispensable assistance to a person in administering a
dangerous drug to himself/herself unless administered by a duly
licensed practitioner for purposes of medication.
(b) Board — Refers to the Dangerous Drugs Board under

Section 77, Article IX of this Act.
(c) Centers — A n y of the treatment and rehabilitation
centers for drug dependents referred to in Section 75, Article V I I I of
this Act.
(d) Chemical Diversion — The sale, distribution, supply or
transport of legitimately imported, in-transit, manufactured or
procured controlled precursors and essential chemicals, in diluted,
mixtures or in concentrated form, to any person or entity engaged in
the manufacture of any dangerous drug, and shall include packaging,
repackaging, labeling, relabeling or concealment of such transaction
495
through fraud, destruction of documents, fraudulent use of permits,

misdeclaration, use of front companies or mail fraud.
(e) Clandestine Laboratory — A n y facility used for the illegal
manufacture of any dangerous drug and/or controlled precursor and
essential chemical.
(f) Confirmatory Test — An analytical test using a device,
tool or equipment with a different chemical or physical principle
that is more specific which will validate and confirm the result of
the screening test.
( g ) Controlled Delivery — T h e investigative technique of
allowing an unlawful or suspect consignment of any dangerous
drug and/or controlled precursor and essential chemical, equipment
or paraphernalia, or property believed to be derived directly or
indirectly from any offense, to pass into, through or out of the
country under the supervision of an authorized officer, with a v i e w to
gathering evidence to identify any person involved in any dangerous
drugs related offense, or to facilitate prosecution of that offense.
(h) Controlled Precursors and Essential Chemicals — Include

those listed in Tables I and II of the 1988 UN Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances as
enumerated in the attached annex, which is an integral part of this
Act.
(i) Cultivate or Culture — A n y act of knowingly planting,

growing, raising, or permitting the planting, growing or raising of
any plant which is the source of a dangerous drug.
(j) Dangerous Drugs — Include those listed in the Schedules

annexed to the 1961 Single Convention on Narcotic Drugs, as
amended by the 1972 Protocol, and in the Schedules annexed to the
1971 Single Convention on Psychotropic Substances as enumerated
in the attached annex which is an integral part of this A c t .
(k) Deliver — A n y act of knowingly passing a dangerous

drug to another, personally or otherwise, and by any means, with or
without consideration.
(1) Den, D i v e or Resort — A place where any dangerous drug

and/or controlled precursor and essential chemical is administered,
delivered, stored for illegal purposes, distributed, sold or used in any
form.
C O M P R E H E N S I V E D A N G E R O U S D R U G S ACT OF 2002
(Republic Act No. 9165)
(m) Dispense — A n y act of giving away, selling or distributing

medicine or any dangerous drug with or without the use of
prescription.
(n) Drug Dependence — As based on the World Health

Organization definition, it is a cluster of physiological, behavioral
and cognitive phenomena of variable intensity, in which the use of
psychoactive drug takes on a high priority thereby involving, among
others, a strong desire or a sense of compulsion to take the substance
and the difficulties in controlling substance-taking behavior in terms
of its onset, termination, or levels of use.
(o) Drug Syndicate — A n y organized group of two (2) or more

persons forming or joining together with the intention of committing
any offense prescribed under this A c t .
( p ) Employee of Den, D i v e or Resort — T h e caretaker, helper,

watchman, lookout, and other persons working in the den, dive or
resort, employed by the maintainer, owner and/or operator where
any dangerous drug and/or controlled precursor and essential
chemical is administered, delivered, distributed, sold or used, with
or without compensation, in connection with the operation thereof.
(q) Financier — A n y person who pays for, raises or supplies
money for, or underwrites any of the illegal activities prescribed
under this A c t .
(r) Illegal Trafficking — T h e illegal cultivation, culture,
delivery, administration, dispensation, manufacture, sale,
trading, transportation, distribution, importation, exportation and
possession of any dangerous drug and/or controlled precursor and
essential chemical.
(s) Instrument — Anything that is used in or intended to be
used in any manner in the commission of illegal drug trafficking or
related offenses.
(t) Laboratory Equipment — T h e paraphernalia, apparatus,
materials or appliances when used, intended for use or designed
for use in the manufacture of any dangerous drug and/or controlled
precursor and essential chemical, such as reaction vessel,
preparative/purifying equipment, fermentors, separatory funnel,
flask, heating mantle, gas generator, or their substitute.
(u) Manufacture — The production, preparation, compound-
ing or processing of any dangerous drug and/or controlled precursor
497
and essential chemical, either directly or indirectly or by extraction

from substances of natural origin, or independently by means of
chemical synthesis or by a combination of extraction and chemical
synthesis, and shall include any packaging or repackaging of such
substances, design or configuration of its form, or labeling or rela-
beling of its container; except that such terms do not include the
preparation, compounding, packaging or labeling of a drug or other
substances by a duly authorized practitioner as an incident to his/
her administration or dispensation of such drug or substance in the
course of his/her professional practice including research, teaching
and chemical analysis of dangerous drugs or such substances that
are not intended for sale or for any other purpose.
( v ) Cannabis or commonly known as "Marijuana" or "Indian
Hemp" or by its any other name — Embraces every kind, class,
genus, or specie of the plant Cannabis sativa L. including, but not
limited to, Cannabis americana, hashish, bhang, guaza, churrus and
ganjab, and embraces every kind, class and character of marijuana,
whether dried or fresh and flowering, flowering or fruiting tops,
or any part or portion of the plant and seeds thereof, and all its
geographic varieties, whether as a reefer, resin, extract, tincture or
in any form whatsoever.
(w) Methylenedioxymethamphetamine ( M D M A ) or commonly

known as "Ecstasy," or by its any other name — Refers to the drug
having such chemical composition, including any of its isomers or
derivatives in any form.
(x) Methamphetamine Hydrochloride or commonly known as

"Shabu," "Ice," "Meth," or by its any other name — Refers to the
drug having such chemical composition, including any of its isomers
or derivatives in any form.
( y ) Opium — Refers to the coagulated juice of the opium

poppy (Papaver somniferum L.) and embraces every kind, class and
character of opium, whether crude or prepared; the ashes or refuse
of the same; narcotic preparations thereof or therefrom; morphine
or any alkaloid of opium; preparations in which opium, morphine or
any alkaloid of opium enters as an ingredient; opium poppy; opium
poppy straw; and leaves or wrappings of opium leaves, whether
prepared for use or not.
(z) Opium Poppy — Refers to any part of the plant of the

species Papaver somniferum L., Papaver setigerum DC, Papaver
498
(Republic Act No. 916S)
orientate, Papaver bracteatum and Papaver rhoeas, which includes

the seeds, straws, branches, leaves or any part thereof, or substances
derived therefrom, even for floral, decorative and culinary purposes.
(aa) P D E A — Refers to the Philippine Drug Enforcement

Agency under Section 82, Article IX of this Act.
(bb) Person — Any entity, natural or juridical, including

among others, a corporation, partnership, trust or estate, joint
stock company, association, syndicate, joint venture or other
unincorporated organization or group capable of acquiring rights or
entering into obligations.
(cc) Planting of Evidence — The willful act by any person

of maliciously and surreptitiously inserting, placing, adding
or attaching directly or indirectly, through any overt or covert
act, whatever quantity of any dangerous drug and/or controlled
precursor and essential chemical in the person, house, effects or
in the immediate vicinity of an innocent individual for the purpose
of implicating, incriminating or imputing the commission of any
violation of this Act.
(dd) Practitioner — Any person who is a licensed physician,

dentist, chemist, medical technologist, nurse, midwife, veterinarian
or pharmacist in the Philippines.
(ee) Protector/Coddler — Any person who knowingly and

willfully consents to the unlawful acts provided for in this Act and
uses his/her influence, power or position in shielding, harboring,
screening or facilitating the escape of any person he/she knows, or
has reasonable grounds to believe on or suspects, has violated the
provisions of this Act in order to prevent the arrest, prosecution and
conviction of the violator.
(ff) Pusher — Any person who sells, trades, administers,
dispenses, delivers or gives away to another, on any terms
whatsoever, or distributes, dispatches in transit or transports
dangerous drugs or who acts as a broker in any of such transactions,
in violation of this Act.
(gg) School — Any educational institution, private or public,
undertaking educational operation for pupils/students pursuing
certain studies at defined levels, receiving instructions from
teachers, usually located in a building or a group of buildings in a
particular physical or cyber site.
499
(hh) Screening Test — A rapid test performed to establish

potential/presumptive positive result.
(ii) Sell — A n y act of giving away any dangerous drug and/
or controlled precursor and essential chemical whether for money or
any other consideration.
(jj) Trading — Transactions involving the illegal trafficking
of dangerous drugs and/or controlled precursors and essential
chemicals using electronic devices such as, but not limited to, text
messages, e-mail, mobile or landlines, two-way radios, internet,
instant messengers and chat rooms or acting as a broker in any of
such transactions whether for money or any other consideration in
violation of this Act.
(kk) Use — A n y act of injecting, intravenously or intramus-
cularly, of consuming, either by chewing, smoking, sniffing, eating,
swallowing, drinking or otherwise introducing into the physiological
system of the body, any of the dangerous drugs.
ARTICLE II
U N L A W F U L ACTS A N D PENALTIES
S E C . 4. Importation of Dangerous Drugs and/or Controlled

Precursors and Essential Chemicals. — T h e penalty of life
imprisonment to death and a fine ranging from F i v e hundred
thousand pesos (P500,000.00) to T e n million pesos (P10,000,000.00)
shall be imposed upon any person, who, unless authorized by law,
shall import or bring into the Philippines any dangerous drug,
regardless of the quantity and purity involved, including any and
all species of opium poppy or any part thereof or substances derived
therefrom even for floral, decorative and culinary purposes.
The penalty of imprisonment ranging from t w e l v e (12) years

and one (1) day to twenty (20) years and a fine ranging from One
hundred thousand pesos (P100,000.00) to F i v e hundred thousand
pesos (P500,000.00) shall be imposed upon any person, who, unless
authorized by law, shall import any controlled precursor and
essential chemical.
The maximum penalty provided for under this Section shall

be imposed upon any person, who, unless authorized under this
Act, shall import or bring into the Philippines any dangerous drug
and/or controlled precursor and essential chemical through the use
500
of a diplomatic passport, diplomatic facilities or any other means

involving his/her official status intended to facilitate the unlawful
entry of the same. In addition, the diplomatic passport shall be
confiscated and canceled.
T h e maximum penalty provided for under this Section shall

be imposed upon any person, who organizes, manages or acts as a
"financier" of any of the illegal activities prescribed in this Section.
T h e penalty of t w e l v e (12) years and one (1) day to twenty (20)

years of imprisonment and a fine ranging from One hundred thousand
pesos (P100,000.00) to F i v e hundred thousand pesos (P500,000.00)
shall be imposed upon any person, w h o acts as a "protector/coddler"
of any violator of the provisions under this Section.
S E C . 5. Sale, Trading, Administration, Dispensation, Delivery,

Distribution and Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals. — T h e penalty of
life imprisonment to death and a fine ranging from F i v e hundred
thousand pesos (P500.000.00) to T e n million pesos (P10,000,000.00)
shall sell, trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit or transport any dangerous drug,
including any and all species of opium poppy regardless of the
quantity and purity involved, or shall act as a broker in any of such
transactions.
T h e penalty of imprisonment ranging from twelve (12) years

hundred thousand pesos (P100.000.00) to Five hundred thousand
pesos (P500,000.00) shall be imposed upon any person, who, unless
authorized by law, shall sell, trade, administer, dispense, deliver,
give away to another, distribute, dispatch in transit or transport any
controlled precursor and essential chemical, or shall act as a broker
in such transactions.
If the sale, trading, administration, dispensation, delivery,
distribution or transportation of any dangerous drug and/or
controlled precursor and essential chemical transpires within one
hundred (100) meters from the school, the maximum penalty shall
be imposed in every case.
For drug pushers who use minors or mentally incapacitated
individuals as runners, couriers and messengers, or in any other
501
capacity directly connected to the dangerous drugs and/or controlled

precursors and essential chemicals trade, the maximum penalty
shall be imposed in every case.
If the victim of the offense is a minor or a mentally incapacitated
individual, or should a dangerous drug and/or a controlled precursor
and essential chemical involved in any offense herein provided be
the proximate cause of death of a victim thereof, the maximum
penalty provided for under this Section shall be imposed.

be imposed upon any person who organizes, manages or acts as a
The penalty of twelve (12) years and one (1) day to twenty (20)
pesos (P100,000.00) to Five hundred thousand pesos (P500.000.00)
shall be imposed upon any person, who acts as a "protector/coddler"
S E C . 6. Maintenance of a Den, Dive or Resort. — The penalty

of life imprisonment to death and a fine ranging from Five hundred
thousand pesos (P500,000.00) to Ten million pesos (P10.000.000.00)
shall be imposed upon any person or group of persons who shall
maintain a den, dive or resort where any dangerous drug is used or
sold in any form.
The penalty of imprisonment ranging from twelve (12) years

pesos (P500,000.00) shall be imposed upon any person or group of
persons who shall maintain a den, dive, or resort where any con-
trolled precursor and essential chemical is used or sold in any form.
The maximum penalty provided for under this Section shall be

imposed in every case where any dangerous drug is administered,
delivered or sold to a minor who is allowed to use the same in such a
place.
Should any dangerous drug be the proximate cause of the death

of a person using the same in such den, dive or resort, the penalty of
death and a fine ranging from One million (Pl,000,000.00) to Fifteen
million pesos (Pl5,000,000.00) shall be imposed on the maintainer,
owner and/or operator.
502
If such den, dive or resort is owned by a third person, the

lame shall be confiscated and escheated in favor of the government:
Provided, That the criminal complaint shall specifically allege that
iuch place is intentionally used in the furtherance of the crime:
^ovided, further, That the prosecution shall prove such intent on
he part of the owner to use the property for such purpose: Provided,
inally, That the owner shall be included as an accused in the
ximinal complaint.

>e imposed upon any person who organizes, manages or acts as a
financier" of any of the illegal activities prescribed in this Section.
rears of imprisonment and a fine ranging from One hundred thousand
>esos (P100,000.00) to Five hundred thousand pesos (P500,000.00)
)f any violator of the provisions under this Section.
S E C . 7. Employees and Visitors of a Den, Dive or Resort. — The

jenalty of imprisonment ranging from twelve (12) years and one
1) day to twenty (20) years and a fi.ie ranging from One hundred
thousand pesos (P100.000.00) to Five hundred thousand pesos
P500.000.00) shall be imposed upon:
(a) Any employee of a den, dive or resort, who is aware of the
lature of the place as such; and
(b) Any person who, not being included in the provisions of
;he next preceding paragraph, is aware of the nature of the place as
juch and shall knowingly visit the same.
S E C . 8. Manufacture of Dangerous Drugs and/or Controlled

Precursors and Essential Chemicals. — The penalty of life
imprisonment to death and a fine ranging from Five hundred
thousand pesos (P500.000.00) to Ten million pesos (P10,000,000.00)
shall engage in the manufacture of any dangerous drug.
The penalty of imprisonment ranging from twelve (12) years
and one (1) day to twenty (20) years and a fine .ranging from One
pesos (P500.000.00) shall be imposed upon any person, who, unless
authorized by law, shall manufacture any controlled precursor and
essential chemical.
503
The presence of any controlled precursor and essential

chemical or laboratory equipment in the clandestine laboratory is a
prima facie proof of manufacture of any dangerous drug. It shall be
considered an aggravating circumstance if the clandestine laboratory
is undertaken or established under the following circumstances:
(a) Any phase of the manufacturing process was conducted in
the presence or with the help of minor/s;
(b) Any phase or manufacturing process was established
or undertaken within one hundred (100) meters of a residential,
business, church or school premises;
(c) Any clandestine laboratory was secured or protected with
booby traps;
(d) Any clandestine laboratory was concealed with legitimate
business operations; or
(e) Any employment of a practitioner, chemical engineer,
public official or foreigner.
pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00)
S E C . 9. Illegal Chemical Diversion of Controlled Precursors

and Essential Chemicals. — The penalty of imprisonment ranging
from twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from One hundred thousand pesos (P100,000.00) to
Five hundred thousand pesos (P500,000.00) shall be imposed upon
any person, who, unless authorized by law, shall illegally divert any
controlled precursor and essential chemical.
S E C . 10. Manufacture or Delivery of Equipment, Instrument,

Apparatus, and Other Paraphernalia for Dangerous Drugs and/
or Controlled Precursors and Essential Chemicals. — The penalty
of imprisonment ranging from twelve (12) years and one (1) day to
twenty (20) years and a fine ranging from One hundred thousand
pesos (P 100,000.00) to Five hundred thousand pesos (P500,000.00)
504
shall be imposed upon any person who shall deliver, possess with
intent to deliver, or manufacture with intent to deliver equipment,
instrument, apparatus and other paraphernalia for dangerous
drugs, knowing, or under circumstances where one reasonably
should know, that it w i l l be used to plant, propagate, cultivate,
grow, harvest, manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain or conceal any
dangerous drug and/or controlled precursor and essential chemical
in violation of this Act.
T h e penalty of imprisonment ranging from six (6) months and

ane (1) day to four (4) years and a fine ranging from T e n thousand
pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall
be imposed if it will be used to inject, ingest, inhale or otherwise
introduce into the human body a dangerous drug in violation of this mule
tot.

be imposed upon any person, who uses a minor or a mentally
incapacitated individual to deliver such equipment, instrument,
apparatus and other paraphernalia for dangerous drugs.
S E C . 11. Possession of Dangerous Drugs. — T h e penalty of

life imprisonment to death and a fine ranging from F i v e hundred
shall possess any dangerous drug in the following quantities,
regardless of the degree of purity thereof:
(1) 10 grams or more of opium;

(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine hydrochloride;
(5) 50 grams or more of methamphetamine hydrochloride or
"shabu;"
(6) 10 grams or more of marijuana resin or marijuana resin

oil;
(7) 500 grams or more of marijuana; and

(8) 10 grams or more of other dangerous drugs such as, but not
limited to, methylenedioxymethamphetamine ( M D M A ) or "ecstasy,
505
paramethoxyamphetamine ( P M A ) trimethoxyamphetamine ( T M A ) ,
lysergic acid diethylamine ( L S D ) , gamma hydroxybutyrate ( G H B ) ,
and those similarly designed or newly introduced drugs and their
derivatives, without having any therapeutic value or if the quantity
possessed is far beyond therapeutic requirements, as determined
and promulgated by the Board in accordance to Section 93, Article
XI of this Act.
Otherwise, if the quantity involved is less than the foregoing

quantities, the penalties shall be graduated as follows:
(1) Life imprisonment and a fine ranging from Four hundred

thousand pesos (P400,000.00) to F i v e hundred thousand pesos
(P500,000.00), if the quantity of methamphetamine hydrochloride
or "shabu" is ten (10) grams or more but less than fifty (50) grams;
(2) Imprisonment of twenty (20) years and one (1) day to

life imprisonment and a fine ranging from Four hundred thousand
pesos (P400,000.00) to F i v e hundred thousand pesos (P500,000.00),
if the quantities of dangerous drugs are five (5) grams or more
but less than ten (10) grams of opium, morphine, heroin, cocaine
or cocaine hydrochloride, marijuana resin or marijuana resin oil,
methamphetamine hydrochloride or "shabu," or other dangerous
drugs such as, but not limited to, M D M A or "ecstasy," P M A , T M A ,
L S D , G H B , and those similarly designed or newly introduced drugs
and their derivatives, without having any therapeutic value or if the
quantity possessed is far beyond therapeutic requirements; or three
hundred (300) grams or more but less than five hundred (500) grams
of marijuana; and
(3) Imprisonment of t w e l v e (12) years and one (1) day to

twenty (20) years and a fine ranging from T h r e e hundred thousand
pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00),
if the quantities of dangerous drugs are less than five (5) grams
of opium, morphine, heroin, cocaine or cocaine hydrochloride,
marijuana resin or marijuana resin oil, methamphetamine
hydrochloride or "shabu," or other dangerous drugs such as, but not
limited to, M D M A o r "ecstasy," P M A , T M A , L S D , G H B , and those
similarly designed or newly introduced drugs and their derivatives,
without having any therapeutic value or if the quantity possessed
is far beyond therapeutic requirements; or less than three hundred
(300) grams of marijuana.
506
S E C . 12. Possession of Equipment, Instrument, Apparatus

and Other Paraphernalia for Dangerous Drugs. — T h e penalty of
imprisonment ranging from six (6) months and one (1) day to four
(4) years and a fine ranging from T e n thousand pesos (P10,000.00)
to Fifty thousand pesos (P50,000.00) shall be imposed upon any
person, who, unless authorized by law, shall possess or have under
his/her control any equipment, instrument, apparatus and other
paraphernalia fit or intended for smoking, consuming, administering,
injecting, ingesting, or introducing any dangerous drug into the
body: Provided, T h a t in the case of medical practitioners and various
professionals who are required to carry such equipment, instrument,
apparatus and other paraphernalia in the practice of their profession,
the Board shall prescribe the necessary implementing guidelines
thereof.
T h e possession of such equipment, instrument, apparatus

and other paraphernalia fit or intended for any of the purposes
enumerated in the preceding paragraph shall be prima facie
evidence that the possessor has smoked, consumed, administered
to himself/herself, injected, ingested or used a dangerous drug and
shall be presumed to have violated Section 15 of this Act.
S E C . 13. Possession of Dangerous Drugs During Parties,

Social Gatherings or Meetings. — A n y person found possessing any
dangerous drug during a party, or at a social gathering or meeting, or
in the proximate company of at least two (2) persons, shall suffer the
maximum penalties provided for in Section 11 of this Act, regardless
of the quantity and purity of such dangerous drugs.
S E C . 14. Possession of Equipment, Instrument, Apparatus and

Other Paraphernalia for Dangerous Drugs During Parties, Social
Gatherings or Meetings. — T h e maximum penalty provided for in
Section 12 of this A c t shall be imposed upon any person, who shall
possess or have under his/her control any equipment, instrument,
apparatus and other paraphernalia fit or intended for smoking,
consuming, administering, injecting, ingesting, or introducing any
dangerous drug into the body, during parties, social gatherings or
meetings, or in the proximate company of at least two (2) persons.
S E C . 15. Use of Dangerous Drugs. — A person apprehended

or arrested, who is found to be positive for use of any dangerous
drug, after a confirmatory test, shall be imposed a penalty of a
507
minimum of six (6) months rehabilitation in a government center

for the first offense, subject to the provisions of Article V I I I of this
Act. If apprehended using any dangerous drug for the second time,
he/she shall suffer the penalty of imprisonment ranging from six (6)
years and one (1) day to twelve (12) years and a fine ranging from
Fifty thousand pesos (P50,000.00) to T w o hundred thousand pesos
(P200,000.00): Provided, That this Section shall not be applicable
where the person tested is also found to have in his/her possession
such quantity of any dangerous drug provided for under Section 11
of this Act, in which case the provisions stated therein shall apply.
S E C . 16. Cultivation or Culture of Plants Classified as

Dangerous Drugs or are Sources Thereof. — T h e penalty of life
imprisonment to death and a fine ranging from F i v e hundred
shall be imposed upon any person, who shall plant, cultivate or
culture marijuana, opium poppy or any other plant regardless of
quantity, which is or may hereafter be classified as a dangerous
drug or as a source from which any dangerous drug may be
manufactured or derived: Provided, T h a t in the case of medical
laboratories and medical research centers which cultivate or culture
marijuana, opium poppy and other plants, or materials of such
dangerous drugs for medical experiments and research purposes, or
for the creation of new types of medicine, the Board shall prescribe
the necessary implementing guidelines for the proper cultivation,
culture, handling, experimentation and disposal of such plants and
materials.
The land or portions thereof and/or greenhouses on which

any of said plants is cultivated or cultured shall be confiscated
and escheated in favor of the State, unless the owner thereof can
prove lack of knowledge of such cultivation or culture despite the
exercise of due diligence on his/her part. If the land involved is part
of the public domain, the maximum penalty provided for under this
Section shall be imposed upon the offender.

T h e penalty of twelve (12) years and one (1) day to twenty (20)
pesos (P100,000.00) to F i v e hundred thousand pesos (P500.000.00)
508

S E C . 17. Maintenance and Keeping of Original Records of

Transactions on Dangerous Drugs and/or Controlled Precursors
and Essential Chemicals. — T h e penalty of imprisonment ranging
from one (1) year and one (1) day to six (6) years and a fine ranging
from T e n thousand pesos (P10,000.00) to Fifty thousand pesos
(P50.000.00) shall be imposed upon any practitioner, manufacturer,
wholesaler, importer, distributor, dealer or retailer who violates or
fails to comply with the maintenance and keeping of the original
records of transactions on any dangerous drug and/or controlled
precursor and essential chemical in accordance with Section 40 of
this Act.
An additional penalty shall be imposed through the revocation

of the license to practice his/her profession, in case of a practitioner,
or of the business, in case of a manufacturer, seller, importer,
distributor, dealer or retailer.
S E C . 18. Unnecessary Prescription of Dangerous Drugs. — The

penalty of imprisonment ranging from twelve (12) years and one
(1) day to twenty (20) years and a fine ranging from One hundred
thousand pesos (P100,000.00) to F i v e hundred thousand pesos
(P500,000.00) and the additional penalty of the revocation of his/
her license to practice shall be imposed upon the practitioner, who
shall prescribe any dangerous drug to any person whose physical
or physiological condition does not require the use or in the dosage
prescribed therein, as determined by the Board in consultation with
recognized competent experts who are authorized representatives of
professional organizations of practitioners, particularly those who
are involved in the care of persons with severe pain.
S E C . 19. Unlawful Prescription of Dangerous Drugs. — The

penalty of life imprisonment to death and a fine ranging from
Five hundred thousand pesos (P500.000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who, unless
authorized by law, shall make or issue a prescription or any other
writing purporting to be a prescription for any dangerous drug.
S E C . 20. Confiscation and Forfeiture of the Proceeds or

Instruments of the Unlawful Act, Including the Properties or
Proceeds Derived from the Illegal Trafficking of Dangerous Drugs
509
and/or Precursors and Essential Chemicals. — Every penalty

imposed for the unlawful importation, sale, trading, administration,
dispensation, delivery, distribution, transportation or manufacture
of any dangerous drug and/or controlled precursor and essential
chemical, the cultivation or culture of plants which are sources of
dangerous drugs, and the possession of any equipment, instrument,
apparatus and other paraphernalia for dangerous drugs including
other laboratory equipment, shall carry with it the confiscation
and forfeiture, in favor of the government, of all the proceeds and
properties derived from the unlawful act, including, but not limited
to, money and other assets obtained thereby, and the instruments or
tools with which the particular unlawful act was committed, unless
they are the property of a third person not liable for the unlawful
act, but those which are not of lawful commerce shall be ordered
destroyed without delay pursuant to the provisions of Section 21 of
this Act.
After conviction in the Regional Trial Court in the appropriate

criminal case filed, the Court shall immediately schedule a hearing
for the confiscation and forfeiture of all the proceeds of the offense
and all the assets and properties of the accused either owned or held
by him or in the name of some other persons if the same shall be
found to be manifestly out of proportion to his/her lawful income:
Provided, however, T h a t if the forfeited property is a vehicle, the
same shall be auctioned off not later than five (5) days upon order of
confiscation or forfeiture.
During the pendency of the case in the Regional T r i a l Court,

no property, or income derived therefrom, which may be confiscated
and forfeited, shall be disposed, alienated or transferred and the
same shall be in custodia legis and no bond shall be admitted for the
release of the same.
T h e proceeds of any sale or disposition of any property

confiscated or forfeited under this Section shall be used to pay all
proper expenses incurred in the proceedings for the confiscation,
forfeiture, custody and maintenance of the property pending
disposition, as well as expenses for publication and court costs. T h e
proceeds in excess of the above expenses shall accrue to the Board to
be used in its campaign against illegal drugs.
S E C . 21. Custody and Disposition of Confiscated, Seized, and/

or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
510
Controlled Precursors and Essential Chemicals, Instruments/

Paraphernalia and/or Laboratory Equipment. — T h e P D E A shall
take charge and have custody of all dangerous drugs, plant sources
of dangerous drugs, controlled precursors and essential chemicals,
as well as instruments/paraphernalia and/or laboratory equipment
so confiscated, seized and/or surrendered, for proper disposition in
the following manner:
(1) T h e apprehending team having initial custody and control

of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of
the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice ( D O J ) , and any
elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof;
(2) Within twenty-four (24) hours upon confiscation/seizure

of dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as instruments/
paraphernalia and/or laboratory equipment, the same shall be
submitted to the P D E A Forensic Laboratory for a qualitative and
quantitative examination;
(3) A certification of the forensic laboratory examination

results, which shall be done under oath by the forensic laboratory
examiner, shall be issued within twenty-four (24) hours after the
receipt of the subject item/s: Provided, That when the volume of the
dangerous drugs, plant sources of dangerous drugs, and controlled
precursors and essential chemicals does not allow the completion
of testing within the time frame, a partial laboratory examination
report shall be provisionally issued stating therein the quantities
of dangerous drugs still to be examined by the forensic laboratory:
Provided, however, That a final certification shall be issued on the
completed forensic laboratory examination on the same within the
next twenty-four (24) hours;
(4) After the filing of the criminal case, the Court shall,
within seventy-two (72) hours, conduct an ocufcur inspection of
the confiscated, seized and/or surrendered dangerous drugs,
plant sources of dangerous drugs, and controlled precursors and
essential chemicals, including the instruments/paraphernalia
and/or laboratory equipment, and through the P D E A shall within
511
twenty-four (24) hours thereafter proceed with the destruction or

burning of the same, in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
DOJ, civil society groups and any elected public official. The Board
shall draw up the guidelines on the manner of proper disposition
and destruction of such item/s which shall be borne by the offender:
Provided, That those item/s of lawful commerce, as determined by
the Board, shall be donated, used or recycled for legitimate purposes:
Provided, further, That a representative sample, duly weighed and
recorded is retained;
(5) The Board shall then issue a sworn certification as to the

fact of destruction or burning of the subject item/s, which, together
with the representative sample/s in the custody of the P D E A , shall
be submitted to the court having jurisdiction over the case. In all
instances, the representative sample/s shall be kept to a minimum
quantity as determined by the Board;
(6) The alleged offender or his/her representative or counsel

shall be allowed to personally observe all of the above proceedings
and his/her presence shall not constitute an admission of guilt.
In case the said offender or accused refuses or fails to appoint a
representative after due notice in writing to the accused or his/her
counsel within seventy-two (72) hours before the actual burning
or destruction of the evidence in question, the Secretary of Justice
shall appoint a member of the public attorney's office to represent
the former;
(7) After the promulgation and judgment in the criminal

case wherein the representative sample/s was presented as evidence
in court, the trial prosecutor shall inform the Board of the final
termination of the case and, in turn, shall request the court for
leave to turn over the said representative sample/s to the P D E A
for proper disposition and destruction within twenty-four (24) hours
from receipt of the same; and
X X X
S E C . 23. Plea-Bargaining Provision. — A n y person charged

under any provision of this A c t regardless of the imposable penalty
shall not be allowed to avail of the provision on plea-bargaining.
512
S E C . 24. Non-Applicability of the Probation Law for Drug

Traffickers and Pushers. — A n y person convicted for drug trafficking
or pushing under this Act, regardless of the penalty imposed by the
Court, cannot avail of the privilege granted by the Probation L a w or
Presidential Decree N o . 968, as amended.
SEC. 25. Qualifying Aggravating Circumstances in the

Commission of a Crime by an Offender Under the Influence of
Dangerous Drugs. — Notwithstanding the provisions of any law to
the contrary, a positive finding for the use of dangerous drugs shall
be a qualifying aggravating circumstance in the commission of a
crime by an offender, and the application of the penalty provided for
in the Revised Penal Code shall be applicable.
S E C . 26. Attempt or Conspiracy. — A n y attempt or conspiracy

to commit the following unlawful acts shall be penalized by the same
penalty prescribed for the commission of the same as provided under
this Act: no attempt on use.
( a ) Importation of any dangerous drug and/or controlled

precursor and essential chemical;
(b) Sale, trading, administration, dispensation, delivery,

distribution and transportation of any dangerous drug and/or
controlled precursor and essential chemical;
(c) Maintenance of a den, dive or resort where any dangerous

drug is used in any form;
(d) Manufacture of any dangerous drug and/or controlled

precursor and essential chemical; and
(e) Cultivation or culture of plants which are sources of
dangerous drugs.
S E C . 27. Criminal Liability of a Public Officer or Employee

for Misappropriation, Misapplication or Failure to Account for the
Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments / Paraphernalia and/or Laboratory
Equipment Including the Proceeds or Properties Obtained from
the Unlawful Act Committed. — T h e penalty of life imprisonment
to death and a fine ranging from Five hundred thousand pesos
(P500.000.00) to T e n million pesos (P10,000,000.00), in addition to
513
absolute perpetual disqualification from any public office, shall be

imposed upon any public officer or employee who misappropriates,
misapplies or fails to account for confiscated, seized or surrendered
dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, instruments/paraphernalia
and/or laboratory equipment including the proceeds or properties
obtained from the unlawful acts as provided for in this Act.
A n y elective local or national official found to have benefited
from the proceeds of the trafficking of dangerous drugs as prescribed
in this Act, or have received any financial or material contributions
or donations from natural or juridical persons found guilty of
trafficking dangerous drugs as prescribed in this Act, shall be
removed from office and perpetually disqualified from holding any
elective or appointive positions in the government, its divisions,
subdivisions, and intermediaries, including government-owned or
controlled corporations.
S E C . 28. Criminal Liability of Government Officials and

Employees. — T h e maximum penalties of the unlawful acts provided
for in this Act shall be imposed, in addition to absolute perpetual
disqualification from any public office, if those found guilty of such
unlawful acts are governmenc officials and employees.
S E C . 29. Criminal Liability for Planting of Evidence. — A n y

person who is found guilty of "planting" any dangerous drug and/or
controlled precursor and essential chemical, regardless of quantity
and purity, shall suffer the penalty of death.
SEC. 30. Criminal Liability of Officers of Partnerships,

Corporations, Associations or Other Juridical Entities. — In case
any violation of this Act is committed by a partnership, corporation,
association or any juridical entity, the partner, president, director,
manager, trustee, estate administrator, or officer who consents to or
knowingly tolerates such violation shall be held criminally liable as
a co-principal.
T h e penalty provided for the offense under this A c t shall be

imposed upon the partner, president, director, manager, trustee,
estate administrator, or officer who knowingly authorizes, tolerates
or consents to the use of a vehicle, vessel, aircraft, equipment or
other facility, as an instrument in the importation, sale, trading,
administration, dispensation, delivery, distribution, transportation
514
or manufacture of dangerous drugs, or chemical diversion, if such

vehicle, vessel, aircraft, equipment or other instrument is owned by
or under the control or supervision of the partnership, corporation,
association or juridical entity to which they are affiliated.
S E C . 31. Additional Penalty if Offender is an Alien. — In

addition to the penalties prescribed in the unlawful act committed,
any alien who violates such provisions of this Act shall, after service
of sentence, be deported immediately without further proceedings,
unless the penalty is death.
S E C . 32. Liability to a Person Violating Any Regulation Issued

by the Board. — T h e penalty of imprisonment ranging from six (6)
months and one (1) day to four (4) years and a fine ranging from Ten
thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00)
shall be imposed upon any person found violating any regulation
duly issued by the Board pursuant to this Act, in addition to the
administrative sanctions imposed by the Board.
S E C . 33. Immunity from Prosecution and Punishment. —

Notwithstanding the provisions of Section 17, Rule 119 of the
Revised Rules of Criminal Procedure and the provisions of Republic
A c t N o . 6981 or the Witness Protection, Security and Benefit Act of
1991, any person who has violated Sections 7, 11, 12, 14, 15, and 19,
Article II of this Act, who voluntarily gives information about any
violation of Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this Act
as well as any violation of the offenses mentioned if committed by
a drug syndicate, or any information leading to the whereabouts,
identities and arrest of all or any of the members thereof; and who
willingly testifies against such persons as described above, shall
be exempted from prosecution or punishment for the offense with
reference to which his/her information of testimony were given, and
may plead or prove the giving of such information and testimony
in bar of such prosecution: Provided, That the following conditions
concur:
(1) T h e information and testimony are necessary for the
conviction of the persons described above;
(2) Such information and testimony are not yet in the
possession of the State;
(3) Such information and testimony can be corroborated on
its material points;
515
(4) The informant or witness has not been previously

convicted of a crime involving moral turpitude, except when there
is no other direct evidence available for the State other than the
information and testimony of said informant or witness; and
(5) The informant or witness shall strictly and faithfully
comply without delay, any condition or undertaking, reduced into
writing, lawfully imposed by the State as further consideration for
the grant of immunity from prosecution and punishment.
Provided, further, That this immunity may be enjoyed by such
informant or witness who does not appear to be most guilty for the
offense with reference to which his/her information or testimony
were given: Provided, finally, That there is no direct evidence
available for the State except for the information and testimony of
the said informant or witness.
SEC. 34. Termination of the Grant of Immunity. — The im-
munity granted to the informant or witness, as prescribed in Section
33 of this Act, shall not attach should it turn out subsequently that
the information and/or testimony is false, malicious or made only for
the purpose of harassing, molesting or in any way prejudicing the
persons described in the preceding Section against whom such infor-
mation or testimony is directed against. In such case, the informant
or witness shall be subject to prosecution and the enjoyment of all
rights and benefits previously accorded him under this Act or any
other law, decree or order shall be deemed terminated.
In case an informant or witness under this Act fails or refuses
to testify without just cause, and when lawfully obliged to do so, or
should he/she violate any condition accompanying such immunity as
provided above, his/her immunity shall be removed and he/she shall
likewise be subject to contempt and/or criminal prosecution, as the
case may be, and the enjoyment of all rights and benefits previously
accorded him under this Act or in any other law, decree or order
shall be deemed terminated.
In case the informant or witness referred to under this Act falls
under the applicability of this Section hereof, such individual cannot
avail of the provisions under Article VIII of this Act.
SEC. 35. Accessory Penalties. — A person convicted under
this Act shall be disqualified to exercise his/her civil rights such as
but not limited to, the rights of parental authority or guardianship,
either as to the person or property of any ward, the rights to dispose
516
of such property by any act or any conveyance inter vivos, and

political rights such as but not limited to, the right to vote and be
voted for. Such rights shall also be suspended during the pendency
of an appeal from such conviction.
A R T I C L E III
D A N G E R O U S D R U G S TEST
AND RECORD REQUIREMENTS
S E C . 36. Authorized Drug Testing. — Authorized drug testing

shall be done by any government forensic laboratories or by any of
the drug testing laboratories accredited and monitored by the D O H
to safeguard the quality of test results. T h e D O H shall take steps in
setting the price of the drug test with D O H accredited drug testing
centers to further reduce the cost of such drug test. T h e drug testing
shall employ, among others, t w o (2) testing methods, the screening
test which will determine the positive result as well as the type
of the drug used and the confirmatory test which will confirm a
positive screening test. Drug test certificates issued by accredited
drug testing centers shall be valid for a one-year period from the
date of issue which may be used for other purposes. T h e following
shall be subjected to undergo drug testing:
(a) Applicants for driver's license. — No driver's license
shall be issued or renewed to any person unless he/she presents a
certification that he/she has undergone a mandatory drug test and
indicating thereon that he/she is free from the use of dangerous
drugs;
(b) Applicants for firearm's license and for permit to carry
firearms outside of residence. — A l l applicants for firearm's license
and permit to carry firearms outside of residence shall undergo a
mandatory drug test to ensure that they are free from the use of
dangerous drugs: Provided, That all persons who by the nature of
their profession carry firearms shall undergo drug testing;
(c) Students of secondary and tertiary schools. — Students of
secondary and tertiary schools shall, pursuant to the related rules
and regulations as contained in the school's student handbook and
with notice to the parents, undergo a random drug testing: Provided,
That all drug testing expenses whether in public or private schools
under this Section will be borne by the government;
517
(d) Officers and employees of public and private offices.

— Officers and employees of public and private offices, whether
domestic or overseas, shall be subjected to undergo a random drug
test as contained in the company's work rules and regulations,
which shall be borne by the employer, for purposes of reducing the
risk in the workplace. A n y officer or employee found positive for use
of dangerous drugs shall be dealt with administratively which shall
be a ground for suspension or termination, subject to the provisions
of Article 282 of the Labor Code and pertinent provisions of the Civil
Service Law;
(e) Officers and members of the military, police and other
law enforcement agencies. — Officers and members of the military,
police and other law enforcement agencies shall undergo an annual
mandatory drug test;
(f) A l l persons charged before the prosecutor's office with a
criminal offense having an imposable penalty of imprisonment of
not less than six (6) years and one (1) day shall have to undergo a
mandatory drug test; and
( g ) A l l candidates for public office whether appointed or
elected both in the national or local government shall undergo a
mandatory drug test.
In addition to the above stated penalties in this Section, those

found to be positive for dangerous drugs use shall be subject to the
provisions of Section 15 of this Act.
S E C . 37. Issuance of False or Fraudulent Drug Test Results. —

A n y person authorized, licensed or accredited under this A c t and its
implementing rules to conduct drug examination or test, who issues
false or fraudulent drug test results knowingly, willfully or through
gross negligence, shall suffer the penalty of imprisonment ranging
from six (6) years and one (1) day to t w e l v e (12) years and a fine
ranging from One hundred thousand pesos (P100,000.00) to F i v e
hundred thousand pesos (P500,000.00).
An additional penalty shall be imposed through the revocation

of the license to practice his/her profession in case of a practitioner,
and the closure of the drug-testing center.
S E C . 38. Laboratory Examination or Test on Apprehended/

Arrested Offenders. — Subject to Section 15 of this Act, any person
apprehended or arrested for violating the provisions of this A c t shall
518
be subjected to screening laboratory examination or test within

twenty-four (24) hours, if the apprehending or arresting officer
has reasonable ground to believe that the person apprehended or
arrested, on account of physical signs or symptoms or other visible
or outward manifestation, is under the influence of dangerous
drugs. If found to be positive, the results of the screening laboratory
examination or test shall be challenged within fifteen (15) days
after receipt of the result through a confirmatory test conducted
in any accredited analytical laboratory equipment with a gas
chromatograph/mass spectrometry equipment or some such modern
and accepted method, if confirmed the same shall be prima facie
evidence that such person has used dangerous drugs, which is
without prejudice for the prosecution for other violations of the
provisions of this A c t : Provided, T h a t a positive screening laboratory
test must be confirmed for it to be valid in a court of law.
S E C . 39. Accreditation of Drug Testing Centers and Physicians.

— The D O H shall be tasked to license and accredit drug testing
centers in each province and city in order to assure their capacity,
competence, integrity and stability to conduct the laboratory
examinations and tests provided in this Article, and appoint such
technical and other personnel as may be necessary for the effective
implementation of this provision. T h e D O H shall also accredit
physicians who shall conduct the drug dependency examination of
a drug dependent as well as the after-care and follow-up program
for the said drug dependent. There shall be a control regulations,
licensing and accreditation division under the supervision of the
D O H for this purpose.
For this purpose, the D O H shall establish, operate and

maintain drug testing centers in government hospitals, which must
be provided at least with basic technologically advanced equipment
and materials, in order to conduct the laboratory examination and
tests herein provided, and appoint such qualified and duly trained
technical and other personnel as may be necessary for the effective
implementation of this provision.
S E C . 40. Records Required for Transactions on Dangerous

Drugs and Precursors and Essential Chemicals. —
(a) Every pharmacist dealing in dangerous drugs and/
or controlled precursors and essential chemicals shall maintain
and keep an original record of sales, purchases, acquisitions and
519
deliveries of dangerous drugs, indicating therein the following

information:
(1) License number and address of the pharmacist;
(2) Name, address and license of the manufacturer, importer
or wholesaler from whom the dangerous drugs have been purchased;
(3) Quantity and name of the dangerous drugs purchased or
acquired;
(4) Date of acquisition or purchase;
(5) Name, address and community tax certificate number of
the buyer;
(6) Serial number of the prescription and the name of the
physician, dentist, veterinarian or practitioner issuing the same;
(7) Quantity and name of the dangerous drugs sold or
delivered; and
(8) Date of sale or delivery.
A certified true copy of such record covering a period of six

(6) months, duly signed by the pharmacist or the owner of the
drugstore, pharmacy or chemical establishment, shall be forwarded
to the Board within fifteen (15) days following the last day of June
and December of each year, with a copy thereof furnished the city or
municipal health officer concerned.
(b) A physician, dentist, veterinarian or practitioner

authorized to prescribe any dangerous drug shall issue the
prescription therefor in one (1) original and t w o (2) duplicate copies.
The original, after the prescription has been filled, shall be retained
by the pharmacist for a period of one (1) year from the date of sale
or delivery of such drug. One (1) copy shall be retained by the buyer
or by the person to whom the drug is delivered until such drug is
consumed, while the second copy shall be retained by the person
issuing the prescription.
For purposes of this Act, all prescriptions issued by physicians,

dentists, veterinarians or practitioners shall be written on forms
exclusively issued by and obtainable from the D O H . Such forms
shall be made of a special kind of paper and shall be distributed in
such quantities and contain such information and other data as the
D O H may, by rules and regulations, require. Such forms shall only
be issued by the D O H through its authorized employees to licensed
520
physicians, dentists, veterinarians and practitioners in such

quantities as the Board may authorize. In emergency cases, however,
as the Board may specify in the public interest, a prescription need
not be accomplished on such forms. T h e prescribing physician,
dentist, veterinarian or practitioner shall, within three (3) days after
issuing such prescription, inform the D O H of the same in writing.
No prescription once served by the drugstore or pharmacy be reused
nor any prescription once issued be refilled.
(c) A l l manufacturers, wholesalers, distributors, importers,

dealers and retailers of dangerous drugs and/or controlled precursors
and essential chemicals shall keep a record of all inventories, sales,
purchases, acquisitions and deliveries of the same as well as the
names, addresses and licenses of the persons from whom such items
were purchased or acquired or to whom such items were sold or
delivered, the name and quantity of the same and the date of the
transactions. Such records may be subjected anytime for review by
the Board.
ARTICLE IV
PARTICIPATION OF THE FAMILY, STUDENTS,

TEACHERS A N D SCHOOL AUTHORITIES
IN THE E N F O R C E M E N T OF THIS ACT
XXX XXX x x x
S E C . 44. Heads, Supervisors, and Teachers of Schools. — For

the purpose of enforcing the provisions of Article II of this Act, all
school heads, supervisors and teachers shall be deemed persons in
authority and, as such, are hereby empowered to apprehend, arrest
or cause the apprehension or arrest of any person who shall violate
any of the said provisions, pursuant to Section 5, Rule 113 of the
Rules of Court. They shall be deemed persons in authority if they
are in the school or within its immediate vicinity, or even beyond
such immediate vicinity if they are in attendance at any school or
class function in their official capacity as school heads, supervisors,
and teachers.
A n y teacher or school employee, who discovers or finds that
any person in the school or within its immediate vicinity is liable
for violating any of said provisions, shall have the duty to report the
same to the school head or immediate superior who shall, in turn,
report the matter to the proper authorities.
521
Failure to do so in either case, within a reasonable period

from the time of discovery of the violation shall, after due hearing,
constitute sufficient cause for disciplinary action by the school
authorities.
XXX.
ARTICLE VII
PARTICIPATION OF
LOCAL GOVERNMENT UNITS
x x x.
S E C . 52. Abatement of Drug Related Public Nuisances. — A n y
place or premises which have been used on two or more occasions as
the site of the unlawful sale or delivery of dangerous drugs may be
declared to be a public nuisance, and such nuisance may be abated,
pursuant to the following procedures:
(1) A n y city or municipality may, by ordinance, create an

administrative board to hear complaints regarding the nuisances;
(2) A n y employee, officer, or resident of the city or municipality

may bring a complaint before the Board after giving not less than
three (3) days written notice of such complaint to the owner of the
place or premises at his/her last known address; and
(3) After hearing in which the Board may consider any

evidence, including evidence of the general reputation of the place
or premises, and at which the owner of the premises shall have an
opportunity to present evidence in his/her defense, the Board may
declare the place or premises to be a public nuisance.
S E C . 53. Effect of Board Declaration. — If the Board declares

a place or premises to be a public nuisance, it may declare an order
immediately prohibiting the conduct, operation, or maintenance of
any business or activity on the premise, which is conducive to such
nuisance.
An order entered under this Section shall expire after one
(1) year or at such earlier time as stated in the order. T h e Board
may bring a complaint seeking a permanent injunction against any
nuisance described under this Section.
This Article does not restrict the right of any person to proceed
under the Civil Code against any public nuisance.
522
ARTICLE VIII
P R O G R A M FOR TREATMENT A N D
REHABILITATION OF DRUG DEPENDENTS
S E C . 54. Voluntary Submission of a Drug Dependent to

Confinement, Treatment and Rehabilitation. — A drug dependent or
any person who violates Section 15 of this A c t may, by himself/herself
or through his/her parent, spouse, guardian or relative within the
fourth degree of consanguinity or affinity, apply to the Board or its
duly recognized representative, for treatment and rehabilitation of
the drug dependency. Upon such application, the Board shall bring
forth the matter to the Court, which shall order that the applicant
be examined for drug dependency. If the examination by a D O H -
accredited physician results in the issuance of a certification that the
applicant is a drug dependent, he/she shall be ordered by the Court
to undergo treatment and rehabilitation in a Center designated by
the Board for a period of not less than six (6) months: Provided,
That a drug dependent may be placed under the care of a D O H -
accredited physician where there is no Center near or accessible to
the residence of the drug dependent or where said drug dependent
is below eighteen (18) years of age and is a first-time offender and
non-confinement in a Center will not pose a serious danger to his/
her family or the community.
Confinement in a Center for treatment and rehabilitation
shall not exceed one (1) year, after which time the Court, as well
as the Board, shall be apprised by the head of the treatment and
rehabilitation center of the status of said drug dependent and
determine whether further confinement will be for the welfare of
the drug dependent and his/her family or the community.
S E C . 55. Exemption from the Criminal Liability Under the

Voluntary Submission Program. — A drug dependent under the
voluntary submission program, who is finally discharged from
confinement, shall be exempt from the criminal liability under
Section 15 of this Act subject to the following conditions:
(1) He/she has complied with the rules and regulations of the
Center, the applicable rules and regulations of the Board, including
the after-care and follow-up program for at least eighteen (18) months
following temporary discharge from confinement in the Center or, in
the case of a dependent placed under the care of the DOH-accredited
physician, the after-care program and follow-up schedule formulated
523
by the D S W D and approved by the Board: Provided, That capability-

building of local government social workers shall be undertaken by
the DSWD;
(2) He/she has never been charged or convicted of any offense
punishable under this Act, the Dangerous Drugs Act of 1972 or
Republic Act N o . 6425, as amended; the Revised Penal Code, as
amended; or any special penal laws;
(3) He/she has no record of escape from a Center: Provided,
That had he/she escaped, he/she surrendered by himself/herself
or through his/her parent, spouse, guardian or relative within the
fourth degree of consanguinity or affinity, within one (1) week from
the date of the said escape; and
(4) He/she poses no serious danger to himself/herself, his/
her family or the community by his/her exemption from criminal
liability.
S E C . 56. Temporary Release From the Center; After-Care and

Follow-Up Treatment Under the Voluntary Submission Program.
— Upon certification of the Center that the drug dependent within
the voluntary submission program may be temporarily released,
the Court shall order his/her release on condition that said drug
dependent shall report to the D O H for after-care and follow-up
treatment, including urine testing, for a period not exceeding
eighteen (18) months under such terms and conditions that the
Court may impose.
If during the period of after-care and follow-up, the drug
dependent is certified to be rehabilitated, he/she may be discharged
by the Court, subject to the provisions of Section 55 of this Act,
without prejudice to the outcome of any pending case filed in court.
However, should the D O H find that during the initial after-care
and follow-up program of eighteen (18) months, the drug dependent
requires further treatment and rehabilitation in the Center, he/she
shall be recommitted to the Center for confinement. Thereafter,
he/she may again be certified for temporary release and ordered
released for another after-care and follow-up program pursuant to
this Section.
S E C . 57. Probation and Community Service Under the

Voluntary Submission Program. — A drug dependent who is
discharged as rehabilitated by the DOH-accredited Center through
524
the voluntary submission program, but does not qualify for

exemption from criminal liability under Section 55 of this Act, may
be charged under the provisions of this Act, but shall be placed on
probation and undergo a community service in lieu of imprisonment
and/or fine in the discretion of the court, without prejudice to the
outcome of any pending case filed in court.
Such drug dependent shall undergo community service as part
of his/her after-care and follow-up program, which may be done in
coordination with nongovernmental civic organizations accredited
by the D S W D , with the recommendation of the Board.
S E C . 58. Filing of Charges Against a Drug Dependent Who

is Not Rehabilitated Under the Voluntary Submission Program.
— A drug dependent, who is not rehabilitated after the second
commitment to the Center under the voluntary submission program,
shall, upon recommendation of the Board, be charged for violation
of Section 15 of this A c t and prosecuted like any other offender. If
convicted, he/she shall be credited for the period of confinement and
rehabilitation in the Center in the service of his/her sentence.
S E C . 59. Escape and Recommitment for Confinement and

Rehabilitation Under the Voluntary Submission Program. — Should
a drug dependent under the voluntary submission program escape
from the Center, he/she may submit himself/herself for recommit-
ment within one (1) w e e k therefrom, or his/her parent, spouse,
guardian or relative within the fourth degree of consanguinity or
affinity may, within said period, surrender him for recommitment,
in which case the corresponding order shall be issued by the Board.
Should the escapee fail to submit himself/herself or be surren-
dered after one (1) week, the Board shall apply to the court for a
recommitment order upon proof of previous commitment or his/her
voluntary submission by the Board, the court may issue an order for
recommitment within one (1) week.
If, subsequent to a recommitment, the dependent once again
escapes from confinement, he/she shall be charged for violation of
Section 15 of this Act and be subjected under Section 61 of this Act,
either upon order of the Board or upon order of the court, as the case
may be.
S E C . 60. Confidentiality of Records Under the Voluntary Sub-

mission Program. — Judicial and medical records of drug depen-
525
dents under the voluntary submission program shall be confidential

and shall not be used against him for any purpose, except to deter-
mine how many times, by himself/herself or through his/her parent,
spouse, guardian or relative within the fourth degree of consanguin-
ity or affinity, he/she voluntarily submitted himself/herself for con-
finement, treatment and rehabilitation or has been committed to a
Center under this program.
S E C . 61. Compulsory Confinement of a Drug Dependent

Who Refuses to Apply Under the Voluntary Submission Program.
— Notwithstanding any law, rule and regulation to the contrary,
any person determined and found to be dependent on dangerous
drugs shall, upon petition by the Board or any of its authorized
representative, be confined for treatment and rehabilitation in any
Center duly designated or accredited for the purpose.
A petition for the confinement of a person alleged to be
dependent on dangerous drugs to a Center may be filed by any
person authorized by the Board with the Regional Trial Court of the
province or city where such person is found.
After the petition is filed, the court, by an order, shall imme-
diately fix a date for the hearing, and a copy of such order shall be
served on the person alleged to be dependent on dangerous drugs,
and to the one having charge of him.
If after such hearing and the facts so warrant, the court shall
order the drug dependent to be examined by two (2) physicians
accredited by the Board. If both physicians conclude that the
respondent is not a drug dependent, the court shall order his/her
discharge. If either physician finds him to be a dependent, the court
shall conduct a hearing and consider all relevant evidence, which
may be offered. If the court finds him a drug dependent, it shall issue
an order for his/her commitment to a treatment and rehabilitation
center under the supervision of the D O H . In any event, the order
of discharge or order of confinement or commitment shall be issued
not later than fifteen (15) days from the filing of the appropriate
petition.
S E C . 62. Compulsory Submission of a Drug Dependent

Charged with an Offense to Treatment and Rehabilitation. — If
a person charged with an offense where the imposable penalty is
imprisonment of less than six (6) years and one (1) day, and is found
by the prosecutor or by the court, at any stage of the proceedings,
526
to be a drug dependent, the prosecutor or the court as the case may

be, shall suspend all further proceedings and transmit copies of the
record of the case to the Board.
In the event the Board determines, after medical examination,
that public interest requires that such drug dependent be committed
to a center for treatment and rehabilitation, it shall file a petition
for his/her commitment with the regional trial court of the province
or city where he/she is being investigated or tried: Provided, That
where a criminal case is pending in court, such petition shall be
filed in the said court. T h e court shall take judicial notice of the
prior proceedings in the case and shall proceed to hear the petition.
If the court finds him to be a drug dependent, it shall order his/her
commitment to a Center for treatment and rehabilitation. The head
of said Center shall submit to the court every four (4) months, or as
often as the court may require, a written report on the progress of
the treatment. If the dependent is rehabilitated, as certified by the
Center and the Board, he/she shall be returned to the court, which
committed him, for his/her discharge therefrom.
Thereafter, his/her prosecution for any offense punishable

by law shall be instituted or shall continue, as the case may be. In
case of conviction, the judgment shall, if the accused is certified by
the treatment and rehabilitation center to have maintained good
behavior, indicate that he/she shall be given full credit for the period
he/she was confined in the Center: Provided, however, That when the
offense is for violation of Section 15 of this Act and the accused is not
a recidivist, the penalty thereof shall be deemed to have been served
in the Center upon his/her release therefrom after certification by
the Center and the Board that he/she is rehabilitated.
S E C . 63. Prescription of the Offense Charged Against a

Drug Dependent Under the Compulsory Submission Program. —
The period of prescription of the offense charged against a drug
dependent under the compulsory submission program shall not run
during the time that the drug dependent is under confinement in a
Center or otherwise under the treatment and rehabilitation program
approved by the Board.
Upon certification of the Center that he/she may temporarily

be discharged from the said Center, the court shall order his/her
release on condition that he/she shall report to the Board through
the D O H for after-care and follow-up treatment for a period not
527
exceeding eighteen (18) months under such terms and conditions as

may be imposed by the Board.
If at anytime during the after-care and follow-up period, the
Board certifies to his/her complete rehabilitation, the court shall
order his/her final discharge from confinement and order for the
immediate resumption of the trial of the case for which he/she is
originally charged. Should the Board through the D O H find at
anytime during the after-care and follow-up period that he/she
requires further treatment and rehabilitation, it shall report to the
court, which shall order his/her recommitment to the Center.
Should the drug dependent, having been committed to a Center

upon petition by the Board escape therefrom, he/she may resubmit
himself/herself for confinement within one (1) week from the date
of his/her escape; or his/her parent, spouse, guardian or relative
within the fourth degree of consanguinity or affinity may, within
the same period, surrender him for recommitment. If, however, the
drug dependent does not resubmit himself/herself for confinement
or he/she is not surrendered for recommitment, the Board may
apply with the court for the issuance of the recommitment order.
Upon proof of previous commitment, the court shall issue an order
for recommitment. If, subsequent to such recommitment, he/she
should escape again, he/she shall no longer be exempt from criminal
liability for use of any dangerous drug.
A drug dependent committed under this particular Section

who is finally discharged from confinement shall be exempt from
criminal liability under Section 15 of this Act, without prejudice to
the outcome of any pending case filed in court. On the other hand, a
drug dependent who is not rehabilitated after a second commitment
to the Center shall, upon conviction by the appropriate court, suffer
the same penalties provided for under Section 15 of this A c t again
without prejudice to the outcome of any pending case filed in court.
S E C . 64. Confidentiality of Records Under the Compulsory

Submission Program. — T h e records of a drug dependent who was
rehabilitated and discharged from the Center under the compulsory
submission program, or who was charged for violation of Section
15 of this Act, shall be covered by Section 60 of this Act. However,
the records of a drug dependent who was not rehabilitated, or who
escaped but did not surrender himself/herself within the prescribed
period, shall be forwarded to the court and their use shall be
528
determined by the court, taking into consideration public interest

and the welfare of the drug dependent.
S E C . 65. Duty of the Prosecutor in the Proceedings. It

shall be the duty of the provincial or the city prosecutor or their
assistants or state prosecutors to prepare the appropriate petition
in all proceedings arising from this Act.
S E C . 66. Suspension of Sentence of a First-Time Minor

Offender. — An accused who is over fifteen (15) years of age at the
time of the commission of the offense mentioned in Section 11 of
this Act, but not more than eighteen (18) years of age at the time
when judgment should have been promulgated after having been
found guilty of said offense, may be given the benefits of a suspended
sentence, subject to the following conditions:
(a) He/she has not been previously convicted of violating
any provision of this A c t , or of the Dangerous Drugs A c t of 1972, as
amended; or of the Revised Penal Code; or of any special penal laws;
(b) He/she has not been previously committed to a Center or
to the care of a DOH-accredited physician; and
(c) T h e Board favorably recommends that his/her sentence
be suspended.
While under suspended sentence, he/she shall be under the
supervision and rehabilitative surveillance of the Board, under such
conditions that the court may impose for a period ranging from six
(6) months to eighteen (18) months.
Upon recommendation of the Board, the court may commit the
accused under suspended sentence to a Center, or to the care of a
DOH-accredited physician for at least six (6) months, with after-
care and follow-up program for not more than eighteen (18) months.
In the case of minors under fifteen (15) years of age at the time
of the commission of any offense penalized under this Act, Article 192
of Presidential Decree N o . 603, otherwise known as the Child and
Youth Welfare Code, as amended by Presidential Decree No. 1179
shall apply, without prejudice to the application of the provisions of
this Section.
S E C . 67. Discharge After Compliance with Conditions of

Suspended Sentence of a First-Time Minor Offender. — If the
accused first time minor offender under suspended sentence
529
complies with the applicable rules and regulations of the Board,

including confinement in a Center, the court, upon a favorable
recommendation of the Board for the final discharge of the accused,
shall discharge the accused and dismiss all proceedings.
Upon the dismissal of the proceedings against the accused,
the court shall enter an order to expunge all official records, other
than the confidential record to be retained by the DOJ relating
to the case. Such an order, which shall be kept confidential, shall
restore the accused to his/her status prior to the case. He/she shall
not be held thereafter to be guilty of perjury or of concealment or
misrepresentation by reason of his/her failure to acknowledge the
case or recite any fact related thereto in response to any inquiry
made of him for any purpose.
S E C . 68. Privilege of Suspended Sentence to be Availed of Only

Once by a First-Time Minor Offender. — T h e privilege of suspended
sentence shall be availed of only once by an accused drug dependent
who is a first-time offender over fifteen (15) years of age at the time
of the commission of the violation of Section 15 of this A c t but not
more than eighteen (18) years of age at the time when judgment
should have been promulgated.
S E C . 69. Promulgation of Sentence for First-Time Minor

Offender. —- If the accused first-time minor offender violates any of
the conditions of his/her suspended sentence, the applicable rules and
regulations of the Board exercising supervision and rehabilitative
surveillance over him, including the rules and regulations of the
Center should confinement be required, the court shall pronounce
judgment of conviction and he/she shall serve sentence as any other
convicted person.
S E C . 70. Probation or Community Service for a First-Time

Minor Offender in Lieu of Imprisonment. — Upon promulgation of
the sentence, the court may, in its discretion, place the accused under
probation, even if the sentence provided under this A c t is higher than
that provided under existing law on probation, or impose community
service in lieu of imprisonment. In case of probation, the supervision
and rehabilitative surveillance shall be undertaken by the Board
through the D O H in coordination with the Board of Pardons and
Parole and the Probation Administration. Upon compliance with
the conditions of the probation, the Board shall submit a written
report to the court recommending termination of probation and a
530
final discharge of the probationer, whereupon the court shall issue

such an order.
T h e community service shall be complied with under conditions,
time and place as may be determined by the court in its discretion
and upon the recommendation of the Board and shall apply only to
violators of Section 15 of this Act. T h e completion of the community
service shall be under the supervision and rehabilitative surveillance
of the Board during the period required by the court. Thereafter, the
Board shall render a report on the manner of compliance of said
community service. T h e court in its discretion may require extension
of the community service or order a final discharge.
In both cases, the judicial records shall be covered by the

provisions of Sections 60 and 64 of this Act.
If the sentence promulgated by the court requires imprison-
ment, the period spent in the Center by the accused during the sus-
pended sentence period shall be deducted from the sentence to be
served.
S E C . 71. Records to be kept by the Department of Justice. —

The D O J shall keep a confidential record of the proceedings on
suspension of sentence and shall not be used for any purpose other
than to determine whether or not a person accused under this Act is
a first-time minor offender.
S E C . 72. Liability of a Person Who Violates the Confidentiality

of Records. — T h e penalty of imprisonment ranging from six (6)
months and one (1) day to six (6) years and a fine ranging from One
thousand pesos (Pl.OOO.OO) to Six thousand pesos (P6,000.00), shall
be imposed upon any person who, having official custody of or access
to the confidential records of any drug dependent under voluntary
submission programs, or anyone who, having gained possession of
said records, whether lawfully or not, reveals their content to any
person other than those charged with the prosecution of the offenses
under this Act and its implementation. T h e maximum penalty
shall be imposed, in addition to absolute perpetual disqualification
from any public office, when the offender is a government official or
employee. Should the records be used for unlawful purposes, such as
blackmail of the drug dependent or the members of his/her family,
the penalty imposed for the crime of violation of confidentiality shall
be in addition to whatever crime he/she may be convicted of.
531
S E C . 73. Liability of a Parent, Spouse or Guardian Who Re-

fuses to Cooperate with the Board or any Concerned Agency. — A n y
parent, spouse or guardian who, without valid reason, refuses to
cooperate with the Board or any concerned agency in the treatment
and rehabilitation of a drug dependent who is a minor, or in any
manner, prevents or delays the after-care, follow-up or other pro-
grams for the welfare of the accused drug dependent, whether under
voluntary submission program or compulsory submission program,
may be cited for contempt by the court.
XXX.
ARTICLE XI
JURISDICTION OVER D A N G E R O U S DRUGS CASES
S E C . 90. Jurisdiction. — The Supreme Court shall designate

special courts from among the existing Regional Trial Courts in each
judicial region to exclusively try and hear cases involving violations
of this Act. T h e number of courts designated in each judicial region
shall be based on the population and the number of cases pending in
their respective jurisdiction.
The D O J shall designate special prosecutors to exclusively
handle cases involving violations of this Act.
The preliminary investigation of cases filed under this A c t
shall be terminated within a period of thirty (30) days from the date
of their filing.
W h e n the preliminary investigation is conducted by a public
prosecutor and a probable cause is established, the corresponding
information shall be filed in court within twenty-four (24) hours from
the termination of the investigation. If the preliminary investigation
is conducted by a judge and a probable cause is found to exist, the
corresponding information shall be filed by the proper prosecutor
within forty-eight (48) hours from the date of receipt of the records
of the case.
Trial of the case under this Section shall be finished by the
court not later than sixty (60) days from the date of the filing of
the information. Decision on said cases shall be rendered within a
period of fifteen (15) days from the date of submission of the case for
resolution.
S E C . 91. Responsibility and Liability of Law Enforcement

Agencies and other Government Officials and Employees in Testifying
532
as Prosecution Witnesses in Dangerous Drugs Cases. — A n y member

of law enforcement agencies or any other government official
and employee who, after due notice, fails or refuses intentionally
or negligently, to appear as a witness for the prosecution in any
proceedings, involving violations of this Act, without any valid
reason, shall be punished with imprisonment of not less than twelve
(12) years and one (1) day to twenty (20) years and a fine of not
less than F i v e hundred thousand pesos (P500,000.00), in addition
to the administrative liability he/she may be meted out by his/her
immediate superior and/or appropriate body.
T h e immediate superior of the member of the law enforcement

agency or any other government employee mentioned in the
preceding paragraph shall be penalized with imprisonment of not
less than two (2) months and one (1) day but not more than six (6)
years and a fine of not less than T e n thousand pesos (P10,000.00) but
not more than Fifty thousand pesos (P50,000.00) and in addition,
perpetual absolute disqualification from public office if despite due
notice to them and to the witness concerned, the former does not
exert reasonable effort to present the latter to the court.
T h e member of the law enforcement agency or any other

government employee mentioned in the preceding paragraphs
shall not be transferred or re-assigned to any other government
office located in another territorial jurisdiction during the pendency
of the case in court. However, the concerned member of the law
enforcement agency or government employee may be transferred
or re-assigned for compelling reasons: Provided, That his/her
immediate superior shall notify the court where the case is pending
of the order to transfer or re-assign, within twenty-four (24) hours
from its approval: Provided, further, That his/her immediate
superior shall be penalized with imprisonment of not less than two
(2) months and one (1) day but not more than six (6) years and a
fine of not less than T e n thousand pesos (P 10,000.00) but not more
than Fifty thousand pesos (P50,000.00) and in addition, perpetual
absolute disqualification from public office, should he/she fail to
notify the court of such order to transfer or re-assign.
Prosecution and punishment under this' Section shall be

without prejudice to any liability for violation of any existing law.
S E C . 92. Delay and Bungling in the Prosecution of Drug Cases.

— A n y government officer or employee tasked with the prosecution
533
of drug-related cases under this Act, who, through patent laxity,

inexcusable neglect, unreasonable delay or deliberately causes the
unsuccessful prosecution and/or dismissal of the said drug cases,
shall suffer the penalty of imprisonment ranging from twelve (12)
years and one (1) day to twenty (20) years without prejudice to his/
her prosecution under the pertinent provisions of the Revised Penal
Code.
S E C . 93. Reclassification, Addition or Removal of Any Drug

from the List of Dangerous Drugs. — T h e Board shall have the power
to reclassify, add to or remove from the list of dangerous drugs.
Proceedings to reclassify, add, or remove a drug or other substance
may be initiated by the P D E A , the D O H , or by petition from any
interested party, including the manufacturer of a drug, a medical
society or association, a pharmacy association, a public interest
group concerned with drug abuse, a national or local government
agency, or an individual citizen. W h e n a petition is received by
the Board, it shall immediately begin its own investigation of the
drug. T h e P D E A also may begin an investigation of a drug at any
time based upon the information received from law enforcement
laboratories, national and local law enforcement and regulatory
agencies, or other sources of information.
T h e Board after notice and hearing shall consider the following

factors with respect to each substance proposed to be reclassified,
added or removed from control:
(a) Its actual or relative potential for abuse;
(b) Scientific evidence of its pharmacological effect if known;
(c) T h e state of current scientific knowledge regarding the
drug or other substance;
(d) Its history and current pattern of abuse;
(e) T h e scope, duration, and significance of abuse;
(f) Risk to public health; and
( g ) Whether the substance is an immediate precursor of a
substance already controlled under this Act.
T h e Board shall also take into accord the obligations and

commitments to international treaties, conventions and agreements
to which the Philippines is a signatory.
534
The Dangerous Drugs Board shall give notice to the general

public of the public hearing of the reclassification, addition to or
removal from the list of any drug by publishing such notice in any
newspaper of general circulation once a week for two (2) weeks.
T h e effect of such reclassification, addition or removal shall be

as follows:
(a) In case a dangerous drug is reclassified as precursors
and essential chemicals, the penalties for the violations of this
Act involving the two latter categories of drugs shall, in case of
conviction, be imposed in all pending criminal prosecutions;
(b) In case a precursors and essential chemicals is reclassified
as dangerous drug, the penalties for violations of the Act involving
precursors and essential chemicals shall, in case of conviction, be
imposed in all pending criminal prosecutions;
(c) In case of the addition of a new drug to the list of dangerous
drugs and precursors and essential chemicals, no criminal liability
involving the same under this A c t shall arise until after the lapse of
fifteen (15) days from the last publication of such notice;
(d) In case of removal of a drug from the list of dangerous
drugs and precursors and essential chemicals, all persons convicted
and/or detained for the use and/or possession of such a drug shall be
automatically released and all pending criminal prosecution involv-
ing such a drug under this A c t shall forthwith be dismissed; and
(e) T h e Board shall, within five (5) days from the date of
its promulgation submit to Congress a detailed reclassification,
addition, or removal of any drug from the list of dangerous drugs.
X X X X X X X X X
A R T I C L E XIII
FINAL PROVISIONS
X X X X X X X X X
S E C . 98. Limited Applicability of the Revised Penal Code. —

Notwithstanding any law, rule or regulation to the contrary, the
provisions of the Revised Penal Code (Act N o . 3814), as amended,
shall not apply to the provisions of this Act, except in the case of
minor offenders. Where the offender is a minor, the penalty for acts
punishable by life imprisonment to death provided herein shall be
reclusion perpetua to death.
535
XXX
S E C . 100. Repealing Clause. — Republic Act N o . 6425, as

amended, is hereby repealed and all other laws, administrative
orders, rules and regulations, or parts thereof inconsistent with the
provisions of this Act, are hereby repealed or modified accordingly.
S E C . 101. Amending Clause. — Republic Act N o . 7659 is
hereby amended accordingly.
• What changes were introduced by R.A. 9165 on R.A. 6425?

On Penalties
1. The penalties under the special penal laws such as life
imprisonment are revived, and the nomenclatures of
penalties under the R P C were deleted.
When R . A . 7659, amended R . A . 6425, the system

of penalties of the R P C was adopted. Thus, by using the
technical nomenclatures under the R P C , the duration,
correlation and legal effects of penalties therein w e r e
also adopted. Consequently, when the I S L applies, the
first part of Section 1 for offenses under the R P C was also
applied for drugs violation.
However, because of the reversion of R . A . 9165
to the "non-RPC" penalties, the rules and principles
applicable to purely special penal laws are also revived.
Consequently, the first sentence of Article 10, which
states that: "Offenses which are or in the future may
be punishable under special laws are not subject to the
provision of [the Revised Penal] Code" holds true to
violations of R . A . 9165. Thus, Section 98 states that "the
provisions of the Revised Penal Code (Act N o . 3815, as
amended] shall not apply" except for minor offenders, in
which case the penalty of Life Imprisonment to Death
shall become Reclusion Perpetua to Death. Thus, when
two things concur, viz.:
a. T h e offender is a minor; and
b. T h e violation is punishable with life imprison-
ment to death
536
the imposable penalty on him shall be reclusion perpetua

to death. Consequently, when the I S L applies, the rules
under the R P C will be followed. This is modified by R . A .
9346 banning the death penalty and R . A . 9344 absolutely
exempting minors 15 years old and below and qualifiedly
exempting those over 15 and under 18 from criminal
liability.
2. T h e penalty is no longer based on the quantity except for
possession, but the quantity involved is much lower than
in the old law, hence, harsher.
3. Use of dangerous drugs has graduated penalty. Thus,
first time drug users are penalized with a minimum of
six months rehabilitation in a government center. For
the second offense, the culprit shall be suffer 6 years
and 1 day to 12 years and a fine of P50,000 to P200,000.
However, if the offender tested positive for drug use and
at the same time possessed drugs of any quantity, Section
11 on possession shall apply and not Section 15 on use.
4. A n y person charged under any provision of the law
regardless of the imposable penalty cannot avail of the
provision on plea bargaining. On the other hand, the
disqualification for probation covers only drug trafficking
or pushing.
5. Accessory penalties of disqualification to exercise
civil and political rights such as the rights of parental
authority, guardianship, to dispose of property by any act
or conveyance inter vivos, the right to vote and be voted
for. Such rights are also suspended during the pendency
of appeal from conviction under the Act.
- Classification of drugs
The classification of drugs is now "Dangerous Drugs" and
"Controlled Precursors and Essential Chemicals" which are
also found in the U . N . Conventions list.
- New Offenders
1. The "financier" who is any person who pays for, raises
or supplies money for, or underwrites any of the illegal
activities under the Act and penalized with the maximum
penalty for the provision violated.
537
2. The "protector/coddler" who can be "any person who

knowingly and willfully consents to the unlawful acts
provided for in the Act and uses his influence, power or
position in shielding, harboring, screening or facilitating
the escape of any person he knows, or has reasonable
grounds to believe on or suspects, has violated the
provisions of the Act in order to prevent the arrest,
prosecution and conviction of the violator." He shall suffer
imprisonment of 12 years and 1 day to 20 years and a fine
ranging from P100,000 to P500,000.
New Offenses
1. Illegal chemical diversion of controlled precursors and
essential chemicals ( C P E C ) penalized with imprisonment
of from 12 years and 1 day to 20 years and fine of P100,000
to P500,000. Illegal diversion is committed through the
sale, distribution, supply or transport of legitimately
imported, in-transit, manufactured or procured C P E C in
diluted, mixtures or in concentrated form, to any person
or entity engaged in the manufacture of any dangerous
drug. Diversion includes packaging, repacking, labeling,
relabeling or concealment of such transaction through
fraud, destruction of documents, fraudulent use of
permits, misdeclaration, use of front companies or mail
fraud.
2. Failure to maintain and keep the original records of

transactions on dangerous drugs and/or C P E C .
3. Attempt or conspiracy which carries the same penalty as

the consummated offense of:
a. Importation of any dangerous drugs and/or controlled
precursor and essential chemical;
b. Sale, trading, administration, dispensation, delivery,
distribution and transportation of any dangerous
drug and/or controlled precursor and essential
chemical;
c. Maintenance of a den, dive or resort where any dan-
gerous drug is used in any form;
d. Manufacture of any dangerous drug and/or controlled
precursor and essential chemical; and
538
e. Cultivation or culture of plants which are sources of

dangerous drugs, controlled precursors and essential
chemicals,
4. Misappropriation, misapplication or failure by a public
officer or employee to account for the confiscated, seized
and/or surrendered dangerous drugs, plant sources of
dangerous drugs, instruments/paraphernalia and/or
laboratory equipment including the proceeds or properties
obtained from the unlawful act committed. A n y elective
official w h o benefited from the proceeds of illegal drug
trafficking or have received any financial or material
contributions/donations from natural or juridical person
shall be removed from office and disqualified from holding
any elective or appointive positions in the government.
5. "Planting" as evidence any dangerous drug and/or C P E C
regardless of the quantity and purity.
6. Violation of any regulation issued by the Dangerous
Drugs Board ( D D B ) .
7. Issuance of false or fraudulent drug test results.
8. Violation of confidentiality of records.
9. Refusal of members of law enforcement agencies or any
government official or employee to testify as prosecution
witness in dangerous drugs cases.
10. Delay and bungling in the prosecution of drug cases
by any government officer or employee tasked with
their prosecution through patent laxity, inexcusable
negligence, and unreasonable delay or deliberately causes
the unsuccessful prosecution and/or dismissal of the drug
cases.
Qualifying/Aggravating circumstances
1. When a crime is committed under the influence of drugs, a
positive finding thereof shall be a qualifying circumstance
in such crime and the rules under the R P C shall apply
[Will homicide become murder?]
2. Possession of dangerous drugs during parties, social
gatherings or meetings or in the proximate company of at
least two persons (Section 13) and possession of equipment,
539
instrument, apparatus and other paraphernalia during

parties, social gatherings or meetings or in the proximate
company of at least two persons (Section 14), shall
aggravate Possession of Dangerous Drugs under Section
11 and Possession of Equipment, Instrument, etc. under
Section 12, respectively.
• What is the nature of violations of dangerous drugs law?

Violation of the dangerous drugs law is malum prohibitum
because it is punished as an offense under a special law. It is wrong
because it is prohibited by law. Without the law punishing the act, it
cannot be considered a wrong. As such, the mere commission of said
act constitutes the offense punished and suffices to validly charge
and convict an offender regardless of criminal intent. (People v. Lo
Ho Wing, G.R. No. 88017, January 21, 1991)
TT was the one who presented for customs inspection the bag
with a tag bearing her name and found to contain shabu. She is thus
presumed to be its owner. T h e crime of transporting shabu being
mala prohibita, the intent, motive or knowledge of the accused need
not be shown. T h e crime is complete when it is shown that a person
brings into the Philippines dangerous drug without legal authority.
The ingenuity of those engaged in the illegal drug trade may
often seem to have defeated or overtaken the effectiveness of leg-
islation. Hence, there is a need for laws which provide prospective
measures which do not depend on proof of criminal intent or knowl-
edge. Said measures may be quite harsh but then extraordinary
evils demand extraordinary remedies. (People v. Tang Wai Lan,
G.R. Nos. 118736-37, July 23, 1997)
• Compare violations of dangerous drugs law with possession of

unlicensed firearms.
Dangerous drugs is per se contraband unlike firearms, hence
in the latter, the prosecution bears the burden of proving that the
firearm is without license whereas in possession of drugs the accused
has the burden of proving that he is authorized to possess.
• Definitions/Distinctions/Elements of the offense

" D r u g D e p e n d e n c e " means a state of psychic or physical
dependence, or both, on a dangerous drug, arising in a person
540
following administration or use of that drug on a periodic and

continuous basis. "Use" refers to the act of injecting, intravenously
or intramuscularly, or of consuming, either by chewing, smoking,
sniffing, eating, swallowing, drinking, or otherwise introducing into
the physiological system of the body, any of the dangerous drugs.
Appellant cannot evade liability for illegal possession of
dangerous drugs by his admission that he sometimes uses shabu.
Section 30 of R . A . 6425, [Section 55, R . A . 9165] which provides that
a drug dependent who voluntarily submits himself for confinement,
treatment and rehabilitation in a center shall not be criminally
liable for any violation of Section 8 and 16 [Section 15, R . A . 9165],
does not apply because occasional "use" of a dangerous drug, is not
the same as "drug dependence." A n d even if appellant was a drug
dependent, he did not voluntarily submit himself for rehabilitation
as required by law. (People v. Dichoso, G.R. No. 101216-18, June 4,
1993)
"Delivery" necessarily involves the knowledge on the part of
the accused that what he is delivering is dangerous drugs. If there
is no evidence to show this knowledge, he will be acquitted. Section
2[f], Article I of R . A . 6425 as amended (Section 3[k], R . A . 9165), de-
fines the word "deliver" as a person's act of knowingly passing a dan-
gerous drug to another personally or otherwise, and by any means,
with or without consideration. (People v. Jumao-as, 48 SCAD 277)
T h e act of delivering prohibited drugs is not limited to deliveries

made personally by the accused but covers those through other
means. Assuming that it was indeed another person, not accused
who delivered the marijuana, such fact will not make the latter less
liable since the delivery was at his behest. W h a t is material is that
the giving of the prohibited drug was pursuant to the instruction of
the accused even if he did not himself personally deliver the same.
(People v. Santos, 57 SCAD 73)
The elements necessary for a charge of illegal sale of drugs
are (1) the identity of the buyer and the seller, the object and
consideration; and (2) the delivery of the thing sold and the payment
therefor. (People v. Rigodon, 56 SCAD; People v. Esguerra, April
1993) Utoh Lakibul and Simon: payment is not material.
Illegal sale of prohibited drugs requires merely the consumma-
tion of the selling transaction which happens the moment the buyer
receives the drug from the seller. (People v. Simon, 53 SCAD). Even
541
without the money to buy the marijuana so long as the police offi-
cer went through the motion as a buyer and his offer was accepted
by the appellant and the marijuana delivered to police officer, the
crime was consummated by the delivery of the goods. (People v. Utoh
Lakibul, G.R. No. 94337, January 27, 1993)
In order to sustain conviction for selling prohibited drugs, the
element of sale must be unequivocally established. Also, what the law
proscribes is not only the act of selling but also the act of delivering.
The commission of the offense of illegal sale required merely the
consummation of the selling transaction. W h a t is important is that
the poseur-buyer received the drug from the accused. (People v.
Ponferada, G.R. No. 101004, March 17, 1993)
When the seller is apprehended, the quantity he is possessing

must be equal to that sold by him. If so, it will be illegal sale only,
possession absorbed by the sale. But if the quantity possessed by him
is greater than the quantity negotiated, he is still liable for illegal
possession equal to the excess amount. "They are two isolated acts
punishable, each of them in themselves. Only in the event where
all the amount of the opium possessed and seized be in its totality
the same as that which was possessed with sole purpose of being
delivered as the matter or subject of a sale previously agreed upon,
could it be said, in the opinion of this court, that the possession of
the opium was a necessary means to effect the delivery by reason
of the sale, and that the sale agreed upon was the sole reason for
the possession of the opium seized." (People v. Salamat, G.R. No.
103295, August 20, 1993)
Accused cannot be convicted of possession of the shabu con-

tained in a canister and allegedly seized at his house, for the charge
against him was for selling shabu. (People v. Del Rosario, 53 SCAD)
Unlawful possession of shabu is necessarily included in the

crime of unlawful sale thereof. Similarly, unlawful possession of
marijuana is necessarily included in unlawful sale of marijuana.
(People v. Dichoso)
Possession is part of illegal use because the latter necessarily

requires the former and the law is compassionate w i t h users; he is
presumed to be a user than a possessor; one information only will
be made. But if the quantity is such as to show that it is not only for
use prosecution will be for illegal possession [Section 11 in relation
to Section 15].
542
P o s s e s s i o n of instruments for administering drugs is

punished separately. But if possession of pipe is when he is smoking
the same, possession of pipe is absorbed. If he is found possessing the
pipe and opium and he is not smoking, two crimes are committed:
illegal possession of opium and illegal possession of opium pipe.
• What presumptions arise from mere possession of equipment,

instrument, apparatus and other paraphernalia?
T h e possession of equipment, instrument, apparatus and

other paraphernalia or dangerous drugs fit or intended for smoking,
consuming, administering, injecting, ingesting or introducing any
dangerous drug into the body shall be prima facie evidence that:
a. T h e possessor has smoked, consumed, administered to
himself, injected, ingested or used a dangerous drug, and
b. He has violated Section 15 of R . A . 9165.
• What are the new programs for treatment and rehabilitation of

drug dependents?
A drug dependent or any person who violates Section 15 may:

a. A p p l y to the D D B under the Voluntary Submission Pro-
gram for treatment and rehabilitation of the drug depen-
dency. Upon such application, the D D B shall bring the
matter to the Court, which shall order that the appli-
cant be examined for drug dependency. If the examina-
tion shows that he is a drug dependent, he shall undergo
treatment and rehabilitation for not less than six months,
and be:
1. Exempted from criminal liability
2. Placed on probation and undergo community service
or
3. Charged for violation of Section 15
b. Be compulsorily confined under the Compulsory Submis-
sion Program. Here the compulsory confinement may
either be through the petition by the D D B with the
Regional Trial Court of the province or city where such
person is found, or by the prosecutor/court where the drug
dependent is charged with an offense punishable with a
penalty less than six years and one day. The court or the
543
prosecutor shall suspend all proceedings at any stage and

transmit copies of the record of the case to the D D B .
Outline the penalty on possession vis-a-vis the quantity of

drugs.
There are four categories of penalties under Section 11
depending upon the quantity of dangerous drugs regardless of
the degree of purity thereof:
A. Life imprisonment to death and fine of P'500,000 to
P10,000,000:
Marijuana 500 grams or more
Methamphetamine Hydrochloride 50 grams or more
or"shabu"
Morphine, Marijuana 10 grams or more
resin, marijuana oil, opium,
cocaine hydrochloride,
Heroin, all others
B. Life imprisonment and fine of P400,000 to P500,000:
Methamphetamine
Hydrochloride or "shabu" 10 to less than 50 grams
C. 20 years and 1 day to life and fine of P400,000 to P500,000:
Marijuana 300 to less than 500 grams

A l l others 5 to less than 10 grams
D. 12 years and 1 day to 20 years and fine of P300.000 to

P400.000:
Marijuana less than 300 grams

A l l others less than 5 grams
Delineate the applicability of Section 11 and Section 15.

Section 15 provides that: "x x x Provided, That this Section
shall not be applicable where the person tested is also found
to have in his/her possession such quantity of any dangerous
drug provided for under Section 11 of this Act, in which case
the provisions stated therein shall apply. Clearly, Section 11
shall apply if the person who tested positive possesses "such
quantity of any dangerous drugs provided for under Section
544
11." Since 1 gram is less than 5 grams/300 grams it follows that

possession of any quantity of dangerous drugs should make the
drug possessor who tested positive liable under Section 11.
T h e letter of the law is clear that a person who tested
positive should not possess any quantity of drugs in order to
fall within Section 15. If in addition to testing positive for use,
he possesses any quantity of drugs, he should be held liable for
Section 11, not anymore Section 15 because there is no cutoff
quantity between them and because the phrase "less than" in
Section 11 is any quantity less than 5 grams and 300 grams,
respectively.
• What actions shall be taken upon a minor drug violator?

Minor drug violators may be given:
1. Suspended sentence for the first offense
2. Probation or community service for the first offense; or
3. Service of sentence as any other convicted person if the
accused first-time minor offender violates any of the
conditions of his suspended sentence or any of the rules
and regulations of the Center if confinement therein was
required.
• What are the conditions for the suspended sentence to a minor

drug offender?
Suspended sentence shall be given to a minor first time

offender who is over 15 at the time of the commission of the
offense of Possession but not more than 18 at the time of
promulgation of judgment, subject to the following conditions:
1. He has not been previously convicted of violations of any
provision of R . A . 9165 or of R . A . 6425, as amended or of
the R P C or of any special penal laws. In short, he has not
committed any crime;
2. He has not been previously committed to a Center or to
the care of a DOH-accredited physician;' and
3. T h e D D B favorably recommends suspension of his
sentence.
The privilege of suspended sentence shall be availed of by
the minor only once. If he complies with all the conditions of his
545
suspended sentence, the court, upon favorable recommendation

of the DDB, shall discharge the accused and dismiss all the
proceedings. Otherwise, the court shall pronounce judgment
of conviction and the minor shall serve sentence as any other
convicted person or in the discretion of the court, the minor
shall undergo probation or community service in lieu of
imprisonment. (But see R . A . 9346, on diversion programs for
victimless crimes where the penalty imposable is over six years,
and that entitles the minor to suspended sentence although he
is over 18 at the time sentence is promulgated. Declarador v.
Gubaton, however declared that suspension cannot be availed
of the minor if the penalty imposable is life imprisonment,
reclusion perpetua and/or death.)
• What procedures must be followed upon initial seizure of drugs?
Section 21 of the law prescribes the procedures to be fol-

lowed by the law enforcers having initial custody of the drugs.
T h e P D E A shall take charge and have custody of all danger-
ous drugs, plant sources of dangerous drugs, C P E C , as well
as instruments/paraphernalia and/or laboratory equipment
confiscated, seized and/or surrendered, for proper disposition
in the following manner:
(1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s
from whom such items w e r e confiscated and/or seized, or
his representative or counsel, a representative from the
media and the DOJ, and any elected public official who
shall be required to sign the copies of the inventory and
be given a copy thereof;
(2) Within 24 hours upon seizure, the prohibited items shall
be submitted to the P D E A Forensic Laboratory for a
qualitative and quantitative examination;
(3) A certification of the forensic laboratory examination re-
sults, which shall be done under oath by the forensic labo-
ratory examiner, shall be issued within 24 hours after the
receipt of the subject. W h e n the volume of these items
does not allow the completion of testing within the time
frame, a partial laboratory examination report shall be
546
provisionally issued stating therein the quantities of dan-

gerous drugs still to be examined by the forensic labora-
tory. A final certification shall be issued on the completed
forensic laboratory examination within the next 24 hours;
(4) After the filing of the criminal case, the Court shall within
72 hours, conduct an ocular inspection of the confiscated
materials and through the P D E A shall within 24 hours
thereafter proceed with the destruction or burning of
the same. A representative sample, duly weighed and
recorded is retained;
(5) T h e Board shall then issue a sworn certification as to the
feet of destruction or burning of the subject items which,
together with the representative sample in the custody of
the P D E A , shall be submitted to the court;
(6) T h e alleged offender or his representative shall be allowed
to personally observe all of the above proceedings and his
presence shall not constitute an admission of guilt. In case
the said offender or accused refuses or fails to appoint a
representative after due notice in writing within 72 hours
before the actual burning or destruction of the evidence in
question, the Secretary of Justice shall appoint a member
of the public attorney's office to represent the former.
What is the effect when the procedures are not complied with?
It depends upon whether or not the identity of the drugs
seized was compromised. Too, the official conduct of the law
enforcers matters as follows:
1. People v. Delmonte, G . R . N o . 179940, A p r i l 23, 2008
Pringas explained that non-compliance with Section
21 will not render an accused's arrest illegal or the items
seized/confiscated from him inadmissible. What is of
utmost importance is the preservation of the integrity and
the evidentiary value of the seized items as the same would
be utilized in the determination of the guilt or innocence
of the accused. Appellant never questioned the custody
and disposition of the drug that was taken from him. In
fact, he stipulated that the subject drug was forwarded
to P N P Regional Crime Laboratory Office 3, Malolos,
Bulacan for laboratory examination which examination
547
gave positive result for shabu. Thus the integrity and the
evidentiary value of the drug seized from appellant have
not been compromised.
Non-compliance with Section 21 particularly the
making of the inventory and the photographing of the
drugs confiscated and/or seized, will not render the drugs
inadmissible in evidence. Under Section 3 of Rule 128 of
the R R C P , evidence is admissible when it is relevant to
the issue and is not excluded by the law or these rules.
For evidence to be inadmissible, there should be a law or
rule which forbids its reception. If there is no such law or
rule, the evidence must be admitted subject only to the
evidentiary weight that will accorded it by the courts.
There is no provision or statement in said law or in
any rule that will bring about the non-admissibility of the
confiscated and/or seized drugs due to non-compliance
with Section 21. T h e issue, if there is noncompliance
with said section, is not of admissibility, but of weight
— evidentiary merit or probative value — to be given the
evidence. T h e weight to be given by the courts on said
evidence depends on the circumstances obtaining in each
case.
2. Mallillin v. People, G . R . N o . 172953, A p r i l 30, 2008
Section 21 of the I R R of R . A . 9165 outlines the post-

seizure procedure in taking custody of seized drugs the officer
acquiring initial custody of drugs under a search warrant must
photograph and physically inventory the item at the place
where the warrant has been served.
EE deviated from this procedure. At the close of the search

of petitioner's house, he brought the seized items immediately
to the police station for the alleged purpose of making a "true
inventory" thereof, but there appears to be no reason w h y a
true inventory could not be made in petitioner's house when
in fact the apprehending team was able to record and mark
the seized items and there and then prepare a seizure receipt
therefor. T h e raiding team has had enough opportunity to
cause the issuance of the warrant which means that it has had
as much time to prepare for its implementation. W h i l e the final
548
proviso in Section 21 of the rules would appear to excuse non-

compliance therewith, the same cannot benefit the prosecution
as if failed to offer acceptable justification for EE's action.
Likewise, EE's failure to deliver the seized items to the

court demonstrates a departure from the directive in the search
warrant that the items seized be immediately delivered to the
trial court with a true and verified inventory of the same, re-
quired by Rule 126, Section 12 of the R R C P . This is mandatory
to preclude substitution of or tampering with said items by in-
terested parties. Thus, as a reasonable safeguard, the approval
by the court which issued the search warrant is necessary be-
fore police officers can retain the property seized and without
it, they would have no authority to retain possession thereof,
more so deliver the same to another agency. M e r e tolerance by
the trial court of a contrary practice does not make the practice
right because it violates the mandatory requirements of the
law and it thereby defeats the very purpose for the enactment.
Given the foregoing deviations of EE from the standard

hand normal procedure in the implementation of the warrant
and in taking post-seizure custody of the evidence, reliance on
the presumption of regularity in the conduct of police duty is
manifestly misplaced. T h e presumption of regularity is just
that — a mere presumption disputable by contrary proof and
which when challenged by the evidence cannot be regarded as
binding truth. This presumption cannot preponderate over the
presumption of innocence that prevails if not overthrown by
proof beyond reasonable doubt. T h e lack of conclusive identi-
fication of illegal drugs allegedly seized, coupled with the ir-
regularity in the manner by which the same were placed under
police custody before offered in court, strongly militates a find-
ing of guilt.
T h e burden of proving guilt lies on the prosecution which

must rely on the strength of its own evidence and not on the
weakness of the defense. The rule is invariable whatever may
be the reputation of the accused, for the law presumes his
innocence unless and until the contrary is shown. In dubio
pro reo. When moral certainty as to culpability hangs in the
balance, acquittal on reasonable doubt inevitably becomes a
matter of right.
549
3. People v. Concepcion, G.R. N o . 178876, June 27,2008

The prosecution's failure to submit in evidence the required
physical inventory of the seized drugs and the photograph
pursuant to Section 21 will not exonerate appellants. Non-
compliance with said section is not fatal and will not render an
accused's arrest illegal or the items seized/confiscated from him
inadmissible. What is of utmost importance is the preservation
of the integrity and the evidentiary value of the seized items,
as the same would be utilized in the determination of the guilt
or innocence of the accused. T h e integrity of the drugs seized is
intact. The chain of custody of the drugs subject matter of the
case was shown not to have been broken. After seizure of the
drugs from appellants' possession, P02 SS and P02 AA marked
them with their initials and turned them over to S P O l LL who,
on the same day, sent these plastic sachets containing white
crystalline substance to P N P Provincial Crime Laboratory for
examination to determine the presence of dangerous drugs.
After a qualitative examination conducted on the specimens
the Forensic Chemical Officer, conclhuded that the white
crystalline substance was positive for shabu. T h e r e can be no
doubt that the drugs seized from appellants w e r e the same
ones examined in the crime laboratory.
Appellants' assertion that the prosecution should have

offered proof showing that they are drug traffickers and are
notorious in the drug trade as proof of a proper buy-bust opera-
tion, is without basis. There is no law or jurisprudence that
requires such evidence before it can be held that there was a
legal buy-bust operation. Also, the absence of a prior surveil-
lance or test buy does not affect the legality of the buy-bust
operation. There is no textbook method of conducting buy-bust
operations. T h e Court has left to the discretion of police au-
thorities the selection of effective means to apprehend drug
dealers. A prior surveillance, much less a lengthy one, is not
necessary especially where the police operatives are accompa-
nied by their informant during the entrapment. Flexibility is
a trait of good police work. T h e operation was conducted with-
out the necessity of any prior surveillance as the confidential
informant, who was previously tasked by the buy-bust team
leader to order dangerous drugs from appellant, accompanied
the team to the person who was peddling the dangerous drugs.
550
T h e recording of marked money used in a buy-bust

operation is not one of the elements for the prosecution of sale
of illegal drugs. T h e recording or non-recording thereof in an
official record w i l l not necessarily lead to an acquittal as long
as the sale of the prohibited drug is adequately proven. In the
prosecution for the sale of dangerous drugs, the absence of
marked money does not create a hiatus in the evidence for the
prosecution as long as the sale is adequately proven and the
drug subject of the transaction is presented before the court.
Neither law nor jurisprudence requires the presentation of any
money used in the buy-bust operation. W h a t is material to a
prosecution for illegal sale of dangerous drugs is the proof that
the transaction or sale actually took place, coupled with the
presentation in court of the corpus delicti as evidence.
Bondad v. People, G.R. N o . 173804, December 10, 2008
For the failure to comply with the requirements of Section

21 in a manner that compromised the identity of the items seized,
which is the corpus delicti of each of the crimes charged against
a p p e l l a n t [violation of Section 5, paragraph 2(3), Article II and
Section 11, paragraph 2(3)] his acquittal is in order.
How should the accusatory portion of the information be

worded?
It should contain the Section and Article number violated.
Here, the trial court failed to specify in the dispositive portion
of its decision the Article number in R . A . 9165 to which Sections
5 and 11, under which appellant was charged and convicted,
belong. T h e Article number - 11 - must be inserted. (People v.
Navarro, G.R. No. 173790, October 11, 2007)
What should the penalty on the convict include?

T h e penalty imposed by the trial court and affirmed by
the appellate court for possession of shabu is the indeterminate
penalty of imprisonment of 12 years and 1 day as minimum to
14 years and 1 day as maximum. Section 11, Article II of R.A.
9165, however, penalizes the offense with both prison term
and fine. A fine of P300.000 must be added to the prison terms
imposed, (id.)
551
TITLE SIX
C R I M E S A G A I N S T PUBLIC M O R A L S
Chapter One
GAMBLING A N D BETTING
• What crimes are included in Crimes against Public Morals?

1. Gambling and illegal lottery; and
2. Offenses against decency.
Offenses against decency are those which are offensive
to morals, e.g., grave scandal which may be committed both in
public and private places.
A r t s . 195-199. R e p e a l e d a n d modified by P . D . N o s . 449,

483 a n d 1602, as a m e n d e d by Letters of Instructions N o . 816.
ILLEGAL NUMBERS GAMES
XXX XXX XXX
Sec. 2. Definition of Terms. — A s used in this Act, the following

terms shall mean:
a. Illegal Numbers Game. — A n y form illegal gambling
activity, which uses numbers or combinations thereof as
factors in giving out jackpots.
b. Jueteng. — An illegal numbers g a m e that involves the
combination of thirty-seven (37) numbers against thirty-
seven (37) numbers from number one (1) to thirty seven
(37) or the combination of thirty-eight (38) numbers
in some areas, serving as a form of local lottery w h e r e
bets are placed and accepted per combination, and its
variants.
c. Masiao. — An illegal numbers game where the winning
combination is derived from the results of the last game of
Jai Alai or the Special L l a v e portion or any result thereof
552
G A M B L I N G A N D BETTING
based on any fictitious Jai Alai game consisting often (10)

players pitted against one another, and its variants.
d. Last T w o . — An illegal numbers game where the winning
combination is derived from the last two (2) numbers of
the first prize of the winning Sweepstakes ticket which
comes out during the weekly draw of the Philippine
Charity Sweepstakes Office ( P C S O ) , and its variants.
e. Bettor ("Mananaya," "Tayador" or variants thereof.)
— A n y person who places bets for himself/herself or in
behalf of another person, or any person, other than the
personnel or staff of any illegal numbers game operation.
f. Personnel or Staff of Illegal Numbers Game Operation.
— A n y person, who acts in the interest of the maintainer,
manager or operator, such as, but not limited to, an
accountant, cashier, checker, guard, runner, table
manager, usher, watcher, or any other personnel
performing such similar functions in a building structure,
vessel, vehicle, or any o^her place where an illegal
numbers game is operated or conducted.
g. Collector or A g e n t ("Cabo," "Cobrador," "Coriador" or
variants thereof). — A n y person who collects, solicits or
produces bets in behalf of his/her principal for any illegal
numbers game who is usually in possession of gambling
paraphernalia.
h. Coordinator, Controller or Supervisor ("Encargado" or
variants thereof). — A n y person who exercises control
and supervision over the collector or agent.
i. Maintainer, Manager or Operator. — A n y person who
maintains, manages or operates any illegal number game
in a specific area from whom the coordinator, controller or
supervisor, and collector or agent take orders.
j. Financiers or Capitalist. — A n y person who finances the
operations of any illegal numbers game.
k. Protector or Coddler. — A n y person who lends or provides
protection, or receives benefits in any manner in the
operation of any illegal numbers game.
Sec. 3. Punishable Acts. — A n y person who participates in
any illegal numbers game shall suffer the following penalties:
553
a. The penalty of imprisonment from thirty (30) days to

ninety (90) days, if such person acts as a bettor;
b. The penalty of imprisonment from six (6) years and one (1)
day to eight (8) years, if such person acts as a personnel or
staff of an illegal numbers game operation;
c. The same penalty shall likewise be imposed to any person
who allows his vehicle, house, building or land to be used
in the operation of the illegal numbers game;
d. The penalty of imprisonment from eight (8) years and one
(1) day to ten (10) years, if such person acts as a collector
or agent;
e. The penalty of imprisonment from ten (10) years and
one (1) day to t w e l v e (12) years, if such person acts as a
coordinator, controller or supervisor;
f. The penalty of imprisonment from t w e l v e (12) years and
one (1) day to ten (10) fourteen (14) years, if such person
acts as a maintainer, manager or operator;
g. The penalty of imprisonment from fourteen (14) years
and one (1) day to sixteen (16) years, if such person acts
as a financier or capitalist; and
h. The penalty of imprisonment from sixteen (16) years and
one (1) day to twenty (20) years, if such person acts as
protector or coddler.
Sec. 4. Possession of Gambling Paraphernalia or Materi-

als. — The possession of any gambling paraphernalia and other ma-
terials used in the illegal numbers game operation shall be deemed
prima facie evidence of any offense covered by this Act.
Sec. 5. Liability of Government Employees and/or Public

Officials. —
a) If the collector, agent, coordinator, controller, supervisor,

maintainer, manager, operator, financier or capitalist of
any illegal numbers game is a government employee and/
or public official, whether elected or appointed shall suffer
the penalty of t w e l v e (12) years and one (1) day to twenty
(20) years and a fine ranging from T h r e e million pesos
(P3,000,000.00) to F i v e million pesos (P5,000,000.00) and
perpetual absolute disqualification from public office.
554
In addition to the penalty provided in the immediately

preceding section, the accessory penalty of perpetual
disqualification from public office shall be imposed upon
any local government official who, having knowledge of
the existence of the operation of any illegal numbers game
in his/her jurisdiction, fails to abate or to take action, or
tolerates the same in connection therewith.
b) In the case of failure to apprehend perpetrators of any
illegal numbers game, any law enforcer shall suffer an
administrative penalty of suspension or dismissal, as the
case may be, to be imposed by the appropriate authority.
Sec. 6. Liability of Parents/Guardians. — T h e penalty of
imprisonment from six (6) months and one (1) day to one (1) year
or fine ranging from One hundred thousand pesos (P100,000.00) to
Four hundred thousand pesos shall be imposed upon any parent,
guardian or person exercising moral authority or ascendancy over
a minor, ward or incapacitated person, and not otherwise falling
under any of the foregoing subsections, who induces or causes such
minor, ward or incapacitated person to commit any of the offenses
punishable in this A c t . Upon conviction, the parent, guardian or
person exercising moral authority or ascendancy over the minor,
ward or incapacitated person shall be deprived of his/her authority
over such person in addition to the penalty imposed.
Sec. 7. Recidivism. — T h e penalty next higher in degree as
provided for under Section 3 hereof shall be imposed upon a recidivist
who commits any of the offenses punishable in this Act.
Sec. 8. Immunity from Prosecution. — A n y person who
serves as a witness for the government or provides evidence in a
criminal case involving any violation of this Act, or who voluntarily
or by virtue of a subpoena testificandum or duces tecum,
produces, identifies, or gives testimony shall be immune from any
criminal prosecution, subject to the compliance with the provisions of
Presidential Decree N o . 1732, otherwise known as Decree Providing
Immunity from Criminal Prosecution to Government Witnesses and
the pertinent provisions of the Rules of Court.
Sec. 9. Prosecution, Judgment and Forfeiture of Property.
— A n y person may be charged with or convicted of the offenses
covered by this Act without prejudice to the prosecution of any act
or acts penalized under the Revised Penal Code or existing laws.
555
During the pendency of the case, no property or income used or

derived therefrom which may be confiscated and forfeited shall be
disposed, alienated or transferred and the same shall be in custodia
legis and no bond shall be admitted for the release of the same.
The trial prosecutors shall avail of provisional remedies
provided for under the Revised Rules on Criminal Procedure.
Upon conviction, all proceeds, gambling paraphernalia and
other instruments of the crime including any real or personal property
used in any illegal numbers game operation shall be confiscated
and forfeited in favor of the State. A l l assets and properties of the
accused either owned or held by him/her in his/her name or in the
name of another person found to be manifestly out of proportion to
his/her lawful income shall be prima facie presumed to be proceeds
of the offense and shall likewise be confiscated and forfeited in favor
of the State.
X X X X X X X X X
Sec. 14. Amendatory Clause. — T h e pertinent provisions

of Presidential Decree N o . 1602, in so far as they are inconsistent
herewith, are hereby expressly amended or modified accordingly.
X X X X X X X X X
Approved: A p r i l 2, 2004.
• What forms of gambling are prohibited by R.A. 9287?
a. Illegal numbers game ( I N G ) — uses numbers or their

combinations.
b. Jueteng — involves combination of 37 numbers us. 37
numbers from 1 to 37 (38 in other places) and its variants.
c. Masiao — combination is derived from Jai-alai results.
d. Last T w o — derived from the last two digits of sweep-
stakes.
Prosecution of the above offenses shall not bar prosecution
of any act penalized under the R P C or other existing laws.
• W h o are the persons liable?

a. Bettor — places bet for himself or for another or any
person other than the personnel of the operator.
556
b. Personnel or staff of operator — acts in the interest of the

maintainer, manager or operator, such as an accountant,
cashier, checker, guard, runner, table manager, usher,
watcher, or any other personnel with such similar func-
tions in a building, structure, vessel, vehicle, or any other
place where an I N G is operated or conducted.
c. One w h o allows his vehicle, house, building, land to be
used in the gambling operation.
d. Collector or agent — collects, solicits or produces bets
in behalf of his principal who is usually in possession of
gambling paraphernalia.
e. Coordinator, controller or supervisor — exercises control
and supervision over the collector or agent.
f. Maintainer, manager or operator — maintains, manages
or operates any I N G in a specific area from whom the
coordinator, controller or supervisor, and collector or
agent takes orders.
g. Financier or capitalist — finances the operations of I N G .
h. Protector or coddler — lends or provides protection, or
receives benefits in any manner in the operation of any
ING.
i. Parents, guardians or any person exercising moral ascen-
dancy or authority over a minor, ward or incapacitated
person who induces or causes such minor, ward or inca-
pacitated person to commit any of the offenses under the
law.
If the offender in (d) to (e) is a government official or em-
ployee, the penalty is 12 years and 1 day to 14 years impris-
onment and fine of P3 million to P5 million with perpetual
absolute disqualification from office. T h e same rule applies to
officials of local government units who know but fail to abate,
take action against or tolerates illegal numbers game in his
jurisdiction.
The possession of gambling paraphernalia or materials
used for I N G gives rise to a prima facie presumption of violation
of the law. Recidivism is qualifying (not generic aggravating)
hence the penalty is the next higher degree.
557
Chapter T w o
OFFENSES AGAINST DECENCY

A N D GOOD CUSTOMS
A r t . 200. Grave scandal. — T h e penalties of arresto mayor

a n d public censure shall b e i m p o s e d u p o n a n y p e r s o n w h o
shall offend against decency or g o o d customs by a n y h i g h l y
scandalous conduct not expressly falling w i t h i n a n y other
article of this C o d e .
• What is grave scandal?

Grave scandal is any highly scandalous act offensive to
morals and good customs committed publicly or within the
knowledge and view of the public (U.S. v. Samaniego, 16 Phil.).
The offense must be directed to the sense of decency or good
customs and not on property such as scattering human feces on
buildings. (People v. Dumlao, [CA] 38 O.G. 3715)
If committed in a public place, the act is deemed committed

in public v i e w due to the possibility of being witnessed by third
persons. An act committed in a public place cannot be private.
If in a private place, the act must be committed in public v i e w ,
i.e., there must be at least one witness to the act.
• What is required for the act to constitute grave scandal?

T h e act must be highly scandalous and not expressly
falling within any other article of the R P C . For instance, in
conducts involving lasciviousness, it is grave scandal only
where there is mutual consent. If the other party to the act
is forced or intimidated, the crime is acts of lasciviousness.
Scandalous acts can be done alone or by persons of different or
similar sexes.
A r t . 201. Immoral doctrines, obscene publications and exhibi-

tions, and indecent shows. — T h e p e n a l t y of prision mayor or a
fine r a n g i n g f r o m six t h o u s a n d to t w e l v e t h o u s a n d pesos, or
both such i m p r i s o n m e n t a n d fine, shall b e i m p o s e d u p o n :
558
OFFENSES A G A I N S T DECENCY
AND GOOD CUSTOMS
1. T h o s e w h o shall p u b l i c l y e x p o u n d or p r o c l a i m
doctrines o p e n l y c o n t r a r y to p u b l i c morals;
2. (a) T h e a u t h o r s of o b s c e n e literature, p u b l i s h e d
w i t h their k n o w l e d g e in a n y form; the editors
p u b l i s h i n g such literature; a n d the o w n e r s /
o p e r a t o r s of the establishment selling the
same;
(b) T h o s e w h o , i n the theaters, fairs, cinemato-

g r a p h s , o r a n y other p l a c e , exhibit indecent o r
i m m o r a l p l a y s , scenes, acts or s h o w s , it b e i n g
u n d e r s t o o d that the o b s c e n e literature or in-
decent or i m m o r a l plays, scenes, acts or shows,
w h e t h e r live or in film, w h i c h a r e p r e s c r i b e d
by v i r t u e hereof, shall include those w h i c h : (1)
glorify c r i m i n a l s or c o n d o n e crimes; (2) serve
no o t h e r p u r p o s e b u t to satisfy the m a r k e t for
violence, lust or p o r n o g r a p h y ; (3) offend any
r a c e or religion; (4) tend to a b e t traffic in a n d
use o f p r o h i b i t e d d r u g s ; a n d (5) a r e c o n t r a r y
to l a w , p u b l i c o r d e r , m o r a l s , g o o d customs, es-
t a b l i s h e d policies, l a w f u l o r d e r s , decrees a n d
edicts.
3. Those w h o shall sell, give a w a y or exhibit films,

prints, e n g r a v i n g s , sculptures o r literatures w h i c h
a r e offensive to m o r a l s . (As amended by P.D. Nos.
960 and 969, July 24, 1976.)
Other provisions of P.D. No. 960 are further amended
by P.D. No. 969, promulgated July 24, 1976 and to take effect
fifteen (IS) days after publication in two (2) newspapers of
general circulation, provide:
"Sec. 2. Disposition of the Prohibited Articles. — The
disposition of the literature, films, e n g r a v i n g s , sculptures,
paintings, or other materials involved in the violation
r e f e r r e d to in Sec. 1 ( r e f e r r i n g to A r t . 201, R P C ) hereof shall
be g o v e r n e d by the following rules:
a. U p o n conviction of the offender, to be forfeited in
favor of the g o v e r n m e n t to be destroyed.
559
b. W h e r e the criminal case against any violator of this

decree results in an acquittal, the obscene/immoral
literature, films, prints, e n g r a v i n g s , sculptures,
painting or other materials a n d articles involved in
the violation r e f e r r e d to in Sec. 1 ( r e f e r r i n g to A r t .
201, R P C ) h e r e o f shall nevertheless be forfeited
in favor of the g o v e r n m e n t to be destroyed, after
forfeiture p r o c e e d i n g s conducted by the C h i e f of
Constabulary.
c. T h e p e r s o n a g g r i e v e d by the forfeiture action of the

Chief of C o n s t a b u l a r y m a y , w i t h i n fifteen (15) d a y s
after his receipt of a copy of the decision, a p p e a l the
matter to the Sec. of N a t i o n a l Defense for r e v i e w .
T h e decision of the Sec. of N a t i o n a l D e f e n s e shall
be final a n d u n a p p e a l a b l e . " (As amended by P.D.
No. 969.)
"Sec. 3. Jurisdiction. — V i o l a t i o n s of Sec. 1 ( r e f e r r i n g to

a m e n d e d A r t . 201, R P C ) h e r e o f shall b e subject t o trial b y the
military t r i b u n a l s a n d the offenders shall be s u b j e c t to a r r e s t
a n d detention p u r s u a n t t o existing l a w s , d e c r e e s , o r d e r s a n d
instructions p r o m u l g a t e d p u r s u a n t t o P r o c l a m a t i o n s N o .
1081, d a t e d S e p t e m b e r 21, 1972 a n d N o . 1104, d a t e d J a n u a r y
17, 1973."
"Sec. 4. Additional Penalties. — Additional penalties

shall be imposed as follows:
1. In case of the o f f e n d e r is a g o v e r n m e n t official or

employee w h o a l l o w s the violation of Sec. 1 (id.) hereof, the
penalty a s p r o v i d e d h e r e i n shall b e i m p o s e d i n the m a x i m u m
p e r i o d a n d , in a d d i t i o n , the a c c e s s o r y p e n a l t i e s p r o v i d e d
for in the R P C , as a m e n d e d , shall l i k e w i s e be imposed." (As
amended by P.D. No. 969.)
xxx xxx xxx
"Sec. 4-A. T h e C h i e f of C o n s t a b u l a r y shall, w i t h the

a p p r o v a l of the Sec. of N a t i o n a l D e f e n s e , p r o m u l g a t e the
necessary rules a n d r e g u l a t i o n s for the i m p l e m e n t a t i o n of
this decree." (As amended by P.D. No. 969.)
560
AND GOOD CUSTOMS
• Compare R.A. 3060 and Article 201 of the Revised Penal Code.
Section 7 of R . A . 3060 makes it unlawful for any person or

entity to exhibit or cause to be exhibited in any motion picture
theater or public place, picture, including trailers, stills, and
other pictorial advertisements in connection with motion
pictures, not duly passed by the Board; or to print or cause to
be printed on any motion picture to be exhibited in any theater,
or public place or by television, a label or notice showing the
same to have been previously passed by the said Board when
the same has not been previously authorized, except motion
pictures imprinted or exhibited by the Philippine Government
and/or its departments and agencies, and newsreels.
T h e elements of the two offenses are different:
a. T h e gravamen of the offense in R . A . 3060 is the public

exhibition of any motion picture which has not been
previously passed by the Board of Censors. T h e motion
picture may not be indecent or immoral, but if it has not
been previously approved by the Board, its public showing
constitutes a criminal offense. Article 201(3) penalizes
the public showing of indecent or immoral plays, scenes,
acts, or shows, not just motion pictures.
b. R . A . 3060 is malum prohibitum in which criminal

intent is presumed; Article 201(3) is malum in se, where
criminal intent is an indispensable ingredient. (People u.
City Court of Manila, September 1987)
A r t . 202. Vagrants and prostitutes — Penalty. — The

following a r e v a g r a n t s :
1. A n y p e r s o n h a v i n g no a p p a r e n t m e a n s of subsis-
tence, w h o has the physical ability to w o r k a n d w h o
neglects to a p p l y himself or herself to some lawful
calling;
2. A n y p e r s o n found loitering a b o u t public or semi-
public b u i l d i n g s or places, or t r a m p i n g or w a n d e r -
ing a b o u t the country or the streets without visible
means of support:
561
3. A n y idle or dissolute person w h o lodges in houses of

ill-fame; ruffians or pimps a n d those w h o habitually
associate with prostitutes;
4. A n y person w h o , not b e i n g included in the
provisions of other articles of this C o d e , shall be
found loitering in any inhabited or u n i n h a b i t e d
place b e l o n g i n g to a n o t h e r w i t h o u t a n y l a w f u l or
justifiable p u r p o s e ;
5. Prostitutes.
F o r the p u r p o s e s of this article, w o m e n w h o , for m o n e y
or profit, habitually i n d u l g e in s e x u a l intercourse or lascivi-
ous conduct, a r e d e e m e d to be prostitutes.
A n y p e r s o n f o u n d guilty of a n y of the offenses c o v e r e d

by this article shall be p u n i s h e d by arresto menor or a fine
not exceeding 200 pesos, a n d in case of r e c i d i v i s m , by arresto
mayor in its m e d i u m p e r i o d to prision correccional in its
m i n i m u m p e r i o d or a fine r a n g i n g f r o m 200 to 2,000 pesos, or
both, in the discretion of the court.
• Who are vagrants?
Vagrants are those who loiter around public or private

places without any visible means of support but who are
physically able to work and do not apply themselves to some
lawful calling, such as able-bodied beggars. Vagrants include
ruffians and pimps who habitually associate with prostitutes.
• What different crimes may be committed by "loitering around"?
Loitering around constitutes vagrancy unless such act is

not punishable under other articles of the R P C . W h e n a person
enters the estate of another he may commit:
1. Vagrancy if the estate is not enclosed or fenced because

entry is not prohibited, hence, trespass is not committed.
(Article 202[4])
2. Trespass to property when the estate is uninhabited and

there is manifest prohibition against entry. (Article 281)
562
AND GOOD CUSTOMS
3. Theft, either attempted or consummated, when a person

enters a fenced or enclosed estate without the consent
of the owner or overseer to hunt, fish, or gather plant
products. (Article 308, last paragraph)
What is prostitution?
It is any lascivious or lewd act habitually done for profit

by a woman. Its elements are:
a. T h e offender is a woman;
b. She habitually indulges in sexual intercourse or

lascivious conduct; and
c. She does so for money or profit.
Some believe that actresses who, for money or profit,

habitually play the role of one who engages in sexual acts
satisfy all the above elements. Worse, they do it in public v i e w
(movie houses) whereas "regular" prostitutes do it in private.
T h e male partner may not be liable for prostitution under this
paragraph but may be liable under N o . 3 (habitually associates
with prostitutes).
Habitually associating with prostitutes is vagrancy

but when the offender engages in the business or profits by
prostitution or enlists the services of any other person for
the purpose of prostitution, the crime is white slavery under
Article 341 or child abuse if involving minors.
563
TITLE SEVEN
C R I M E S COMMITTED B Y PUBLIC
OFFICERS
• What are the different crimes committed by public officers?
1. Malfeasance and Misfeasance (204 - 209)
2. Bribery and Corruption of Public Officers (210 - 212)
3. Frauds and Illegal Exactions and Transactions (216)
4. Malversation of Public Funds and Property (217 - 222)
5. Infidelity in the Custody of Prisoners (223 - 225)
6. Infidelity in the Custody of Documents (226 - 228)
7. Revelation of Secrets (229 - 230)
8. Disobedience, refusal of assistance, maltreatment of
prisoners (231 - 235)
9. Other offenses or irregularities by public officers (236 -
244)
10. Abuses against chastity (245)
• Who are the offenders in this Title?
Generally, they are public officers for these are crimes

committed by public officers. There are instances, however,
where the offender is a private individual, for instance in
Articles 212, 222 and 225.
564
Chapter One
P R E L I M I N A R Y PROVISIONS
A r t . 203. Who are public officers. — F o r the p u r p o s e of

a p p l y i n g the p r o v i s i o n s of this a n d the p r e c e d i n g titles of
this b o o k , a n y p e r s o n , w h o , b y d i r e c t p r o v i s i o n o f the l a w ,
p o p u l a r election o r a p p o i n t m e n t b y competent authority,
shall t a k e p a r t in the p e r f o r m a n c e of p u b l i c functions in the
G o v e r n m e n t o f the P h i l i p p i n e I s l a n d s , o r shall p e r f o r m i n
said G o v e r n m e n t or in a n y of its b r a n c h e s p u b l i c duties as
a n e m p l o y e e , a g e n t o r s u b o r d i n a t e official, o f a n y r a n k o r
class, shall be d e e m e d to be a p u b l i c officer.
• W h o are public officers?
To be a public officer, one must be —

(1) T a k i n g part in the performance of public functions in the
government, or performing in said Government or any
of its branches public duties as an employee, agent, or
subordinate official, of any rank or class; and
(2) His authority to take part in the performance of public
functions or to perform public duties must be —
a. by direct provision of the law; or
b. by popular election; or
c. by appointment by competent authority. (Azarcon v.
Sandiganbayan, February 1997)
• May a laborer or casual be considered a public officer?

It has been held that the definition is quite comprehensive,
embracing as it does, every public servant from the highest
to the lowest. For the purpose of the R P C , it obliterates the
standard distinction in the law of public officers between officer
and employee. A laborer in the Bureau of Posts temporarily
detailed as filer of money orders is a public officer within the
meaning of Article 203. Indeed, common sense indicates that
565
NOTES AND CASES ON THE REVISED PENAL CODE
the receipt of bribe money is just as pernicious when committed

by temporary employees as when committed by permanent
officials. For purposes of punishing bribery, the temporary
performance of public functions is sufficient to constitute a
person a public official.
Chapter Two
M A L F E A S A N C E A N D MISFEASANCE
• Define malfeasance, misfeasance, and nonfeasance.
Malfeasance is the doing of something which in the first

place should not be done because it is wrong; Misfeasance is
the performance of an act which the officer may perform but he
does so erroneously. ( M e m o r y aid — miser) Nonfeasance is the
omission to do an act which the officer should perform but does
not do so.
Section O n e . — Dereliction of Duty
A r t . 204. Knowingly rendering unjust judgment. — A n y j u d g e

w h o shall k n o w i n g l y r e n d e r a n u n j u s t j u d g m e n t i n any case
submitted to h i m for decision, shall be p u n i s h e d by prision
mayor a n d p e r p e t u a l a b s o l u t e disqualification.
• How is knowingly rendering unjust judgment committed?

The law requires that: (a) the offender is a judge; (b) he
renders a judgment in a case submitted to him for decision;
(c) the judgment is unjust; (d) he knew that said judgment
is unjust. A judgment is unjust when it is contrary to the
standards of conduct prescribed by law. The test to determine
whether an order or judgment is unjust may be inferred from
the circumstances that it is contrary to law or is not supported
by evidence. (Louis Vuitton S.A. v. Villanueva, November 1992)
• What is the nature of knowingly rendering unjust judgment?

Knowingly rendering an unjust judgment is both criminal
and administrative infraction. As a crime, it is punished under
Article 204. The gist of the offense is that an unjust judgment
be rendered maliciously or in bad faith, that is, knowing it to
be unjust. An unjust judgment is one, which is contrary to law
567
or is not supported by the evidence or both. The source of an

unjust judgment may be error or ill will. There is no liability at
all for a mere error. A judicial officer, when required to exercise
his judgment or discretion, is not liable criminally for any error
which he commits, provided he acts in good faith. Bad faith is
the ground for liability. If in rendering judgment, the judge
fully knew that the same was unjust in the sense aforesaid,
then he acted maliciously and must have been actuated and
prevailed upon by hatred, envy, revenge, greed, or some other
similar motive. (Dela Cruz v. Concepcion, 54 SCAD)
• What militates against a charge for rendering unjust judgment?

A judge cannot be subjected to liability — civil, criminal
or administrative — for any of his official acts, no matter how
erroneous, as long as he acts in good faith.
It is general principle of the highest importance to the

proper administration of justice that in exercising the authority
vested in him, a judicial officer shall be free to act upon his own
convictions, without apprehension of personal consequence
to himself. This concept of judicial immunity rests upon
consideration of public policy, its purpose being to preserve the
integrity and independence of the judiciary, (id.)
Mendoza v. Villaluz declared that it is fundamental that

a judicial officer when required to exercise his judgment or
discretion is not criminally liable for any error he commits,
provided he acts in good faith. T h a t in the absence of malice or
any wrongful conduct, the judge cannot be held administratively
responsible for no one called upon to try the facts or interpret
the law in the process of administering justice can be infallible
in his judgment. To hold a judge administratively accountable
for every erroneous ruling or decision he renders assuming
that he has erred, would be nothing short of harassment or
would make his position unbearable.
A r t . 205. Judgment rendered through negligence. — A n y j u d g e

w h o , b y r e a s o n o f i n e x c u s a b l e n e g l i g e n c e o r i g n o r a n c e , shall
r e n d e r a manifestly unjust j u d g m e n t in a n y case s u b m i t t e d
to h i m for decision shall be p u n i s h e d by arresto mayor a n d
t e m p o r a r y special disqualification.
568
MALFEASANCE AND MISFEASANCE
A r t . 206. Unjust interlocutory order. — A n y j u d g e w h o shall

k n o w i n g l y r e n d e r a n u n j u s t interlocutory o r d e r o r decree
shall suffer the p e n a l t y of arresto mayor in its m i n i m u m
p e r i o d a n d suspension; b u t i f h e shall h a v e acted b y r e a s o n
o f i n e x c u s a b l e n e g l i g e n c e o r i g n o r a n c e a n d the interlocutory
o r d e r o r d e c r e e b e manifestly unjust, the penalty shall b e
suspension.
A r t . 207. Malicious delay in the administration of justice. —

T h e p e n a l t y of prision correccional in its m i n i m u m p e r i o d
shall b e i m p o s e d u p o n a n y j u d g e guilty o f m a l i c i o u s d e l a y i n
the a d m i n i s t r a t i o n of justice.
A r t . 208. Prosecution of offenses; negligence and tolerance. —

T h e p e n a l t y of prision correccional in its m i n i m u m p e r i o d
a n d s u s p e n s i o n shall b e i m p o s e d u p o n a n y p u b l i c officer,
or officer of the l a w , w h o , in dereliction of the duties of his
office, shall m a l i c i o u s l y r e f r a i n f r o m instituting prosecution
for the p u n i s h m e n t of violators of the l a w , or shall tolerate
the commission of offenses.
• Who is liable for dereliction of duty?
T h e offender is not any public officer but one whose

functions relate to instituting prosecution of offenders, such as
peace officers, fiscal or barangay captain.
A r t . 209. Betrayal of trust by an attorney or solicitor—Revelation

of secrets. — In a d d i t i o n to the p r o p e r administrative action,
the penalty of prision correccional in its m i n i m u m p e r i o d ,
or a fine r a n g i n g f r o m 200 to 1,000 pesos, or both, shall be
imposed u p o n a n y attorney-at-law or solicitor (procurador
judicial) w h o , by any malicious b r e a c h of professional duty
or inexcusable negligence or i g n o r a n c e , shall prejudice his
client, or reveal any of the secrets of the latter learned by
h i m in his professional capacity.
T h e same penalty shall be imposed u p o n an attorney-

at-law or solicitor (procurador judicial) w h o , h a v i n g under-
taken the defense of a client or h a v i n g received confidential
information f r o m said client in a case, shall undertake the
defense of the opposing party in the same case, without the
consent of his first client.
569
Are all information confided to counsel classified as privileged?
N o . A distinction must be made between confidential

communications relating to past crimes and future crimes
intended to be committed, by the client. T h e announced
intention of a client to commit a crime is not included within
the confidences which his attorney is bound to respect. If the
client seeks his lawyer's advice with respect to a crime that
he has theretofore committed, he is given the protection of a
virtual confessional seal which the attorney-client privilege
declares cannot be broken by the attorney without the client's
consent. Said privileged confidentiality, however, does not
attach with regard to a crime which a client intends to commit
in the future and for purposes of which he seeks the lawyer's
advice.
Statements and communications regarding a crime

already committed, made by a party who committed it, to an
attorney, consulted as such, are privileged communications.
Contrarily, communications having to do with the client's
contemplated criminal acts, or in aid or furtherance thereof,
are not covered by the cloak of privileges ordinarily existing
in reference to communications between attorney and client.
(People v. Sandiganbayan, G.R. Nos. 115439-41, July 16, 1997)
A future crime is one which has not yet been committed when
it was divulged to the counsel.
What is essential for the communication to be clothed with the

privilege?
For a communication between a lawyer and his client may

be privileged, it must be for a lawful purpose or in furtherance
of lawful end. Every communication made to an attorney by
a client for criminal purpose is a conspiracy or attempt at a
conspiracy which is unlawful not to divulge and which the
attorney under certain circumstances may be bound to disclose
at once in the interest of justice, (id.)
570
MALFEASANCE A N D MISFEASANCE
Section T w o . — Bribery
A r t . 210. Direct bribery. — A n y p u b l i c officer w h o shall

a g r e e to p e r f o r m an act constituting a c r i m e , in connection
w i t h the p e r f o r m a n c e of his official duties, in consideration
of a n y offer, p r o m i s e , gift or p r e s e n t r e c e i v e d by such officer,
p e r s o n a l l y o r t h r o u g h the m e d i a t i o n o f a n o t h e r , shall suffer
the p e n a l t y of prision mayor in its m e d i u m a n d m i n i m u m
p e r i o d s a n d a fine not less t h a n t h r e e times the v a l u e of the
gift, in a d d i t i o n to the p e n a l t y c o r r e s p o n d i n g to the crime
a g r e e d u p o n , i f the s a m e shall h a v e b e e n committed.
If the gift w a s a c c e p t e d by the officer in consideration

of the execution of an act w h i c h does not constitute a crime,
a n d the officer e x e c u t e d said act, he shall suffer the same
penalty p r o v i d e d in the p r e c e d i n g p a r a g r a p h ; a n d if said act
shall not h a v e b e e n a c c o m p l i s h e d , the officer shall suffer the
penalties of prision correccional, in its m e d i u m p e r i o d a n d a
fine of not less t h a n t w i c e the v a l u e of such gift.
If the object for w h i c h the gift w a s r e c e i v e d or p r o m i s e d

w a s t o m a k e the p u b l i c officer r e f r a i n f r o m d o i n g something
w h i c h it w a s his official d u t y to d o , he shall suffer the
penalties of prision correccional in its m a x i m u m p e r i o d to
prision mayor in its m i n i m u m p e r i o d a n d a fine not less than
three times the v a l u e of such gift.
In a d d i t i o n to the penalties p r o v i d e d in the p r e c e d i n g

p a r a g r a p h s , the culprit shall suffer the penalty of special
t e m p o r a r y disqualification.
T h e provisions contained in the p r e c e d i n g p a r a g r a p h s

shall be m a d e a p p l i c a b l e to assessors, a r b i t r a t o r s , a p p r a i s a l
a n d claim commissioners, experts or any other persons
p e r f o r m i n g p u b l i c duties. (As amended by B.P. Big. 871,
approved May 29, 1985.)
• What is bribery?
Bribery is the crime of the public officer who receives a

gift, present, offer or promise by reason or in connection with
the performance of his official duties. It is the crime of the
571
receiver. The crime of the giver is corruption of public officers.

Bribery requires concurrence of the will of the corruptor and
the public officer otherwise, the crime cannot be consummated.
It cannot thus be in the frustrated stage.
• What are the kinds of bribery?

1. Direct bribery — the public officer will do an act which
may or may not constitute a crime, or refrain from doing
what he should do in consideration of what he will receive.
The kinds of direct bribery in Article 210 are:
a. 1st paragraph — the act constitutes a crime wherein
mere agreement consummates direct bribery ("shall
agree to perform an act constituting a crime.")
b. 2nd paragraph — the act agreed upon does not
constitute a crime; here the officer must accept
the gift, mere agreement will not suffice ("gift was
accepted by the officer.") Under this paragraph:
1. If the act is executed — penalty is the same as
in the first paragraph.
2. If the act is not accomplished — penalty is
lower.
c. 3rd paragraph — nonfeasance; the officer refrains
from doing what he is obliged to perform.
2. Indirect bribery — the public officer does not have to do
anything in consideration of what he receives. T h e gift is
given to him by reason of his office without more.
3. Qualified bribery — a law enforcement officer refrains
from arresting or prosecuting an offender who commits an
offense penalized with reclusion perpetua and/or death.
» When the act performed by the officer constitutes a crime, what

should be the penalty to the offender?
T h e penalty shall be for the bribery and for the crime

committed. Note in the last sentence of paragraph 1, "in addi-
tion to the penalty corresponding to the crime agreed upon, if
the same shall have been committed." It is, thus, necessary to
determine whether or not the act to be performed will amount
572
to a crime. If so, the mere agreement on the part of the officer

will consummate direct bribery (and corruption of public of-
ficer). If he w e r e able to perform the act, he commits not only
direct bribery but also the crime brought about by the act. For
example, alteration of entry in the registry of the Land Regis-
tration Authority:
On the part of the Officer:
1. Direct bribery; and
2. Falsification of public document.
On the part of the corruptor:
1. Corruption of public officer; and

2. Falsification of public document, as principal by
inducement.
Bribery cannot be committed without the corresponding
crime of corruption of public officer. Once there is consummated
bribery, there is the crime of corruption. When the public
officer refused to be corrupted, the corruptor is only liable for
attempted corruption but there is no bribery.
What are the essential elements of direct bribery?

T h e four essential elements of the offense are:
1. Accused is a public officer as defined in Article 203;
2. He received by himself or thru another, some gift or

present, offer or promise;
3. Such gift, present or promise has been given in
consideration of his commission of some crime or any act
not constituting a crime; and
4. The crime or act relates to the exercise of his functions.
Formilleza acquitted the accused for lack of acceptance

ratiocinating that it was improbable for accused to accept bribe
money in front of her officemates and in a public place, even if
the money had been handed to her under the table. The accused
shouted at the complainant, "What are you trying to do to me?"
which is not the normal reaction of one with a guilty conscience.
There must be a clear intention of the public officer to take
573
the gift so offered and consider it as his own property from

then on. Mere physical receipt unaccompanied by any other
sign, circumstance or act to show acceptance is not sufficient to
conclude that the crime has been committed. To hold otherwise
would encourage unscrupulous individuals to frame up public
officers by simply putting within their physical custody gift,
money or other property.
A r t . 211. Indirect bribery. — T h e penalties of prision

correccional in its m e d i u m a n d m a x i m u m p e r i o d s , suspension
a n d p u b l i c censure shall be i m p o s e d u p o n any p u b l i c officer
w h o shall accept gifts offered to h i m by r e a s o n of his office.
(As amended by B.P. Big. 871, May 29, 1985.)
• What is indirect bribery?

It is the crime of any public officer who shall accept gifts
offered to him by reason of his office. In indirect bribery, the
officer is not to do anything in consideration of what he may
receive. M e r e acceptance of the gift because of his position
constitutes indirect bribery. But if after receiving the gift, he
does any act in favor of the giver, it ceases to be indirect but
becomes direct bribery.
W h e n anonymous gifts are received by the officer by
reason of his office, he must do acts showing that he accepts
the gift to be liable for indirect bribery.
• How is indirect bribery committed?

It is committed by a public officer who accepts a gift which
was offered to him by reason of his office. T h e fact that the
evidence is wanting as to direct connivance is of no moment
since in indirect bribery it is not necessary that the officer
should do any particular act or even promise to do an act, as it
is enough that he accepts gifts offered to him by reason of his
office. (Victoriano v. Alvior, March 1978)
• What are the distinctions between Direct and Indirect Bribery?

a. In direct bribery, the public officer must do or omit the
doing of something in consideration of the gift. In indirect
bribery, there is no such requirement.
574
MALFEASANCE A N D MISFEASANCE
b. M e r e agreement consummates the crime of direct

bribery if the act agreed upon amounts to a crime. In
indirect bribery, the public officer must accept the gift to
consummate the crime of indirect bribery.
A r t . 211-A. Qualified Bribery. — If a n y p u b l i c officer

is entrusted with l a w enforcement and he refrains from
a r r e s t i n g o r p r o s e c u t i n g a n o f f e n d e r w h o h a s committed
a crime p u n i s h a b l e by reclusion perpetua a n d / o r d e a t h in
c o n s i d e r a t i o n of a n y offer, p r o m i s e , gift or present, he shall
suffer the p e n a l t y for the offense w h i c h w a s not prosecuted.
If it is the p u b l i c officer w h o asks or d e m a n d s such gift

or present, he shall suffer the p e n a l t y of d e a t h . (As added by
Sec. 4, R.A. No. 7659.)
• What are the elements of qualified bribery?
a. Offender must be a public officer charged with law

enforcement;
b. He refrains from arresting or prosecuting a person who
has committed a crime;
c. T h e crime committed must be punishable with reclusion
perpetua A N D / O R death (i.e., [1] reclusion perpetua; [2]
death; or [3] reclusion perpetua to death).
d. Said officer refrained from prosecuting or arresting the
offender because of money, gift or promise as consideration
therefor.
T h e penalty on the officer is the same as that of the
offender. The second paragraph which states that if the
public officer were the one who asked or demanded for the
gift, death penalty will be imposed on him, is no longer
enforceable because of the proscription for the imposition
of the death penalty. ( R . A . 9346)
T h e penalty must be reclusion perpetua or death or
reclusion perpetua to death. Otherwise, it becomes dereliction
of duty under Article 208. If he refrained from prosecuting
the offenders for a consideration, the crimes committed are
dereliction of duty and direct bribery because Article 210, first
paragraph, states that the penalty therefor is "in addition" to
575
the penalty for the crime committed. ( R . A . 9346 has no effect

on the element of penalty because the article speaks of penalty
prescribed for the crime committed by the offender who was not
arrested or prosecuted.)
A r t . 212. Corruption of public officials. — T h e same

penalties imposed u p o n the officer c o r r u p t e d , except those of
disqualification a n d suspension, shall b e imposed u p o n any
p e r s o n w h o shall h a v e m a d e the offers o r promises o r g i v e n
the gifts or presents as d e s c r i b e d in the p r e c e d i n g articles.
• When the officer refused to be corrupted, what is committed?
It is attempted corruption of a public official. There

is no frustrated corruption and frustrated bribery because
these crimes involve concurrence of the will of the corruptor
and the public officer. Hence, once they agreed, the crime is
immediately consummated. If the public officer refused to be
corrupted, the corruption is merely attempted but there is no
bribery on the part of the officer who refused to be corrupted.
xxx xxx xxx

Section 1. A n y p e r s o n w h o v o l u n t a r i l y gives i n f o r m a -
tion a b o u t a n y violation of A r t i c l e s 210, 211, a n d 212 of the
Revised P e n a l C o d e ; R e p u b l i c A c t N u m b e r e d T h r e e T h o u -
s a n d N i n e t e e n , as a m e n d e d ; Section 345 of the I n t e r n a l R e v -
e n u e C o d e a n d Section 3604 of the T a r i f f a n d C u s t o m s C o d e
a n d other p r o v i s i o n s o f the s a i d C o d e s p e n a l i z i n g a b u s e o r
dishonesty on the p a r t of the p u b l i c officials c o n c e r n e d ; a n d
other l a w s , rules a n d r e g u l a t i o n s p u n i s h i n g acts o f graft,
c o r r u p t i o n a n d other forms o f official a b u s e ; a n d w h o w i l l -
ingly testifies a g a i n s t a n y p u b l i c official or e m p l o y e e for
such violation shall b e e x e m p t f r o m p r o s e c u t i o n o r p u n i s h -
ment for the offense w i t h r e f e r e n c e to w h i c h his i n f o r m a t i o n
a n d testimony w e r e g i v e n , a n d m a y p l e a d o r p r o v e the g i v i n g
of such prosecution: Provided, that this i m m u n i t y m a y be en-
j o y e d e v e n i n cases w h e r e the i n f o r m a t i o n a n d testimony a r e
given a g a i n s t a p e r s o n w h o is not a p u b l i c official b u t w h o
is a p r i n c i p a l , or accomplice, or a c c e s s o r y in the c o m m i s s i o n
576
of a n y of the a b o v e - m e n t i o n e d violations; Provided, further,

that this i m m u n i t y m a y be e n j o y e d by such i n f o r m a n t or wit-
ness n o t w i t h s t a n d i n g that h e offered o r g a v e the b r i b e o r
gift to the p u b l i c official or his a c c o m p l i c e for such gift or
b r i b e - g i v i n g ; a n d , Provided, finally, that the f o l l o w i n g condi-
tions concur:
1. T h e i n f o r m a t i o n m u s t r e f e r to c o n s u m m a t e d
violations of a n y of the a b o v e - m e n t i o n e d provisions
of law, rules and regulation;
2. T h e i n f o r m a t i o n a n d testimony a r e n e c e s s a r y for
the conviction of the a c c u s e d p u b l i c officer.
3. S u c h i n f o r m a t i o n a n d testimony a r e not yet in the
possession of the State;
4. S u c h i n f o r m a t i o n a n d testimony can be c o r r o b o -
r a t e d on its m a t e r i a l points; a n d
5. T h e i n f o r m a n t or w i t n e s s h a s not b e e n p r e v i o u s l y
convicted of a c r i m e i n v o l v i n g m o r a l t u r p i t u d e .
Sec. 2. T h e i m m u n i t y g r a n t e d h e r e u n d e r shall not attach

s h o u l d it t u r n out s u b s e q u e n t l y that the i n f o r m a t i o n a n d / o r
testimony is false a n d m a l i c i o u s or m a d e only for the p u r p o s e
o f h a r a s s i n g , molesting o r i n a n y w a y p r e j u d i c i n g the p u b l i c
officer so d e n o u n c e d shall be entitled to any action, civil or
criminal, against said i n f o r m a n t or witness.
Sec. 3. A l l p r e l i m i n a r y investigations c o n d u c t e d by a
prosecuting fiscal, j u d g e or committee, a n d all p r o c e e d i n g s
u n d e r t a k e n in connection t h e r e w i t h , shall be strictly
confidential or p r i v a t e in o r d e r to protect the reputation of
the official u n d e r investigation in the event that the r e p o r t
proves to be u n f o u n d e d or no prima facie case is established.
xxx xxx xxx

A p p r o v e d : July 18, 1975.
• Under P.D. 749, what are required for immunity?
The corruptor may invoke immunity from prosecution by

doing two things:
1. Voluntarily giving information to the government of any
corrupt transaction of an officer in violation of the R P C or
any anti-graft law.
577
2. Testifying in the case that may subsequently be filed

against the public officer involved.
and complying with five conditions, viz.:
1. The information must refer to a consummated violation.
2. The information and testimony ( I T ) are necessary to bring
about prosecution and punishment.
3. These IT should not yet be in possession of the govern-

ment.
4. The IT can be corroborated in their material points.
5. The informant or witness has not been convicted for any

crime involving moral turpitude.
The immunity shall refer only to the transaction where

the IT relates. It will not apply to any other transaction he had
with the public officer.
If the bribe-giver resorted to falsehoods in his testimony,

he is not immune to the crime arising from the falsity such as
perjury.
Chapter Three
FRAUDS A N D I L L E G A L EXACTIONS A N D
TRANSACTIONS
A r t . 213. Frauds against the public treasury and similar

offenses. — T h e p e n a l t y of prision correccional in its m e d i u m
p e r i o d to prision mayor in its m i n i m u m p e r i o d , or a fine
r a n g i n g f r o m 200 to 10,000 pesos, or b o t h , shall be imposed
u p o n a n y p u b l i c officer w h o :
1. In his official capacity, in d e a l i n g w i t h a n y p e r s o n

w i t h r e g a r d t o f u r n i s h i n g supplies, the m a k i n g
of contracts, or the a d j u s t m e n t or settlement of
accounts r e l a t i n g to p u b l i c p r o p e r t y or funds, shall
enter into a n a g r e e m e n t w i t h any interested p a r t y
or s p e c u l a t o r or m a k e use of a n y other scheme, to
d e f r a u d the G o v e r n m e n t ;
2. B e i n g e n t r u s t e d w i t h the collection of taxes,

licenses, fees a n d other imposts, shall be guilty of
a n y of the f o l l o w i n g acts or omissions:
a. D e m a n d i n g , directly or indirectly, the pay-

ment o f sums different f r o m o r l a r g e r than
those a u t h o r i z e d b y l a w .
b. F a i l i n g v o l u n t a r i l y to issue a receipt, as p r o -
v i d e d b y l a w , for a n y s u m o f m o n e y collected
by h i m officially.
c. Collecting or receiving, directly or indirectly,
by w a y of p a y m e n t or otherwise, things or
objects of a n a t u r e different f r o m that p r o v i d e d
by l a w .
W h e n the culprit is an officer or employee of the B u r e a u
of Internal R e v e n u e or the B u r e a u of Customs, the provisions
of the Administrative C o d e shall be applied.
579
Who is the offender in illegal exaction?
Illegal exaction under the second paragraph of Article 213

can only be committed by a collecting officer or a public officer
whose official duty is to collect payments due to the government.
The crime committed is aside from malversation of funds and
pertains to the violation of the rules and regulations pertaining
to collection such as issuance of official receipts.
What are the three ways of committing illegal exaction?

1. Demanding an amount different from what the law
authorizes;
2. Failing voluntarily to issue receipt; and
3. Collecting or receiving as payment things of nature

different from that required by law.
In the first way, illegal exaction is committed by mere

demanding an amount different, bigger or smaller, than what
should be paid, even if the debtor refuses.
This provision is not applicable to personnel of the

B I R and the Bureau of Customs because they are allowed
to collect an amount different from that fixed since interests
and surcharges are imposed. Moreover, they are authorized to
compromise penalties.
What are the elements of illegal exaction?
1. The offender is a collecting officer;
2. He is entrusted with the collection of taxes, licenses, fees

and other imposts;
3. He collected an amount different from that required

by law or he failed voluntarily to issue a receipt or he
collected things or objects different from that provided by
law.
What crimes may be committed in relation to illegal exaction?
If the collecting officer collected a bigger amount and the

excess pocketed, there is an additional offense of malversation
because the collecting officer is accountable for the amount
580
FRAUDS A N D ILLEGAL EXACTIONS A N D T R A N S A C T I O N S
collected. If to facilitate the taking of the excess amount he

falsified the second copy of the official receipt which is to be
submitted to the accounting department, the crimes would be
complex of malversation through falsification of document and
illegal exaction. T h e whole amount becomes public fund because
issuing receipt is the operative act making the whole amount
public fund. It should be noted that both falsification of public
document and malversation do not require damage as element,
hence, complexing of these crimes is possible under Article 48,
falsification being necessary to commit the other. However,
if the falsification was resorted to hide the malversation, the
crime is not complex but separate. (See Sendaydiego)
Voluntary failure to issue a receipt is also penalized under

Section 68 of P . D . 1445, the State Audit Code.
A r t . 214. Other frauds. — In a d d i t i o n to t h e p e n a l t i e s

p r e s c r i b e d in the provisions of C h a p t e r Six, Title Ten,
B o o k T w o , o f this C o d e , t h e p e n a l t y o f t e m p o r a r y s p e c i a l
d i s q u a l i f i c a t i o n i n its m a x i m u m p e r i o d t o p e r p e t u a l
special disqualification shall be imposed u p o n any public
officer w h o , t a k i n g a d v a n t a g e o f h i s official p o s i t i o n , s h a l l
commit any of the f r a u d s or deceits e n u m e r a t e d in said
provisions.
A r t . 215. Prohibited transactions. — T h e penalty of prision

correccional in its m i n i m u m p e r i o d or a fine r a n g i n g f r o m
200 to 1,000 pesos, or b o t h , shall be imposed u p o n any
appointive p u b l i c officer w h o , d u r i n g his i n c u m b e n c y , shall
directly or indirectly b e c o m e interested in any transaction
of e x c h a n g e or speculation w i t h i n the territory subject to his
jurisdiction.
A r t . 216. Possession of prohibited interest by a public officer. —

T h e penalty of arresto mayor in its m e d i u m p e r i o d to prision
correccional in its m i n i m u m p e r i o d , or a fine r a n g i n g from
200 to 1,000 pesos, or both, shall be imposed u p o n a public
officer w h o , directly or indirectly, shall become interested
in any contract or business in w h i c h it is his official duty to
intervene.
581
This provision is a p p l i c a b l e to experts, a r b i t r a t o r s a n d

private accountants w h o , in like m a n n e r , shall take p a r t
in any contract or transaction connected w i t h the estate
or p r o p e r t y in the a p p r a i s a l , distribution or a d j u d i c a t i o n
of w h i c h they shall h a v e acted, a n d to the g u a r d i a n s a n d
executors with respect to the p r o p e r t y b e l o n g i n g to their
w a r d s o r estate.
The crimes under this Section are all covered in Section 3(e) of
the Anti-Graft and Corrupt Practices A c t or Republic Act N o . 3019.
Chapter Four
M A L V E R S A T I O N OF P U B L I C FUNDS
OR P R O P E R T Y
A r t . 217. Malversation of public funds or property —

Presumption of malversation. — A n y p u b l i c officer w h o , by
r e a s o n of the duties of his office, is a c c o u n t a b l e for p u b l i c
funds or p r o p e r t y , shall a p p r o p r i a t e the s a m e , or shall take or
m i s a p p r o p r i a t e o r shall consent, o r t h r o u g h a b a n d o n m e n t o r
negligence, shall p e r m i t a n y o t h e r p e r s o n to take such p u b l i c
funds o r p r o p e r t y , w h o l l y o r p a r t i a l l y , o r shall o t h e r w i s e b e
guilty of the m i s a p p r o p r i a t i o n or m a l v e r s a t i o n of such funds
or p r o p e r t y , shall suffer:
1. T h e penalty of prision correccional in its m e d i u m

a n d m a x i m u m p e r i o d s , if the a m o u n t involved in
the m i s a p p r o p r i a t i o n or m a l v e r s a t i o n does not
exceed t w o h u n d r e d pesos.
2. T h e penalty of prision mayor in its m i n i m u m a n d

m e d i u m p e r i o d s , if the a m o u n t involved is m o r e
t h a n 200 pesos b u t does not exceed 6,000 pesos.
3. T h e penalty of prision mayor in its m a x i m u m p e r i o d
to reclusion temporal in its m i n i m u m p e r i o d , if the
a m o u n t i n v o l v e d is m o r e t h a n 6,000 pesos b u t is
less t h a n 12,000 pesos.
4. T h e penalty of reclusion temporal in its m e d i u m
a n d m a x i m u m p e r i o d s , if the a m o u n t involved is
m o r e than 12,000 pesos b u t is less than 22,000 pesos.
If the a m o u n t exceeds the latter, the penalty shall
be reclusion temporal in its m a x i m u m period to
reclusion perpetua.
In all cases, persons guilty of malversation shall also
suffer the penalty of p e r p e t u a l special disqualification and a
fine equal to the amount of the funds malversed or equal to
the total value of the property embezzled.
513
T h e failure of a public officer to have duly forthcoming

any public funds or p r o p e r t y w i t h w h i c h he is c h a r g e a b l e ,
upon d e m a n d by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or p r o p e r t y
to personal uses. (As amended by R.A. No. 1060, approved
June 12, 1954.)
What are the elements of malversation?
a. The offender is a public officer;
b. He has custody or control of funds or property by reason

of the duties of his office;
c. The funds or property involved are public funds or

property for which he is accountable; and
d. He has appropriated, taken or misappropriated, or has

consented to, or through abandonment or negligence,
permitted the taking by another person of such funds or
property.
T h e delivery to QQ, by reason of the duties of his office

as P N P Station Commander, of the firearms belonging to the
Government, entailed the implicit obligation on his part to
safely keep the firearms, use them for the purposes for which
they were entrusted to him, and to return them to the proper
authority at termination of tenure, or on demand. T h e duty
is to account for said firearms. His act of misappropriating,
malversing, and converting the firearms to his own personal
use and benefit, with abuse of trust and confidence completed
the basic description of malversation attributed to him. (Quinon
v. Sandiganbayan, April 1997)
How is malversation committed?
Malversation is committed in any of the following:
(a) Appropriating, taking or misappropriating; or

(b) Consenting or permitting any other person, through
abandonment or negligence, to take such public funds or
property.
584
M A L V E R S A T I O N OF PUBLIC F U N D S OR PROPERTY
In ( a ) , it is the officer who put the funds or property to his

own use and benefit; in (b), it is a third person who benefited
therefrom.
Malversation is based on the relation of the offender to the

fund or property misappropriated. He must be an accountable
public officer otherwise, the crime is estafa. Malversation is
committed where the accountable officer or somebody else
misappropriated public funds, in the latter case, by consent,
negligence or abandonment of property the public officer is
bound to account. By virtue of Article 222, even private funds
may be the subject of malversation if these were placed in the
custody of an officer accountable therefor by reason of his office.
• W h o is an accountable officer?
An accountable officer is he who, in the discharge of his

office, receives money or property of the government which he
is bound to later account for. It is the nature of the duties of,
not the nomenclature used for, or the relative significance of
the title to, the position which controls in the determination.
(Tanggote v. Sandiganbayan, 55 SCAD)
• W h o could be liable for malversation?
Both Articles 217 and 220 hold persons who are not
accountable officers as such when they are, nonetheless,
accountable for specific public property as when they have a
duty to return the same or to dispose thereof as provided by law
or by lawful regulation or orders of their superiors. (Azarcon v.
Sandiganbayan, February 1996)
There are public officers who technically are not account-
able officers because they are not designated as such unlike
cashiers, collecting officers, property officers who are per se ac-
countable officers. Nonetheless, these officers may be account-
able for specific government assets entrusted to them to enable
them to perform their functions. Such entrustment is proved
by a Memorandum Receipt, a government form evidencing
receipt by a public officer of public property. Such public offi-
cials are accountable officers only with respect to such property
entrusted to them, such as police officers for weapon issued,
computer operators for the personal computers, printers and
accessories held by them, and so on.
585
In what other instance may a person who is not an accountable

officer be convicted of malversation?
A public officer who is not in charge of public funds or
property by virtue of official position, or even a private individual,
may be liable for malversation or illegal use of public funds or
property if such public officer or private individual conspires
with an accountable public officer to commit malversation
or illegal use of public funds or property. For instance, the
public office of the Municipal Mayor is a constituent element
of malversation and illegal use of public funds or property. T h e
mayor's position is classified as salary grade ( S G ) 27. Since the
Amended informations alleged that the petitioner conspired
with her co-accused, the municipal mayor, in committing the
said felonies, the fact that her position is municipal accountant
and as such she is not an accountable officer is of no moment.
Also, the Sandiganbayan has exclusive original jurisdiction
over the cases lodged against her although occupying SG 24
since one of the accused in the case occupies SG 27.
Under Section 474 of the Local Government Code, a

municipal accountant is not obliged to receive public money or
property, nor is she obligated to account for the same; hence, she
is not an accountable officer within the context of Article 217.
Indeed, under the said article, an accountable public officer is
one who has actual control of public funds or property by reason
of the duties of his office. Even then, it cannot be necessarily
concluded that a municipal accountant cannot be convicted for
malversation. T h e name or relative importance of the office or
employment is not the controlling factor. (Quinon v. People,
G.R. No. 136462, September 19, 2002) T h e nature of the duties
of the public officer or employee, that as part of his duties he
received public money for which he is bound to account and
failed to account for it, is the factor which determines whether
or not malversation is committed by the accused public officer
or employee. Hence, a mere clerk in the provincial or municipal
government may be held guilty of malversation if he or she
is entrusted with public funds and misappropriates the same.
(Barriga v. Sandiganbayan, G.R. Nos. 161784-86, April 26,
2005)
• What is the condition precedent for any taking, appropriation,

conversion or loss of public funds to amount to malversation?
T h e r e must first be evidence of shortage. It was only the

drawn check, based on the audit examination that brought
about the shortage. It was error to conclude that the check
which the audit team had pinpointed as the shortage due to
its dishonor was at the same time, intended and used by EN
and ES to "cover up" shortages in the funds allegedly in their
custody. T h e shortage must be clearly established as a fact, i.e.,
that over and above the funds found by the auditor in the actual
possession of the accountable officers, there is an additional
amount which could no longer be produced or accounted for
at the time of audit. Evidence of shortage is necessary before
there could be any taking, appropriation, conversion, or loss
of public funds that would amount to malversation. It makes
no sense for any bogus check to be produced to "cover up" an
inexistent malversation. (Enriquez v. People, 331 SCRA)
• What is the effect on the penalty if malversation is committed

through negligence?
N o n e . Generally, a felony by culpa is penalized lower than

that by dolo. However, malversation is the only felony which
has the same penalty whether committed by dolo or culpa.
Even on the putative assumption that the evidence

against petitioner yielded a case of malversation by negligence
but the information was for intentional malversation,
conviction under the first mode of misappropriation would still
be in order. Malversation is committed either intentionally or
by negligence. T h e dolo or the culpa present in the offense is
only a modality in the perpetration of the felony. Even if the
mode charged differs from the mode proved, the same offense
of malversation is involved and conviction thereof is proper.
(People v. Pepito, February 1997)
An accused charged with willful malversation can be

validly convicted of the same offense of malversation through
negligence where the evidence sustains the latter mode of
perpetrating the offense. Unlike the other felonies wherein
587
a lower penalty is imposed when the offense is committed

through negligence, either because it is so specified in the
particular provision denning and punishing that felony or by
force of Article 365, in malversation, the penalty is the same
whether the mode of commission is with intent or by negligence.
(Cabello v. Sandiganbayan, G.R. No. 93885, May 14, 1991)
Samson convicted an accused charged with intentional

falsification of falsification through negligence. W h i l e a
criminal negligent act is not a simple modality of a willful crime
but a distinct crime in itself, designated as a quasi-offense,
a conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon
the theory that the greater includes the lesser offense.
Appellant was charged with willful falsification but the

evidence shows that in effecting the falsification which made
possible the cashing of the checks in question, he did not act with
criminal intent but merely failed to take proper and adequate
means to assure himself of the identity of the real claimants
as an ordinary prudent man would do. T h e information alleges
acts which charge willful falsification but which turned out to
be not willful but negligent. This is a case covered by the rule
when there is a variance between the allegation and proof. T h e
rationale also applies to malversation. (People v. Uy, Jr., G.R.
No. 157399, November 2005)
When will the presumption of malversation arise?
For the presumption to arise, the following must be

indubitably proved:
1. T h e audit is complete, accurate and reliable;
2. T h e amount of accountability has been duly established;
3. Demand is made on the accountable officer; and
4. T h e funds or property is not duly forthcoming and he

cannot explain the reason therefor.
W h e n demand is made to the accountable officer to account

for the funds and property and the same is not forthcoming, the
presumption is that he misappropriated the funds. But before
588
the presumption arises, it must be proved that he is clearly

accountable for the amount. T h e audit must be complete,
thorough, and reliable, otherwise, the presumption shall not
stand. Presumption does not arise simply because there is a
shortage. It must be indubitably established that the fund
exists; that he is accountable therefor; and he cannot explain the
shortage. (Rizon v. CA, October 1991; Tinga v. Sandiganbayan,
April 1988)
T h e prima facie presumption arises only if there is no

issue as to the accuracy, correctness, and regularity of the audit
findings and if the fact that funds are missing is indubitably
established. T h e audit team leader could not even equivocally
state whether it was cash or check that was lost belying the
accuracy and correctness of the team's audit report. (Enriquez
v. People)
• Is direct evidence required in malversation?
N o . Direct evidence is not necessary to establish the

presumption but unless the audit is complete, thorough
and reliable, the foundation for the presumption will not be
established. Otherwise, direct evidence of misappropriation is
necessary. (Quizo v. Sandiganbayan, 149 SCRA)
Malversation may be committed either through a

positive act of misappropriation of public funds or property or
passively through negligence by allowing another to commit
such misappropriation. Nonetheless, all that is necessary to
prove in both acts are the following: (a) that the defendant
received in his possession public funds or property; (b) that
he could not account for them and did not have them in his
possession when audited; and (c) that he could not give a
satisfactory or reasonable excuse for the disappearance of
said funds or property. An accountable officer may thus be
convicted of malversation even if there is no direct evidence
of misappropriation and the only evidence is a shortage in his
accounts which he has not been able to explain satisfactorily.
(Cabello v. Sandiganbayan)
589
• Is demand an element of malversation?

No. Demand merely raises a prima facie presumption
that missing funds have been put to personal use. The demand
itself is not an element of, and not indispensable to constitute,
malversation. Even without a demand, malversation can still
be committed when enough facts are extant to prove it.
The mere failure of a public officer to have duly forth-

coming any public funds or property with which he is charge-
able, upon demand by any duly authorized officer, is prima fa-
cie evidence that he has put such funds or property to personal
use. To justify conviction for malversation of public funds, the
prosecution has only to prove that the accused received public
funds or property and that he could not account for them or did
not have them in his possession and could not give a reason-
able excuse for the disappearance of the same.
• If the disbursement of public funds is unauthorized, will that

make up a case of malversation?
N o t every unauthorized payment of public funds is

malversation. T h e r e is malversation only if the public officer
who has custody of public funds should appropriate the same,
or shall take or misappropriate or shall consent, or through
abandonment or negligence shall permit any other person to
take such public funds. W h e r e the payment of public funds
has been made in good faith, and there is reasonable ground
to believe that the public officer to whom the fund had been
paid was entitled thereto, he is deemed to have acted in good
faith, there is no criminal intent, and the payment, it if turns
out that it is unauthorized, renders him only civilly but not
criminally liable.
Compliance to a patently lawful order is rectitude far

better than contumacious disobedience. T h e order emanated
from the Office of the President and bears the signature of
the President himself. It carries with it the presumption that
it was regularly issued. A n d on its face, the memorandum is
patently lawful for no law makes the payment of an obligation
590
illegal. This fact, coupled with the urgent tenor for its execution
constrains one to act swiftly without question. Obedientia est
legis essentia.
• Is good faith a valid defense in malversation?
Y e s , for it would negate criminal intent on the part of the

accused. To constitute a crime, the act must, except in certain
crimes made such by statute, be accompanied by a criminal
intent or by such negligence or indifference to duty or to
consequences as, in law, is equivalent to criminal intent. Actus
non facit reum, nisi mens sit rea — a crime is not committed
if the mind of the person performing the act complained of is
innocent. Ordinarily, evil intent must unite with an unlawful
act for there to be a crime. T h e r e can be no crime when the
criminal mind is wanting.
Criminal intent in embezzlement is not based on technical

mistakes as to the legal effect of a transaction honestly entered
into, and there can be no embezzlement if the mind of the
person doing the act is innocent or if there is no wrongful
purpose. T h e accused may always introduce evidence to show
he acted in good faith and that he had no intention to convert.
(People v. Pepito, February 1997)
But negligence must be absent for the defense of good

faith to prosper.
• What is the effect of the restitution of the amount malversed?

Restitution does not affect criminal liability. It is in fact
an implied admission of guilt. However, by analogy to voluntary
plea of guilt, it is considered as a mitigating circumstance.
Payment, for the disappearance of the same. (Dumagat
v. Sandiganbayan) indemnification, or reimbursement of,
or compromise as to, the amounts or funds malversed or
misappropriated, affects only the civil liability of the offender
but does not extinguish his criminal liability. (Felicilda v.
Grospe, G.R. No. 102494, July 3, 1992)
Ml
• What court has jurisdiction over malversation cases?

R . A . 8249 which amended Section 4 of P.D. 1606 gives the
Sandiganbayan original jurisdiction over crimes and felonies of
public officers and employees, at least one of whom belongs to
any of the five categories therein at the time of the commission
of such crimes. (Inding v. Sandiganbayan, G.R. No. 143047,
July 14, 2004)
There are two classes of public office-related crimes under

subparagraph (b), Section 4, R . A . 8249:
1. Those in which the public office is a constituent

element as defined by statute and the relation
between the crime and the offense is such that, in
a legal sense, the offense committed cannot exist
without the office; and
2. Such offenses or felonies which are intimately
connected with the public office and are perpetrated
by the public officer or employee while in the
performance of his official functions, through
improper or irregular conduct. (Barriga v.
Sandiganbayan)
T h e Sandiganbayan has original jurisdiction over
criminal cases involving crimes and felonies under the first
classification. Considering that the public office of the accused
is by statute a constituent element of the crime charged, there
is no need for the Prosecutor to state in the information specific
factual allegations of the intimacy between the office and the
crime charged, or that the accused committed the crime in the
performance of his duties.
However, the Sandiganbayan likewise has original

jurisdiction over criminal cases involving crimes or felonies
committed by the public officers and employees enumerated
in Section (a)(1) to (5) under the second classification if the
information contains specific factual allegations showing the
intimate connection between the offense charged and the public
office, and the discharge of official duties or functions — whether
improper or irregular. T h e requirement is not complied with if
592
the information merely alleges that the accused committed the

crime charged in relation to his office because such allegation
is merely a conclusion of law.
Malversation and illegal use of public funds or property

belong to the first classification. T h e public office of the accused
is a constituent element in both.
• Compare malversation, estafa and qualified theft.
1. These crimes all involve abuse of confidence or betrayal of

trust.
2. T h e y can all be committed by public officers over public
funds. H o w e v e r , malversation cannot be committed
against private property except for private property in
custodia legis. (Article 222)
3. In estafa and qualified theft, the offender can be a private
person or a public officer who should not be accountable for
the fund or property taken; in malversation it is necessary
that the offender is a public officer accountable over the
funds or property appropriated.
4. T h e taking of public funds or property is malversation
if the public officer is accountable therefor; estafa, if the
offender who is not accountable therefor has acquired
juridical possession and taken it with abuse of confidence
or deceit; qualified theft, if the offender who has mere
physical or material possession took the property with
abuse of confidence.
• If falsification of documents was resorted to for the purpose of

concealing malversation, is a complex crime committed?
N o , for complex crimes require that one crime is used to
commit another. If the falsification is resorted for the purpose of
hiding the malversation, the falsification and malversation are
separate offenses. Thus, where the provincial treasurer, as the
custodian of the money forming part of the road and bridge fund,
effected payments to his co-accused for construction materials
supposedly delivered to the province for various projects when
in fact no such materials were delivered, and to conceal the
defraudation, the accused used six fake vouchers the crimes
593
committed are not complex but separate crimes of falsification

and malversation. The falsifications cannot be regarded
as constituting one continuing offense impelled by a single
criminal impulse. Each falsification of a voucher constitutes one
crime. The falsification of six vouchers constitutes six separate
or distinct offenses; and each misappropriation as evidenced by
a provincial voucher constitutes a separate offense.
These are not cases where the execution of a single
act constitutes two grave or less grave felonies or where the
falsification was used as a means to commit malversation.
If falsification was resorted to for the purpose of hiding the
malversation, the falsification and malversation are separate
offenses. (People v. Sendaydiego, G.R. Nos. L-33252-54,
January 20, 1978)
A r t . 218. Failure of accountable officer to render accounts.

— A n y p u b l i c officer, w h e t h e r in the service or s e p a r a t e d
t h e r e f r o m b y r e s i g n a t i o n o r a n y other cause, w h o i s r e q u i r e d
by l a w or r e g u l a t i o n to r e n d e r account to the C o m m i s s i o n
on A u d i t , or to a p r o v i n c i a l a u d i t o r a n d w h o fails to do so
for a p e r i o d of t w o m o n t h s after such accounts s h o u l d be
r e n d e r e d , shall be p u n i s h e d by prision correccional in its
m i n i m u m p e r i o d , or by a fine r a n g i n g f r o m 200 pesos to 6,000
pesos or both.
A r t . 219. Failure of a responsible public officer to render

accounts before leaving the country. — A n y p u b l i c officer w h o
u n l a w f u l l y leaves or attempts to l e a v e the P h i l i p p i n e I s l a n d
w i t h o u t s e c u r i n g a certificate f r o m the C o m m i s s i o n on A u d i t
s h o w i n g that his accounts h a v e b e e n finally settled, shall
be p u n i s h e d by arresto mayor, or a fine r a n g i n g f r o m 200 to
1,000 pesos, or both.
A r t . 220. Rlegal use of public funds or property. — A n y p u b l i c

officer w h o shall a p p l y a n y p u b l i c f u n d o r p r o p e r t y u n d e r
his a d m i n i s t r a t i o n to a n y p u b l i c use o t h e r t h a n that for
w h i c h such fund o r p r o p e r t y w e r e a p p r o p r i a t e d b y l a w o r
o r d i n a n c e shall suffer the p e n a l t y of prision correccional
in its m i n i m u m p e r i o d or a fine r a n g i n g f r o m one-half to
the total v a l u e of the s u m m i s a p p l i e d , if by r e a s o n of such
594
m i s a p p r o p r i a t i o n , a n y d a m a g e o r e m b a r r a s s m e n t shall h a v e
resulted to the p u b l i c service. In either case, the offender shall
also suffer the p e n a l t y of t e m p o r a r y special disqualification.
If no d a m a g e or e m b a r r a s s m e n t to the p u b l i c service
has resulted, the p e n a l t y shall be a fine f r o m 5 to 50 percent
of the s u m m i s a p p l i e d .
• What are elements of illegal use of public funds or property

(technical malversation)?
1. T h e offender is a public officer;
2. There is public fund or property under his administration;
3. Such public fund or property has been appropriated by

law or ordinance; and
4. He applies the same to a public use other than that for

which such fund or property has been appropriated.
There is no particular appropriation for salary

differentials of teachers of the Sulu State College in R . A . 6688.
T h e third element of the crime of technical malversation ( T M )
which requires that the public fund used should have been
appropriated by law is therefore absent. T h e authorization
given by the D B M for the use of the P40.000 allotment for
payment of salary differentials of 34 teachers is not an
ordinance or law contemplated in Article 220. Thus, appellant
who used the remainder of the fund released by the D B M
for salary differentials for the payment of the terminal leave
benefits of other teachers of the College cannot be held guilty
of TM in the absence of any provision in R . A . 6688 specifically
appropriating said amount for payment of salary differentials
only. In fine, the third and fourth elements of the crime defined
in Article 220 are lacking in this case. (Abdulla v. People, G.R.
No. 150129, April 6, 2005)
• Does the presumption of criminal intent automatically apply to

technical malversation?
N o . Criminal intent is presumed from the voluntary
commission of an unlawful act. But such presumption of
criminal intent will not automatically apply to all charges of
595
TM because disbursement of public funds for public use is

per se not an unlawful act. Appellant cannot be said to have
committed an unlawful act when she paid the obligation of the
College in the form of terminal leave benefits to its employees
who were entitled thereto.
In the absence of any presumption of unlawful intent, the

burden of proving by competent evidence that appellant's act
of paying the terminal leave benefits of employees of the Sulu
was done with criminal intent rests upon the prosecution, (id)
The Sandiganbayan's improper reliance on Section 5(b) of

Rule 131 does not save the day for the prosecution's deficiency
in proving the existence of criminal intent nor could it ever tilt
the scale from the constitutional presumption of innocence to
that of guilt. Actus non facit reum, nisi mens sit rea - a crime
is not committed if the mind of the person performing the act
complained of be innocent. To constitute a crime, the act must,
except in certain crimes made such by statute, be accompanied
by a criminal intent. It is true that a presumption of criminal
intent may arise from proof of the commission of a criminal
act; and the general rule is that if it is proved that the accused
committed the criminal act charged, it will be presumed that
the act was done with criminal intention and that it is for the
accused to rebut this presumption. But the act from which
such presumption springs must be a criminal act. In the case
at bar, the act is not criminal. Neither can it be categorized
as malum prohibitum, the mere commission of which makes
the doer criminally liable even if he acted without evil intent.
(Manzanaris v. People, G.R. No. L-64750, January 30, 1984)
Compare malversation and technical malversation.
1. T h e offenders are accountable officers in both crimes.

2. T h e offender in TM does not derive any personal gain
or profit; in malversation, the offender in certain cases
profits from the proceeds of the crime.
3. In T M , the public fund or property is applied to another
public use; in malversation, the public fund or property is
applied to the personal use and benefit of the offender or
of another person.
596
administrative case
4. In T M , the act is not illegal per se because it is another

public use; in malversation it is illegal per se for the public
funds w e r e diverted to personal use.
5. In the former, there must be an appropriation either by
law such as a general appropriation law or an ordinance
enacted by a local legislative body. In the latter, there is
no such requirement. (Barriga v. Sandiganbayan)
• What is required for technical malversation to exist?
It is necessary that public funds or properties had been

diverted to any public use other than that provided for by law
or ordinance (Palma Gil v. People, 177 SCRA). The C R B I fund
is a general fund, and the utilization of this fund specifically
for the concreting of the Barangay Jalung Road was merely an
internal arrangement between the D P W H and the Barangay
Captain and was not particularly provided for by law or
ordinance. There is no dispute that the money was spent for
a public purpose — payment of the wages of laborers working
on various projects in the municipality. It is pertinent to note
the high priority which laborers' wages enjoy as claims against
the employers' funds and resources. In the absence of a law or
ordinance appropriating the C R B I fund for the concreting of
the Barangay Jalung Road, the petitioner cannot be declared
guilty of the crime of illegal use of public funds. (Parungao u.
Sandiganbayan, G.R. No. 96025, May 5, 1991)
• Can accused be convicted of technical malversation in an

information charging malversation?
N o . A comparison of the two articles reveals that their
elements are entirely distinct and different from each other.
In malversation, the offender misappropriates public funds for
his own personal use or allows any other person to take such
public funds for the latter's personal use. In T M , the public
officer applies public funds under his administration to a
public use other than that for which the fund was appropriated
by law or ordinance. TM is, therefore, not included in nor does
it necessarily include the crime of malversation of public funds
charged in the information. Since the acts constituting TM were
not alleged in the information, and since TM does not include,
or is not included in the crime of malversation, accused cannot
resultantly be convicted of T M . (id)
597
NOTES ANO CASES ON THE REVISED PENAL CODE
A r t . 221. Failure to make delivery of public funds or property.

— A n y public officer u n d e r obligation to m a k e p a y m e n t f r o m
G o v e r n m e n t funds in his possession, w h o shall fail to m a k e
such payment, shall be p u n i s h e d by arresto mayor a n d a fine
from 5 to 25 percent of the sum, w h i c h he failed to p a y .
This provision shall a p p l y to any p u b l i c officer w h o ,
b e i n g o r d e r e d by competent authority to d e l i v e r any
p r o p e r t y in his custody or u n d e r his administration, shall
refuse to m a k e such delivery.
T h e fine shall be g r a d u a t e d in such case by the v a l u e of
the thing, p r o v i d e d that it shall not be less t h a n 50 pesos.
A r t . 222. Officers included in the preceding provisions. — T h e
provisions of this c h a p t e r shall a p p l y to p r i v a t e i n d i v i d u a l s
w h o , i n any capacity w h a t e v e r , h a v e c h a r g e o f a n y N a t i o n a l ,
provincial o r m u n i c i p a l funds, r e v e n u e s , o r p r o p e r t y a n d
to a n y a d m i n i s t r a t o r or d e p o s i t o r y of funds or p r o p e r t y
attached, seized or d e p o s i t e d by p u b l i c a u t h o r i t y , e v e n if
such p r o p e r t y b e l o n g s to a p r i v a t e i n d i v i d u a l .
• How is malversation committed by a private person?
1. When a private person conspired with a public officer to

commit malversation.
2. W h e n he is an accomplice or accessory.
3. Where the private person was constituted a custodian
of public property in whatever capacity even without a
public officer involved and he misappropriated the same.
(But see Azarcon v. Batausa)
Where the officer was constituted a custodian of the fund
or property or depository subject of seizure or attachment,
such seizure or attachment brings the property in custodia
legis and impresses the fund/property with the character of
public property or accountability of government. T h e crime is
malversation not qualified theft because the property is under
custodia legis as provided under Article 220.
A private person conspiring with an accountable officer
in committing malversation is also guilty of malversation. A
different rule prevails with respect to a stranger taking part in
the commission of parricide or qualified theft. In such cases, the
598
stranger is not guilty of parricide or qualified theft but only of

murder or homicide and simple theft. (People v. Sendaydiego)
Azarcon v. Batausa, F e b r u a r y 26,1997
AA was designated custodian of the distrained property of

JJ by the Bureau of Internal Revenue ( B I R ) . H e assumed the
specific undertakings which included the promise that he will
preserve and protect the equipment. Subsequently, he reported
to the B I R that JJ surreptitiously took the distrained property.
• Does a person become a public officer via his designation by the

BIR as custodian of distrained property?
N o . To be a public officer, one must be —
1. Taking part in the performance of public functions in the

government, or performing in said Government or any
of its branches public duties as an employee, agent, or
subordinate official, or any rank or class; and
2. That his authority to take part in the performance of

public functions or to perform public duties must be
a. by direct provision of the law; or
b. by popular election; or
c. by appointment by competent authority.
Rastrollo, 1 Phil. 22 (1901), is not applicable because the

facts therein are not identical, similar or analogous to those
obtaining here. That case involved a judicial deposit or the pro-
ceeds of the sale of attached property in the hands of the debt-
or; the case at bench dealt with the BIR's administrative act of
effecting constructive distraint over alleged property of JJ in
relation to his back taxes, property which was received by A A .
It was clearly within the scope of that court's jurisdiction and
judicial power to constitute the judicial deposit and give "the
depositary a character equivalent to that of a public official."
However, in the instant case, while the B I R had authority to
require AA to sign a receipt for the distrained truck, the N I R C
did not grant it power to appoint AA a public officer.
599
Section 206 of the N I R C authorizes the B I R to effect a

constructive distraint by requiring "any person" to preserve
a distrained property. However, there is no provision in the
N I R C constituting such person a public officer by reason of such
requirement. The BIR's power authorizing a private individual
to act as a depositary cannot be stretched to include the power
to appoint him as a public officer.
• Has the Sandiganbayan jurisdiction over a private person?

To ascertain whether a court has jurisdiction or not, the
provisions of the law should be inquired into. Furthermore, its
jurisdiction must appear clearly from the statute law or it will
not be held to exist. It cannot be presumed or implied. A n d
for this purpose in criminal cases, the jurisdiction of a court
is determined by the law at the time of commencement of the
action.
Section 4, P . D . 1606, prior to its amendment by R . A .

7975 on M a y 16, 1995 unequivocally specify the only instances
when the Sandiganbayan w i l l have jurisdiction over a private
individual, i.e., when the complaint charges the private
individual either as a co-principal, accomplice or accessory of a
public officer or employee who has been charged with a crime
within its jurisdiction. A private individual who has in his
charge any of the public funds or property enumerated therein
and commits any of the acts denned in any of the provisions
of Chapter 4, Title 7 of the R P C , should likewise be penalized
with the same penalty meted to erring public officers. N o w h e r e
in this provision is it expressed or implied that a private
individual falling under said Article 222 is to be deemed a
public officer.
R E P U B L I C A C T N O . 7080 - P L U N D E R
Section 1. Definition of terms. — As u s e d in this A c t , the
term:
a. "Public Officer" m e a n s a n y p e r s o n h o l d i n g a n y p u b l i c
office in the G o v e r n m e n t of the R e p u b l i c of the
P h i l i p p i n e s b y v i r t u e o f a n a p p o i n t m e n t , election o r
contract.
600
b. "Government" i n c l u d e s the N a t i o n a l G o v e r n m e n t , a n d
any of its s u b d i v i s i o n s , a g e n c i e s or instrumentalities,
i n c l u d i n g g o v e r n m e n t - o w n e d o r controlled c o r p o r a t i o n s
a n d their s u b s i d i a r i e s .
c. "Person" i n c l u d e s a n y n a t u r a l or j u r i d i c a l p e r s o n , unless
the context indicates o t h e r w i s e .
d. "Ill-gotten wealth" m e a n s a n y asset, p r o p e r t y , business

e n t e r p r i s e o r m a t e r i a l possession o f a n y p e r s o n w i t h i n
the p u r v i e w o f Section t w o (2) hereof, a c q u i r e d b y h i m
directly o r indirectly t h r o u g h d u m m i e s , nominees,
agents, s u b o r d i n a t e s a n d / o r b u s i n e s s associates b y a n y
c o m b i n a t i o n or series of the f o l l o w i n g m e a n s or similar
schemes:
1. T h r o u g h m i s a p p r o p r i a t i o n , c o n v e r s i o n , misuse, or
m a l v e r s a t i o n o f p u b l i c f u n d s o r r a i d s o n the p u b l i c
treasury;
2. By receiving, directly or indirectly, a n y commission,

gift, s h a r e , p e r c e n t a g e , k i c k b a c k s or any/or entity
in connection w i t h a n y g o v e r n m e n t contract or
project or by r e a s o n of the office or position of the
p u b l i c officer c o n c e r n e d ;
3. By the illegal or f r a u d u l e n t conveyance or

disposition of assets b e l o n g i n g to the N a t i o n a l
g o v e r n m e n t or a n y of its subdivisions, agencies
or instrumentalities or g o v e r n m e n t - o w n e d or
controlled c o r p o r a t i o n s a n d their subsidiaries;
4. By obtaining, r e c e i v i n g or accepting directly or

indirectly a n y s h a r e s of stock, equity or any other
form of interest or participation including the
promise of future employment in any business
enterprise or u n d e r t a k i n g ;
5. By establishing agricultural, industrial or

commercial monopolies or other combinations and/
or implementation of decrees a n d o r d e r s intended
to benefit p a r t i c u l a r persons or special interests; or
601
6. By taking u n d u e a d v a n t a g e of official position,

authority, relationship, connection or influence
to unjustly enrich himself or themselves at the
expense a n d to the d a m a g e a n d prejudice of the
Filipino people and the R e p u b l i c of the Philippines.
Sec. 2. Definition of the Crime of Plunder; Penalties. —

A n y public officer w h o , by himself or in connivance w i t h
m e m b e r s of his family, relatives by affinity or consanguinity,
business associates, s u b o r d i n a t e s or other persons, amasses,
accumulates or a c q u i r e s ill-gotten w e a l t h t h r o u g h a
combination or series of overt criminal acts as d e s c r i b e d
in Section 1(d) h e r e o f in the a g g r e g a t e a m o u n t or total
value of at least Fifty million pesos (P50,000,000.00) shall
be guilty of the crime of p l u n d e r a n d shall be p u n i s h e d by
reclusion perpetua to death. A n y p e r s o n w h o p a r t i c i p a t e d
with the said p u b l i c officer in the commission of an offense
contributing to the c r i m e of p l u n d e r shall l i k e w i s e be
p u n i s h e d for such offense. In the imposition of penalties,
the d e g r e e of p a r t i c i p a t i o n a n d the a t t e n d a n c e of m i t i g a t i n g
a n d extenuating circumstances, a s p r o v i d e d b y the R e v i s e d
P e n a l C o d e , shall b e c o n s i d e r e d b y the court. T h e c o u r t shall
declare a n y a n d all ill-gotten w e a l t h a n d their interests a n d
other incomes a n d assets i n c l u d i n g the p r o p e r t i e s a n d s h a r e s
of stocks d e r i v e d f r o m the deposit or investment t h e r e o f
forfeited in f a v o r of the State. [ A s A m e n d e d by Section 12,
R e p u b l i c A c t N o . 7659.]
Sec. 3. Competent Court. — U n t i l o t h e r w i s e p r o v i d e d

b y l a w , all prosecutions u n d e r this A c t shall b e w i t h i n the
o r i g i n a l j u r i s d i c t i o n o f the S a n d i g a n b a y a n .
Sec. 4. Rule of Evidence. — F o r p u r p o s e s of e s t a b l i s h i n g

the c r i m e of p l u n d e r , it shall not be n e c e s s a r y to p r o v e each
a n d e v e r y c r i m i n a l act d o n e by the a c c u s e d in f u r t h e r a n c e
of the scheme or c o n s p i r a c y to a m a s s , a c c u m u l a t e or
a c q u i r e ill-gotten w e a l t h , it b e i n g sufficient to establish
b e y o n d r e a s o n a b l e d o u b t a p a t t e r n of o v e r t or c r i m i n a l acts
indicative of the o v e r a l l u n l a w f u l scheme or c o n s p i r a c y .
602
Sec. 5. Suspension and Loss of Benefits. — A n y p u b l i c

officer a g a i n s t w h o m a n y c r i m i n a l p r o s e c u t i o n u n d e r a valid
i n f o r m a t i o n u n d e r this A c t in w h a t e v e r stage of execution
a n d m o d e of p a r t i c i p a t i o n , is p e n d i n g in court, shall be
s u s p e n d e d f r o m office. S h o u l d h e b e convicted b y final
j u d g m e n t , he shall lose all r e t i r e m e n t or g r a t u i t y benefits
u n d e r a n y l a w , b u t if he is a c q u i t t e d he shall be entitled to
reinstated a n d to the s a l a r i e s a n d o t h e r benefits w h i c h he
failed to receive d u r i n g s u s p e n s i o n , unless in the meantime,
a d m i n i s t r a t i v e p r o c e e d i n g s h a v e b e e n filed a g a i n s t him.
Sec. 6. Prescription of Crime. — T h e c r i m e p u n i s h a b l e

u n d e r this A c t shall p r e s c r i b e i n t w e n t y (20) years. H o w e v e r ,
the r i g h t of the State to r e c o v e r p r o p e r t i e s u n l a w f u l l y
a c q u i r e d b y p u b l i c officers f r o m t h e m o r f r o m their nominees
o r transferees shall not b e b a r r e d b y p r e s c r i p t i o n , laches, o r
estoppel.
xxx xxx xxx
Sec. 8. Scope. — T h i s A c t shall not a p p l y to or affect

p e n d i n g prosecutions o r p r o c e e d i n g s , o r those w h i c h m a y
b e instituted u n d e r E x e c u t i v e O r d e r N o . 1 issued a n d
p r o m u l g a t e d o n F e b r u a r y 28,1986.
xxx xxx xxx
A p p r o v e d : J u l y 12, 1991.
Estrada v. Sandiganbayan, G . R . N o . 148560, N o v e m b e r 2001
• What is the crime of plunder and its nature?

Plunder is the crime of public officers amassing wealth
involving at least P50 Million by means of a combination or
series of overt acts each of which may constitute different
offenses. It does not require that each and every act be proved
distinctly from each other. It is enough that the acts show a
pattern of accumulation. T h e series of acts is in the nature of
continued crime.
R . A . 1379 prescribes the procedure for the forfeiture
or confiscation of ill-gotten wealth. The right of the State to
recover ill-gotten wealth is not subject to prescription.
603
Plunder is malum in se. Section 2 authorizing the

application of mitigating and extenuating circumstances in the
R P C to prosecutions under R . A . 7080 indicates that mens rea is
an element of plunder since the degree of responsibility of the
offender is determined by his criminal intent. It is true that
Section 2 refers "to any person who participates with the said
public officer in the commission of an offense contributing to the
crime of plunder." There is no reason to believe, however, that
it does not apply as well to the public officer as principal in the
crime. As Justice Holmes said: " W e agree to all the generalities
about not supplying criminal laws with what they omit, but
there is no canon against using common sense in construing
laws as saying what they obviously mean."
The legislative declaration in R . A . 7659 that plunder is

a heinous offense implies that it is a malum in se. For when
the acts punished are inherently immoral or inherently wrong,
they are mala in se and it does not matter that such acts
are punished in a special law, especially since in the case of
plunder, the predicate crimes are mainly mala in se. It would
be absurd to treat prosecutions for plunder as though they are
mere prosecutions for violations of B.P. 22 or of an ordinance
against jaywalking, without regard to the inherent wrongness
of the acts.
Is the Plunder Law void for being vague?
N o . T h e law contains ascertainable standards and

well-defined parameters, which would enable the accused to
determine the nature of his violation. Section 2 is sufficiently
explicit in its description of acts, conduct and conditions
required or forbidden, and prescribes the elements of the crime
with reasonable certainty and particularity.
As long as the law affords some comprehensible guide

or rule that would inform those who are subject to it what
conduct would render them liable to its penalties, its validity
will be sustained. It must sufficiently guide the judge in its
application; the counsel, in defending one charged with its
violation; and more importantly, the accused in identifying the
realm of the proscribed conduct. Indeed, it can be understood
604
with little difficulty that what the law punishes is the act of
a public officer in amassing or accumulating ill-gotten wealth
of at least P50 Million through a series or combination of acts
enumerated in Section 1(d) of the law.
• Does not the failure of the law to define certain terms make a
case of vagueness or "overbreadth"?
N o . A statute is not rendered uncertain and void merely

because general terms are used therein, or because of the
employment of some terms without denning them, much less
is there a need to define every word used. Besides, there is
no positive constitutional or statutory command requiring the
legislature to define each and every word in the enactment.
Congress is not restricted in the form of expression of its will,
and its inability to so define the words employed in a statute
will not necessarily result in the vagueness or ambiguity of the
law so long as the legislative will is clear, or at least, can be
gathered from the whole act, which is distinctly expressed in
the Plunder L a w .
• Define "series," "combination" and "pattern."
"Combination" refers to at least two acts enumerated in

Section 1(d), e.g., raids on the public treasury in sub-paragraph
(1); and fraudulent conveyance of assets belonging to the
National Government under sub-paragraph (3).
On the other hand, a "series" comprises two or more

overt or criminal acts falling under the same category in said
section, say misappropriation, malversation and raids on the
public treasury, all of which fall under sub-paragraph (1). Had
the Legislature intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater pains
in specifically providing for it in the law.
"Pattern" is defined in Section 4 in relation to Sections
1(d) and 2. Under Section 1(d), a pattern consists of at least
a combination or series of overt or criminal acts enumerated
in subsections (1) to (6). In Section 2, the pattern of overt or
criminal acts is directed towards a common purpose or goal —
605
to enable the public officer to amass, accumulate or acquire ill-

gotten wealth. There must either be an overall unlawful scheme
or conspiracy to achieve said common goal. Overall unlawful
scheme" indicates a general plan of action or method which
the principal accused and public officer and others conniving
with him follow to achieve the common goal. In the alternative,
if there is no such overall scheme or where the schemes or
methods used by multiple accused vary, the overt or criminal
acts must form part of a conspiracy to attain a common goal.
• As applied to criminal law, define the "void-for-vagueness" rule.
A statute establishing a criminal offense must define the

offense with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited by the
statute. It can only be invoked against that specie of legislation
that is utterly vague on its face, i.e., that which cannot be
clarified either by a saving clause or by construction.
A statute is vague when it lacks comprehensible standards

that men of common intelligence must necessarily guess at its
meaning and differ in its application. In such instance, the
statute is repugnant to the Constitution in t w o respects — it
violates due process for failure to accord persons, especially the
parties targeted by it, fair notice of what conduct to avoid; and,
it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government
muscle. But the doctrine does not apply as against legislations
that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or
to those that are apparently ambiguous yet fairly applicable to
certain types of activities. T h e first may be "saved" by proper
construction, while no challenge may be mounted as against
the second whenever directed against such activities. W i t h
more reason that the doctrine cannot be invoked where the
assailed statute is clear and free from ambiguity, as in this
case.
606
• What is the facial challenge against a statute?
A facial challenge ("on its face" invalidation of statute or

invalidation of statute for being vague on its face) is allowed
against a vague statute and to one, which is overbroad because
of possible "chilling effect" upon protected speech. The possible
harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected
speech of others may be deterred and perceived grievances left
to fester because of possible inhibitory effects of overly broad
statutes.
• Are the "void-for-vagueness" rule and the facial challenge

applicable to criminal statutes?
N o . Their rationale does not apply to penal statutes.

Criminal statutes have general in terrorem effect resulting
from their very existence, and if facial challenge is allowed
for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of
criminal law, the law cannot take chances as in the area of free
speech.
T h e overbreadth and vagueness doctrines have special

application only to speech cases. They are inept for testing the
validity of penal statutes.
• What is the test in determining whether a criminal statute is

void for uncertainty?
T h e test is whether the language conveys a sufficiently

definite warning as to the prescribed conduct when measured
in common understanding and practice. The "vagueness"
doctrine merely requires reasonable degree of certainty for the
statute to be upheld — not absolute precision or mathematical
exactitude. Flexibility, rather than meticulous specificity, is
permissible, as long as the metes and bounds of the statute
are clearly delineated. An act will not be held invalid merely
because it might have been more explicit in its wordings or
detailed in its provisions, especially where because of the
nature of the act, it would be impossible to provide all the
details in advance as in all other statutes.
607
Does Section 4 dispense with "reasonable doubt" requirement?
N o . The use of "reasonable doubt" standard is indispensable

to command the respect and confidence of the community in
the application of criminal law. It is critical that the moral
force of criminal law be not diluted by a standard of proof
that leaves people in doubt whether innocent men are being
condemned. It is also important in a free society that every
individual going about his ordinary affairs has confidence that
his government cannot adjudge him guilty of a criminal offense
without convincing a proper fact finder of his guilt with utmost
certainty. This "reasonable doubt" standard has acquired such
exalted statute in the realm of constitutional law as it gives life
to the Due Process Clause which protects the accused against
conviction except upon proof beyond reasonable doubt of every
fact necessary to constitute the crime with which he is charged.
What does Section 4 dispense with in not requiring proof for

each and every act in the pattern of accumulation?
W h a t the prosecution needs to prove beyond reasonable

doubt is only a number of acts sufficient to form a combination
or series, which would constitute a pattern and involving
an amount of at least P50 million. T h e r e is no need to prove
each and every other act alleged in the information to have
been committed by the accused in furtherance of the overall
unlawful scheme or conspiracy to amass, accumulate or acquire
ill-gotten wealth. T h e prosecution need not prove all 50 raids
on the treasury it being sufficient to prove by pattern at least
two of the raids beyond reasonable doubt provided only that
they amounted to at least P50 million.
Section 2 in conjunction with Section 4 shows that "pattern

of overt or criminal acts indicative of the overall unlawful
scheme of conspiracy" inheres in the v e r y act of accumulating,
acquiring or amassing hidden wealth. T h e prosecution is thus
not required to make a deliberate and conscious effort to prove
pattern as it necessarily follows with the establishment of a
series or combination of the predicate acts.
608
• What is the nature of Section 4 of the Plunder Law?
Section 4 is a rule of evidence as shown by its epigraph. It

purports to do no more than prescribe a rule of procedure for the
prosecution of a criminal case for plunder. It does not define or
establish any substantial right in favor of the accused but only
operates in furtherance of a remedy. It is only a means to an
end, an aid to substantive law. Even without invoking Section
4, a conviction for plunder may be had, for what is crucial is to
present sufficient evidence to engender that moral certitude to
prove the guilt of the accused beyond reasonable doubt. Thus,
granting that Section 4 is flawed, it may be severed from the
rest of the provisions without resulting in the demise of the
law.
"Pattern" is not an element of plunder. A l l the essential

elements of plunder can be culled and understood from its
definition in Section 2, in relation to Section 1(d), and pattern
is not one of them.
xxx xxx xxx
S E C T I O N 2. Definition of terms. — A s u s e d in this Act,

that t e r m —
(a) "Government" includes the national government,

the local g o v e r n m e n t s , the g o v e r n m e n t - o w n e d a n d
government-controlled c o r p o r a t i o n s , a n d all other
instrumentalities or agencies of the R e p u b l i c of the
P h i l i p p i n e s a n d their b r a n c h e s .
( b ) "Public officer" includes elective a n d appointive
officials a n d employees, p e r m a n e n t or t e m p o r a r y ,
w h e t h e r in the classified or unclassified or exempt
service receiving compensation, even nominal,
from the g o v e r n m e n t as defined in the preceding
subparagraph.
(c) "Receiving any gift" includes the act of accepting
directly or indirectly a gift f r o m a person other than
a m e m b e r of the public officer's immediate family,
in b e h a l f of himself or of any m e m b e r of his family
609
or relative within the fourth civil d e g r e e , either

by consanguinity or affinity, even on the occasion
of a family celebration or national festivity like
Christmas, if the value of the gift is u n d e r the
circumstances manifestly excessive.
(d) "Person" includes n a t u r a l a n d j u r i d i c a l persons,
unless the context indicates o t h e r w i s e .
S E C T I O N 3. Corrupt practices of public officers. — I n
addition to acts or omissions of p u b l i c officers a l r e a d y
penalized by existing l a w , the f o l l o w i n g shall constitute
c o r r u p t practices o f a n y p u b l i c officer a n d a r e h e r e b y
d e c l a r e d to be u n l a w f u l : required by law to officially intervene.
(a) P e r s u a d i n g , i n d u c i n g o r influencing a n o t h e r p u b l i c
officer to p e r f o r m an act constituting a violation
o f rules a n d r e g u l a t i o n s d u l y p r o m u l g a t e d b y
competent a u t h o r i t y or an offense in connection
w i t h the official duties of the latter, or a l l o w i n g
himself to be p e r s u a d e d , i n d u c e d , or influenced to
commit such violation or offense.
( b ) Directly o r indirectly r e q u e s t i n g o r r e c e i v i n g a n y
gift, present, s h a r e , p e r c e n t a g e , or benefit, for
himself or for a n y other p e r s o n , in connection
w i t h a n y contract o r t r a n s a c t i o n b e t w e e n the
G o v e r n m e n t a n d a n y other p a r t , w h e r e i n the p u b l i c
officer in his official c a p a c i t y h a s to i n t e r v e n e
u n d e r the l a w .
(c) Directly o r indirectly r e q u e s t i n g o r r e c e i v i n g a n y

gift, p r e s e n t or o t h e r p e c u n i a r y or m a t e r i a l benefit,
for himself o r for a n o t h e r , f r o m a n y p e r s o n for
w h o m the p u b l i c officer, i n a n y m a n n e r o r capacity,
has s e c u r e d o r o b t a i n e d , o r w i l l s e c u r e o r o b t a i n ,
a n y G o v e r n m e n t p e r m i t o r license, i n c o n s i d e r a t i o n
for the h e l p g i v e n o r t o b e g i v e n , w i t h o u t p r e j u d i c e
to Section t h i r t e e n of this A c t .
( d ) A c c e p t i n g o r h a v i n g a n y m e m b e r o f his family
accept e m p l o y m e n t in a p r i v a t e e n t e r p r i s e w h i c h
has p e n d i n g official b u s i n e s s w i t h h i m d u r i n g
the p e n d e n c y t h e r e o f or w i t h i n one y e a r after its
termination.
610
(e) Causing any u n d u e injury to any party, including

the G o v e r n m e n t , o r g i v i n g a n y p r i v a t e p a r t y a n y
u n w a r r a n t e d benefits, a d v a n t a g e o r p r e f e r e n c e
in the d i s c h a r g e of his official a d m i n i s t r a t i v e or
j u d i c i a l functions t h r o u g h manifest partiality,
e v i d e n t b a d faith o r g r o s s i n e x c u s a b l e negligence.
T h i s p r o v i s i o n shall a p p l y to officers a n d employees
o f offices o r g o v e r n m e n t c o r p o r a t i o n s c h a r g e d
w i t h the g r a n t o f licenses o r p e r m i t s o r other
concessions.
(f) N e g l e c t i n g o r r e f u s i n g , after d u e d e m a n d o r request,

w i t h o u t sufficient justification, to act w i t h i n a
r e a s o n a b l e time o n a n y m a t t e r p e n d i n g b e f o r e h i m
for the p u r p o s e of o b t a i n i n g , directly or indirectly,
f r o m a n y p e r s o n interested i n the m a t t e r some
p e c u n i a r y o r m a t e r i a l benefit o r a d v a n t a g e , o r for
the p u r p o s e o f f a v o r i n g his o w n interest o r g i v i n g
undue advantage in favor of or discriminating
a g a i n s t a n y o t h e r interested p a r t y .
(g) E n t e r i n g , o n b e h a l f o f the G o v e r n m e n t , into any

contract o r t r a n s a c t i o n manifestly a n d grossly
d i s a d v a n t a g e o u s to the s a m e , w h e t h e r or not the
p u b l i c officer profited or w i l l profit t h e r e b y .
(h) D i r e c t o r o r indirectly h a v i n g f i n a n c i n g o r p e c u n i a r y
interest in a n y b u s i n e s s , contract or transaction in
connection w i t h w h i c h h e intervenes o r takes p a r t
in his official capacity, or in w h i c h he is prohibited
b y the Constitution o r b y a n y l a w f r o m h a v i n g any
interest.
(i) D i r e c t l y or indirectly b e c o m i n g interested, for

p e r s o n a l gain, or h a v i n g a material interest in
any transaction or act r e q u i r i n g the a p p r o v a l of a
b o a r d , p a n e l or g r o u p of w h i c h he is a m e m b e r , a n d
w h i c h exercises discretion in such a p p r o v a l , even if
he votes against the same or does not participate in
the action of the b o a r d , committee, panel or g r o u p .
Interest for personal g a i n shall be p r e s u m e d
against those public officers responsible for the
611
a p p r o v a l of manifestly u n l a w f u l , inequitable, or
i r r e g u l a r transaction or acts by the b o a r d , p a n e l or
g r o u p to w h i c h they belong.
(j) K n o w i n g l y a p p r o v i n g o r g r a n t i n g any license,
permit, privilege or benefit in favor of any p e r s o n
not qualified for or not legally entitled to such
license, permit, privilege or a d v a n t a g e , or of a
mere representative or d u m m y of one w h o is not so
qualified or entitled.
(k) D i v u l g i n g v a l u a b l e information of a confidential

character, a c q u i r e d by his office or by h i m on
account of his official position to u n a u t h o r i z e d
persons, or r e l e a s i n g such information in a d v a n c e
of its a u t h o r i z e d release date.
T h e p e r s o n g i v i n g the gift, present, s h a r e , p e r c e n t a g e or

benefit r e f e r r e d t o i n s u b p a r a g r a p h s ( b ) a n d ( c ) ; o r o f f e r i n g
or g i v i n g to the p u b l i c officer the e m p l o y m e n t m e n t i o n e d in
s u b p a r a g r a p h ( d ) ; o r u r g i n g the d i v u l g i n g o r untimely r e l e a s e
of the confidential i n f o r m a t i o n r e f e r r e d to in s u b p a r a g r a p h
( k ) of this section shall, together w i t h the o f f e n d i n g p u b l i c
officer, be p u n i s h e d u n d e r Section nine of this A c t a n d shall
be p e r m a n e n t l y or t e m p o r a r i l y disqualified in the d i s c r e t i o n
of the C o u r t , f r o m t r a n s a c t i n g business in a n y f o r m w i t h the
Government.
S E C T I O N 4. Prohibition on private individuals. — ( a )

It shall be u n l a w f u l for a n y p e r s o n h a v i n g family or close
p e r s o n a l relation w i t h a n y p u b l i c official to capitalize or
exploit or take a d v a n t a g e of such family or close p e r s o n a l
r e l a t i o n b y directly o r indirectly r e q u e s t i n g o r r e c e i v i n g a n y
present, gift o r m a t e r i a l o r p e c u n i a r y a d v a n t a g e f r o m a n y
other p e r s o n h a v i n g some b u s i n e s s , t r a n s a c t i o n , a p p l i c a t i o n ,
r e q u e s t o r contract w i t h the g o v e r n m e n t , i n w h i c h such
p u b l i c official has to intervene. F a m i l y r e l a t i o n shall i n c l u d e
the spouse or relatives by c o n s a n g u i n i t y or affinity in the
t h i r d civil d e g r e e . T h e w o r d "close p e r s o n a l relation" shall
include close p e r s o n a l f r i e n d s h i p , social a n d f r a t e r n a l
connections, a n d professional e m p l o y m e n t all g i v i n g rise to
intimacy w h i c h a s s u r e s free access to such p u b l i c officer.
612
( b ) I t shall b e u n l a w f u l for a n y p e r s o n k n o w i n g l y t o
i n d u c e or c a u s e a n y p u b l i c official to commit any of the
offenses defined in Section 3 hereof.
S E C T I O N 5. Prohibition on certain relatives. — It shall b e

u n l a w f u l for the s p o u s e o r for a n y relative, b y consanguinity
or affinity, w i t h i n the t h i r d civil d e g r e e , of the P r e s i d e n t
of the P h i l i p p i n e s , the V i c e - P r e s i d e n t of the P h i l i p p i n e s ,
the P r e s i d e n t of the S e n a t e , or the S p e a k e r of the H o u s e
of R e p r e s e n t a t i v e s , to i n t e r v e n e , directly or indirectly, in
a n y business, t r a n s a c t i o n , contract or a p p l i c a t i o n w i t h the
G o v e r n m e n t : Provided, T h a t this section shall not a p p l y to
a n y p e r s o n w h o , p r i o r to the a s s u m p t i o n of office of a n y of the
a b o v e officials t o w h o m h e i s r e l a t e d , h a s b e e n a l r e a d y d e a l i n g
w i t h the G o v e r n m e n t a l o n g the s a m e line of business, n o r to
a n y transaction, c o n t r a c t o r a p p l i c a t i o n a l r e a d y existing o r
p e n d i n g at the time of such a s s u m p t i o n of p u b l i c office, n o r
to a n y a p p l i c a t i o n filed by h i m the a p p r o v a l of w h i c h is not
d i s c r e t i o n a r y on the p a r t of the official or officials c o n c e r n e d
b u t d e p e n d s u p o n c o m p l i a n c e w i t h requisites p r o v i d e d b y
l a w , or rules or r e g u l a t i o n s issued p u r s u a n t to l a w , n o r to
a n y act l a w f u l l y p e r f o r m e d in an official capacity or in the
exercise of a profession.
S E C T I O N 6. Prohibition on Members of Congress. — It

shall b e u n l a w f u l h e r e a f t e r for a n y M e m b e r o f the C o n g r e s s
d u r i n g the t e r m for w h i c h he has b e e n elected, to a c q u i r e
or receive a n y p e r s o n a l p e c u n i a r y interest in any specific
business e n t e r p r i s e w h i c h w i l l b e directly a n d particularly
f a v o r e d o r benefited b y a n y l a w o r resolution a u t h o r e d b y
h i m previously a p p r o v e d o r a d o p t e d b y the C o n g r e s s d u r i n g
the same term.
T h e provision of this section shall a p p l y to any other

public officer w h o r e c o m m e n d e d the initiation in Congress
of the enactment or a d o p t i o n of a n y l a w or resolution, and
acquires or receives any such interest d u r i n g his incumbency.
It shall likewise be u n l a w f u l for such m e m b e r of
Congress or other public officer, w h o , h a v i n g such interest
p r i o r to the a p p r o v a l of such l a w or resolution authored or
recommended by him, continues for thirty days after such
a p p r o v a l to retain such interest.
613
S E C T I O N 7. Statement of assets and liabilities. — E v e r y

public officer, within thirty days after the a p p r o v a l of this
Act or after assuming office, a n d within the month of J a n u a r y
of every other y e a r thereafter, as well as u p o n the e x p i r a t i o n
of his t e r m of office, or u p o n his resignation or s e p a r a t i o n
from office, shall p r e p a r e a n d file with the office of the
c o r r e s p o n d i n g D e p a r t m e n t H e a d , or in the case of a H e a d of
D e p a r t m e n t or chief of an i n d e p e n d e n t office, w i t h the Office
of the President, or in the case of m e m b e r s of the C o n g r e s s
a n d the officials a n d employees thereof, w i t h the Office of
the Secretary of the c o r r e s p o n d i n g H o u s e , a t r u e detailed
a n d s w o r n statement of assets a n d liabilities, i n c l u d i n g a
statement of the a m o u n t s a n d sources of his income, the
amounts of his p e r s o n a l a n d family expenses a n d the a m o u n t
of income taxes p a i d for the next p r e c e d i n g c a l e n d a r year:
P r o v i d e d , T h a t p u b l i c officers a s s u m i n g office less t h a n t w o
months before the e n d of the c a l e n d a r y e a r , m a y file t h e i r
statements in the f o l l o w i n g months of J a n u a r y .
S E C T I O N 8. Dismissal due to unexplained wealth. — I f

i n a c c o r d a n c e w i t h the p r o v i s i o n s o f R e p u b l i c A c t N u m b e r e d
O n e t h o u s a n d t h r e e h u n d r e d seventy-nine, a p u b l i c official
has b e e n f o u n d t o h a v e r e q u i r e d d u r i n g his i n c u m b e n c y ,
w h e t h e r in his n a m e or in the n a m e of o t h e r p e r s o n s ,
a n a m o u n t o f p r o p e r t y a n d / o r m o n e y manifestly out o f
p r o p o r t i o n to his s a l a r y a n d to his o t h e r l a w f u l i n c o m e , that
fact shall be a g r o u n d for dismissal or r e m o v a l . P r o p e r t i e s
in the n a m e of the s p o u s e a n d u n m a r r i e d c h i l d r e n of such
p u b l i c official m a y b e t a k e n into c o n s i d e r a t i o n , w h e n t h e i r
acquisition t h r o u g h legitimate m e a n s c a n n o t b e satisfactorily
s h o w n . B a n k deposits shall b e t a k e n into c o n s i d e r a t i o n i n the
enforcement of this section, n o t w i t h s t a n d i n g a n y p r o v i s i o n
of l a w to the c o n t r a r y .
S E C T I O N 9. Penalties for violations. — ( a ) A n y p u b l i c

officer o r p r i v a t e p e r s o n committing a n y o f the u n l a w f u l
acts or omissions e n u m e r a t e d in Sections 3, 4, 5 a n d 6 of this
A c t shall be p u n i s h e d w i t h i m p r i s o n m e n t for not less t h a n
one y e a r n o r m o r e t h a n ten y e a r s , p e r p e t u a l disqualification
f r o m p u b l i c office, a n d confiscation or f o r f e i t u r e in f a v o r of
the G o v e r n m e n t o f a n y p r o h i b i t e d interest a n d u n e x p l a i n e d
w e a l t h manifestly out of p r o p o r t i o n to his s a l a r y a n d other
l a w f u l income.
614
A n y c o m p l a i n i n g p a r t y a t w h o s e c o m p l a i n t the criminal
prosecution w a s initiated shall, in case of conviction of the
accused, be entitled to r e c o v e r in the c r i m i n a l action w i t h
priority o v e r the forfeiture in f a v o r of the G o v e r n m e n t ,
the a m o u n t of m o n e y or the t h i n g he m a y h a v e g i v e n to the
accused, or the v a l u e of such thing.
( b ) A n y p u b l i c officer violation a n y o f the provisions

of Section 7 of this A c t shall be p u n i s h e d by a fine of not less
t h a n one h u n d r e d pesos n o r m o r e t h a n one t h o u s a n d pesos,
o r b y i m p r i s o n m e n t not e x c e e d i n g one y e a r , o r b y b o t h such
fine a n d i m p r i s o n m e n t , at the discretion of the C o u r t .
T h e violation of said section p r o v e n in a p r o p e r

administrative p r o c e e d i n g shall be sufficient cause for
r e m o v a l or dismissal of a p u b l i c officer, even if no c r i m i n a l
prosecution is instituted a g a i n s t h i m .
S E C T I O N 10. Competent court. — U n t i l o t h e r w i s e

p r o v i d e d b y l a w , all p r o s e c u t i o n s u n d e r this A c t shall b e
w i t h i n the o r i g i n a l j u r i s d i c t i o n of the p r o p e r C o u r t of First
Instance.
S E C T I O N 11. Prescription of offenses. — A l l offenses

p u n i s h a b l e u n d e r this A c t shall p r e s c r i b e in ten y e a r s .
S E C T I O N 12. Termination of office. — No p u b l i c officer
shall be a l l o w e d to r e s i g n or retire p e n d i n g an investigation,
criminal or administrative, or p e n d i n g a prosecution against
him, for any offense u n d e r this A c t or u n d e r the provisions
of the Revised P e n a l C o d e on b r i b e r y .
S E C T I O N 13. Suspension and loss of benefits. — A n y

public officer against w h o m a n y criminal prosecution u n d e r
a valid information u n d e r this A c t or u n d e r the provisions of
the Revised P e n a l C o d e on b r i b e r y is p e n d i n g in court, shall
be suspended f r o m office. S h o u l d he be convicted by final
j u d g m e n t , he shall lose all retirement or gratuity benefits
u n d e r any l a w , but if he is acquitted, he shall be entitled
to reinstatement a n d to the salaries a n d benefits which he
failed to receive d u r i n g suspension, unless in the meantime
administrative proceedings have b e e n filed against him.
S E C T I O N 14. Exception. — Unsolicited gifts or presents
of small or insignificant value offered or given as a mere
615
o r d i n a r y token of gratitude or friendship a c c o r d i n g to local

customs or usage, shall be excepted from the provisions of
this Act.
N o t h i n g in this A c t shall be interpreted to p r e j u d i c e
or prohibit the practice of a n y profession, l a w f u l t r a d e or
occupation by any private p e r s o n or by any p u b l i c officer
w h o u n d e r the l a w m a y legitimately practice his profession,
trade o r occupation, d u r i n g his incumbency, except w h e r e
the practice of such profession, t r a d e or occupation involves
conspiracy with a n y other p e r s o n or p u b l i c official to commit
any of the violations p e n a l i z e d in this Act.
xxx xxx xxx
A p p r o v e d : A u g u s t 17, 1960.
• What is the rationale for R.A. 3019?

R . A . 3019 was enacted under the police power of the State
to promote morality in public service, to deter public officials
and employees from committing acts of dishonesty and improve
the tone of morality in public service. (Morfe v. Mutuc, 22 SCRA)
T h e law does not merely contemplate repression of acts that
are unlawful or corrupt per se, but even those that may lead to
or result in graft and corruption, (Marcos v. Sandiganbayan)
e.g., violation of rules and regulations under Section 3(a).
• Define the significant terms under R.A. 3019?
"Office" applies to any which the officer charged may

be holding, and not only the particular office under which he
stands accused. (Segovia v. Sandiganbayan, 288 SCRA 328)
"Public Officials" or "public officers" include

elective and appointive officials and employees, permanent
or temporary, whether in the career or non-career service
including military and police personnel, whether or not they
receive compensation, regardless of amount. Section 2 of
R . A . 3019 expressly limits the definition to the application
of the law. It does not apply for purposes of determining the
Ombudsman's jurisdiction, as defined by the Constitution and
the Ombudsman Act of 1989. T h e question of whether one
is a public officer under R . A . 3019 involves the appreciation
616
of evidence and interpretation of law, matters that are best

resolved at trial. To illustrate, the term "includes" in Section
2(b) indicates that the definition is not restrictive.
Accordingly, all public officers, whether in the Career or

Non-Career Service, who receive compensation even nominal,
from the national government, the local governments, the
GOCCs, and all other instrumentalities or agencies of the
government may be charged and penalized under the anti-
graft law. Thus, the following may be charged under the law:
a. Contractual employees (Preclaro v. Sandiganbayan;

247 SCRA 454)
b. Re-elected public officers (Luciano v. Governor, 28

SCRA 517)
Condonation of an officer's misconduct committed during

his expired term applies only to his administrative but not to
his criminal guilt. It does not in any w a y wipe out the criminal
liabilities incurred by him in a previous term.
Gross negligence refers to negligence characterized by the

want of even slight care, acting or omitting to act in a situation
where there is a duty to act, not inadvertently but willfully and
intentionally with a conscious indifference to consequences in
so far as other persons may be affected. It is the omission of
that care which even inattentive and thoughtless men never
fail to take on their own property. In cases involving public
officials, there is gross negligence when a breach of duty is
flagrant and palpable. (De la Victoria v. Mongaya, AM. No.
P-00-1436, February 19, 2001)
Is attempted or frustrated violation of R.A. 3019 punishable?

The attempted or frustrated state of the offense is not
punishable (Pecho v. Sandiganbayan, 56 SCAD) for the law
punishes these acts as mala prohibita.
What are the acts punishable under R.A. 3019?

The following are among the acts punishable under R.A.
3019:
617
A. Sec. 3(b) — directly or indirectly requesting or receiving

any gift or benefit in connection with any contract or
transaction between a government agency and another
person wherein the public officer in his capacity has to
intervene under the law. Its elements are:
1. The offender is a public officer
2. He requested and/or received a gift, present, etc.
3. The gift, present, etc. was for the benefit of said
public officer
4. He requested and/or received the gift, present, etc.
in connection with a contract or transaction with the
government, and
5. He has the right to intervene in such contract or

transaction in his official capacity under the law.
(Osias v. CA, G.R. Nos. L-46148-49, April 10, 1996)
• What kind of intervention is required of the public officer?
Section 3(b) refers to a public officer whose official

intervention is required by law in a contract or transaction.
There is no law, which invests an assistant principal with the
power to intervene in the payment of the salary differentials
of teachers. Far from exercising any power, petitioner played
the humble role of a supplicant whose mission was to expedite
payment of the salary differentials of teachers. In his official
capacity as assistant principal, he is not required by law to
intervene in the payment of the salary differentials. Thus, he
cannot be said to have violated the law although he exerted
efforts to facilitate the payment of the differentials. (Jaravata
v. Sandiganbayan, 127 SCRA)
B. Sec. 3(e) — Causing any undue injury to any party,

including the Government or giving unwarranted
benefits to any private party, or preference in the
discharge of administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable
negligence. The elements of the offense are:
(1) T h e accused are public officers or private persons
charged in conspiracy with them,
618
(2) Said public officers commited the prohibited acts

during the performance of their official duties or in
relation to their public positions,
(3) They cause undue injury to any party, whether the

Government or a private party,
(4) Such injury is caused by giving unwarranted

benefits, advantage or preference to such parties,
and
(5) The public officers acted with manifest partiality,

evident bad faith or gross inexcusable negligence.
(Morfe v. Mutuc, 22 SCRA)
What are the two ways of violating Section 3(e)?
a) Causing any undue injury to any party, including

the government; or
b) Giving any party any unwarranted benefit,

advantage or preference.
The use of the distinctive term "or" connotes

that either act qualifies as a violation of Section 3(e).
The act of giving any party any unwarranted benefit,
advantage or preference is not an indispensable
element of the offense of causing any undue injury
to any party as claimed by petitioners and vice
versa, although there may be instances where both
elements concur. (Santiago v. Garchitorena, 228
SCRA)
• What kind of bad faith would convict under Section 3(e)?
It must be evident bad faith. Petitioner, in refusing to

issue a certificate of clearance in favor of the private offended
party did not act with "evident bad faith," because he was acting
within the bounds of law in refusing to clear CC although the
practice was that the clearance was nevertheless approved,
and then the amount of the unsettled obligation was deducted
from the gratuity benefits of the employee. But although
petitioner did not act with evident bad faith he acted with bad
619
faith, nevertheless, for which he should respond for damages.

(Llorente v. Sandiganbayan, G.R. No. 85464, October 3, 1991)
• Is lack of intent a defense against Section 3(e)?

Y e s . Since the accusation is based on evident bad faith,
it is just fair and inevitable to allow the accused to adduce
evidence to negate bad faith as an exception to the rule that
good faith or bad faith is immaterial to an offense malum
prohibitum.
C. Sec. 3(f) — Neglecting or refusing after due demand
without sufficient justification to act within a reasonable
time on any matter pending before the officer for the
purpose of obtaining directly or indirectly from any person
interested in the matter some pecuniary or material
benefit, or to favor his own interest, or discriminating in
favor of any other interested party. T h e elements are:
1. T h e offender is a public officer

2. He neglected or refused to act without sufficient
justification after due demand or request has been
made on him
3. Reasonable time elapsed from such demand or
request without the public officer having acted on
the matter pending before him, and
4. Such failure to act is for the purpose of obtaining
directly or indirectly, from any person interested
in the matter some pecuniary or material benefits
or advantage in favor of an interested party, or
discriminating against another. (Coronado v.
Sandiganbayan, 44 SCAD)
Neglect or delay of public function must be
accompanied by a demand impliedly or expressly of
any benefit or consideration for himself or another.
Absent such demand, the officer shall be liable
administratively under the Civil Service L a w s , rules
and regulations or under R . A . 6713.
D. Sec. 3(g) — Entering on behalf of the government into
any contract or transaction manifestly and grossly
disadvantageous to the government whether or not the
620
public officer profited or w i l l profit thereby. The elements

of the crime are:
(1) T h e accused is a public officer

(2) He entered into a contract or transaction in behalf of
the government, and
(3) Such contract or transaction is grossly and manifestly
disadvantageous to the government.
T h e acts partake of the nature of a malum
prohibitum, it is the commission of that act as defined by
law, not the character or effect thereof, that determines
whether or not the provision has been violated. A n d this
construction would be in consonance with the announced
purpose of R . A . 3019 — the repression of certain acts of
public officers and private persons constituting graft or
corrupt practices or which may lead thereto. The law
does not merely contemplate repression of acts that are
unlawful or corrupt per se, but even those that may lead
to or result in graft and corruption. Thus, to require for
conviction that the validity of the contract be first proved
would be to enervate, if not defeat, the intention of the
law. (Marcos v. Sandiganbayan, January 1998)
How is the crime committed with abuse of public office?

The phrase "offense committed in relation to the office" is
described as follows: T h e relation has to be such that in legal
sense the offense cannot exist without the office. T h e office
must be a constituent element of the offense as defined in the
statute, such Chapters II to V I , Title 7 of the R P C . (Sanchez v.
Demetriou, G.R. Nos. 111771-77, November 9, 1993)
When should the prescription period begin?

In case where the violation "be not known at the time,"
it should be from the date of discovery thereof as stated in one
case, as follows:
"It was well-nigh impossible for the State, the aggrieved
party, to have known the violations of R . A . 3019 at the time
of the questioned transactions were made because, as alleged,
the public officials connived or conspired with the 'beneficiaries
621
of the loans.' Thus, we agree with the C O M M I T T E E that the

prescriptive period for the offenses with which the respondents
in OMB-0-96-0968 were charged should be computed from the
discovery of the commission thereof and not from the day of
such commission." (Presidential Ad Hoc Committee on Behest
Loans v. Omb, August 2001)
What is the policy of the Supreme Court on the review of the

exercise of the investigatory power of the Ombudsman, and the
rationale therefor?
It is beyond the Supreme Court to review the exercise of
discretion of the Ombudsman in prosecuting or dismissing a
complaint filed before it. Such initiative and independence are
inherent in the Ombudsman who, beholden to no one, acts as
the champion of the people and preserver of the integrity of the
public service. T h e rationale of this rule is based not only upon
respect for the investigatory and prosecutory powers granted
under the present Constitution, but upon practicality as well;
otherwise, the functions of the courts would be perilously bound
by numerous petitions assailing the result of the investigatory
proceedings conducted by the Office, in much the same w a y
that the courts would be saturated if compelled to review the
prosecutors' exercise of discretion each time they decide to file
an information or dismiss a complaint.
T h e findings of facts of quasi-judicial bodies, like the

Deputy Ombudsman and the Ombudsman, may be nullified on
the ground of grave abuse of discretion amounting to excess
or lack of jurisdiction. T h e r e is grave abuse of discretion when
the power is exercised in an arbitrary, capricious, whimsical
or despotic manner by reason of passion or personal hostility
so patent and gross as to amount to evasion of positive duty or
virtual refusal to perform a duty enjoined by or in contemplation
of law. (Fuentes v. Omb, G.R. No. 16486, November 11, 2005)
Does the Sandiganbayan have jurisdiction over officers of State

corporations incorporated under the Corporation Code?
It is not disputed that the Sandiganbayan has jurisdiction

over presidents, directors or trustees, or managers of
GOCCs with original charters whenever charges of graft and
622
corruption are involved. However, a question arises whether

the Sandiganbayan has jurisdiction over the same officers in
G O C C s organized and incorporated under the Corporation
Code in v i e w of the delimitation provided for in Section 2(1),
Article I X - B of the Constitution.
T h e jurisdiction of the Sandiganbayan is separate and

distinct from the Civil Service Commission ( C S C ) . The same
is governed by Article X I , Section 4 of the 1987 Constitution
which provides that "the present anti-graft court known as
the Sandiganbayan shall continue to function and exercise its
jurisdiction as now or hereafter may be provided by law. " R . A .
7975 enacted on March 30, 1995 maintained the jurisdiction
of the Sandiganbayan over G O C C s without any distinction
whatsoever. Thereafter, on February 5,1997, Congress enacted
R . A . 8249 which preserved the subject provision.
T h e legislature, in mandating the inclusion of presidents,

directors or trustees, or managers of G O C C s within the
jurisdiction of the Sandiganbayan, has consistently refrained
from making any distinction with respect to the manner of
their creation.
T h e deliberate omission clearly reveals the intention of

the legislature to include both types of corporations within
the jurisdiction of the Sandiganbayan whenever its officers
are involved in graft and corruption. H a d it been otherwise, it
could have simply made the necessary distinction. But it did
not. (People v. Sandiganbayan, G.R. Nos. 14 7706-07, February
16, 2005)
• What are government-owned or -controlled corporations?
G o v e r n m e n t - o w n e d a n d / o r -controlled corporations
for purposes of R . A . 3019 include those with or without
original charters. Thus, as of the date of the acquisition by the
Government using public funds, Petrophil, while retaining its
corporate existence, became a G O C C within the Constitutional
precept. Its employees are public servants falling within the
investigatory and prosecutory jurisdiction of the Tanodbayan
for purposes of R . A . 3019. (Quimpo v. Tanodbayan, 146 SCRA
137)
623
Section 2(13) of E.O. 292 defines G O C C as referring to any

agency organized as a stock or non-stock corporation vested
with functions relating to public needs whether governmental
or proprietary in nature, and owned by the government directly
or indirectly or through its instrumentalities either wholly, or
where applicable as in the case of stock corporations to the
extent of at least 51% of its capital stock.
From the foregoing, Philippine Postal Savings Bank

( P P S B ) fits the bill as a G O C C , organized and incorporated
under the Corporation Code as a subsidiary of the P H I L P O S T .
More than 99% of the authorized capital stock of P P S B belongs
to the government while the rest is nominally held by its
incorporators who are/were themselves officers of P H I L P O S T .
The creation of P P S B was expressly sanctioned by Section 32
of R . A . 7354. Quimpo, mindful of the provisions of the 1987
Constitution, ruled that the officers of G O C C s , whether created
by special law or formed under the Corporation Code, come
under the jurisdiction of the Sandiganbayan for purposes of the
Anti-Graft Act. Otherwise, a major policy of Government, which
is to eradicate, or at least minimize, the graft and corruption
that has permeated the fabric of the public service like a
malignant social cancer, would be seriously undermined. In
fact, Section 1 thereof embodies this policy of the government,
that is, to repress certain acts not only of public officers but
also of private persons constituting graft or corrupt practices
or which may lead thereto.
A G O C C can conceivably create as many subsidiary

corporations under the Corporation Code as it might wish, use
public funds, disclaim public accountability and escape the
liabilities and responsibilities provided by law. By including
the concerned officers of G O C C s organized and incorporated
under the Corporation Code within the jurisdiction of the
Sandiganbayan, the legislature evidently seeks to avoid just
that.
624
R E P U B L I C T A C T N O . 8249
xxx
Sec. 4. Jurisdiction — T h e Sandiganbayan shall exercise

exclusive original jurisdiction in all cases involving:
a. Violations of Republic A c t N o . 3019, as amended,

otherwise known as the Anti-Graft and Corrupt Practices
Act, Republic A c t N o . 1379, and Chapter I I , Section 2,
T i t l e V I I , Book II of the Revised Penal Code, where one or
more of the accused are officials occupying the following
positions in the government, whether in a permanent,
acting or interim capacity, at the time of the commission
of the offense:
(1) Official of the executive branch occupying the

positions of regional director and higher, otherwise
classified as Grade "27" and higher, of the
Compensation and Position Classification A c t of
1989 (Republic A c t N o . 6758), specifically including:
(a) Provincial governors, vice-governors, members

of the sangguniang panlalawigan, and
provincial treasurers, assessors, engineers,
and other provincial department heads;
(b) City mayors, vice-mayors, members of the

sangguniang panlungsod, city treasurers,
assessors, engineers and other city department
heads;
(c) Officials of the diplomatic service occupying

the position of consul and higher;
(d) Philippine army and air force colonels, naval

captains, and all officers of higher rank;
(e) Officers of the Philippine National Police

while occupying the position of provincial
director and those holding the rank of senior
superintendent or higher;
(f) City and provincial prosecutors and their
assistants, and official and prosecutors in
625
the Office of the Ombudsman and special

prosecutor; and
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations,
state universities or educational institutions or
foundations.
(2) Members of Congress and officials thereof classified

as Grade "27" and up under the Compensation and
Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the

provisions of the Constitution;
(4) Chairmen and members of Constitutional

Commissions, without prejudice to the provisions of
the Constitution; and
(5) A l l other national and local officials classified as

Grade "27" and higher under the Compensation and
Position Classification A c t of 1989.
Other offenses or felonies whether simple or complexed

with other crimes committed by the public officials and
employees mentioned in subsection ( a ) of this section in
relation to their office.
Civil and criminal cases filed pursuant to and in

connection with Executive Order N o s . 1, 2, 14 and 14-A,
issued in 1986.
In cases where none of the accused are occupying

positions corresponding to Salary Grade "27" or higher, as
prescribed in the said Republic A c t N o . 6758, or military
and P N P officers mentioned above, exclusive original
jurisdiction thereof shall be vested in the proper regional
trial court, metropolitan trial court, municipal trial court,
and municipal circuit trial court, as the case may be,
pursuant to their respective jurisdictions as provided in
Batas Pambansa Big. 129, as amended.
626
Can the Sandiganbayan preventively suspend a senator?
Y e s . T h e authority of the Sandiganbayan to order the

preventive suspension of an incumbent public official charged
with violation of R . A . 3019 has both legal and jurisprudential
support. T h e validity of Section 13 — treating of the suspension
pendente lite of an accused public officer — may 1.0 longer be
put at issue, having been repeatedly upheld. T h e provision of
suspension pendente lite applies to all persons indicted upon
valid information under the Act, whether they are appointive
or elective officials, permanent or temporary employees, or
pertaining to the career or non-career service.
It is ministerial to issue a suspension order upon

determination of the validity of the information. Once the
information is found to be sufficient in form and substance, the
court is bound to issue the order as a matter of course, and
there seems to be no ifs and buts about it.
What is the nature of a preventive suspension?

Preventive suspension is not a penalty because it is not
imposed as a result of judicial proceedings. In fact, if acquitted,
the official concerned shall be entitled to reinstatement and to
the salaries and benefits which he failed to receive during the
suspension. (Santiago v. Sandiganbayan, April 2001)
How is suspension of the officer mandatory but not automatic?

Under Section 13, the suspension of a public officer is
mandatory after the validity of the information has been upheld
in a pre-suspension hearing conducted for that purpose. This
pre-suspension hearing is conducted to determine basically the
validity of the information, from which the court can have a
basis to either suspend the accused and proceed with the trial
on the merits of the case, or withhold the suspension of the
latter and dismiss the case, or correct any part of the proceeding
which impairs its validity. Upon a proper determination of
the validity of the information, it becomes mandatory for the
court to immediately issue the suspension order. The rule on
the matter is specific and categorical. It leaves no room for
interpretation. It is not within the court's discretion to hold in
abeyance the suspension of the accused, (id)
627
• May the official be suspended in a different office than where

the act complained of was committed?
Y e s . Section 13 does not state that the public officer
concerned must be suspended only in the office where he is
alleged to have committed the acts with which he has been
charged. The use of the word "office" would indicate that it
applies to any office which the officer charged may be holding,
and not only the particular office under which he stands
accused, (id)
• How should the pre-suspension hearing be conducted?

While the imposition of suspension is not automatic or
self-operative as the validity of the information must first be
determined in a pre-suspension hearing, there is no hard and
fast rule as to the conduct thereof. No specific rules need be laid
down for such pre-suspension hearing except that the accused
should be given a fair and adequate opportunity to challenge
the validity of the criminal proceedings against him, e.g.,
1. That he has not been afforded the right of due preliminary

investigation;
2. That the acts for which he stands charged do not

constitute a violation of the provisions of R . A . 3019 or the
bribery provisions of the R P C which would warrant his
mandatory suspension from office; or
3. He may present a motion to quash the information on any

of the grounds provided for in Rule 117 of the R R C P .
However, a challenge to the validity of the criminal

proceedings on the first two grounds should be treated
only in the same manner as a challenge to the criminal
proceedings by way of a motion to quash on the ground
provided in Paragraph ( a ) , Section 2 of Rule 117 of the
Rules of Court, i.e., that the facts charged do not constitute
an offense. In other words, a resolution of the challenge
to the validity of the criminal proceeding, on such ground,
should be limited to an inquiry whether the facts alleged
in the information, if hypothetically admitted, constitute
the elements of an offense punishable under R . A . 3019 or
the provisions on bribery of the R P C . (id)
628
• What should and should not be proved in a pre-suspension

hearing?
The law does not require that the guilt of the accused
must be established in a pre-suspension proceeding before
trial on the merits proceeds. Neither does it contemplate a
proceeding to determine: (1) the strength of the evidence of
culpability against him; (2) the gravity of the offense charged;
or (3) whether or not his continuance in office could influence
the witnesses or pose a threat to the safety or integrity of the
records and other evidence before the court could have a valid
basis in decreeing preventive suspension pending the trial of
the case. All it secures to the accused is adequate opportunity
to challenge the validity or regularity of the proceedings
against him, such as that he has not been afforded the right
to due preliminary investigation, that the acts imputed to him
do not constitute a specific crime warranting his mandatory
suspension from office under Section 13, or that the information
is subject to quashal on any of the grounds set out in Section 3,
Rule 117. (id)
• Does this power of the Sandiganbayan not encroach upon the

doctrine of separation of powers?
The doctrine of separation of powers by itself may not
be deemed to have effectively excluded members of Congress
from R.A. 3019 nor from its sanctions. The maxim simply
recognizes that each of the three co-equal and independent,
albeit coordinate, branches of the government has exclusive
prerogatives and cognizance within its own sphere of influence
and effectively prevents one branch from unduly intruding into
the internal affairs of either branch.
R.A. 3019 does not exclude from its coverage the members
of Congress and therefore, the Sandiganbayan did not err in
decreeing the assailed preventive suspension order, (id)
• When would the Sandiganbayan have jurisdiction over common
crimes committed by public officers?
Murder and homicide will never be the main function
of any public office. No public office will ever be a constituent
element of murder. When then would murder or homicide,
committed by a public officer, fall within the exclusive and
629
original jurisdiction of the Sandiganbayan? Montejo, 108 Phil.

613, provides the answer: a public officer commits an offense
in relation to his office if he perpetrates the offense while
performing, though in an improper or irregular manner, his
official functions and he cannot commit the offense without
holding his public office. In such a case, there is an intimate
connection between the offense and the office of the accused. If
the information alleges the close connection between the offense
charged and the office of the accused, the case falls within the
jurisdiction of the Sandiganbayan. Montejo is an exception that
Sanchez recognized. (Crisostomo v. Sandiganbayan, G.R. No.
152398, April 14, 2005)
630
Chapter Five
I N F I D E L I T Y OF P U B L I C OFFICERS
Section O n e . — Infidelity in the custody of

prisoners
A r t . 223. Conniving with or consenting to evasion. — A n y

p u b l i c officer w h o shall consent to the escape of a p r i s o n e r
in his custody or c h a r g e , shall be p u n i s h e d :
1. By prision correccional in its m e d i u m a n d m a x i m u m

p e r i o d s a n d t e m p o r a r y special disqualification
in its m a x i m u m p e r i o d to p e r p e t u a l special
disqualification, if the fugitive shall h a v e b e e n
sentenced by final j u d g m e n t to a n y penalty.
2. By prision correccional in its m i n i m u m p e r i o d

a n d t e m p o r a r y special disqualification, in case the
fugitive shall not h a v e b e e n finally convicted b u t
only h e l d as a detention p r i s o n e r for a n y crime or
violation o f l a w o r m u n i c i p a l o r d i n a n c e .
A r t . 224. Evasion through negligence. — If the e v a s i o n

o f the p r i s o n e r s h a l l h a v e t a k e n p l a c e t h r o u g h the
n e g l i g e n c e o f the officer c h a r g e d w i t h the c o n v e y a n c e o r
c u s t o d y of the e s c a p i n g p r i s o n e r , s a i d officer shall suffer
the p e n a l t i e s of arresto mayor in its m a x i m u m p e r i o d to
prision correccional in its m i n i m u m p e r i o d a n d t e m p o r a r y
special d i s q u a l i f i c a t i o n .
A r t . 225. Escape of prisoner under the custody of a person not a

public officer. — A n y p r i v a t e p e r s o n to w h o m the conveyance
or custody of a p r i s o n e r or p e r s o n u n d e r a r r e s t shall
h a v e b e e n confided, w h o shall commit a n y of the offenses
mentioned in the t w o p r e c e d i n g articles, shall suffer the
penalty next l o w e r in d e g r e e t h a n that p r e s c r i b e d for the
p u b l i c officer.
631
• What are the elements of evasion through negligence?

a. The offender is a public officer;
b. He is charged with the conveyance or custody of a
prisoner, either detention prisoner or a prisoner by
final judgment; and
c. Such prisoner escapes through his negligence.
(Rodillas v. Sandiganbayan, May 1988)
• How is infidelity in the custody of prisoners committed?

This crime may be committed through dolo (Article 223)
or culpa (Article 224).
When the offender allowed his prisoner to go to the
bathroom to relieve himself it was mere laxity in the handling
of prisoners which did not give rise to infidelity through
negligence. Negligence here is one which approximates malice
or deliberate non-performance of duty. He may be charged
administratively but not criminally. (People v. Naua, 36 O.G.
316)(Contra: Rodillas)
• Will mere laxity amount to negligence as defined in Article 224?
Yes. "As a police officer who was charged with the duty to
return the prisoner directly to jail, the deviation from his duty
was clearly a violation of the regulations. In the first place, it
was improper for the petitioner to take lunch with the prisoner
and her family when he was supposed to bring his charge to
the jail. He even allowed the prisoner and her husband to talk
to each other at the request of a co-officer. It is the duty of any
police officer having custody of a prisoner to take necessary
precautions to assure the absence of any means of escape. A
failure to undertake these precautions w i l l make his act one
of definite laxity or negligence amounting to deliberate non-
performance of duty. His tolerance of arrangements whereby
the prisoner and her companions could plan and make good
her escape should have aroused the suspicion of a person of
ordinary prudence." (Rodillas v. Sandiganbayan)
• Does evasion through negligence require connivance between

the officer and the prisoner?
N o . Conniving or consenting to evasion is a distinct crime.

Also, connivance and negligence are incompatible concepts.
632
INFIDELITY OF PUBLIC OFFICERS
T h e petitioner is not being charged under Article 224. It

is, thus, not necessary that connivance be proved to hold him
liable for the crime of infidelity in the custody of prisoners, (id.)
• How is infidelity committed by private persons?
Under Article 225, infidelity can also be committed by

a private person to whom the prisoner was entrusted and
he connived with the prisoner or through his negligence the
prisoner was able to escape ( N o t e the phrase "who shall commit
any of the offenses mentioned in the two preceding articles.")
If the escape was with consideration, bribery is committed

in addition because he was performing a public function, hence
at that instance, he is a public officer. It is not "delivering"
under Article 156 because at that time, he was performing a
public function. Delivery of prisoner from jail under Article
156 is committed by a private person; infidelity by an officer-
custodian.
Section T w o . — Infidelity in the custody of documents
A r t . 226. Removal, concealment or destruction of documents.

— A n y p u b l i c officer w h o shall r e m o v e , destroy or conceal
documents or p a p e r s officially e n t r u s t e d to him, shall suffer:
1. T h e p e n a l t y of prision mayor a n d a fine not

e x c e e d i n g 1,000 pesos, w h e n e v e r serious d a m a g e
shall h a v e b e e n c a u s e d t h e r e b y to a third p a r t y or
to the p u b l i c interest.
2. T h e penalty of prision correccional in its m i n i m u m
a n d m e d i u m p e r i o d a n d a fine not exceeding 1,000
pesos, w h e n e v e r the d a m a g e c a u s e d to a third party
or the p u b l i c interest shall not h a v e b e e n serious.
In either case, the a d d i t i o n a l penalty of t e m p o r a r y
special disqualification in its m a x i m u m p e r i o d to perpetual
special disqualification shall be imposed.
A r t . 227. Officer breaking seal. — A n y public officer charged
with the custody of p a p e r s or p r o p e r t y sealed by p r o p e r
authority, w h o shall b r e a k the seals or permit them to be
b r o k e n , shall suffer the penalties of prision correccional
633
in its m i n i m u m a n d m e d i u m periods, t e m p o r a r y special

disqualification a n d a fine not exceeding 2,000 pesos.
A r t . 228. Opening of closed documents. — A n y p u b l i c officer
not included in the provision of the next p r e c e d i n g article
w h o , without p r o p e r authority, shall o p e n or shall p e r m i t to
be o p e n e d any closed p a p e r s , documents or objects entrusted
to his custody, shall suffer the penalties of arresto mayor,
t e m p o r a r y special disqualification a n d a fine not e x c e e d i n g
2,000 pesos.
• What are the elements of infidelity in the custody of documents?

1) The offender is a public officer;
2) There is a document abstracted, destroyed or concealed;
3) The document destroyed or abstracted was entrusted to

such public officer by reason of his office; and
4) Damage or prejudice to the public interest or to a

third person is caused by the removal, destruction or
concealment of such document. (Fajelca v. Escareals,
November 1988)
• What are the ways of committing infidelity in the custody of

documents?
1. A n y public officer shall remove, destroy or conceal

documents or papers officially entrusted to him. There
must be prejudice or damage to public interest. T h e
damage or prejudice is not limited to pecuniary damage.
Where there is delay in rendering public service because
the document is not located, there is damage. T h e
custodian must have concealed, removed or destroyed the
document. (Article 226)
2. A n y public officer charged with the custody of papers or

property sealed by proper authority shall break the seals
or permit them to be broken. (Article 227)
3. A n y public officer not included in N o . 2, without proper

authority, shall open or permit to be opened any closed
papers, documents or objects entrusted to his custody.
(Article 228)
634
INFIDELITY OF PUBLIC OFFICERS
• Distinguish infidelity from qualified theft.
In infidelity, the mail matter is entrusted to the official

custodian thereof and is deemed a document. Violation of
that trust is a crime against public interest. In qualified theft,
the mail matter was not entrusted, but in the course of the
performance of the duty of the public employee he handles mail
matter and he misappropriates the same. It is a crime against
property.
• Is mail matter property?
Y e s , because it can be subject of theft under Article 310.

Only property can be subject of theft, therefore, mail matter is
property and all crimes involving property such as arson and
estafa can be committed over mail matter.
Section T h r e e . — Revelation of secrets
A r t . 229. Revelation of secrets by an officer. — A n y p u b l i c

officer w h o shall r e v e a l a n y secret k n o w n t o h i m b y r e a s o n
of his official capacity, or shall w r o n g f u l l y deliver p a p e r s or
copies o f p a p e r s o f w h i c h h e m a y h a v e c h a r g e a n d w h i c h
s h o u l d not be p u b l i s h e d , shall suffer penalties of prision
correccional in its m e d i u m a n d m a x i m u m p e r i o d s , p e r p e t u a l
special disqualification a n d a fine not e x c e e d i n g 2,000 pesos
if the revelation of such secrets or the d e l i v e r y of such
p a p e r s shall h a v e c a u s e d serious d a m a g e to the p u b l i c
interest; o t h e r w i s e , the penalties of prision correccional in
its m i n i m u m p e r i o d , t e m p o r a r y special disqualification a n d
a fine not e x c e e d i n g 500 pesos shall be imposed.
A r t . 230. Public officer revealing secrets of private individual.

— A n y p u b l i c officer to w h o m the secrets of any private
individual shall b e c o m e k n o w n by r e a s o n of his office w h o
shall reveal such secrets, shall suffer the penalties of arresto
mayor a n d a fine not exceeding 1,000 pesos.
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Chapter Six
OTHER OFFENSES OR IRREGULARITIES

BY PUBLIC OFFICERS
Section O n e . — Disobedience, refusal of assistance
and maltreatment of prisoners
A r t . 231. Open disobedience. — A n y j u d i c i a l or executive

officer w h o shall o p e n l y refuse to execute the j u d g m e n t ,
decision o r o r d e r o f a n y s u p e r i o r authority m a d e w i t h i n the
scope of the jurisdiction of the latter a n d issued w i t h all the
legal formalities, shall suffer the penalties of arresto mayor
in its m e d i u m p e r i o d to prision correccional in its m i n i m u m
p e r i o d , t e m p o r a r y special disqualification in its m a x i m u m
p e r i o d a n d a fine not e x c e e d i n g 1,000 pesos.
A r t . 232. Disobedience to order of superior officer, when said
order was suspended by inferior officer. — A n y p u b l i c officer w h o ,
h a v i n g for any r e a s o n s u s p e n d e d the e x e c u t i o n o f the o r d e r s
of his s u p e r i o r s , shall d i s o b e y such s u p e r i o r s after the latter
h a v e d i s a p p r o v e d the s u s p e n s i o n , shall suffer the p e n a l t i e s
of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s
a n d p e r p e t u a l special disqualification.
A r t . 233. Refusal of assistance. — T h e penalties of arresto
mayor in its m e d i u m p e r i o d to prision correccional in its
m i n i m u m period, p e r p e t u a l special disqualification a n d a
fine not exceeding 1,000 pesos, shall be imposed u p o n a p u b l i c
officer w h o , u p o n d e m a n d f r o m competent authority, shall fail
to lend his cooperation t o w a r d s the a d m i n i s t r a t i o n of justice
or other public service, if such failure shall result in serious
d a m a g e to the public interest, or to a t h i r d party; o t h e r w i s e ,
arresto mayor in its m e d i u m a n d m a x i m u m p e r i o d s a n d a fine
not exceeding 500 pesos shall be imposed.
• Cite an example of the crime of refusal of assistance.

Refusal of assistance is committed by investigators who
refuse to appear to testify in court resulting in the dismissal of
the case. Likewise, in case of medico-legal officers who refuse
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OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS
to appear and testify after having been subpoenaed. R . A .

9165 penalizes the failure of public officials to testify in drugs
violation.
A r t . 234. Refusal to discharge elective office. — T h e penalty

of arresto mayor or a fine not e x c e e d i n g 1,000 pesos, or both,
shall b e i m p o s e d u p o n a n y p e r s o n w h o , h a v i n g b e e n elected
by p o p u l a r election to a p u b l i c office, shall refuse w i t h o u t
legal motive to be s w o r n in or to d i s c h a r g e the duties of said
office.
A r t . 235. Maltreatment of prisoners. — T h e penalty of

prision correccional in its m e d i u m p e r i o d to prision mayor
in its m i n i m u m p e r i o d , in a d d i t i o n to his liability for the
physical injuries o r d a m a g e c a u s e d , shall b e i m p o s e d u p o n
a n y p u b l i c officer o r e m p l o y e e w h o shall o v e r d o himself
in the correction or h a n d l i n g of a p r i s o n e r or detention
p r i s o n e r u n d e r his c h a r g e , b y the imposition o f p u n i s h m e n t s
not a u t h o r i z e d by the r e g u l a t i o n s , or by inflicting such
p u n i s h m e n t s in a c r u e l a n d h u m i l i a t i n g m a n n e r .
If the p u r p o s e of the m a l t r e a t m e n t is to extort a

confession, or to o b t a i n some i n f o r m a t i o n f r o m the prisoner,
the offender shall be p u n i s h e d by prision mayor in its
m i n i m u m p e r i o d , t e m p o r a r y a b s o l u t e disqualification a n d a
fine not e x c e e d i n g 6,000 pesos, in a d d i t i o n to his liability for
the physical injuries or d a m a g e c a u s e d . (As amended by E.O.
No. 62, Nov. 7, 1986.)
• When a prisoner is maltreated, how many crimes may be

committed?
T h e crimes are for maltreatment under Article 235
and for physical injuries suffered. T h e two crimes are not to
be complexed because the law specified that the penalty for
maltreatment shall be "in addition to his liability for the
physical injuries or damage caused." Prisoner here refers to
both convicts and detention prisoners as the law specified
"prisoner or detention prisoner under his charge."
• To what does the word maltreatment refer to?

Maltreatment refers not only to physical maltreatment
but also moral, psychological and other kinds of maltreatment
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because of the phrase "physical injuries or damage caused'

and "cruel or humiliating manner." T h e practice of presenting
captured persons in national television is a form of
maltreatment because they are being presented to the public
as suspected criminals even before they are charged causing
them humiliation.
The maltreatment in this article may be committed:
1. By an officer overdoing himself in the correction or
handling of a prisoner or detention prisoner under his
charge;
2. By imposing punishments not authorized by the
regulations; or
3. By inflicting punishments in a cruel and humiliating
manner.
If the purpose of the maltreatment is to extort a confession,
or to obtain some information from the prisoner, the penalty is
higher.
R . A . 9745 - A n t i - T o r t u r e A c t of 2009
• What is torture as defined in R.A. 9745?

Torture is an act by which severe pain or suffering,
physical or mental, intentionally inflicted on a person to
obtain from him or a third person information or a confession;
punish him for an act he or a third person has committed or
is suspected of having committed; or intimidate or coerce him
or a third person; or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a person in
authority or agent of a person in authority. It does not include
pain or suffering arising from, inherent in or incidental to
lawful sanctions.
Other cruel, inhuman and degrading treatment or

punishment refers to a deliberate and aggravated treatment or
punishment not included in the enumeration of acts of torture
under Section 4 of the A c t , inflicted by the same persons
against a person under his custody, which attains a level of
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severity causing suffering, gross humiliation or debasement to

the latter. T h e assessment of level of severity depends on all
circumstances, including duration of treatment or punishment,
its physical and mental effects, the sex, religion, age, and state
of health of victim.
Torture therefore involves the following:

1. Severe pain or suffering either physical or mental;
2. T h e pain or suffering is intentionally inflicted;
3. T h e purposes are:
a. To obtain from the victim or a third person
information or confession;
b. To punish the victim for what he or a third
person has or is suspected of having committed;
c. To intimidate or coerce the victim or a third
person;
d. For any reason based on discrimination of any
kind.
4. T h e act is by or at the instigation of or with consent
or acquiescence of a person in authority or his agent.
• Who are the offenders and victims of torture?
T h e principal offender is a person in authority or his

agent for the law states that the torture is inflicted by or at the
instigation of or with the consent or acquiescence of a person in
authority or his agent.
T h e following are deemed as principal:

1. Direct participator, inducer and indispensable
cooperator.
2. Superior military, police or law enforcement officer
or senior government official who ordered any
lower ranking personnel to commit torture for any
purpose.
3. Immediate commanding officer of the unit of the
A r m e d Forces of the Philippines ( A F P ) ; immediate
senior public official of the Philippine National
639
Police ( P N P ) and other law enforcement agencies

for any act, omission, or negligence committed by
him that led, assisted, abetted or allowed, directly
or indirectly, the commission of torture.
4. Commanding officer or senior public official who

has knowledge of or should have known that said
acts shall be, is being, or has been committed
by his subordinates or others within his area of
responsibility and, despite such knowledge, did not
take preventive or corrective action before, during
or immediately after its commission, when he has
the authority to prevent or investigate allegations
thereof but failed to do so, whether deliberately or
due to negligence.
T h e following are accessories:

1. A n y public officer or employee who has
knowledge that torture or other cruel, inhuman
or degrading treatment or punishment is
being committed and not being a principal
or accomplice, takes part subsequent to its
commission in any of the following ways:
(a) Profiting from or assisting offender to
profit from the effects of the act of torture
or other cruel, inhuman and degrading
treatment or punishment,
(b) Concealing the said acts and/or destroying
the effects or instruments thereof to
prevent its discovery, or
(c) Harboring, concealing or assisting in the
escape of the principal in the act of torture
or other cruel, inhuman and degrading
treatment or punishment provided
that the acts are done with abuse of the
official's public functions.
It appears that accomplices are punished
as principals for paragraph 1 of Section 13
says that any person "who cooperated in
the execution of the act of torture or other
cruel, inhuman and degrading treatment or
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punishment by previous or simultaneous acts

shall be liable as principal." Moreover, Section
13 does not include accomplices.
T h e victim of torture is the person subjected

to torture or other cruel, inhuman and degrading
treatment or punishment and any individual who
has suffered harm as a result of any act of torture,
or other cruel, inhuman and degrading treatment
or punishment. Usually, the victim is a detainee or
prisoner.
• What are the different kinds of torture?
1. Physical torture - treatment or punishment inflicted by

a person in authority or his agent upon another in his
custody causing severe pain, exhaustion, disability or
dysfunction of one or more parts of the body.
2. Mental/psychological torture - affects or confuses the
mind and/or undermines one's dignity and morale.
3. Other cruel, inhuman and degrading treatment or
punishment - deliberate and aggravated treatment or
punishment other than acts of torture at a level of severity
causing suffering, gross humiliation or debasement to the
victim.
T h e law includes as physical torture the following:
1. Beating, head banging, punching, kicking, striking with
truncheon, rifle butt or other similar objects, jumping on
stomach;
2. Food deprivation or forcible feeding with spoiled food,
excreta and other stuff or substances not normally eaten;
3. Electric shock;
4. Cigarette burning; burning by electrically heated rods,
hot oil, acid; by the rubbing of pepper or other chemical
substances on mucous membranes, or acids or spices
directly on the wound;
5. The submersion of the head in water or water polluted
with excrement, urine, vomit and/or blood until the brink
of suffocation;
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6. Being tied or forced to assume fixed and stressful bodily

position;
7. Rape and sexual abuse, including the insertion of foreign
objects into the sex organ or rectum, or electrical torture
of the genitals;
8. Mutilation or amputation of the essential parts of the
body such as the genitalia, ear, tongue;
9. Dental torture or the forced tooth extraction;
10. Pulling out of fingernails;

11. Harmful exposure to elements, e.g., sunlight and extreme
cold;
12. Placing plastic bag and other materials over the head to
the point of asphyxiation;
13. Use of psychoactive drugs to change perception, memory,
alertness or w i l l of a person to induce confession, reduce
mental competency, induce extreme pain or symptoms of
disease;
14. Other analogous acts of physical torture.
Examples of mental or psychological torture are:
1. Blindfolding;
2. Threatening victim or his relatives with bodily harm,

execution or other wrongful acts;
3. Confinement in solitary or secret detention places;
4. Prolonged interrogation;
5. Preparing prisoner for show trial, public display or public

humiliation (presenting suspect in television);
6. Causing unscheduled transfer of one deprived of liberty

from one place to another, creating the belief that he shall
be summarily executed;
7. Maltreating member of a person's family;
8. Causing torture to be witnessed by family, relatives or

any third party;
9. Denial of sleep/rest;
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10. Shame infliction such as stripping naked, parading in

public places, shaving head or putting marks on body
against his will;
11. Prohibiting victim to communicate with family member;

12. Other analogous acts.
What are the crimes punished in the law?
T h e law defines the following as special complex crimes

(except no. 5) and penalizes with reclusion perpetua:
1. Torture resulting in the death of any person or

torture with homicide;
2. Torture resulting in mutilation;
3. Torture with rape;
4. Torture with other forms of sexual abuse and, in

consequence of torture, the victim shall have become
insane, imbecile, impotent, blind or maimed for life;
and
5. Torture committed against children.
T h e penalty is higher by one or two degrees than those in

Articles 263/264 and 265 on serious and less serious physical
injuries inflicted by wounding, beating, assaulting or employing
injurious substances on the victim. T h e offender in the R P C
is any person who may be private person or public official
whereas here, the offender is mainly a person in authority or
his agent, though private person can be liable also as principal
by conspiracy.
What is the relationship between the Revised Penal Code and

other special laws, and the Anti-Torture Act?
The R P C is suppletory as stated in Section 22. Moreover,
if any of crimes against persons under Title 8 and against
personal liberty and security in Title 9 is attended by the
prohibited acts under the Anti-Torture Act, the penalty for the
felony shall be in the maximum period. This is in addition to
the penalty for the torture for Section 15 states that 'Torture as
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a crime shall not absorb or shall not be absorbed by any other

crime or felony committed as a consequence, or as a means in
the conduct or commission thereof. In which case, torture shall
be treated as a separate and independent criminal act whose
penalties shall be imposable without prejudice to any other
criminal liability provided for by domestic and international
laws."
The law regards torture as a very serious offense for
Section 16 excludes the offender in the crime of torture from
any special amnesty law or similar measures that will have
the effect of exempting him from any criminal proceedings
and sanctions. And, no person shall be expelled, returned
or extradited to another State where there are substantial
grounds to believe that he shall be in danger of being subjected
to torture (Refouler rule).
The Human Security Act, R . A . 9372 includes torture as

one of the punishable acts of terrorism, as follows:
1. Use of threat, intimidation, or coercion, or inflict

physical pain or torment, or mental, moral, or
psychological pressure, which shall vitiate the
freewill of a charged or suspected person under
investigation and interrogation for the crime of
terrorism or conspiracy to commit terrorism.
2. Death or serious permanent disability of detainee as

a consequence of the use of such threat, intimidation,
or coercion, or as a consequence of the infliction
on him of such physical pain or torment, or as a
consequence of the infliction on him of such mental,
moral, or psychological pressure.
Section T w o . — Anticipation, prolongation and

abandonment of duties and powers of public office
A r t . 236. Anticipation of duties of a public office. — A n y

p e r s o n w h o shall a s s u m e the p e r f o r m a n c e o f the duties a n d
p o w e r s of a n y p u b l i c office or e m p l o y m e n t w i t h o u t first
b e i n g s w o r n i n o r h a v i n g g i v e n the b o n d r e q u i r e d b y l a w ,
shall be s u s p e n d e d f r o m such office or e m p l o y m e n t until he
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shall h a v e c o m p l i e d w i t h respective formalities a n d shall b e

fined f r o m 200 to 500 pesos.
A r t . 237. Prolonging performance of duties and powers. — A n y

p u b l i c officer w h o shall continue to exercise the duties a n d
p o w e r s of his office, e m p l o y m e n t or commission, b e y o n d the
p e r i o d p r o v i d e d b y l a w , r e g u l a t i o n s o r special provisions
a p p l i c a b l e to the case, shall suffer the penalties of prision
correccional in its m i n i m u m p e r i o d , special t e m p o r a r y
disqualification in its m i n i m u m p e r i o d a n d a fine not
e x c e e d i n g 500 pesos.
A r t . 238. Abandonment of office or position. — A n y p u b l i c

officer w h o , b e f o r e the a c c e p t a n c e o f his r e s i g n a t i o n , shall
a b a n d o n his office t o the d e t r i m e n t o f the p u b l i c s e r v i c e
s h a l l s u f f e r the p e n a l t y of arresto mayor.
If such office shall h a v e b e e n a b a n d o n e d in o r d e r to

e v a d e the d i s c h a r g e of the duties of p r e v e n t i n g , p r o s e c u t i n g
o r p u n i s h i n g a n y o f the crimes falling w i t h i n Title O n e ,
a n d C h a p t e r O n e o f Title T h r e e o f B o o k T w o o f this C o d e ,
the o f f e n d e r shall be p u n i s h e d by prision correccional in
its m i n i m u m a n d m e d i u m p e r i o d s , a n d by arresto mayor if
the p u r p o s e of such a b a n d o n m e n t is to e v a d e the duty of
p r e v e n t i n g , p r o s e c u t i n g o r p u n i s h i n g any other crime.
Section T h r e e . — Usurpation of powers and

unlawful appointments
A r t . 239. Usurpation of legislative powers. — T h e penalties

of prision correccional in its m i n i m u m p e r i o d , t e m p o r a r y
special disqualification a n d a fine not e x c e e d i n g 1,000 pesos,
shall be imposed u p o n any p u b l i c officer w h o shall encroach
u p o n the p o w e r s of the legislative b r a n c h of the G o v e r n m e n t ,
either by m a k i n g g e n e r a l rules or regulations beyond the
scope of his authority, or by attempting to repeal a l a w or
s u s p e n d i n g the execution thereof.
A r t . 240. Usurpation of executive functions. — A n y j u d g e
w h o shall assume any p o w e r pertaining to the executive
authorities, or shall obstruct the latter in the lawful exercise
of their p o w e r s , shall suffer the penalty of arresto mayor in its
m e d i u m period to prision correccional in its minimum period.
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A r t . 241. Usurpation of judicial functions. — T h e penalty of

arresto mayor in its m e d i u m p e r i o d to prision correccional
in its m i n i m u m period shall be imposed u p o n any officer of
the executive b r a n c h of the G o v e r n m e n t w h o shall assume
judicial p o w e r s or shall obstruct the execution of a n y o r d e r
or decision r e n d e r e d by any j u d g e within his jurisdiction.
A r t . 242. Disobeying request for disqualification. — A n y

public officer w h o , b e f o r e the question of jurisdiction is
decided, shall continue a n y p r o c e e d i n g after h a v i n g b e e n
lawfully r e q u i r e d to r e f r a i n f r o m so doing, shall be p u n i s h e d
by arresto mayor a n d a fine not e x c e e d i n g 500 pesos.
A r t . 243. Orders or requests by executive officers to any judicial

authority. — A n y executive officer w h o shall a d d r e s s a n y o r d e r
or suggestion to a n y j u d i c i a l authority w i t h respect to a n y
case or business c o m i n g w i t h i n the exclusive j u r i s d i c t i o n of
the courts of justice shall suffer the penalty of arresto mayor
a n d a fine not e x c e e d i n g 500 pesos.
A r t . 244. Unlawful appointments. — A n y p u b l i c officer w h o

shall k n o w i n g l y n o m i n a t e or a p p o i n t to a n y p u b l i c office a n y
p e r s o n l a c k i n g the legal qualifications t h e r e f o r , shall suffer
the penalty of arresto mayor a n d a fine not e x c e e d i n g 1,000
pesos.
Section F o u r . — Abuses against chastity
A r t . 245. Abuses against chastity—Penalties. — T h e penalties

of prision correccional in its m e d i u m a n d m a x i m u m p e r i o d s
a n d t e m p o r a r y special disqualification shall b e i m p o s e d :
1. U p o n a n y p u b l i c officer w h o shall solicit or

m a k e i m m o r a l or indecent a d v a n c e s to a w o m a n
interested in matters p e n d i n g b e f o r e such officer
for decision, or w i t h respect to w h i c h he is r e q u i r e d
to submit a r e p o r t to or consult w i t h a s u p e r i o r
officer;
2. A n y w a r d e n or other p u b l i c officer directly c h a r g e d

w i t h the c a r e a n d custody of p r i s o n e r s or p e r s o n s
u n d e r a r r e s t w h o shall solicit o r m a k e i m m o r a l o r
indecent a d v a n c e s to a w o m a n u n d e r his custody.
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If the p e r s o n solicited be the w i f e , d a u g h t e r , sister or

relative w i t h i n the s a m e d e g r e e of affinity of a n y p e r s o n in
the custody of such w a r d e n or officer, the penalties shall be
prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s
a n d t e m p o r a r y special disqualification.
• W h o is the offended in Article 245? How is the law violated?
T h e object of advances here is a woman prisoner except

in the third situation where the prisoner is a man but the
solicitation is on his female relatives. It should be noted that
the R P C connects chastity to females and not to males.
T h e r e are three ways that this crime is committed:
1. A public officer solicits or makes immoral or indecent

advances to a woman interested in matters pending before
such officer for decision, or with respect to which he is
required to submit a report to or consult with a superior
officer. It is not required that the solicitation be accepted.
M e r e soliciting consummates the offense. T h e solicitation
is not the casual type but is persistent and threatening
implying that the decision will be adverse if the woman
refuses.
2. A n y warden or other public officer directly charged with

the care and custody of prisoners or persons under arrest
who shall solicit or make immoral or indecent advances to
a woman under his custody.
3. T h e jail warden makes immoral advances or solicitation

to the wife, daughter, sister or relative within the same
degree of affinity of any person in the custody of such
warden or officer. T h e prisoner in this instance is a male
but the solicitation is on his female relatives.
The mother of the prisoner is not included. Express
mention implies exclusion hence, if the female relative whose
favors were desired was the mother of the prisoner, this article
is not violated because the relations enumerated are exclusively
that of the wife, daughter, sister or relative by affinity in the
same degree.
TITLE EIGHT
CRIMES AGAINST PERSONS
Chapter One
DESTRUCTION OF LIFE
• What crimes are covered by Title Eight?
1. Parricide (246)
2. Murder (248)
3. Homicide (249)
4. Death caused in a tumultuous affray (251)
5. Physical injuries inflicted in a tumultuous affray (252)
6. Giving assistance to suicide (253)
7. Discharge of firearms (254)
8. Infanticide (255)
9. Abortion (256 - 259)
10. Duel (260)
11. Challenging to a duel (261)
12. Mutilation (262)
13. Physical injuries (263-266)
14. Rape (266 A to D)
• What kinds of offenses comprise crimes against persons?
T h e y are those which involve killing and inflicting

physical injuries. Between killing and inflicting injuries, the
difference lies with respect to intent to kill. Intent to kill is
considered only when the victim survived because the crime
may yet constitute physical injuries only. It is immediately and
conclusively presumed when death occurs for criminal intent
is presumed conclusively from the voluntary commission of
an unlawful act. Besides, a person is answerable for all the
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D E S T R U C T I O N OF LIFE
consequences of his unlawful act. (See notes on Articles 3 and

4).
T h e Anti-Rape L a w of 1997 added a third kind — rape
which was reclassified from Crimes against Chastity under
Title 11.
• How is intent to kill determined?
Intent to kill is deduced from the weapons used by the

offenders, the nature, location and number of wounds sustained
by the victim and the words uttered by the malefactors before,
at the time or immediately after the killing. If the victim dies
because of a deliberate act of the malefactor, intent to kill is
conclusively presumed. (People v. Delim, G.R. No. 142773,
January 28, 2003) malefactor = criminal
T h e disputable presumption of the existence of unlawful
or criminal intent presupposes the commission of an u n l a w f u l
act. Thus, intent to kill is presumed when the victim dies
because the act of killing clearly constitutes an unlawful act.
Gemoya, G.R. No. 132633, October 4, 2000, held: The intent
to kill is presumed from the fact of death, unless the accused
proves by convincing evidence that any of the justifying and
exempting circumstances in Articles 11 and 12 is present.
If the offender repeatedly cried "I will kill you" but he only
keeps on boxing the offended and injuries resulted, the crime
is not attempted or frustrated homicide because the overt act
to kill must be established. Intent to kill cannot be manifested
by oral threats. It is shown by overt acts. T h e crime is only for
physical injuries.
• What is the corpus delicti in taking of human life?

In every criminal case, the evidence must be sufficient to
prove the corpus delicti — that is, the actual offense committed.
T h e prosecution must establish (a) that human life was taken
and (b) that the death was occasioned by the accused's criminal
act or agency. If the evidence clearly discloses that a certain
person is dead, and that his death resulted from the use of
violent and criminal means by another, then the corpus delicti
is sufficiently proved. (People v. Matyaong, G.R. No. 140206,
June 21, 2001)
649
When indictment is on the basis of proximate cause, what

evidence on the nature of wound is required?
The significance of evidence on the precise nature of the
injuries sustained by the deceased is that it often leads the
careful examiner to the real cause of death. The examination
of a wound, from the legal point of view, should lead to the
determination as to when the wound was inflicted, what the
degree of danger of the wound is, with its dangers to life
or function, whether the wound was given by the injured
man himself, or by someone else, and with what manner of
instrument the wound was produced, (id.)
In Palalon, 49 Phil. 177, accused struck the victim with
the back of his hand, a few hours after which the victim
contracted a fever and died two days later. Accused was
acquitted on the ground that the cause of death had not been
established, despite the fact that a physician had conducted an
examination of the deceased's body and had linked the blows
sustained by the victim to his death. T h e Court held that it is
extremely doubtful that the blow either directly or indirectly
caused the death. It is not denied that fever was prevalent in
the locality in July 1925, and it is quite probable that the death
of the deceased was due entirely to natural causes.
T h e theory of the prosecution is that the deceased, in

falling down, received fatal internal injuries, and bases its
conclusions on the testimony of Dr. Valero that he found
ecchymosis on the right shoulder and on the stomach and that,
as a result of the former, there was a congestion of the right
lung which was the principal cause of death; that the blows
causing the ecchymosis must have been of such force as to have
made its effect felt immediately and that the victim could not
have continued working.
No proper autopsy of the body was made, and through
the testimony of the witnesses, it has been proven conclusively
that the deceased continued to work for more than a day after
he received the blow. T h e ecchymosis may have been nothing
but suggillations or 'death spots' formed after the death; the
fact that the marks were found both on the stomach and on the
back of the deceased so indicates.
690
In Matyaong, the examination of the body took place

over 24 hours after the death and appears to have been
v e r y incomplete; no incisions w e r e made and the examining
physician, a young man of limited experience, admitted
that his conclusions w e r e partly based upon the statements
of the members of the family of the deceased. In these
circumstances the conclusions cannot h a v e been much
more than mere guesses. In cases of death under suspicious
circumstances, it is the duty of the physician performing the
post mortem examination to exercise the utmost care and not
draw unwarranted conclusions from external appearances
susceptible of different interpretations. In Ilustre, 54 Phil.
594, defendant was convicted for homicide on the basis of the
opinion of three doctors w h o held that the death was caused
by blows inflicted upon the deceased's right hypochondrium,
which bruised the liver and produced an internal hemorrhage.
Further, "[t]he fact that the deceased... suffered from incipient
pulmonary tuberculosis does not affect the defendant's
criminal liability, for even if it rendered the blow more fatal,
the efficient cause of the death remains the same."
Ulep, 162 SCRA 182, held accused liable for the death of his
wife based primarily upon the autopsy report which described
the cause of death as cardiac arrest and primary shock caused
by strong pressure applied on the upper front chest bone, since
it was conclusively established that accused had elbowed his
wife on the chest. In light of the autopsy report, it said —
"Even if the victim is suffering from an internal

ailment, liver or heart disease, or tuberculosis, if the blow
delivered by the accused (a) is the efficient cause of death;
or (b) accelerated his death; or (c) is the proximate cause
of death; then there is criminal liability."
When there are other possible causes of death aside from

proximate cause, what should be duly established?
To hold a person liable for the death of another, the
evidence must establish beyond reasonable doubt that the
criminal act was the proximate cause of such death. Such proof
is especially crucial when there are several possible causes of
death. Here, even assuming that the victim was afflicted with
651
food poisoning, accused may still be liable for her death if there
is proof that accused's act of beating his wife was the efficient
or proximate cause of death, or had accelerated her death.
No man is convicted on a probability. The accused is entitled
to an acquittal, unless his guilt is shown beyond a reasonable
doubt. The prosecution has the burden of establishing beyond
reasonable doubt every element constituting the crime charged.
This is premised upon the constitutionally guaranteed right to
be presumed innocent. (People v. Matyaong)
Section O n e . — Parricide, murder, homicide
A r t . 246. Parricide. — A n y p e r s o n w h o shall kill his father,

mother, or child, w h e t h e r legitimate or illegitimate, or a n y
of his ascendants, or d e s c e n d a n t s , or his s p o u s e , shall be
guilty o f p a r r i c i d e a n d shall b e p u n i s h e d b y the p e n a l t y o f
reclusion perpetua to d e a t h . (Section 5, R.A. No. 7659.)
• How is parricide committed?
It is committed when: (1) a person is killed; (2) the deceased

is killed by the accused; (3) the deceased is the father, mother,
or child, whether legitimate or illegitimate, or a legitimate
other ascendant or descendant, or the legitimate spouse of the
accused. (People v. Malabago, G.R. No. 115686, December 2,
1996)
• What is the basis of the crime of parricide?
Parricide is based on the relationship of the offender and

the offended. T h e relationship must be characterized by the
following:
a. Legitimate except for parent/child where relationship may
either be legitimate or illegitimate. For other ascendants
or descendants, such as grandparent or grandchild, the
relationship must be legitimate.
b. In the direct line, either ascending (parents, grandparents)
or descending (children, grandchildren). T h e r e is no
parricide in the killing of brothers and sisters, uncles/
aunts and nephews/nieces because such relationship is
collateral.
652
c. By blood except for spouses. Thus, there is no parricide

in the killing of adopter by adopted or vice versa for the
relationship is not by blood. W i t h more reason should
there be no parricide in the killing of step-parent and
step-child. Besides, the enumeration of relationship in the
article is exclusive. Expressio unius est exclusio alterius.
Indeed, the phrase "whether legitimate or illegitimate"

characterizes the relationship between the accused and his
victim who might be his father, mother, or child, but not the
"spouse" who refers to either the legitimate husband or the
lawful wife. Here, appellant not only declared in court that
the victim was her fourth husband but she also swore that
they w e r e married before a judge. T h e victim's son testified
that his father and appellant were husband and wife, in much
the same w a y that appellant's daughter, held the victim to be
her mother's husband. Appellant's own admission that she
was married to the victim was a confirmation of the semper
praesumitur promatrimonio and the presumption that a man
and a woman so deporting themselves as husband and wife
had verily entered into a lawful contract of marriage. (People v.
Ignacio, G.R. No. 105284, July 8, 1997)
If the killing of the child less than three days old was committed
by the parent, is the crime parricide or infanticide?
Both parricide and infanticide can be committed by the

parents. (See last paragraph of Article 255.) Infanticide is
based on the age of the victim; parricide on the relationship.
Therefore, the line separating parricide and infanticide
committed by the parent is the age of the child. Thus, if the
child is less than three days old, the crime is infanticide.
Parricide yields to infanticide as far as the designation of the
crime is involved. (People v. Morales) The penalty is the same
for both crimes.
Distinguish between parricide and infanticide.

In parricide:
a. Its basis is the relationship of the offender and the victim.
b. It can be committed only by the relatives enumerated.
653
c. Conspiracy cannot be applied because the basis of the

crime is the relationship between the offender and
the victim. Separate information must be filed for the
parricide and for the murder or homicide for the non-
relative conspirator.
d. Concealment of dishonor of the mother is not mitigating.
In infanticide:
a. The basis is the age of the child-victim.
b. Infanticide may be committed by any person whether
relative or not of the victim.
c. Conspiracy is applicable because the circumstance of
age pertains to the victim; only one information shall be
prepared for all the conspirators.
d. Concealment of dishonor of the mother (and maternal
grandparents) is mitigating.
• Why is the rule on conspiracy that the act of one is the act of all
not applicable in parricide?
W h i l e infanticide may be committed by any person,

parricide may be committed only by the specified relatives, thus
relationship is a condition sine qua non. Therefore, conspiracy
cannot be applied for Article 62, no. 3 states that: "Aggravating
or mitigating circumstances which arise from the moral
attributes of the offender, or from his private relations with
the offended party, or from any other personal cause, shall only
serve to aggravate or mitigate the liability of the principals,
accomplices and accessories as to whom such circumstances
are attendant." (Italics supplied)
To illustrate: A mother asked her brother to kill her child.

T h e brother did. W h a t crime or crimes w e r e committed?
If the child is less than three-days old (72 hours), the mother
and the brother are both guilty of infanticide. Relationship
not being an element, the rule on conspiracy applies; only one
information will be prepared. If for the mother it is to conceal
dishonor, it is extenuating but only in her case.
If the child is three-days old or over: the mother is liable

for parricide; the brother, murder qualified by treachery. He
654
is not liable for parricide as parricide requires relationship in

the direct line. His relationship to the child is collateral. To
conceal dishonor is not mitigating for both the mother and
brother. T w o informations must be prepared — for parricide
against the mother and for murder against the brother.
Killing a child of tender age is always qualified by treachery
for the victim cannot defend itself.
• In killing of a spouse, how will the relationship be proved?
T h e key element in parricide is the relationship of the

offender with the victim spouse. T h e best proof of their
relationship is the marriage certificate. In the absence of such
certificate, however, oral evidence of the fact of marriage may
be considered by the trial court if such proof is not objected to.
(People v. Malabago, G.R. No. 115686, December 2, 1996)
T h e relationship between spouses must be valid. But

in the Family Code, nullity of marriage may be taken legal
cognizance only after there has been judicial recognition of
nullity. If a wife who was only 17 at the time of her marriage
was killed by the husband, the latter cannot allege the nullity
of the marriage as a defense. T h e nature and consequences of a
marriage are not subject to the stipulation of the parties. There
must be a judicial declaration of its nullity even for purposes of
the liability under the R P C .
• If the information failed to mention that offender and offended

are married, can the former be convicted with parricide?
N o . If the information failed to mention that the offender
and the offended are married, the former cannot be convicted
of parricide because that will violate his right to information
of the nature of the charge against him. Moreover, since
relationship is a qualifying circumstance and an element of the
crime, failure to allege it is a fatal mistake.
A r t . 247. Death or physical injuries inflicted under exceptional

circumstances. — A n y legally m a r r i e d person w h o , having
surprised his spouse in the act of committing sexual
intercourse with another person, shall kill any of them or
both of them in the act or immediately thereafter, or shall
635
inflict u p o n them any serious physical injury, shall suffer

the penalty of destierro.
If he shall inflict u p o n them physical injuries of any
other kind, he shall be exempt f r o m punishment.
These rules shall be a p p l i c a b l e , u n d e r the same
circumstances, to parents w i t h respect to their d a u g h t e r s
u n d e r eighteen years of a g e , a n d their seducers, w h i l e the
d a u g h t e r s a r e living w i t h their parents.
A n y p e r s o n w h o shall p r o m o t e o r facilitate prostitution
of his wife or d a u g h t e r , or shall o t h e r w i s e h a v e consented to
the infidelity of the other spouse shall not be entitled to the
benefits of this article.
• Does Article 247 define and penalize a felony?
N o . Article 247 does not define and penalize a felony but

grants a privilege or benefit to the accused. It is akin to an
exempting circumstance. If it were a felony, its elements must
be alleged in the information. But doing so and proving the
same would in effect exempt the actor from liability. A n d a
mitigating or an exempting circumstance, not being an integral
part of the offense charged but a matter of defense need not be
pleaded but must be proved by the accused.
T h e rationale for this is that the killing or injury was

without sufficient intelligence because of the overwhelming
passion.
• What are the requisites to be entitled to the benefit of Article

247?
a. A legally married person surprises his spouse in the act of

committing sexual intercourse with another person;
b. He kills any or both of them in the act or immediately

thereafter; and
c. He has not promoted or facilitated the prostitution

of his wife nor consented to the infidelity of the other
spouse. (People v. Oyanib, G.R. No. 130643, March 12,
2001)
656
• What are the two time elements involved in this article?
a. The time of surprising the paramours which must be in

the act itself of sexual intercourse; and
b. T h e time of the killing or infliction of physical injuries

which must also be in the act or immediately thereafter.
T h e surprising must be at the moment the sexual act is

taking place. If it is only about to take place or has already
taken place, no benefit can be availed of under this article. It
is the I N F I D E L who must be surprised and not the innocent
spouse, otherwise, the latter should have perfect timing so that
he/she should be surprised at the very moment that intercourse
is taking place. T h e law said "surprised his spouse in the act,"
not "was surprised."
"Immediately thereafter" applies to the second. The

killing must be at the time of surprising the paramours in the
act or immediately after. If there was a time lag between the
surprising and the killing, it must be shown that the surprising
and the killing are one continuous sequence.
• What are the two issues involved in this article?
They are: (1) W a s the surprising made while the

intercourse is taking place; and (2) W a s the killing made during
that time or immediately thereafter?
T h e accused surprised his wife and her paramour in the

act of illicit copulation, as a result of which, he went out to
kill the deceased in a fit of passionate outburst. Article 247
prescribes the following elements: (1) that a legally married
person surprises his spouse in the act of committing sexual
intercourse with another person; and (2) that he kills any of
them or both of them in the act or immediately thereafter.
These elements are present in this case. The trial court, in
convicting the accused of murder, therefore erred. (People v.
Abarca, G.R. No. 74433, September 14, 1987)
• If a period of time such as one hour passed from the surprising

up to the killing, will the benefit still be available?
Though about one hour had passed between the time the
accused discovered his wife having sexual intercourse with the
657
victim and the time the latter was actually shot, the shooting
must be understood to be the continuation of the pursuit of the
victim by the accused. The R P C , in requiring that the accused
shall kill any or both of them immediately after surprising his
spouse in the act of intercourse, does not say that he should
commit the killing instantly thereafter. It only requires that
the death be the proximate result of the outrage overwhelming
the accused after chancing upon his spouse in the basest act of
infidelity. But the killing should have been actually motivated
by the same blind impulse, and must not have been influenced
by external factors. The killing must be the direct by-product
of the accused's rage, (id.)
• Will the fact that the spouses were living separately militate
against the accused?
That the accused and the victim were living separately

does not militate against the invocation of the absolutory
cause under Article 247 provided that the death caused is the
proximate result of the outrage overwhelming the accused
after chancing upon his spouse in the act of infidelity. As long
the requisites are present, the accused is entitled to the benefit
of this article, (id.)
• What is the nature of the "penalty" of destierro?
Destierro is not a penalty because there is no criminal

liability. It is imposed for the protection of the accused against
retaliation or vendetta. W h e r e physical injury is inflicted there
is totally no criminal liability. Destierro is not a penalty because
there is nothing to penalize. (People v. Abarca, supra)
Article 247 does not define an offense. As may readily be

seen from its provisions and its place in the Code, far from
defining a felony, it merely provides or grants a privilege or
benefit amounting practically to an exemption from an adequate
punishment — destierro. This penalty is mere banishment
and is intended more for the protection of the accused than a
punishment. (People v. Coricor, 79 Phil. 672)
W h e r e physical injuries other than serious are inflicted,

the offender is exempted from punishment. In effect, Article
247 amount to an exempting circumstance, for even where
658
death or serious physical injuries is inflicted, the penalty is so

greatly lowered as to result to no punishment at all. A different
interpretation, i.e., that it defines and penalizes a distinct crime,
would make the exceptional circumstances which practically
exempt the accused from criminal liability integral elements of
the offense, and thereby compel the prosecuting officer to plead,
and admit them, in the information. Such an interpretation
would be illogical if not absurd, since a mitigating and much
less an exempting circumstance cannot be an integral element
of the crime charged. Only acts or omissions constituting the
offense should be pleaded. A n d a circumstance which mitigates
criminal liability or exempts the accused therefrom, not being
an essential element of the offense charged but a matter of
defense that must be proved need not be pleaded. (Sec. 5, Rule
106, RRCP; People v. Abarca)
Should qualifying circumstances be appreciated in inflicting

death under exceptional circumstances?
N o . Punishment is not inflicted upon the accused. He is

banished for his protection. Inflicting death under exceptional
circumstances, not being a punishable act, cannot be modified
by aggravating or mitigating or other qualifying circumstances.
(id.)
How should the requirements of the law be complied with?
T h e requirements must be strictly complied with for the

law itself does not punish the adulterer with death penalty.
M o r e so as the wronged spouse is allowed to take the law into
his hands.
The privilege extends to the parents who surprised and
killed/injured their daughter (son not included), who is less
than 18 years old and living with them, and their daughter's
paramour.
When third persons are injured in the course of firing at the

paramours, will the offender be free from criminal liability?
The next question refers to the liability of the accused for
the physical injuries suffered by LA and AA who were caught
in the crossfire as the accused shot the victim. The Solicitor
659
General recommends double frustrated murder against the

accused.
Abarca rejected this theory saying that the accused did
not have the intent to kill the AA couple. Although as a rule,
one committing an offense is liable for all the consequences of
his act, that rule presupposes that the act done amounts to a
felony.
Inflicting death under exceptional circumstances is not

murder. Therefore accused cannot be held liable for frustrated
murder for the injuries suffered by the A A s .
This does not mean that the accused is totally free

from any responsibility. Granting the fact that he was not
performing an illegal act when he fired at the victim, he is
not entirely without fault. W h i l e it appears that before firing
at the deceased, he uttered warning words ("an waray labot
kagawas") that is not enough precaution to absolve him for
the injuries sustained by the A A s . There was negligence on his
part. Accordingly, he was liable under the second paragraph
of Article 365 for less serious physical injuries through simple
imprudence.
For the separate injuries suffered by the A A s , he was

imposed arresto mayor in its medium and maximum periods,
arresto being the graver penalty than destierro.
A r t . 248. Murder. — A n y p e r s o n w h o , not f a l l i n g w i t h i n

the provisions of A r t i c l e 246, shall kill a n o t h e r , shall be
guilty of m u r d e r a n d shall be p u n i s h e d by reclusion perpetua
to d e a t h if committed w i t h a n y of the f o l l o w i n g a t t e n d a n t
circumstances:
1. W i t h t r e a c h e r y , t a k i n g a d v a n t a g e of s u p e r i o r
strength, w i t h the a i d o f a r m e d m e n , o r e m p l o y i n g
m e a n s t o w e a k e n the defense, o r o f m e a n s o r
persons to insure or afford impunity.
2. In c o n s i d e r a t i o n of a p r i c e , r e w a r d or p r o m i s e .
3. By m e a n s of i n u n d a t i o n , fire, poison, e x p l o s i o n ,
s h i p w r e c k , s t r a n d i n g of a vessel, d e r a i l m e n t or
660
assault u p o n a r a i l r o a d , fall of an a i r s h i p , or by
m e a n s of m o t o r vehicles, or w i t h the use of any
other m e a n s i n v o l v i n g g r e a t w a s t e a n d r u i n .
4. On occasion of a n y of the calamities e n u m e r a t e d

i n the p r e c e d i n g p a r a g r a p h , o r o f a n e a r t h q u a k e ,
e r u p t i o n of a v o l c a n o , destructive cyclone, epidemic
o r o t h e r p u b l i c calamity.
5. W i t h evident premeditation.
6. W i t h cruelty, by d e l i b e r a t e l y a n d i n h u m a n l y
a u g m e n t i n g the s u f f e r i n g of the victim, or o u t r a g i n g
or scoffing at his p e r s o n or c o r p s e . (As amended by
Section 6, R.A. No. 7659.)
scoffing = to mock
» How is murder committed?
Homicide plus one qualifying circumstance under Article

248 will give rise to murder. T h e killing should be homicide
because if it is against any of the persons in Article 246, it
is parricide or if the victim is less than three days old, it is
infanticide.
T h e killing must otherwise be homicide, otherwise the

circumstances in this article will be considered as merely
generic which will affect the penalty but not the crime itself.
For example: in parricide, ignominy, abuse of superior strength,
poison, etc. are no longer qualifying circumstances but merely
generic aggravating.
A n y one of the qualifying circumstances in this article is

an element of murder.
• How many circumstances are necessary to qualify homicide to

murder?
Only one circumstance suffices to qualify homicide to
murder. If a second circumstance is present, it w i l l operate as
a generic aggravating provided alleged in the information. It
w i l l , however, not affect the penalty because the maximum
penalty of death has been abolished by R . A . 9346.
661
• Can homicide be upgraded to murder by a subsequent act of the

offender?
Yes. When a person is killed without any qualifying
circumstance but thereafter the offender does any act which
insults or outrages the corpse of the victim, the crime is thereby
qualified to murder. For instance, decapitating the victim or
chopping off the corpse into several parts and scattering these
in different locations.
• When the qualifying circumstances were not those proved in

the trial, can the accused be convicted for murder?
If circumstances alleged in the information are not the
circumstances proved in the trial, it is not murder because any
of the qualifying circumstances in Article 248 is an ingredient
of murder. T h e circumstances must be both alleged and proved
in the trial, otherwise, they cannot be considered because the
right of the accused to be informed of the charge against him
will be violated.
> Give some instances when treachery is not appreciated to

qualify killing to murder.
W h i l e even a frontal attack can be treacherous, as when it

is unexpected and the victim is unarmed, it cannot be murder
if the aggressors did not employ means tending directly and
especially to insure the execution of the crime without risk
to themselves arising from the defense which the offended
parties might make. Here, the assailants attacked a group
of six individuals who could have been armed. It is highly
probable that at least one of them could offer resistance and
put the aggressors in danger. Fuertes held that w h i l e it is
not required that the acts constituting the offense must be
stated in the terms of the statute defining the offense, it is
necessary that the qualifying circumstances be specifically
pleaded or alleged w i t h sufficient clarity as to be readily
understood and not m e r e l y deduced. A b s e n t such an
allegation, the conviction shall be for homicide.
Lug-aw declared that where the lone witness was not able
to observe the commencement of the assault, he could not testify
on how it all began and developed. Absent any particulars as to
662
the manner in which the aggression commenced or how the act

which resulted in the death of the victim unfolded, treachery
cannot be appreciated to qualify the killing to murder. (People
v. Amaguin, G.R. Nos. 54344-45, January 10, 1994)
• M a y treachery be appreciated in aberratio ictus?
Y e s . W h e n the offender fired at his adversary but missed,

the unintended victims were helpless to defend themselves.
Their deaths were murders since the acts were qualified by
treachery. (People v. Flora, G.R. No. 125909, June 23, 2000)
• Are dwelling and nocturnity qualifying circumstance?
N o . Dwelling and nocturnity are not qualifying

circumstances in Article 248. But nocturnity can be a method
or form of treachery. As such, it is treachery, not nighttime
that is qualifying.
• When the qualifying circumstance is the use of fire, what variant

crimes may result?
If the use of fire is:
a. To conceal the killing by burning the house where

the victims were, two separate crimes are committed:
homicide or murder and arson.
b. As a means to kill: murder and even if property were

burned as a consequence of the use of fire to kill — arson is
still not committed. If in the course thereof, other houses
were burned, it is a generic aggravating circumstance.
c. T o burn a house but somebody inside was killed, the special

complex crime of arson with homicide is committed.
d. Resorted to merely as a joke, but death resulted, the crime
was homicide because the use of fire must be specially
chosen as the means to kill.
If fire was resorted to out of joke, the crime is not murder.
The offender must have acted with specific intent to kill by
means of fire to qualify the killing to murder. Pugay, G.R.
No. L-74324, November 17, 1988, convicted PP for reckless
imprudence resulting to homicide whereas SS was found guilty
663
of homicide, as he had no specific intent to kill through the use

of fire.
ZZ, BT and BB were stabbed and hacked before their
house was burned. ZZ and BT died immediately while BB lived
for a few days. The thesis of the prosecution is that the house
was burned to conceal the stabbing and hacking. As a result of
this fire, MM and TO suffered burns and MM died later. TO
survived due to timely medical attention.
Four separate crimes were committed: three separate

murders for the deaths of ZZ, BT and BB, and arson under
Section 5, P . D . 1613 for the death of MM and the injuries
sustained by TO as a consequence of the burning of the
house. [Note: R . A . 7659 which restored Article 320 was not
yet effective.] Under the law, if by reason of or on the occasion
of the arson death results, the penalty of reclusion perpetua
to death shall be imposed. (People v. Basay, G.R. No. 86941,
March 3, 1993)
• Is arson with homicide a complex crime?
N o . T h e homicide in "arson with homicide" refers to any

kind of killing and is an element of the composite or special
complex crime.
The use of fire to burn the corpse of victim, when the

crime is murder already, is not a qualifying circumstance
anymore but punishable as scoffing or desecrating the dead
under the R A C . Scoffing is not a qualifying circumstance in
case of passionate crimes because it is natural for the accused
to do such scoffing acts in such crimes. Scoffing must be an
independent act of the accused.
• What determines whether the offense committed is frustrated

or attempted murder?
T h e nature of the wound determines w h e t h e r the

crime is attempted or frustrated murders. T h e offenders are
liable for attempted murder instead of frustrated murder as
charged in the information because the injuries sustained by
ME w e r e merely superficial and not capable of causing his
664
death even without t i m e l y medical intervention. No mortal

wound h a v i n g been inflicted upon the victim, the offenders
failed to perform all the acts of execution which would have
produced the felony. T h e y are, therefore, guilty only of
attempted murder. (People v. Pagal, G.R. Nos. 112620-21,
May 14, 1997)
A r t . 249. Homicide. — A n y p e r s o n w h o , not falling w i t h i n

the p r o v i s i o n s of A r t i c l e 246, shall kill a n o t h e r w i t h o u t the
a t t e n d a n c e of a n y of the c i r c u m s t a n c e s e n u m e r a t e d in the
next p r e c e d i n g article, shall be d e e m e d guilty of homicide
a n d be p u n i s h e d by reclusion temporal.
• What is homicide?
Homicide is the killing of any person, which does not

constitute parricide, murder or infanticide and is not attended
by any justifying circumstance.
• What is the rule on intent to kill when the victim dies?
W h e n consummated, intent to kill is a general criminal

intent which is presumed and hence need not be established;
when the victim does not die, intent to kill becomes a specific
criminal intent which must be established beyond reasonable
doubt, otherwise, the crime shall fall under physical injuries.
W h e n death results, intent to kill is presumed from the
voluntary commission of an unlawful act.
• What determines whether the offense is attempted/frustrated

homicide and not physical injuries?
Intent to kill, as shown by the weapon used, and the
location and nature of the wound. The injury is at the back
of the head, a vital part of the body, unmistakably showing
intent to kill. But, for reasons other than his own spontaneous
desistance, accused was not able to perform all the acts of
execution necessary to consummate the killing, since the wound
inflicted was not fatal. Accused ran away after delivering
the blow at the back of the head of the victim. As all acts of
execution necessary to produce the felony were not done, the
crime is attempted. (People v. Balderas, G.R. No. 106582, July
31, 1997)
665
Slight physical injuries, was committed against D D . W

fired at CC and not at D D . There is not the slightest indication
that at that time W knew that DD was hiding under a table.
DD admitted that a stray bullet grazed the right parietal
region of his head injuring him. The wound was diagnosed as
superficial and required treatment only for three days. (People
v. Violin, G.R. Nos. L-114003-06, January 14, 1997)
• Can attempted or frustrated homicide be committed through

imprudence or negligence?
N o . There cannot be reckless imprudence resulting to

frustrated or attempted homicide because intent is inherent
in frustrated or attempted felonies. In attempted felonies,
the offender commences the commission of a felony directly
by overt acts and the felony is not produced only because he
was prevented by some cause or accident other than his own
spontaneous desistance. On the other hand, in frustrated
felonies, the offender has performed all the acts of execution
which would produce the felony but was prevented by reason
of causes independent of his will. Thus, by the definition of
attempted or frustrated felonies, the intent to produce the
felony is inherent because offender's w i l l is to commit the
felony. This, besides the fact that culpa is punished as to the
result of the culpable act or omission, is the reason w h y crime
by culpa is always in the consummated stage.
By the same token, mala prohibita are in the
consummated stage as these are l i k e w i s e committed without
intent.
hornbook = a primer, a book of rudiments.
» M a y a person charged with homicide by stabbing be convicted
when the cause of death was drowning?
N o , because it is a hornbook doctrine that an accused

cannot be convicted of an offense unless it is clearly charged in
the complaint or information. Constitutionally, he has the right
to be informed of the nature and cause of the accusation against
him. By parity of reasoning, GG cannot be convicted of homicide
through drowning in the information that charges murder by
means of stabbing. When appellant assisted OJ in carrying
the body of MM to throw it to the well, he was committing a
666
felony, that of assisting in concealing the body of the crime to

prevent its discovery, i.e., that he was an accessory in the crime
of homicide. Although he was not aware that the victim was still
alive when they threw the body into the well, he is still liable
for the direct and natural consequence of the felonious act even
if the resulting offense is worse than that intended. True, he
merely assisted in concealing the body but the autopsy revealed
that the cause of death is drowning. (People v. Ortega, Jr., G.R.
No. 116736, July 24, 1997)
P R E S I D E N T I A L D E C R E E N O . 1866,
a s a m e n d e d b y R e p u b l i c A c t N o . 8294
xxx xxx xxx
Section 1. Unlawful Manufacture, Sale, Acquisition,

Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture
of Firearms or Ammunition. — T h e penalty of prision
correccional in its m a x i m u m p e r i o d a n d a fine of not less
t h a n Fifteen t h o u s a n d pesos (P15,000) shall be imposed
u p o n a n y p e r s o n w h o shall u n l a w f u l l y m a n u f a c t u r e , deal in,
a c q u i r e , dispose, o r possess a n y l o w p o w e r e d f i r e a r m , such
as rimfire h a n d g u n , .380 or .32 a n d other firearm of similar
firepower, p a r t of f i r e a r m , a m m u n i t i o n , or m a c h i n e r y , tool or
instrument u s e d or i n t e n d e d to be u s e d in the m a n u f a c t u r e
of a n y firearm or a m m u n i t i o n : Provided, T h a t no other crime
w a s committed.
T h e penalty of prision mayor in its m i n i m u m p e r i o d a n d
a fine of T h i r t y t h o u s a n d pesos (P30,000) shall be imposed
if the firearm is classified as h i g h p o w e r e d firearm which
includes those w i t h b o r e s b i g g e r in d i a m e t e r than .38 caliber
a n d 9 millimeter such as c a l i b e r .40, .41, .44, .45 a n d also
lesser c a l i b e r e d firearms b u t c o n s i d e r e d p o w e r f u l such as
c a l i b e r .357 a n d c a l i b e r .22 center-fire m a g n u m a n d other
firearms w i t h firing capability of full automatic and by burst
of t w o or three: Provided, however, T h a t no other crime w a s
committed by the p e r s o n arrested.
If homicide or m u r d e r is committed with the use of an

unlicensed firearm, such use of an unlicensed firearm shall
be considered as an a g g r a v a t i n g circumstance.
667
If the violation of this Section is in furtherance of or

incident to, or in connection with the crime of r e b e l l i o n
or insurrection, sedition, or attempted coup d'etat, such
violation shall be a b s o r b e d as an element of the crime of
rebellion, or insurrection, sedition, or attempted coup d'etat.
T h e same penalty shall be imposed u p o n the o w n e r ,
president, m a n a g e r , director or other responsible officer of
any p u b l i c or private firm, c o m p a n y , c o r p o r a t i o n or entity,
w h o shall willfully or k n o w i n g l y a l l o w any of the firearms
o w n e d by such firm, c o m p a n y , c o r p o r a t i o n or entity to be
used by any person or persons f o u n d guilty of violating
the provisions of the p r e c e d i n g p a r a g r a p h s or willfully or
k n o w i n g l y a l l o w a n y of t h e m to use u n l i c e n s e d firearms or
firearms w i t h o u t a n y legal a u t h o r i t y to be c a r r i e d outside of
their residence in the course of their e m p l o y m e n t .
T h e penalty of arresto mayor shall be i m p o s e d u p o n

any p e r s o n w h o shall c a r r y a n y licensed f i r e a r m outside his
residence w i t h o u t legal a u t h o r i t y therefor. (As amended by
Rep. Act No. 8294, June 6, 1997.)
Sec. 2. Presumption of Illegal Manufacture of Firearms

or Ammunition. — T h e possession of a n y m a c h i n e r y , tool or
instrument u s e d directly in the m a n u f a c t u r e of firearms or
ammunition, b y a n y p e r s o n w h o s e b u s i n e s s o r e m p l o y m e n t
does not l a w f u l l y d e a l w i t h the m a n u f a c t u r e o f f i r e a r m s o r
a m m u n i t i o n , shall be prima facie e v i d e n c e that such article
is intended to be used in the u n l a w f u l / i l l e g a l m a n u f a c t u r e of
firearms or ammunition.
Sec. 3. Unlawful Manufacture, Sale, Acquisition,

Disposition or Possession of Explosives. — T h e p e n a l t y of
prision mayor in its m a x i m u m p e r i o d to reclusion temporal
a n d a fine of not less t h a n Fifty t h o u s a n d pesos (P50,000)
shall b e i m p o s e d u p o n a n y p e r s o n w h o shall u n l a w f u l l y
m a n u f a c t u r e , a s s e m b l e , d e a l in, a c q u i r e , d i s p o s e o r possess
h a n d g r e n a d e ( s ) , rifle g r e n a d e ( s ) , a n d o t h e r explosives,
i n c l u d i n g b u t not limited to 'pillbox,' 'molotov cocktail
bombs,' 'fire bombs,' or other i n c e n d i a r y devices c a p a b l e
of p r o d u c i n g destructive effect on c o n t i g u o u s objects for
causing injury or death to any person.
668
W h e n a p e r s o n commits a n y of the crimes d e n n e d in

the R e v i s e d P e n a l C o d e or special l a w s w i t h the use of the
a f o r e m e n t i o n e d explosives, d e t o n a t i o n agents or i n c e n d i a r y
devices, w h i c h results in the d e a t h of a n y p e r s o n or persons,
the use of such explosives, d e t o n a t i o n agents or i n c e n d i a r y
devices shall b e c o n s i d e r e d a s a n a g g r a v a t i n g circumstance.
If the violation of this Section is in f u r t h e r a n c e of, or
incident to, or in connection w i t h the c r i m e of rebellion,
i n s u r r e c t i o n , sedition, or a t t e m p t e d coup d'etat, such
violation shall be a b s o r b e d as an e l e m e n t of the crimes of
r e b e l l i o n , i n s u r r e c t i o n , sedition or a t t e m p t e d coup d'etat.
T h e s a m e p e n a l t y shall b e i m p o s e d u p o n the o w n e r ,
president, m a n a g e r , d i r e c t o r or other r e s p o n s i b l e officer of
a n y p u b l i c or p r i v a t e firm, c o m p a n y , c o r p o r a t i o n or entity,
w h o shall willfully o r k n o w i n g l y a l l o w a n y o f the explosives
o w n e d by such firm, c o m p a n y , c o r p o r a t i o n or entity, to be
used by a n y p e r s o n or p e r s o n s f o u n d guilty of violating the
provisions of the p r e c e d i n g p a r a g r a p h s . (As amended by Rep.
Act No. 8294, June 6, 1997.)
Sec. 4. Presumption of Unlawful Manufacture. — T h e

possession of a n y m a c h i n e r y , tool or instrument directly
used in the m a n u f a c t u r e of explosives, by any person whose
business or employment does not lawfully deal with the
manufacture of explosives shall be prima facie evidence that
such article is intended to be used in the unlawful/illegal
manufacture of explosives.
Sec. 5. Tampering of Firearm's Serial Number. — T h e
penalty of prision correccional shall be imposed u p o n any
person w h o shall u n l a w f u l l y t a m p e r , c h a n g e , deface o r erase
the serial n u m b e r of a n y firearm. (As amended by Rep. Act
No. 8294, June 6, 1997.)
Sec. 6. Repacking or Altering the Composition of
Lawfully Manufactured Explosives. — T h e penalty of prision
correccional shall be imposed u p o n any person w h o shall
unlawfully repack, alter or modify the composition of any
lawfully manufactured explosives. (As amended by Rep. Act
No. 8294, June 6, 1997.)
Other provisions of R e p u b l i c A c t N o . 8294:
669
Sec. 7. Coverage of the Term Unlicensed Firearm. — T h e

term unlicensed firearm shall include:
1. firearms w i t h e x p i r e d license; or
2. u n a u t h o r i z e d use of licensed firearm in the
Sec. 8. Unauthorized Issuance of Authority to Carry
Firearm and/or Ammunition Outside of Residence. — T h e
penalty of prision correccional shall be i m p o s e d u p o n a n y
person, civilian or military, w h o shall issue authority to
c a r r y firearm a n d / o r a m m u n i t i o n outside of residence,
without authority.
Sec. 9. Rules and Regulations, x x x

Sec. 10. Repealing Clause. — T h e p r o v i s i o n s of R e p u b l i c
A c t N o . 4, P r e s i d e n t i a l D e c r e e N o . 9 ( a m e n d e d by B . P . B i g . 6),
P r e s i d e n t i a l D e c r e e N o . 1728 a n d all l a w s , decrees, o r d e r s ,
instructions, rules a n d r e g u l a t i o n s w h i c h a r e inconsistent
with this D e c r e e a r e h e r e b y r e p e a l e d , a m e n d e d o r modified
accordingly.
• What changes did R.A. 8294 make on P.D. 1866?
1. T h e use of unlicensed firearm to commit homicide or

murder is aggravating; one crime is committed: homicide
or murder.
2. Violation of Section 3 in furtherance of or incident to,

or in connection with rebellion, insurrection, sedition or
attempted coup d'etat, is absorbed as an element of said
crimes thus such use has no effect on the penalty.
3. T h e penalty for mere possession of unlicensed firearm

shall be based on whether the firearm is low-powered
or high-powered. High-powered firearms are those with
bores bigger than .38 cal. and 9 mm and those with
lesser bores but considered as powerful, such as a .357
cal. and .22 center-fire magnum, and firearms with firing
capability of full automatic or by a burst of two or three.
4. "Unlicensed firearm" includes: a) firearm with expired

license or b) unauthorized use of licensed firearm in the
670
5. Simple illegal possession of firearms can only be committed

if no other crime was committed whether or not with the
use of the firearm by the possessor.
Unlicensed firearm no longer simply means a firearm

without a license duly issued by lawful authority. T h e scope of
the term has been expanded in Section 5 of R . A . 8294 to include
unauthorized use of a weapon which has been duly licensed
in the name of its owner/possessor, thus, may still aggravate
the resultant crime. Although appellants have been issued
their respective licenses to possess firearms, carrying of such
weapons outside their residences and their unauthorized use
thereof in the killing of BB may be appreciated as a special
aggravating circumstance. (People v. Castillo, G.R. No. 131592-
93, February 15, 2000)
• What are the elements of illegal possession of firearm?
In crimes involving illegal possession of firearm, the

prosecution has the burden of proving the elements thereof,
viz.:
(a) T h e existence of the subject firearm; and
(b) T h e accused who owned or possessed it does not have the
corresponding license or permit to possess the same.
T h e latter is a negative fact which constitutes an essential
ingredient of the offense of illegal possession, and it is the
duty of the prosecution not only to allege it but also to prove it
beyond reasonable doubt. (People v. Tiozon) The testimony of a
representative of, or a certification from, the P N P - F i r e a r m s and
Explosive Unit that petitioner was not a licensee of the firearm
would suffice to prove beyond reasonable doubt the second
element. (People v. Solayao, G.R. No. 119220, September 20,
1996) The absence of the foregoing is fatal to the prosecution
and renders the conviction erroneous. (Mallari v. CA, G.R. No.
110569, December 9, 1996)
• If the killing was committed through the use of unlicensed

firearm, with what crime should the offender be charged?
Prior to the amendment of P.D. 1866, if the killing
is committed with unlicensed firearm, the accused can be
prosecuted for, and convicted of: (1) illegal possession of firearm
671
in the aggravated form; and (2) either murder or homicide.

But pursuant to the amendment of R . A . 8294, the use of an
unlicensed firearm in the commission of murder or homicide
is treated as an aggravating circumstance. Therefore, the
illegal possession or use of the unlicensed firearm is no longer
separately punished. Only one offense should be punished, viz.,
either homicide or murder, and the use of the unlicensed firearm
should be considered as aggravating. (People v. Nepomuceno,
June 1999)
The violation of P . D . 1866 should have been punished
separately. Nevertheless, P . D . 1866 was amended by R . A . 8294
effective on June 6, 1997. Section 1 provides that "if homicide
or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an
aggravating circumstance." Being favorable to accused, this
provision may be given retroactive effect. (People v. Bergante,
G.R. Nos. 120369-70, February 27, 1998)
• What are the implications of the amendment on the use of

unlicensed firearm being an aggravating circumstance of
homicide or murder?
This amendment has two implications: (1) the use of an

unlicensed firearm in the commission of homicide or murder
shall not be treated as a separate offense, but merely as a
special aggravating circumstance; and (2) as only a single
crime (homicide or murder with the aggravating circumstance
of illegal possession of firearm) is committed under the law,
only one penalty shall be imposed on the accused. (People v.
Castillo)
A l l pending cases involving illegal possession of firearm
should continue to be prosecuted and tried if no other crime
expressly indicated in R . A . 8294 is involved (murder or
homicide; rebellion, insurrection, sedition or attempted coup
d'etat). (People v. Lazaro, G.R. No. 112090, October 26, 1999)
• What is the exception to the single offense rule in the commission

of homicide/murder with the use of unlicensed firearm?
W h e n the murder/homicide was filed and tried separately

from the illegal possession case, conviction for both is proper.
672
In Molina, 292 SCRA 742, separate informations for

murder, frustrated murder and illegal possessions were
filed, but the cases were consolidated and jointly tried and
decided. Molina however is not applicable where the cases
were all separately filed and tried. Hence, the evidence as
to the homicide and frustrated homicide cases were neither
adopted nor presented before the trial court trying the illegal
possession case. For this reason, there is a dearth of evidence
to support the finding of homicide and/or frustrated homicide
in the illegal possession case. Conviction therein should be for
simple illegal possession of firearms. (People v. Nunez, G.R. No.
112092, March 1, 2001)
• W h o are the offenders in illegal possession of firearm,

ammunition and explosives?
T h e offenders violating the law against illegal possession

of firearms, ammunitions and explosives are:
1. A n y person who shall unlawfully manufacture, deal in,

acquire, dispose, or possess:
a. A n y low powered firearm, part of firearm,

ammunition, or machinery, tool or instrument used
or intended to be used in the manufacture of any
firearm or ammunition; or
b. A n y high powered firearms and lesser calibered

firearms but considered powerful such as rimfire
handgun, .380 or .32 and other firearms with firing
capability of full automatic and by burst of two or
three.
2. The owner, president, manager, director or other

responsible officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly
allow
a. any of the firearms owned by such entities to be used
by any person found guilty of no. 1 above; or
b. the use of unlicensed firearms or firearms without
any legal authority to be carried outside of residence
in the course of their employment.
673
3. Any person who shall carry any licensed firearm outside

his residence without legal authority therefor.
4. A n y person who shall unlawfully manufacture, assemble,
deal in, acquire, dispose, or possess hand grenade, rifle
grenade, and other explosives, or other incendiary device
capable of producing destructive effect on contiguous
objects for causing injury or death to any person.
5. The owner, president, manager, director or other
responsible officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly
allow any of the explosives owned by such entities to be
used by any person found guilty of no. 4 above.
• What are the presumptions on illegal possession of firearm?
1. Presumption of i l l e g a l manufacture of firearms or

ammunition by mere possession of machinery, tool or
instrument used directly in the manufacture of firearms
or ammunition.
2. Presumption of unlawful manufacture of explosives by
the mere possession of any machinery, tool or instrument
directly used in the manufacture of explosives by any
person whose business or employment does not lawfully
deal with the manufacture of explosives.
• What is the relationship of the law on the felonies under the

Revised Penal Code?
T h e violation of law shall either aggravate the crime or be

merely absorbed by the felony committed as follows:
1. Use of unlicensed firearms, etc., is an aggravating
circumstance in the commission of homicide or
murder;
2. Use of explosives, detonation agents or incendiary
devices for the commission of any of the crimes
defined in the R P C and special laws which shall
result to injury or death of any person shall be
aggravating;
3. Use, possession, manufacture, etc. of firearms in
furtherance of or in connection with or incident
to the crime of rebellion, insurrection, sedition or
674
attempted coup d'etat shall not affect the penalty as

said crimes absorb the violation of P . D . 1866;
4. If the use of explosives, detonation agents or
incendiary devices is in furtherance of or in
connection with or incident to the crime of rebellion,
insurrection, sedition or attempted coup d'etat,
the same shall not affect the penalty for it shall be
absorbed thereby.
• Can the law be both prospectively and retroactively applied?
Y e s . This law is advantageous to the accused as it spares

him from a separate conviction for illegal possession of firearm.
Hence, it should be applied retroactively. (People v. Lazaro)
In parricide, the application of R . A . 8294 would not be
beneficial to the accused, as it would increase the penalty from
reclusion perpetua to death. Hence, the new law should be
given prospective application, as otherwise it would acquire
the character of an ex post facto law. (People v. Macoy, August
16, 2000)
• What are covered by the phrase "homicide or murder" in

paragraph 3, Section 1 of R.A. 8294?
T h e term homicide or murder apparently was construed

as referring not only to murder or homicide but to parricide as
well. In Macoy, the offender was convicted for parricide with
the use of unlicensed firearm. Insofar as the illegal possession
of firearm was concerned the amendatory law was given
retroactive application because that would be beneficial to the
accused as he would be absolved from liability therefor. But
insofar as the parricide charge was involved, the use of the
unlicensed firearm would be aggravating as it would increase
his penalty to death which was then the penalty for parricide.
It appears that even with the clear wordings of the law that
illegal possession of firearm shall be aggravating for homicide
or murder, it should also be construed to cover parricide as
well. For that matter, it should be made to apply to any crime
involving the taking of life.
Considering that accused was convicted for parricide,
it follows that he should be acquitted in the case for illegal
possession of firearm. (People v. Nepomuceno, June 1999)
675
What are the offenses penalized under the amendatory law?

1. Simple illegal possession of firearm, whether low
powered, high powered or fully automatic, part of firearm,
ammunition, or machinery, or tool or instrument used or
intended to be used in the manufacture of any firearm or
ammunition provided no other crime is committed by the
possessor.
2. Carrying of licensed firearms outside of residence without
legal authority therefor.
3. Unlawful manufacturing, dealing in, acquiring, disposing
or possessing part of firearm, ammunition, or machinery,
or tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition provided no
other crime is committed by the possessor.
4. Unlawful manufacturing, assembling, dealing in,
acquiring, disposing or possessing hand grenade, rifle
grenade, and other explosives, or other incendiary device
capable of producing destructive effect on contiguous
objects for causing injury or death to any person.
5. Tampering, changing, defacing or erasing the serial
number of any firearm.
6. Repacking, altering or modifying the composition of any
lawfully manufactured explosives.
7. Unauthorized issuance of authority to carry firearm and/
or ammunition outside of residence.
In other words, the possible crimes that may be committed
involving unlicensed firearms are as follows:
a. M e r e possession of unlicensed firearm — simple illegal
possession of firearm.
b. Commission of homicide or murder with unlicensed
firearm — homicide or murder; the use of unlicensed
firearm is an aggravating circumstance.
Note however, that if the information for the homicide
or murder was filed and tried separately from the informa-
tion for the illegal possession, the accused can be convicted
for both.
676
c. Rebellion, insurrection, sedition or attempted coup — use

of unlicensed firearm is absorbed as an element of these
crimes. T h e r e shall be no effect on the penalty by the use
of the unlicensed firearm.
d. A n y other crimes committed such as alarms and scandal

— only for that crime and the use of unlicensed firearm
is absolved, i.e., no liability for such use and neither does
it serve as an aggravating circumstance. T h e other crime
need not be committed using the unlicensed firearm but
could be any crime as the law did not specify that the
other crime should involve the said firearm.
When the "other crime" is a slight felony, what is the effect on

the criminal liability of the offender?
It is absolutory for the illegal possession. T h e accused

may evade conviction for illegal possession of firearms by
using such weapons in committing an even lighter offense, like
alarm and scandal or slight physical injuries, both of which
are punishable by arresto menor. This consequence necessarily
arises from the language of R . A . 8294 whose wisdom is not
subject to the judicial review. (But recently, the Supreme
Court said that the other crime need not be with the use of the
unlicensed firearm.)
Ladjaalam, G.R. Nos. 136149-51, September 19, 2000,

is illustrative. L L fired an M-14 upon the approaching police
officers clearly showing the existence of the firearm or weapon
and his possession thereof. Sufficing to satisfy the second
element was the prosecution's certification stating that he had
not been given authority to carry any outside his residence.
Further, his possession and use of an M-14 rifle were obviously
unauthorized because this weapon could not be licensed in favor
of, or carried by, a private individual. [Contra: Evangelista]
Appellant is liable for the complex crime of direct assault

with multiple counts of attempted homicide for the act of firing
an M-14 at the policemen, who were about to enter his house
to serve a search warrant. If an unlicensed firearm is used in
the commission of any crime, there can be no separate offense
of simple illegal possession of firearms. Hence, if the "other
677
crime" is murder or homicide, illegal possession of firearms

becomes an aggravating circumstance, not a separate offense.
Since direct assault with multiple attempted homicide (not
just homicide) was committed, appellant can no longer be held
liable for illegal possession of firearms, neither can it serve as
an aggravating circumstance.
Moreover, penal laws are construed liberally in favor of

the accused. The plain meaning of R.A. 8294's simple language
is most favorable to appellant. No other interpretation is
justified, for the language of the new law demonstrates the
legislative intent to favor the accused. Accordingly, appellant
cannot be convicted of two separate offenses of illegal possession
of firearms and direct assault with attempted homicide
or murder. Since the crime committed was not murder or
homicide, illegal possession of firearms cannot be deemed an
aggravating circumstance.
There is no justification for limiting the proviso in the

second paragraph to murder and homicide. T h e law is clear:
the accused can be convicted of simple illegal possession of
firearms, provided that "no other crime was committed by
the person arrested." If the intention in the second paragraph
were to refer only to homicide and murder, it should have said
so, as it did in the third paragraph. W h e r e the l a w does not
distinguish, neither should the courts.
This ruling effectively exonerates appellant of illegal

possession of an M-14 rifle, an offense which normally carries
a penalty heavier (prision mayor) than that for direct assault
(prision correccional). Indeed, the accused may evade conviction
for illegal possession of firearms by using such weapons in
committing an even lighter offense, like alarm and scandal or
slight physical injuries, both of which are punishable by arresto
menor.
When the gun is a paltik (a home-made gun), will that dispense

of the necessity to prove that it is unlicensed?
N o . Accused cannot be convicted even of simple illegal

possession of firearm because of lack of evidence that the
678
firearm is unlicensed. T h e v i e w that a paltik cannot be licensed

was rejected in Ramos. T h e court there did not say that paltiks
can in no case be issued a license or permit, and that proof
that a firearm is a paltik dispenses with the proof that it is
unlicensed. (People v. Evangelista, G.R. Nos. 84332-33, May
8, 1996) (Since paltik has no serial number and proceeds from
unregistered manufacturers, it is doubtful whether the P N P -
F E U shall register it for lack of the necessary documentary
requirement.)
• Where the information charged the accused for qualified illegal

possession, can he be convicted for homicide?
N o . Since the unlicensed firearm was used in

committing a homicide, the accused can no longer be held
liable for simple i l l e g a l possession of firearm; neither may
he be convicted for homicide w i t h "the use of the unlicensed
firearm as a g g r a v a t i n g " inasmuch as said felonies are not
charged in the Information but only mentioned as the result
of the use of the unlicensed firearm. T h e accused was charged
under P . D . 1866 for qualified i l l e g a l possession of firearm for
h a v i n g committed a homicide w i t h the use of an unlicensed
firearm in 1991, and w a s convicted by the lower court in
1994. P e n d i n g appeal, R . A . 8294 took effect on July 6, 1997.
Being favorable, the l a w w i l l be applied retroactively, even
to violations prior to its effectivity.
T h e accused was not arraigned for homicide and so

cannot be sentenced for such crime without violating his
constitutional right to be informed of the nature and cause of
the accusation against him. Therefore, the case for qualified
illegal possession of firearm should be dismissed. (People v.
Avecilla, February 2001; People v. Molina)
• How is homicide using unlicensed firearm denominated?

The crime is denominated homicide aggravated by illegal
possession of firearm, and not illegal possession of firearm
aggravated by homicide as it is the former offense which
aggravates the crime of homicide under the amendatory law.
(People v. Castillo)
679
Who should own the unlicensed firearm?

Ownership is not an essential element of illegal possession
of firearms and ammunition. What the law requires is merely
possession which includes not only actual, but also constructive
possession or the subjection of the thing to one's control and
management. (Gonzales v. CA, August 1997)
What are the kinds of possession punished by P.D. 1866?

It punishes both actual physical possession and
constructive possession of firearms, ammunition, and
explosives without authority or license. Constructive
possession refers to the subjection of the articles in question to
one's control and management. Once the prosecution evidence
points to possession without the authority or license, coupled
with animus possidendi or intent to possess on the part of the
accused, conviction must follow, (id.)
How is the Indeterminate Sentence Law applied in crimes under

P.D. 1866?
In accordance with the doctrine regarding special laws

as explained in Simon, although P . D . 1866 is a special law,
the penalties therein were taken from the R P C , hence, the
rules in the R P C for graduating by degrees or determining the
proper period should be applied. Consequently, where there
are no modifying circumstances, the penalty for simple illegal
possession of firearm is in the medium period. (People v. Lian,
G.R. No. 115988, March 29, 1996)
What is the nature of the crime of illegal possession of firearm?
Illegal possession of firearm is defined and punished

by a special penal law. It is a malum prohibitum which the
lawmaker so condemned not only because of its nature but
also because of the larger policy consideration of containing
or reducing, if not eliminating, the upsurge of crimes vitally
affecting public order and safety due to the proliferation of
illegally possessed and manufactured firearms, ammunition,
and explosives. If intent to commit the crime w e r e required,
enforcement of the decree and its policy or purpose would be
difficult to achieve. Hence, there is wisdom in punishing illegal
680
possession of firearm without taking into account the criminal

intent of possessor. A l l that is needed is intent to perpetrate the
act prohibited by law, coupled by animus possidendi. However,
it must be understood that this animus possidendi is without
regard to any other criminal intent which an accused may have
harbored in possessing the firearm. (People v. Quijada, G.R.
Nos. 115008-09, July 24, 1996)
R . A . 6539 — A n t i - C a r n a p p i n g L a w ( s e e a l s o n o t e s i n T i t l e 10)
• What amendments were made by R.A. 7659 on R.A. 6539?
(1) T h e change of the penalty of life imprisonment to reclusion

perpetua,
(2) T h e inclusion of rape, and
(3) T h e change of the phrase "in the commission of the

carnapping," to "in the course of the commission of the
carnapping or on the occasion thereof."
T h e latter makes clear the intention of the law to

make the offense a special complex crime, by analogy vis-a-
vis paragraphs 1 to 4 of Article 294 on robbery with violence
against or intimidation of persons. As such the killing or the
rape merely qualifies the crime of carnapping which for lack of
specific nomenclature may be known as qualified carnapping
or carnapping in an aggravated form. Considering the
phraseology of the amended Section 14, the carnapping and
the killing/rape may be considered a single or indivisible crime
or special complex crime outside of Article 48. (People v. Mejia,
G.R. Nos. 118940-41 and 119407, July 7, 1997)
• Is it material whether the killing is homicide or murder?

Since Section 14 uses the words "is killed," no distinction
must be made between homicide and murder. Whether it is one
or the other which is committed "in the course of carnapping
or on the occasion t h e r e o f makes no difference insofar as the
penalty is concerned. The killing of LL whether it be homicide
or murder cannot be treated as a separate offense, but should
only be considered to qualify the carnapping. (id.)
681
A r t . 250. Penalty for frustrated parricide, murder or homicide.

— The courts, in v i e w of the facts of the case, may impose
u p o n the person guilty of the frustrated crime of p a r r i c i d e ,
m u r d e r or homicide, d e n n e d a n d penalized in the p r e c e d i n g
articles, a penalty l o w e r by one d e g r e e than that w h i c h
should be imposed u n d e r the provisions of Article 50.
T h e courts, considering the facts of the case, m a y

likewise r e d u c e by one d e g r e e the penalty w h i c h u n d e r
Article 51 should be imposed for an attempt to commit a n y
of such crimes.
A r t . 251. Death caused in a tumultuous affray. — W h e n ,
while several persons, not c o m p o s i n g g r o u p s o r g a n i z e d for
the common p u r p o s e of a s s a u l t i n g a n d attacking e a c h other
reciprocally, q u a r r e l a n d assault each other in a confused
a n d t u m u l t u o u s m a n n e r , a n d in the c o u r s e of the affray
someone is killed, a n d it c a n n o t be a s c e r t a i n e d w h o actually
killed the deceased, b u t the p e r s o n o r p e r s o n s w h o inflicted
serious physical injuries c a n b e identified, such p e r s o n o r
persons shall be p u n i s h e d by prision mayor.
If it c a n n o t be d e t e r m i n e d w h o inflicted the serious

physical injuries on the d e c e a s e d , the p e n a l t y of prision
correccional in its m e d i u m a n d m a x i m u m p e r i o d s shall be
imposed u p o n all those w h o shall h a v e u s e d v i o l e n c e u p o n
the p e r s o n of the victim.
A r t . 252. Physical injuries inflicted in a tumultuous affray. —

W h e n in a tumultuous affray as r e f e r r e d to in the p r e c e d i n g
article, only serious physical injuries a r e inflicted u p o n the
participants thereof a n d the p e r s o n responsible therefor
cannot be identified, all those w h o a p p e a r to h a v e used
violence u p o n the p e r s o n of the offended p a r t y shall suffer
the penalty next l o w e r in d e g r e e t h a n that p r o v i d e d for the
physical injuries so inflicted.
W h e n the physical i n j u r i e s inflicted a r e of a less serious

n a t u r e a n d the p e r s o n r e s p o n s i b l e t h e r e f o r c a n n o t b e
identified, all those w h o a p p e a r t o h a v e u s e d a n y violence
u p o n the p e r s o n of the offended p a r t y shall be p u n i s h e d by
arresto menor f r o m five to fifteen days.
682
• Will the mere fact that the affray is tumultuous make the crime
fall within Article 251?
N o . W h a t controls the crime is the fact that the particular

killer is not known. If the killer is known, even if the fighting
was tumultuous, the crime is homicide or murder. Article 251
covers a situation where that the killer is unknown, thus those
who inflicted serious physical injuries on the victim are made
liable for his death.
A tumultuous affray takes place when a quarrel occurs

between several persons in a confused tumultuous manner, in
the course of which a person is killed or wounded and the author
thereof cannot be ascertained. (People v. Ferrer, November 16,
1995)
Assuming that a rumble or free-for-all fight occurred,

Article 251 cannot apply because the prosecution witnesses
positively identified the killer. (People v. Maramara)
W h e n a group of "Marcos loyalists" picked on one

defenseless individual and attacked him repeatedly, causing
his death, although there was a clash between two groups of
rival political supporters, murder qualified by abuse of superior
strength, not death in a tumultuous affray is committed,
because the offenders w e r e shown in a photograph that was
unequivocally identified by witnesses. (People v. Ferrer)
• If it cannot be shown who inflicted serious physical injuries or

any form of violence on the victim, who should be liable?
It is not correct to charge all who participated in the

affray. If those w h o inflicted serious physical injuries are not
known, those who employed any form of violence are liable.
If the latter are also unknown, nobody shall be prosecuted.
It is not enough that the killer is not yet determined. In

such case, the accused will be prosecuted as John Doe. The
killer must be undeterminable.
• Who may be the victim in the affray?

In Article 251, "someone" is killed who maybe a participant
in the affray or a mere passerby. In Article 251, the victim is
a participant. The protagonists must not be identifiable or
organized groups for in such case the crime will be homicide
and the principles of conspiracy shall apply. The affray must
be tumultuous and not concerted.
• What is required of the "injuries" in Article 252?

The same principles apply as in death caused in
tumultuous affray. T h e physical injuries must be serious or
less serious. If it were only slight, no crime is committed but
if the offender is known in slight physical injuries, he w i l l be
prosecuted therefor, not under Article 252. T h e law presumes
that if a person participates in an affray, he is liable to be
hurt. Hence, the lack of penalty for the slight physical injuries
inflicted.
A r t . 253. Giving assistance to suicide. — A n y p e r s o n w h o

shall assist a n o t h e r to commit suicide shall suffer the
penalty of prision mayor; if such p e r s o n lends his assistance
to a n o t h e r to the extent of d o i n g the k i l l i n g himself, he shall
suffer the penalty of reclusion temporal. H o w e v e r , if the
suicide is not c o n s u m m a t e d , the p e n a l t y of arresto mayor in
its m e d i u m a n d m a x i m u m p e r i o d s , shall b e i m p o s e d .
• Is committing suicide a felony?
N o , for there is no law penalizing the act of committing

suicide. Logically so, for if the suicide is successful there will be
nobody to punish. It is the giving of assistance to suicide that is
penalized under this article.
• What are the three acts punished under this article?
1. A person assists another to commit suicide, for instance, a

terminally ill patient asks him to remove his life-support
machine. T h e penalty is prision mayor;
2. If he lends his assistance to the extent of doing the killing
himself, such as when he is asked by an elderly person to
shoot the latter, he shall suffer reclusion temporal;
684
3. If the suicide in either case is not consummated, the

penalty shall be arresto mayor in its medium and
maximum periods.
If a person wants to jump from a bridge but is afraid to do

so and he asks another to shove him off, if the latter does so,
he shall be liable under this article. If, however, such person
is teetering on the bridge, taking his time to think if he shall
jump, and the offender voluntarily pushed him, the latter's act
is not just assisting but actually murder qualified by treachery.
A r t . 254. Discharge of firearms. — A n y p e r s o n w h o shall

shoot at a n o t h e r w i t h a n y firearm shall suffer the penalty
of prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s ,
unless the facts of the case a r e s u c h that the act can be held
t o constitute f r u s t r a t e d o r attempted p a r r i c i d e , m u r d e r ,
h o m i c i d e or a n y o t h e r c r i m e for w h i c h a h i g h e r penalty is
p r e s c r i b e d b y a n y o f the articles o f this C o d e .
• What are the elements of illegal discharge of firearm?
a. T h e accused shot at another person with a firearm; and
b. There was no intent to kill.
There should be no intent to kill; otherwise, the crime

would be frustrated or attempted parricide, murder, or
homicide. If there was no intent to kill and the person shot at
was hit, offender shall be liable under this article unless the
gravity of the injuries inflicted carries a lower penalty in which
case the crime will be for illegal discharge. In other words, the
crime is either illegal discharge of firearms or physical injuries
whichever carries a higher in penalty.
Section T w o . — Infanticide and Abortion
A r t . 255. Infanticide. — T h e penalty p r o v i d e d for parricide

in Article 246 a n d for m u r d e r in Article 248 shall be imposed
u p o n any p e r s o n w h o shall kill any child less than three days
of age.
If any crime penalized in this Article be committed by

the mother of the child for the p u r p o s e of concealing h e r
dishonor, she shall suffer the penalty of prision mayor in its
m e d i u m a n d m a x i m u m periods, a n d if said crime be commit-
ted for the same p u r p o s e by the m a t e r n a l g r a n d p a r e n t s or
either of them, the penalty shall be reclusion temporal. (As
amended by Sec. 7, R.A. No. 7659.)
• What is infanticide?
Infanticide is the killing of an infant less than three days
old, which means less than 72 hours. This crime is committed
by any person including the parents of the infant. Hence,
when committed by the parent, the crime is either parricide or
infanticide depending upon the age of the child.
It is evident that infanticide is given priority over par-
ricide and murder when the victim is an infant less than three
days old. If the offender is the parent or a legitimate ascen-
dant, it is infanticide, not parricide, for the basis of the crime
is not the relationship but the child's age. If the offender is not
such relatives, the crime is still infanticide, not murder for the
same reason. Nonetheless, the penalty shall be for parricide or
murder.
T h e extenuating circumstance of concealment of dishonor
is available only to the mother and maternal grandparents for
only females are deemed by law to be dishonored.
• What is required if the victim is a fetus?
T h e fetus must be viable or breathing on its own;

otherwise, the crime is not infanticide but abortion. If the
fetus had an intra-uterine life of less than seven months and it
was killed within 24 hours after complete separation from the
womb, it did not gain personality (Article 41, N C C ) hence, it is
still abortion.
A r t . 256. Intentional abortion. — A n y p e r s o n w h o shall

intentionally cause an a b o r t i o n shall suffer:
1. T h e penalty of reclusion temporal, if he shall use
a n y violence u p o n the p e r s o n o f the p r e g n a n t
woman.
2. T h e p e n a l t y of prision mayor, if w i t h o u t using

violence, he shall act w i t h o u t the consent of the
woman.
3. T h e p e n a l t y of prision correccional in its m e d i u m

a n d m a x i m u m p e r i o d s , i f the w o m a n shall h a v e
consented.
A r t . 257. Unintentional abortion. — T h e p e n a l t y of prision

correccional in its m i n i m u m a n d m e d i u m p e r i o d s shall be
i m p o s e d u p o n a n y p e r s o n w h o shall c a u s e a n a b o r t i o n b y
violence, b u t u n i n t e n t i o n a l l y .
A r t . 258. Abortion practiced by the woman herself or by her

parents. — T h e p e n a l t y of prision correccional in its m e d i u m
a n d m a x i m u m p e r i o d s shall b e i m p o s e d u p o n a w o m a n w h o
shall practice a n a b o r t i o n u p o n herself o r shall consent that
a n y other p e r s o n s h o u l d d o so.
A n y w o m a n w h o shall commit this offense t o conceal

h e r d i s h o n o r shall suffer the p e n a l t y of prision correccional
i n its m i n i m u m a n d m e d i u m p e r i o d s .
If this c r i m e be committed by the p a r e n t s of the p r e g n a n t
w o m a n or either of them, a n d they act w i t h the consent of
said w o m a n for the p u r p o s e of c o n c e a l i n g h e r dishonor, the
offender shall suffer the p e n a l t y of prision correccional in its
A r t . 259. Abortion practiced by a physician or midwife and
dispensing of abortives. — T h e penalties p r o v i d e d in Article
256 shall be i m p o s e d in its m a x i m u m p e r i o d , respectively,
u p o n a n y physician o r m i d w i f e w h o , t a k i n g a d v a n t a g e o f
their scientific k n o w l e d g e or skill, shall cause an abortion or
assist in c a u s i n g the same.
A n y p h a r m a c i s t w h o , w i t h o u t the p r o p e r prescription
f r o m a physician, shall dispense any abortive shall suffer
arresto mayor a n d a fine not e x c e e d i n g 1,000 pesos.
• What are the different kinds of abortion?

1. Intentional abortion; and
2. Unintentional abortion
687
Intentional abortion is committed in any of three ways:

1. With violence upon the person of the pregnant woman;
2. Without violence but without the consent of the woman;
3. With consent of the woman.
In no. 1, there must be no consent hence the use of violence
on her person. In no. 3, when the woman consents, there is no
need to use violence.
Intentional abortion includes abortion by the pregnant
woman herself or by her parents (Article 258), and abortion
practiced by a physician or midwife (Article 259). For the
physician, midwife or pharmacist, their high degree of
education is an element of the crime, hence shall no longer be
considered as generic aggravating circumstance.
• To what do the words "intentional" and "unintentional" refer?
T h e "intentional" or "unintentional" refer to the kind

of abortion and not to the mode of committing it whether by
dolo or culpa. T h e r e must be intent to cause abortion to make
it intentional abortion. If there is no such intent, then it is
unintentional abortion.
A person who subjects a woman to violence is liable for

all its consequences. Unintentional abortion is committed if
abortion results because of that violence whether the violence
be intentional or culpable.
If the violence is intentional but not for the purpose of

abortion and abortion results, the crime is unintentional
abortion under Article 257. This may be complexed with the
result of the violence, for example, serious physical injuries
with unintentional abortion.
If the violence against a pregnant w o m a n results from

imprudence, it is reckless or simple imprudence resulting
to unintentional abortion under A r t i c l e 365 and may also
be complexed with the result of the violence on the woman.
For instance, in vehicular mishap w h e r e a pregnant w o m a n
was injured seriously and abortion resulted, the crime is
reckless imprudence resulting to serious physical injuries
with unintentional abortion.
688
• If the woman having abortion is not pregnant, what crimes are

committed?
If when committing intentional abortion, the woman

turned out to be not pregnant, it is an impossible crime of
abortion. If the non-pregnant w o m a n suffered physical
injuries, then the l i a b i l i t y is for physical injuries and not for
impossible crime which is a crime of last resort. (See notes
under A r t i c l e 4, paragraph 2)
• Can the woman commit unintentional abortion upon herself?
T h e woman herself cannot commit unintentional abortion

because it is always committed by violence inflicted upon a
pregnant woman. If a woman shall inflict violence upon herself
to commit abortion, the crime is intentional abortion. Note that
it is required that the violence be voluntary which resulted in
the intended abortion. Hence, it is always intentional abortion
that the woman commits upon herself.
For example: a pregnant w o m a n committed suicide. She

did not die but abortion followed. W h a t crime was committed?
N o n e . T h e r e is no unintentional abortion because this crime
requires physical violence committed by another person.
T h e r e is no intentional abortion because the woman's act of
committing suicide is not intended to commit abortion but to
kill her own self. T h e r e is no criminal liability under Article
4, paragraph 1 because she was not committing a felony when
she attempted suicide, as suicide is not a felony.
• Is there unintentional abortion by means of intimidation?

None. Unintentional abortion results only from physical
violence, not intimidation. Hence, thrusting a gun against a
pregnant woman in a quarrel which caused abortion would
give rise to the crime of other light threats, not unintentional
abortion.
In short, unintentional abortion is:

a. by violence (physical) and not intimidation;
b. by another person, not by the pregnant woman.
689
Compare intentional abortion (IA) and unintentional abortion.

(UA):
a. How: IA — with or without violence
UA — by violence (physical)
b. Who: IA — by another person or by the woman
herself
UA — by another person, not by the woman

c. Knowledge: IA — offender knows of her pregnancy
UA — he may or may not know of
pregnancy
d. Modality: IA — always dolo; intent to commit is
inherent
UA — by dolo or culpa as "unintentional"

refers to the abortion, not to the
violence which may be intentional
or culpable violence
Even if the offender does not know that the woman is

pregnant, and abortion results from his felonious violent act,
unintentional abortion is committed pursuant to Article 4(1).
Distinguish between abortion and infanticide:
In abortion —
a. The fetus is still drawing life from its mother; or
b. T h e fetus is not yet breathing on its own; or
c. T h e baby had an intra-uterine life of less than seven

months and is killed within 24 hours
In infanticide —
a. The victim is already a person; or
b. T h e umbilical chord is already cut and the infant is
breathing on its own; or
c. T h e baby had an intra-uterine life of less than seven
months and it is killed after 24 hours.
690
In both cases, concealment of dishonor by the woman and

the maternal grandparents is extenuating. As in infanticide,
concealing dishonor is not available to the paternal side.
• W h o are the victims in abortion and in infanticide?
T h e victim in abortion is still a fetus which is not yet viable.

In infanticide, the victim is already viable. T h e determinable
point of viability is if the baby is breathing on its own, then it
is viable.
If destroyed as a fetus and not as a person, it is abortion.
If the fetus had an intrauterine life of less than seven months
and it w a s destroyed w i t h i n 24 hours after its birth, it is still
abortion.
Section T h r e e . — Duel
A r t . 260. Responsibility of participants in a duel. — T h e

p e n a l t y of reclusion temporal shall be i m p o s e d u p o n any
p e r s o n w h o shall kill his a d v e r s a r y in a duel.
If he shall inflict u p o n the latter physical injuries only,

he shall suffer the p e n a l t y p r o v i d e d therefor, a c c o r d i n g to
their n a t u r e .
In a n y other case, the c o m b a t a n t s shall suffer the

penalty of arresto mayor, a l t h o u g h no physical injuries have
b e e n inflicted.
T h e seconds shall in all events be punished as

accomplices.
A r t . 261. Challenging to a duel. — T h e penalty of prision

correccional in its m i n i m u m p e r i o d shall be imposed upon
a n y p e r s o n w h o shall challenge another, or incite another to
give or accept a challenge to a duel, or shall scoff at or decry
a n o t h e r publicly for h a v i n g refused to accept a challenge.
• What are the elements of a duel?

1. There must be a previous agreement to engage in a
combat;
691
2. There must be two or more seconds for each combatant;

and
3. The choice of arms and other terms of agreement must be
agreed upon by the seconds.
This article is obsolete, for duel and challenging to a duel
do not happen here. Congress can remove these from statute
books.
Chapter Two
P H Y S I C A L INJURIES
• As to stage of execution, what is the nature of this felony?
It is a formal crime; always in the consummated stage as

the penalty is based on the gravity of the injury. It cannot be
in the attempted or frustrated stage because there will be no
basis for the penalty. T h e gravity of the injury, whether serious,
less serious or slight will not be known unless and until the
felony is consummated. T h e result can only be speculated and
in criminal law, proof beyond reasonable doubt is required.
» Distinguish physical injuries from attempted or frustrated

homicide or murder.
Physical injuries differ from attempted or frustrated

homicide by the intent to kill. Intent to kill is determined by
the kind of weapon used, the nature, number and the location
of the wound, and the words uttered by the offender.
It has been held that when a firearm or any deadly weapon
is used, even if the victim was grazed only, the crime is at least
attempted homicide; if the wound is fatal, at least frustrated
because the choice of weapon shows one's intent.
Intent to kill is a specific criminal intent that must
conclusively be proved in case of injuries. When death results,
intent to kill is a general intent which is conclusively presumed,
hence, if death results, even if without intent to kill, the crime
is at least homicide. Indeed, under Article 4(1), a person
committing a felony is liable for its consequences although
different from what he intended.
A r t . 262. Mutilation. — T h e penalty of reclusion temporal

to reclusion perpetua shall be imposed u p o n any person w h o
shall intentionally mutilate another by d e p r i v i n g him, either
totally or partially, of some essential o r g a n of reproduction.
693
A n y other intentional mutilation shall be p u n i s h e d by

prision mayor in its m e d i u m a n d m a x i m u m periods.
• What is mutilation?
Mutilation is the intentional chopping-off of a part of
the body which will not grow again. It cannot result from
imprudence but is always by dolo because it requires a specific
intent to chop-off a part of the body. If the organ cut off is
that of reproduction, the penalty is even greater than that for
homicide.
If two people fight with bolo and a body part, e.g., an ear
was cut-off, the crime is physical injuries and not mutilation,
for lack of specific intent to chop-off the ear. There must be
specific intent to cut that part to be mutilation.
A r t . 263. Serious physical injuries. — A n y p e r s o n w h o shall

w o u n d , beat, o r a s s a u l t a n o t h e r , shall b e guilty o f the c r i m e
of serious physical injuries a n d shall suffer:
1. T h e p e n a l t y of prision mayor, if in c o n s e q u e n c e of
the physical i n j u r i e s inflicted, the i n j u r e d p e r s o n
shall b e c o m e insane, imbecile, impotent, or b l i n d ;

a n d m a x i m u m p e r i o d , i f i n c o n s e q u e n c e o f the
physical i n j u r i e s inflicted, the p e r s o n i n j u r e d shall
h a v e lost the use of speech or the p o w e r to h e a r or
to smell, or shall h a v e lost an eye, a h a n d , a foot, an
a r m , or a leg, or shall h a v e lost the use of a n y such
m e m b e r , o r shall h a v e b e c o m e i n c a p a c i t a t e d for
the w o r k i n w h i c h h e w a s t h e r e t o f o r e h a b i t u a l l y
engaged;
3. T h e penalty of prision correccional in its m i n i m u m

a n d m e d i u m p e r i o d s , if in c o n s e q u e n c e of the
physical injuries inflicted, the p e r s o n i n j u r e d
shall h a v e b e c o m e d e f o r m e d , o r shall h a v e lost a n y
other p a r t of his b o d y , or shall h a v e lost the use
thereof, or shall h a v e b e e n ill or i n c a p a c i t e d for the
p e r f o r m a n c e o f the w o r k i n w h i c h h e w a s h a b i t u a l l y
e n g a g e d for a p e r i o d of m o r e t h a n ninety days;
694
PHYSICAL INJURIES
4. T h e penalty of arresto mayor in its m a x i m u m p e r i o d

to prision correccional in its m i n i m u m p e r i o d , if
the physical i n j u r i e s inflicted shall h a v e caused the
illness or i n c a p a c i t y for l a b o r of the i n j u r e d p e r s o n
for m o r e t h a n thirty d a y s .
parricide and murder
I f the o f f e n s e s h a l l h a v e b e e n c o m m i t t e d a g a i n s t
a n y of the persons e n u m e r a t e d in A r t i c l e 246, or w i t h
attendance of a n y of the c i r c u m s t a n c e s mentioned in
A r t i c l e 248, t h e c a s e c o v e r e d b y s u b d i v i s i o n n u m b e r 1
of this a r t i c l e s h a l l be p u n i s h e d by reclusion temporal
i n its m e d i u m a n d m a x i m u m p e r i o d s ; t h e c a s e c o v e r e d
by s u b d i v i s i o n n u m b e r 2 by prision correccional in its
m a x i m u m p e r i o d to prision mayor in its m i n i m u m p e r i o d
the c a s e c o v e r e d b y s u b d i v i s i o n n u m b e r 3 b y prision
correccional i n its m e d i u m a n d m a x i m u m p e r i o d s ; a n d
the c a s e c o v e r e d b y s u b d i v i s i o n n u m b e r 4 b y prision
correccional i n its m i n i m u m a n d m e d i u m p e r i o d s .
T h e p r o v i s i o n s o f the p r e c e d i n g p a r a g r a p h shall not

be a p p l i c a b l e to a p a r e n t w h o shall inflict physical injuries
u p o n his child by excessive chastisement.
A r t . 264. Administering injurious substances or beverages.

— T h e penalties e s t a b l i s h e d by the next p r e c e d i n g article
shall be a p p l i c a b l e in the respective case to a n y p e r s o n w h o ,
w i t h o u t intent to kill, shall inflict u p o n a n o t h e r a n y serious
physical i n j u r y , b y k n o w i n g l y a d m i n i s t e r i n g t o h i m any
i n j u r i o u s substances o r b e v e r a g e s , o r b y t a k i n g a d v a n t a g e
of his w e a k n e s s of m i n d or credulity.
also serious physical injuries credulity = willingness to believe or trust.
• How is serious physical injuries committed?
Serious physical injuries is committed (1) by wounding,
beating, or assaulting another or (2) by knowingly
administering on him any injurious substances or beverages,
or (3) by taking advantage of his weakness of mind or
credulity. T h e penalty is based on the severity of the injury
under any of such means as stated in Article 263.
695
How are the injuries inflicted to the victim classified?

Paragraph Result or kind of injury inflicted
1 mental — Insane, imbecile
Physical — impotent, blind
Blind means loss of sight of both eyes or the loss of both eyes.
2 lost the power — speech, hearing, smelling
lost the use — eye, hand, foot, arm, leg
lost the part — eye, hand, foot, arm, leg
incapacity — work theretofore
habitually
engaged in (permanent)
Only one eye or sight must be lost for if both were lost, the victim
would be blind and would fall
under paragraph 1.
3 deformity
loss of any other part than in no. 2 or
loss of use of such part
illness or incapacity for work habitually engaged in
for more than 90 days
4 illness or incapacity for labor more than 30 days
Compare the incapacity and their duration in nos. 2,3 and 4.

In no. 2, the victim is incapacitated for the work in
which he was theretofore habitually engaged; in no. 3, he is
ill or incapacitated for the performance of the work he was
habitually engaged for more than 90 days; in no. 4, he is ill or
incapacitated for labor for more than 30 days.
In no. 2, the incapacity for work must be permanent as
there is no time limitation in the law. It must be for work, not
merely labor. For instance, if a pianist lost two fingers, he will
no longer be able to work as a pianist which is his habitual
employment before the injury. Hence, even if the part lost is
classified under no. 3, the incapacity and level of injury will be
under no. 2.
In no. 3, the illness is for more than 90 days and pertains
to work, not labor. It must be noted that in no. 2 and 3, the
incapacity refers to work victim is habitually engaged, not
only labor as in no. 4. Labor in this article should relate to any
physical activity, not to gainful employment otherwise, those
who are unemployed could not be victims under no. 4.
696
PHYSICAL INJURIES
Relate the physical injuries to robbery with physical injuries

under Article 294, nos. 2 to 4 and Article 295/296
Items 2, 3 and 4 of Article 294 classify the robbery with

physical injuries vis-a-vis paragraphs 1 to 4 of Article 263, viz.:
A r t . 294 A r t . 263 infliction of injuries
Par. 2 Par. 1 by reason or on occasion Art. 295/296
of robbery does not
apply
3 2 by reason or on occasion apply
of robbery
4 3 in course of execution apply
of robbery
The significance of this classification is that Articles 295
and 296 apply if the robbery with physical injuries is within nos.
3 and 4 of Article 294 which in turn depends upon the nature of
the injury as described in nos. 2, 3 and 4 of Article 263. Thus,
in robbery where the victim became insane, imbecile, impotent
or blind (no. 1, Article 263), Article 295 and 296 will not apply.
"In the course of execution" means that the robbery as not yet
accomplished when the injuries were inflicted. In nos. 2 and
3 of Article 294, the injury may be inflicted before, during or
after the robbery.
What is deformity?
When physical injuries resulted to:
1. Ugliness upon the offended; and
2. Such ugliness would not disappear through natural
healing process (even if it was correctible by plastic
surgery).
Deformity is at once classified as serious physical
injuries even if no incapacity from labor resulted.
What are the qualifying circumstances affecting this crime?
It is qualified serious physical injuries and the penalty is
increased one or two degrees when:
a. The victim is any of those of parricide except in the
case of parents when the injuries result from excessive
chastisement.
697
b. Presence of any of the qualifying circumstances for

murder.
A r t . 265. Less serious physical injuries. — A n y p e r s o n w h o

shall inflict u p o n a n o t h e r physical i n j u r i e s not d e s c r i b e d
in the p r e c e d i n g articles, b u t w h i c h shall incapacitate
the offended p a r t y for l a b o r for ten d a y s or m o r e , or shall
r e q u i r e m e d i c a l a t t e n d a n c e for the same p e r i o d , shall b e
guilty of less serious physical i n j u r i e s a n d shall suffer the
penalty of arresto mayor.
W h e n e v e r less serious physical injuries shall h a v e b e e n
inflicted w i t h the manifest intent to insult or offend the
injured person, o r u n d e r circumstances a d d i n g i g n o m i n y t o
the offense, in addition to the penalty of arresto mayor a fine
not exceeding 500 pesos shall be imposed.
A n y less serious physical i n j u r i e s inflicted u p o n the
offender's p a r e n t s , a s c e n d a n t s , g u a r d i a n s , c u r a t o r s , teachers,
o r persons o f r a n k , o r p e r s o n s i n authority, shall b e p u n i s h e d
by prision correccional in its m i n i m u m a n d m e d i u m p e r i o d s ,
p r o v i d e d that, in the case of p e r s o n s in a u t h o r i t y , the d e e d
does not constitute the c r i m e of a s s a u l t u p o n such p e r s o n s .
• What circumstances qualify less serious physical injuries?
a. Manifest intent to insult or offend the victim w i l l impose

an additional fine of not exceeding P500.
b. The victim is the offender's parent, ascendant, guardian,

curator, teacher or persons of rank or persons in authority
where the penalty is the next higher degree.
• Relate qualified less serious physical injuries with direct assault.
When the victim is a person in authority ( P A ) , the crime

must not amount to direct assault. N o t e that agent of a PA is
not included. Thus, when the victim is a P A , the crime could be:
1. Qualified less serious physical injuries - the injury must

not be inflicted on the occasion of the performance of
function of the PA or the offender does not know that the
victim is a P A .
2. Complex crime of direct assault with less serious physical

injuries under Article 142 and Article 265 in relation
698
PHYSICAL INJURIES
to Article 48 - offender inflicted less serious physical

injuries on the occasion or during the performance of
official function of the P A .
A r t . 266. Slight physical injuries and maltreatment. — T h e

crime o f slight p h y s i c a l i n j u r i e s shall b e p u n i s h e d :
1. By arresto menor w h e n the o f f e n d e r h a s inflicted

physical i n j u r i e s w h i c h shall incapacitate the
o f f e n d e d p a r t y for l a b o r f r o m o n e t o nine days, o r
shall r e q u i r e m e d i c a l a t t e n d a n c e d u r i n g the same
period;
2. By arresto menor or a fine not e x c e e d i n g 200 pesos

a n d c e n s u r e w h e n the o f f e n d e r h a s c a u s e d physical
i n j u r i e s w h i c h d o not p r e v e n t the offended p a r t y
f r o m e n g a g i n g i n his h a b i t u a l w o r k n o r r e q u i r e
medical attendance;
3. By arresto menor in its m i n i m u m p e r i o d or a fine

not e x c e e d i n g 50 pesos w h e n the offender shall ill-
treat a n o t h e r b y d e e d w i t h o u t c a u s i n g a n y injury.
• Can there be physical injuries without inflicting injury?
Y e s . Ill-treatment no. 3) is committed by inflicting pain

although there is no injury. T h e pain suffered gives rise to
slight physical injuries denominated as ill-treatment.
• Distinguish serious, less serious and slight physical injuries.

In less serious and slight physical injuries the duration of
incapacity from labor and of medical treatment are considered.
The period of incapacity and of medical treatment should not
be more than nine days. Otherwise, it is no longer slight.
In serious physical injuries, incapacity from work is

considered. But, the moment the incapacity from labor or work
is over 30 days, it is serious; less serious if not over 30 days,
thus:
Serious incapacity from habitual work permanent

ill/incapacity from habitual
work over 90 days
ill/incapacity from labor 3 1 - 9 0 days
Less S e r i o u s incapacity from labor/medical
attendance 10 - 30 days
Slight incapacity from labor/med.
attendance 1 - 9 days
Section 1. H a z i n g as u s e d in this A c t is an initiation rite

or practice as a p r e r e q u i s i t e for a d m i s s i o n into m e m b e r s h i p
in a fraternity, sorority or o r g a n i z a t i o n by p l a c i n g the r e c r u i t ,
neophyte o r a p p l i c a n t i n s o m e e m b a r r a s s i n g o r h u m i l i a t i n g
situations such as f o r c i n g h i m to do m e n i a l , silly, foolish a n d
similar tasks o r activities o r o t h e r w i s e s u b j e c t i n g h i m t o
physical o r p s y c h o l o g i c a l s u f f e r i n g o r i n j u r y .
T h e t e r m o r g a n i z a t i o n shall i n c l u d e a n y c l u b o r the
A r m e d F o r c e s o f the P h i l i p p i n e s , P h i l i p p i n e N a t i o n a l P o l i c e ,
P h i l i p p i n e M i l i t a r y A c a d e m y , o r officer a n d c a d e t c o r p s o f
the Citizen's M i l i t a r y T r a i n i n g , o r Citizen's A r m y T r a i n i n g .
T h e physical, m e n t a l a n d p s y c h o l o g i c a l testing a n d t r a i n i n g
p r o c e d u r e a n d p r a c t i c e s t o d e t e r m i n e a n d e n h a n c e the
physical, m e n t a l a n d p s y c h o l o g i c a l f i t n e s s o f p r o s p e c t i v e
r e g u l a r m e m b e r s o f the A r m e d F o r c e s o f the P h i l i p p i n e s a n d
the P h i l i p p i n e N a t i o n a l P o l i c e a s a p p r o v e d b y the S e c r e t a r y
o f N a t i o n a l D e f e n s e a n d the N a t i o n a l P o l i c e C o m m i s s i o n
d u l y r e c o m m e n d e d b y the C h i e f o f Staff, A r m e d F o r c e s o f
the P h i l i p p i n e s a n d the D i r e c t o r G e n e r a l o f the P h i l i p p i n e
N a t i o n a l Police shall not b e c o n s i d e r e d a s h a z i n g f o r the
p u r p o s e s of this A c t .
Sec. 2 . N o h a z i n g o r initiation rites i n a n y f o r m o r m a n n e r

b y a fraternity, s o r o r i t y o r o r g a n i z a t i o n shall b e a l l o w e d
w i t h o u t a p r i o r w r i t t e n notice to the school a u t h o r i t i e s or
h e a d o f o r g a n i z a t i o n , seven (7) d a y s b e f o r e the c o n d u c t o f
such initiation. T h e w r i t t e n notice shall indicate the p e r i o d
of initiation activities w h i c h shall not e x c e e d t h r e e (3) d a y s ,
700
PHYSICAL INJURIES
shall i n c l u d e the n a m e s of those to be subjected to such

activities, a n d shall f u r t h e r contain a n u n d e r t a k i n g that
n o physical violence b e e m p l o y e d b y a n y b o d y d u r i n g such
initiation rites.
xxx xxx xxx

Sec. 4. If the p e r s o n s u b j e c t e d to h a z i n g or other forms of
initiation rites suffers a n y p h y s i c a l i n j u r y or dies as a result
thereof, the officers a n d m e m b e r s of the fraternity, sorority
or o r g a n i z a t i o n w h o a c t u a l l y p a r t i c i p a t e d in the infliction
o f physical h a r m shall b e l i a b l e a s p r i n c i p a l s . T h e p e r s o n o r
p e r s o n s w h o p a r t i c i p a t e d i n the h a z i n g shall suffer:
a) T h e p e n a l t y of reclusion perpetua if death, rape,

s o d o m y o r m u t i l a t i o n results t h e r e f r o m .
b) T h e p e n a l t y of reclusion temporal, in its m a x i m u m
p e r i o d if in c o n s e q u e n c e of the h a z i n g the victim
shall b e c o m e i n s a n e , imbecile, impotent o r b l i n d .
c) T h e p e n a l t y of reclusion temporal in its m e d i u m
shall h a v e lost the use of speech or the p o w e r to
h e a r or to smell, or shall h a v e lost an eye, a h a n d , a
foot, an a r m , or a leg or shall h a v e lost the use of any
such m e m b e r , o r shall h a v e b e c o m e incapacitated
for the w o r k i n w h i c h h e w a s h a b i t u a l l y e n g a g e d .
d) T h e penalty of reclusion temporal in its m i n i m u m
p e r i o d , if in c o n s e q u e n c e of the hazing, the victim
shall b e c o m e d e f o r m e d or shall h a v e lost any other
p a r t of his b o d y , or shall h a v e lost the use thereof,
or shall h a v e b e e n ill or incapacitated for the
p e r f o r m a n c e of the activity or w o r k in w h i c h he
w a s h a b i t u a l l y e n g a g e d for a p e r i o d of more than
ninety (90) days.
e) T h e penalty of prision mayor in its m a x i m u m
p e r i o d if in consequence of the hazing the victim
shall h a v e b e e n ill or incapacitated for the activity
or w o r k in w h i c h he w a s habitually engaged for
m o r e than thirty (30) days.
f) T h e penalty of prision mayor in its medium period
if in consequence of the hazing the victim shall
701
have been ill or incapacitated for the performance

of the activity or w o r k in w h i c h he w a s habitually
engaged for ten (10) days or more, or that the injury
sustained shall r e q u i r e medical attendance for the
same period.
g) T h e penalty of prision mayor in its m i n i m u m p e r i o d
if in consequence of the h a z i n g the victim shall
h a v e b e e n ill or incapacitated for the p e r f o r m a n c e
o f the activity o r w o r k i n w h i c h h e w a s h a b i t u a l l y
e n g a g e d f r o m one (1) to nine (9) days, or that the
injury sustained shall r e q u i r e m e d i c a l attendance
for the same p e r i o d .
h) T h e penalty of prision correccional in its m a x i m u m
sustained physical i n j u r i e s w h i c h d o not p r e v e n t
h i m f r o m e n g a g i n g i n his h a b i t u a l activity o r w o r k
nor require medical attendance.
T h e r e s p o n s i b l e officials of the school or of the police,

military o r citizen's a r m y t r a i n i n g o r g a n i z a t i o n , m a y i m p o s e
the a p p r o p r i a t e a d m i n i s t r a t i v e sanctions o n the p e r s o n
o r p e r s o n s c h a r g e d u n d e r this p r o v i s i o n e v e n b e f o r e their
conviction.
T h e m a x i m u m p e n a l t y h e r e i n p r o v i d e d shall b e i m p o s e d
in a n y of the f o l l o w i n g instances:
a) W h e n the r e c r u i t m e n t i s a c c o m p a n i e d b y force,
violence, threat, i n t i m i d a t i o n o r deceit o n the
p e r s o n o f the r e c r u i t w h o r e f u s e s t o j o i n ;
b) W h e n the r e c r u i t , n e o p h y t e o r a p p l i c a n t initially
consents t o j o i n b u t u p o n l e a r n i n g that h a z i n g w i l l
be committed on his p e r s o n , is p r e v e n t e d f r o m
quitting;
c) W h e n the r e c r u i t , n e o p h y t e o r a p p l i c a n t h a v i n g
undergone hazing is prevented from reporting
the u n l a w f u l act to his p a r e n t s or g u a r d i a n s , to
the p r o p e r school authorities, or to the police
authorities, t h r o u g h force, violence, t h r e a t o r
intimidation;
702
PHYSICAL INJURIES
d) W h e n the h a z i n g is committed outside of the school

o r institution; o r
e) W h e n the victim is b e l o w t w e l v e (12) y e a r s of a g e at

the time of the h a z i n g .
T h e o w n e r o f the p l a c e w h e r e h a z i n g i s c o n d u c t e d shall
be liable as an accomplice, w h e n he has actual knowledge of
the h a z i n g c o n d u c t e d t h e r e i n b u t f a i l e d t o t a k e a n y action
to p r e v e n t the s a m e f r o m o c c u r r i n g . If the h a z i n g is h e l d in
the h o m e o f o n e o f the officers o r m e m b e r s o f the fraternity,
g r o u p o r o r g a n i z a t i o n , the p a r e n t s shall b e h e l d l i a b l e a s
p r i n c i p a l s w h e n t h e y h a v e a c t u a l k n o w l e d g e o f the h a z i n g
c o n d u c t e d t h e r e i n b u t f a i l e d t o t a k e a n y action t o p r e v e n t
the s a m e f r o m o c c u r r i n g .
T h e school authorities i n c l u d i n g faculty m e m b e r s

w h o consent t o the h a z i n g o r w h o h a v e actual k n o w l e d g e
thereof, b u t failed to t a k e a n y action to p r e v e n t the same
f r o m o c c u r r i n g shall be p u n i s h e d as accomplices for the acts
o f h a z i n g committed b y the p e r p e t r a t o r s .
T h e officers, f o r m e r officers, or a l u m n i of the

o r g a n i z a t i o n , g r o u p , fraternity o r sorority w h o actually
p l a n n e d the h a z i n g a l t h o u g h not p r e s e n t w h e n the acts
constituting the h a z i n g w e r e committed shall be liable as
principals. Officers o r m e m b e r s o f a n o r g a n i z a t i o n , g r o u p ,
fraternity o r sorority w h o k n o w i n g l y c o o p e r a t e d i n c a r r y i n g
out the h a z i n g by i n d u c i n g the victim to be present thereat
shall be liable as p r i n c i p a l s . A fraternity or sorority's adviser
w h o is present w h e n the acts constituting the h a z i n g w e r e
committed a n d failed to take a n y action to p r e v e n t the same
from o c c u r r i n g shall be liable as p r i n c i p a l s .
T h e presence of a n y p e r s o n d u r i n g the hazing is prima

facie evidence of participation therein as a principal unless
he prevented the commission of the acts punishable therein.
A n y person c h a r g e d u n d e r this provision shall not be

entitled to the mitigating circumstance that there w a s no
intention to commit so g r a v e a w r o n g .
703
This section shall a p p l y to the president, m a n a g e r ,

director or other responsible officer of a corporation e n g a g e d
in hazing as a r e q u i r e m e n t for employment in the m a n n e r
p r o v i d e d herein.
TT¥ XXX XXX.
• What is the nature of the violations of the anti-hazing law?

They are mala in se. T h e penal provisions of the law
were lifted almost verbatim from Articles 263 to 266 (physical
injuries). The nomenclatures of penalties under the R P C were
adopted and the penalties imposed therein w e r e two degrees
higher than those provided in the R P C . Further, the persons
criminally liable are principals and accomplices. Finally,
modifying circumstances are made by law to be applicable,
hence, mens rea is an element.
T h e law expressly disallows entitlement to praeter

intentionem.
• Who are liable for violations of the law on hazing?
1. For death or physical injury inflicted
As principals
a. T h e officers and members who actually participated,
b. T h e parents of officers or members when hazing was

held in their home, with actual knowledge of hazing
but failed to take any action to prevent it,
c. T h e officers, former officers, or alumni of organization

who actually planned hazing although not present,
d. Those who knowingly cooperated by inducing the

victim to be present, and
e. T h e adviser who was present when hazing was

committed and failed to take any action to prevent
it.
M e r e presence during hazing is prima facie evidence

of participation as a principal unless the one present
prevented the commission of the prohibited acts.
704
PHYSICAL INJURIES
As accomplice
a. The school authorities/faculty who consent or have

actual knowledge of the hazing, but failed to take
any action to prevent it.
b. The owner of the place who has actual knowledge

of hazing conducted but failed to take any action
against the prohibited acts.
705
Chapter Three
RAPE
REPUBLIC A C T N O . 8353
Section 1. Short Title. — This A c t shall be k n o w n as "The

A n t i - R a p e L a w of 1997."
Sec. 2. Rape as a Crime Against Persons. — T h e c r i m e of
r a p e shall hereafter be classified as a C r i m e a g a i n s t P e r s o n s
u n d e r Title E i g h t of A c t N o . 3815, as a m e n d e d , o t h e r w i s e
k n o w n a s the R e v i s e d P e n a l C o d e . A c c o r d i n g l y , t h e r e shall
be i n c o r p o r a t e d into Title E i g h t of the same C o d e a n e w
chapter t o b e k n o w n a s C h a p t e r T h r e e o n R a p e , t o r e a d a s
follows:
"Art. 266-A. Rape; When and How Committed. — R a p e is

committed —
1) By a m a n w h o shall h a v e c a r n a l k n o w l e d g e of a
w o m a n u n d e r a n y o f the f o l l o w i n g circumstances:
a) T h r o u g h force, t h r e a t o r intimidation;
b) W h e n the o f f e n d e d p a r t y i s d e p r i v e d o f r e a s o n
or otherwise unconscious;
c) By means of fraudulent machination or grave

a b u s e o f authority; a n d
d) W h e n the o f f e n d e d p a r t y i s u n d e r t w e l v e (12)
years of age or is demented, even though none
o f the c i r c u m s t a n c e s m e n t i o n e d a b o v e b e
present.
2) B y a n y p e r s o n w h o , u n d e r a n y o f the c i r c u m s t a n c e s
m e n t i o n e d in p a r a g r a p h 1 hereof, shall commit an
act of s e x u a l assault by i n s e r t i n g his penis into
a n o t h e r person's m o u t h o r a n a l orifice, o r a n y
i n s t r u m e n t or object, into the g e n i t a l or a n a l orifice
of another person.
706
RAPE
A r t . 266-B. Penalties. — R a p e u n d e r p a r a g r a p h 1 of
the next p r e c e d i n g article shall be p u n i s h e d by reclusion
perpetua.
W h e n e v e r the r a p e is committed w i t h the use of a

d e a d l y w e a p o n o r b y t w o o r m o r e p e r s o n s , the penalty shall
be reclusion perpetua to d e a t h .
W h e n b y r e a s o n o r o n the occasion o f the r a p e , the victim

has b e c o m e i n s a n e , the p e n a l t y shall be reclusion perpetua
to death.
W h e n the r a p e is a t t e m p t e d a n d a h o m i c i d e is committed
b y r e a s o n o r o n the o c c a s i o n thereof, the p e n a l t y shall b e
reclusion perpetua to d e a t h .
W h e n b y r e a s o n o r o n the occasion o f the r a p e , homicide

is committed, the p e n a l t y shall be d e a t h .
T h e d e a t h p e n a l t y shall also be i m p o s e d if the c r i m e of

r a p e is committed w i t h a n y of the f o l l o w i n g a g g r a v a t i n g /
q u a l i f y i n g circumstances:
1) W h e n the victim is u n d e r eighteen (18) y e a r s of a g e

a n d the o f f e n d e r is a p a r e n t , a s c e n d a n t , step-parent,
g u a r d i a n , r e l a t i v e b y c o n s a n g u i n i t y o r affinity
w i t h i n the t h i r d civil d e g r e e , o r the c o m m o n l a w
spouse of the p a r e n t of the victim;
2) W h e n the victim is u n d e r the custody of the police
o r military authorities o r a n y l a w enforcement o r
p e n a l institution;
3) W h e n the r a p e is committed in full v i e w of the
spouse, p a r e n t , a n y of the c h i l d r e n or other relatives
w i t h i n the t h i r d civil d e g r e e of consanguinity;
4) W h e n the victim is a religious e n g a g e d in legitimate
religious vocation or calling a n d is personally
k n o w n to be such by the offender before or at the
time of the commission of the crime;
5) W h e n the victim is a child b e l o w seven (7) years
old;
6) W h e n the offender k n o w s that he is afflicted with
H u m a n Immuno-Deficiency V i r u s (HTV)/Acquired
707
I m m u n e Deficiency S y n d r o m e ( A I D S ) o r any other

sexually transmissible disease a n d the v i r u s or
disease is transmitted to the victim;
7) W h e n committed by a n y m e m b e r of the A r m e d
Forces of the P h i l i p p i n e s or p a r a - m i l i t a r y units
thereof o r the P h i l i p p i n e N a t i o n a l Police o r a n y l a w
enforcement a g e n c y or p e n a l institution, w h e n the
offender took a d v a n t a g e of his position to facilitate
the commission of the crime;
8) W h e n by r e a s o n or on the occasion of the r a p e , the

victim has suffered p e r m a n e n t physical mutilation
or disability;
9) W h e n the offender k n e w of the p r e g n a n c y of the

offended p a r t y at the time of the commission of the
crime; a n d
10) W h e n the offender k n e w o f the m e n t a l disability,

emotional d i s o r d e r a n d / o r physical h a n d i c a p of the
offended p a r t y at the time of the c o m m i s s i o n of the
crime.
R a p e u n d e r p a r a g r a p h 2 of the next p r e c e d i n g article

shall be p u n i s h e d by prision mayor.
W h e n e v e r the r a p e is c o m m i t t e d w i t h the use of a

d e a d l y w e a p o n o r b y t w o o r m o r e p e r s o n s , the p e n a l t y shall
be prision mayor to reclusion temporal.
W h e n the r a p e is a t t e m p t e d a n d a h o m i c i d e is c o m m i t t e d
by r e a s o n or on the occasion thereof, the p e n a l t y shall be
reclusion temporal to reclusion perpetua.
W h e n b y r e a s o n o r o n the occasion o f the r a p e , h o m i c i d e

is committed, the p e n a l t y shall be reclusion perpetua.
Reclusion temporal shall also be i m p o s e d if the r a p e

is committed w i t h a n y of the ten a g g r a v a t i n g / q u a l i f y i n g
circumstances m e n t i o n e d in this article.
A r t . 266-C. Effect of pardon. — T h e s u b s e q u e n t v a l i d

m a r r i a g e b e t w e e n the o f f e n d e r a n d the o f f e n d e d p a r t y shall
extinguish the c r i m i n a l action or the p e n a l t y i m p o s e d .
708
RAPE
In case it is the legal h u s b a n d w h o is the offender, the

s u b s e q u e n t f o r g i v e n e s s by the w i f e as the offended p a r t y
shall extinguish the c r i m i n a l action or the penalty: Provided,
T h a t the c r i m e shall not be e x t i n g u i s h e d or the penalty shall
not be a b a t e d if the m a r r i a g e is void ab initio.
A r t . 266-D. Presumption. — A n y physical overt act

manifesting resistance a g a i n s t the act of r a p e in a n y d e g r e e
f r o m the o f f e n d e d p a r t y , o r w h e r e the offended p a r t y i s
s o situated a s t o r e n d e r h e r / h i m i n c a p a b l e o f g i v i n g v a l i d
consent, m a y be a c c e p t e d as e v i d e n c e in the p r o s e c u t i o n of
the acts p u n i s h e d u n d e r A r t i c l e 266-A."
Sec. 3. Separability Clause. — x x x
Sec. 4. Repealing Clause. — A r t i c l e 335 of A c t N o . 3815, as

a m e n d e d , a n d all l a w s , acts, p r e s i d e n t i a l decrees, executive
orders, administrative orders, rules and regulations
inconsistent w i t h or c o n t r a r y to the p r o v i s i o n s of this A c t
a r e d e e m e d a m e n d e d , modified o r r e p e a l e d a c c o r d i n g l y .
xxx
A p p r o v e d : S e p t e m b e r 30,1997.
• When did the Anti-Rape Law of 1997 take effect?
R . A . 8353 took effect on October 22, 1997. T h e penalty

for rape in its unqualified form, as prescribed by R . A . 7659,
remains the same. (People v. Tundag, G.R. No. 135695, October
12, 2000) This is significant in case of use of finger - before
October 22, 1997, the crime is acts of lasciviousness; from that
date onwards, it is rape. (People v. Marino, G.R. No. 132550,
February 19, 2001)
Inserting a finger into the genitals of a woman (and even

of a man) is rape as the purpose of the new law is to expand
the definition of the crime. Thus, "object" should be construed
to include "finger." To exclude from the definition the insertion
of a finger or fingers into the genital or anal orifice of the
victim, whereas the insertion of a bottle, a ball pen, or even a
toothpick is included would be an unintelligible, arbitrary, and
capricious delimitation of what the law seeks to expand. There
is no rhyme or reason in giving protection to the human person
709
against the degrading and perverse insertion of an instrument

or object into the genital or anal orifice of the victim, and refuse
such protection when it is a finger that was inserted. (Obana v.
Soriano, CA-G.R. SP No. 60353, August 29, 2001)
Whether the act is rape or acts of lasciviousness involving
instrument or finger, the date of the effectivity of R . A . 8353 is
material. Upon its effectivity, when the criminal act consists
of inserting a finger into another's genital it is rape by sexual
assault. The information must charge him correctly otherwise,
he cannot be convicted of rape by means of sexual assault for
that would violate his right to be informed of the nature of the
charge against him. Since acts of lasciviousness is necessarily
included in rape he could be convicted of the latter. (People v.
Cabellos, G.R. No. 169642, September 12, 2008).
What is the effect of the reclassification of rape into a crime

against persons?
1. T h e procedural requirement of consent of the offended

to file the case is no longer needed. T h i s is now a "public
crime" unlike when it was a crime against chastity.
Thus, the case can be filed by the State motu proprio.
2. T h e impossible crime of rape can now be committed.

3. Rape can now be committed against males since it is no
longer a crime against chastity w h e r e the victims are
females only (except in acts of lasciviousness).
4. T h e aggravating circumstances relevant to crime against

persons shall apply. Indeed, Siao, G.R. No. 126021,
March 3, 2000, considered ignominy or moral suffering as
aggravating.
R . A . 8353 revolutionized the concept of rape in that it

should include sexual violence on the woman's sex-related ori-
fices other than her organ, and expanded to cover gender-free
rape. T h e transformation consisted of reclassification of rape
as a crime against persons and the introduction of rape by
"sexual assault" otherwise called "instrument or object rape,"
also "gender-free rape," or the narrower "homosexual rape" as
differentiated from the traditional "rape through carnal knowl-
edge" or "rape through sexual intercourse "or "penile rape."
(People v. Abulon, G.R. No. 174473, August 17, 2007)
710
RAPE
• What are the differences between the two modes of rape?

In traditional rape:
1. T h e offender is always a man
2. T h e offended party is always a woman
3. Rape is committed through penile penetration of the
vagina, and
4. T h e penalty is higher than in sexual assault.
In rape by sexual assault:
1. T h e offender may be a man or a woman
2. T h e offended may be a man or a woman
3. Rape is committed by inserting the penis into another
person's mouth or anal orifice, or any instrument
or object into the genital or anal orifice of another
person, and
4. T h e penalty is lower than in traditional rape, (id.)
• What is the effect of error in the mode of rape in the information?
In v i e w of the material differences between the two

modes of rape, the first is not necessarily included in the sec-
ond, and vice-versa. Thus, if the charge in the information is
rape through carnal knowledge, accused cannot be found guilty
of rape by sexual assault without violating his right to be in-
formed of the nature and cause of the accusation against him.
Following the variance doctrine in Section 4, in relation

to Section 5, Rule 120, R R C P he can be convicted of the lesser
offense of acts of lasciviousness or abusos dishonestos necessar-
ily included in rape, (id.)
• How is rape committed and by whom?

Rape is now committed:
1. By a M A N who shall have carnal knowledge of a woman
under any of the following circumstances:
a. Through force, threat, or intimidation;
b. When the offended party is deprived of reason or
otherwise unconscious;
711
c. By means of fraudulent machination or grave abuse

of authority; and
d. When the offended is under 12 or is demented even
though none of the said circumstances are present.
2. By any P E R S O N [man or woman] who, under any of
the above circumstances, shall commit an act of sexual
assault by inserting his penis (man) into another person's
(man or woman) mouth or anal orifice, or any instrument
or object into the genital or anal orifice of another person
(man or woman).
• What consummates the crime of rape?

The mere introduction of the penis into the labia majora
of the victim's genitalia engenders the crime of rape. Hence, it
is the "touching" or "entry" of the penis into the labia majora
or the labia minora of the pudendum of the victim's genitalia
that consummates rape. (People v. Orilla, G.R. Nos. 148939-40,
February 13, 2004)
Appellant ejaculated twice during the time that he
consummated the rape. He did not withdraw his penis to insert
it again into the vagina or to "touch" the labia majora or the
labia minora when he ejaculated the second time. It is not the
number of times that appellant ejaculated but the penetration
or "touching" that determines the consummation of the sexual
act. Thus, appellant committed only one count of rape, (id.)
• Under what circumstance will rape absorb forcible abduction?
Rape absorbs forcible abduction where the accused

intended at the very outset to rape the victim when he abducted
her. (People v. San Pedro, G.R. No. 94128, February 3, 1993)
• When is rape attempted?
In rape, penetration is an essential act of execution to

produce the felony. Thus, for there to be an attempted rape,
the accused must have commenced the act of penetrating his
sexual organ to that of the victim but for some cause or accident
other than his own spontaneous desistance, the penetration,
however slight, is not completed. (People v. Bon, G.R. No.
166401, October 30, 2006)
712
RAPE
T h e evidence disclosed that when BB's body was found,

she still had her panties and her jogging pants on. The post
mortem report also revealed that BB was "in (a) virgin state
physically." T h e r e is no evidence to show that accused attempted
to have carnal knowledge with her. (People v. Labrador, May
1999)
Perez acquitted petitioner of attempted rape since in the

crime of rape, penetration is an essential act of execution to
produce the felony. For there to be an attempted rape, the
accused must have commenced the act of penetrating his
sexual organ to that of the victim but for some cause or accident
other than his own spontaneous desistance, the penetration,
however, slight, is not completed. Petitioner's act of lying on
top of the complainant, embracing and kissing her, mashing
her breasts, inserting his hand inside her panty and touching
her sexual organ, while admittedly obscene and detestable
acts, do not constitute attempted rape absent any showing
that petitioner actually commenced to force his penis into the
complainant's sexual organ.
• What is the meaning of "slightest penetration" that would

consummate the crime of rape?
It is carnal knowledge, not pain that is the element to
consummate rape. Indeed pain may be deduced from the sexual
act but accused cannot be convicted of rape by presuming carnal
knowledge out of pain. Complete penetration is not necessary
to convict for consummated rape since the slightest penetration
will suffice. Campuhan clarified "slightest penetration" to mean
that there must be sufficient and convincing proof that the penis
indeed touched at the very least the labias of the female organ.
M e r e epidermal contact between the penis and the external
layer of the vagina (the stroking and the grazing of the male
organ upon the female organ or the mons pubis) categorizes
the crime as attempted rape or acts of lasciviousness. There
must be positive proof of even the slightest penetration - the
touching of the labias by the penis, before rape could be deemed
consummated.
When accused was trying to insert his penis into the

child's organ, the act proved painful, which made him stop.
Such fact shows that accused's penis failed to reach the labia
713
of the pudendum. There is no basis then to apply the rule that

the introduction of the penis into the aperture of the female
organ (thereby touching the labia of the pudendum) already
consummates the case of rape. (People u. Bon)
It would be too strained to construe petitioner's act of
pressing a chemical-soaked cloth in the mouth of MM which
would induce her to sleep as an overt act that will logically and
necessarily ripen into rape. Petitioner did not commence at all
the performance of any act indicative of an intent or attempt to
rape M M . Petitioner was fully clothed and there was no attempt
on his part to undress M M , let alone touch her private part. T h e
CA maintained that if the petitioner had no intention to rape,
he would not have lain on top of the complainant. Plodding on,
it even anticipated the next step that the petitioner would have
taken if the victim had been rendered unconscious. Thus, the
court indulges in plain speculation, a practice disfavored under
the rule on evidence in criminal cases. M e r e speculations and
probabilities cannot substitute for proof required to establish
guilt beyond reasonable doubt. (Baleros, Jr. v. People, G.R. No.
138033, January 30, 2007)
Distinguish attempted rape from acts of lasciviousness.
The difference lies in the intent shown by offender's

external acts. W h e n the "touching" of the vagina by his penis
is with the intent to penetrate, attempted rape is committed.
Otherwise, it is acts of lasciviousness. (People v. Collado, March
2001)
When multiple rapes are committed at about the same time

and place, is the principle of delito continuado applicable?
N o . Each and every charge of rape is a separate and distinct

crime; each of the eight rapes should be proven beyond reasonable
doubt. The prosecution is required to establish, by the necessary
quantum of proof, the elements of rape for each charge. (People v.
Dela Torre, G.R. Nos. 121213 and 121216-23, January 13, 2004)
In what circumstance will the rape of a retardate victim fall?
A mental retardate is classified as a person "deprived of

reason" hence the rape of a mental retardate should fall under
714
RAPE
subparagraph ( b ) , not subparagraph (d) of Article 266-A ( 1 ) .

(People v. Magabo, G.R. No. 139471, January 23, 2001)
• What is the nature of the 10 circumstances in Article 266-B?
T h e circumstances introduced by R . A . 7659 and R . A . 8353

are in the nature of qualifying circumstances. These are not
ordinary aggravating circumstances which merely increase
the period of penalty. Rather, these are special qualifying
circumstances which must be specifically pleaded or alleged
with certainty in the information; otherwise, it is only simple
rape. (People v. Libo-on, May 23, 2001)
R . A . 7659 cannot be made to apply for two reasons: (1)

at the time the rape was committed, complainant was already
more than 18 years of age and (2) the information did not allege
that offender and offended w e r e relatives within the third
degree of consanguinity. T h e 10 circumstances in R . A . 7659 are
in the nature of qualifying circumstances. In v i e w of the failure
of the information to comply with the allegation requirement,
said degree of relation could not be taken into account. (People
v. Sabredo)
• If the rapist is merely a relation how should such fact be alleged

in the information?
If the offender is merely a relation — not a parent,

ascendant, step-parent, or guardian or common-law spouse
of the mother of the victim — it must be alleged in the
information that he is "a relative by consanguinity or affinity
(as the case may be) within the third civil degree." (People v.
Banihit, G.R. No. 132045, August 25, 2000) T h e allegation that
accused is the uncle of complainant is not specific enough to
satisfy the special qualifying circumstance of relationship. The
relationship between the complainant and the appellant was
not alleged in the information. Even if it were so alleged, it was
still necessary to specifically allege that such relationship was
within the third civil degree.
Due to the defect in the information, he can only be liable
for simple rape even if it was proven that he was the uncle of
the victim and thus, a relative by affinity of the victim within
the third civil degree. (People v. Libo-on, May 23, 2001)
715
What relationships will not elevate the crime to qualified rape?

A stepbrother or stepsister relationship cannot elevate
the crime to "qualified rape" for they are not considered related
by blood or affinity. (People v. Onabia, G.R. No. 128288, April
20, 1999) (contra: Mamac)
Appellant is not a step-grandfather of B B . Appellant
himself admitted that he cohabited and lived with the maternal
grandmother of BB without the benefit of marriage. T h e word
"step," when used as prefix in conjunction with a degree of
kinship, is repugnant to blood relationship and is indicative
of a relationship by affinity. Since no relationship by affinity
can be established between BB and appellant, he cannot be
considered as the step-grandfather of B B .
At the most, appellant can be described as the common-
law husband of BB's grandmother. As such, appellant is not
a "parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent" of B B . Courts must not bring
cases within the provision of a law which are not embraced
by it to the end that no person who is clearly not within the
terms of statute can be brought within them. Expressio unius
est exclusio alterius. (People v. Mamac, 332 SCRA)
Although a common-law husband is subject to the
maximum punishment in case he commits rape against his
wife's daughter, nevertheless, the maximum penalty cannot
be imposed as the relationship alleged in the information is
different from that actually proven. [The information alleged
that the accused is the stepparent of the victim. H o w e v e r ,
the evidence shows that accused is not the complainant's
stepfather for he and complainant's mother w e r e not really
married but only lived in a common law relationship.] (People
v. Manggasin, G.R. No. 130599, April 21, 1999)
T h e information accuses appellant of employing threat

and intimidation and of abusing his moral ascendancy over
BB to carry out the rape. It does not allege relationship and
minority or the use of a deadly weapon. T h e information
therefore does not charge appellant with qualified rape. T h e
concurrence of the minority of the victim and her relationship
to the offender is a special qualifying circumstance which
716
RAPE
should be alleged in the information. Minority and relationship

are treated as special qualifying circumstances and not merely
aggravating because they increase the imposable penalties by
degrees. (People v. Mamac)
• What is the nature of a "step" relationship?
A stepdaughter is the daughter of one's wife or husband by

a former marriage; a stepfather is the husband of one's mother
by virtue of a marriage subsequent to that of which the person
spoken of is the offspring. T h e information described H H as the
"stepdaughter" of CC. T h a t allegation is inaccurate. HH is not
CC's "stepdaughter" and neither was he the "stepfather" of HH
for step relationship presupposes a legitimate relationship, i.e.,
CC should have been married to W after the latter's previous
marriage to H H ' s father was dissolved. (People v. Melendres,
G.R. No. 133999-4001, August 31, 2000)
• How is the circumstance of age or relationship proved?
Although the age of the victim was alleged in the

information, the birth certificate was not presented to prove
beyond reasonable doubt the victim's age. Thus, the accused
should be convicted for simple rape. T h e relationship of the
accused to the victim as her stepfather was not established
since the marriage certificate was not presented to prove the
fact of marriage between the accused and the victim's mother.
(People v. Francisco, January 2001)
• How should the term force and violence be construed?
The force and violence required in rape cases is relative;

when applied, it need not be overpowering or irresistible. What
is essential is that the force used is sufficient to consummate
the purpose which the offender had in mind, or to bring about
the result. The force and violence necessary in rape is naturally
a relative term, depending on the age, size and strength of the
parties and their relation to each other. A l l consideration of
whether it was more or less irresistible is beside the point. At
a tender age of 14, complainant is no match to the accused, a
41-year old married individual. The sheer force and strength
of the accused would have easily overcome any resistance that
717
complainant could have put up. (People v. Errojo, G.R. No.

102077, January 4, 1994)
• What is the meaning of "force" in rape?

'Forcibly' does not mean violently, but with the description
of force which must be exercised in order to accomplish the act
for there is no doubt that unlawful connection with a woman in
a state of unconsciousness, produced by profound sleep, stupor
or otherwise amounts to rape. This force may be constructive
where the female was an idiot, or had been rendered insensible
by the use of drugs or intoxicating drinks; she was incapable
of consenting, and the law implied force. In such a case, the
force required by the statute is the wrongful act. A man
who, knowing of a woman's insanity, takes advantage of her
helpless condition to gratify his own lustful desires, is guilty of
felonious rape, though he uses no force than that involved in
the carnal act, and though the woman offers no resistance to
the consummation of his purpose. (People v. Rosare, G.R. No.
118823, November 19, 1996)
In rape cases alleged to have been committed by force, it

is imperative to establish that the element of voluntariness on
the part of the victim be absolutely lacking. T h e prosecution
must prove that force or intimidation was actually employed by
the offender upon his victim to achieve his end. Intimidation is
very subjective and must be viewed in the light of the victim's
perception and judgment at the time of the commission of the
crime and not by any hard and fast rule. (People v. Clemente,
October 1999)
* What is "intimidation" in rape?
Intimidation includes the moral kind, i.e., threatening the

victim with knife. W h e n this kind of intimidation exists and the
victim is cowed into submission as a result, thereby rendering
resistance futile, it is unreasonable to expect her to resist with
all her might and strength. Intimidation is addressed to the
mind of the victim and is subjective. Its presence cannot be
tested by any hard-and-fast rule, but must be v i e w e d in the
light of the victim's perception and judgment at the time of the
crime. T h e workings of the human mind under emotional stress
are unpredictable. People react differently in such situations.
718
RAPE
Some may shout; some may faint; some may be shocked into
insensibility; others may openly welcome their intrusion.
(People v. Oarga, G.R. Nos. 109396-97, July 17, 1996)
W h e n rape is committed by using force or intimidation,
the victim does not have to be less than 12 years of age.
Resistance is not an element of rape committed by use of force
or intimidation. It is enough that the malefactor intimidated
the complainant into submission. Failure to shout or offer
tenacious resistance does not make voluntary the complainant's
submission to the criminal act. It is not necessary that the
force or intimidation employed be so great or of such character
as could not be resisted for all that is required is that it be
sufficient to consummate the purpose that the accused had in
mind. (People v. Paranzo, G.R. No. 107800, October 26, 1999)
Threatening the victim with a knife or pointing a gun at her is
sufficient. (People v. Vergel, October 1999)
Distinguish between force and intimidation in rape.
In rape cases, the force may not be irresistible; all that is

necessary is that the force used by the accused is sufficient to
consummate his evil purpose, or that it was successfully used.
It need not be so great or of such character that it could not
be repelled. Intimidation, on the other end, must be viewed in
light of the victim's perception and judgment at the time of the
commission of the crime and not by any hard and fast rule; it is
enough that it produces fear — fear that if the victim does not
yield to the bestial demands of the accused, something would
happen to her at that moment, or even thereafter as when
she is threatened with death if she would report the incident.
(People v. Be Guzman, G.R. No. 117217, December 2, 1996)
In incestuous rape, is force or intimidation indispensable?

N o . Even assuming that force and intimidation had not
been actually employed, rape was nevertheless committed. The
absence of violence or offer of resistance would not be significant
because of the overpowering and overbearing moral influence of
the father over the daughter which takes the place of violence
and offer of resistance required in rape cases committed by an
accused having no blood relationship with the victim. (People
v. Mabunga, G.R. No. 96441, November 13, 1992)
719
• Offender hacked the victim thrice on the face after raping her
twice and left for dead. What crimes were committed?
T w o counts of rape and frustrated murder — not rape
attended by the qualifying circumstance of mutilation.
Frustrated murder as she was left for dead but was saved by
prompt medical treatment. The accused inflicted the wounds
not only to maim but to kill her. (People v. Borce, G.R. No.
124131, April 22, 1998)
• What facts do not constitute elements of rape?
1. Resistance, when the accused is the father or is closely

related to the victim, moral ascendancy and influence
substituting for physical violence or intimidation. (People
v. Abella, September 1999)
2. Virginity. (People v. Sacapano, G.R. No. 130525,
September 3, 1999)
3. The absence of fresh lacerations in the hymen. A freshly
broken hymen is not an element of rape and healed
lacerations do not negate rape. A medical examination
and medical certificate are merely corroborative and
are not indispensable to rape prosecution. T h e credible
disclosure of a minor that the accused raped her is the
most important proof of the sexual abuse. (People v.
Orilla)
4. T h e absence of medical findings by a medico-legal does

not disprove the commission of rape. Medical examination
is not an element in a prosecution for rape, neither is
presentation of the torn panty fatal to the prosecution's
case, (id.)
5. T h e accused's being younger than the victim is not
relevant in rape. (People v. Bayron, September 1999)
• What guiding principles must be considered in reviewing rape

cases?
Rape is essentially an offense of secrecy, not generally

attempted except in dark or deserted and secluded places away
from prying eyes. T h e crime usually commences solely upon
the word of the offended and conviction invariably turns upon
720
RAPE
her credibility, as the single witness of the actual occurrence.

(People v. De Guzman, G.R. No. 117217, December 2, 1996)
Considering the severity of the penalty, courts should take

extreme care in weighing the evidence to avoid doing injustice
to the accused. Thus the three guiding principles in reviewing
rape cases, viz.: (1) an accusation for rape can be made with
facility, it is difficult to prove but more difficult for the accused,
though innocent to disprove; (2) in v i e w of the intrinsic nature
of the crime where only two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme
caution; and (3) the evidence for the prosecution must stand or
fall on its own merits and cannot be allowed to draw strength
from the weakness of the evidence for the defense. (People v.
Excija, G.R. No. 119069, July 5, 1996)
Give some doctrinal principles in rape.
1. Full or complete penetration of the private parts is not

necessary as the only essential point to prove is the
entrance or at least the introduction of the male organ
into the labia of the pudendum. (People v. Ligotan, G.R.
No. 119219, September 30, 1996)
2. W h e n a rape victim says she was defiled, she says in
effect all that is necessary to show that rape has been
inflicted on her; and, so long as her testimony meets the
test of credibility, the accused may be convicted on the
basis thereof. T h e application of this doctrine becomes
more compelling when the culprit is the father or a close
relative of the victim. (People v. Mario, October 1999;
People v. Tabion, G.R. No. 132715, October 20, 1999)
3. Absence of signs of external physical injuries does
not signify lack of resistance on the part of the victim.
Confronted with such frightful experience, not every
victim can be expected to act conformably with mankind's
expectation. Resistance from the victim need not be
carried to the point of inviting death or sustaining
physical injuries at the hands of rapist, (id)
4. In incestuous rape of a minor, proof of force and violence
is not essential. Moral ascendancy or parental authority
of the accused over the complainant takes the place of
violence. (People v. Tabion)
721
• What are the elements of statutory rape?

T w o elements must be established: (1) that the accused
had carnal knowledge of a woman; and (2) that the woman
is below 12 years of age. In this specie of rape, consent is
immaterial. The mere fact of having sexual relations with a girl
below 12 years old consummates the offense and consent is not
a defense since the law presumes that a child below 12 years old
cannot give consent to the sexual act.
The "sweetheart defense" cannot be sustained in statutory
rape where what is material is not the victim's consent but the
fact that the victim was below 12 years old when it happened.
The child's birth certificate is the best evidence of the date of her
birth. Its evidentiary value is not affected by late registration.
(People v. Apostil, December 1999)
• How relevant is force and intimidation in statutory rape?
T h e gravamen of statutory rape is the carnal knowledge

of a woman below 12 years old. Sexual congress with a girl
under 12 years is always rape. Force, intimidation or physical
evidence of injury is immaterial. (People v. Palicte, 229 SCRA
543)
When a girl under 12 years is the victim of rape, it is of no

consequence that there is no force or intimidation or that she
is not deprived of reason or rendered unconscious. It suffices
that there is carnal knowledge of her, without more. (People v.
Oarga)
It is not necessary that the victim was intimidated or

force used against her for in statutory rape, the law presumes
that the victim, on account of her age, does not have a will of
her own. (People v. Garibaldi, October 1999; People v. Beggar,
November 1999)
• Can the accused be charged with seven homicides in rape with

homicide considering that only two persons died?
N o . W h e r e there are two or more offenders who committed

rape, the homicide committed on the occasion or by reason
of each rape, must be deemed as a constituent element of
the special complex crime of rape with homicide as the rape
722
RAPE
committed. In effect, the presence of homicide committed on the

occasion or by reason of the rape loses it character and function
as an independent offense but assumes a new character like
a qualifying circumstance. However, by fiction of law, it is
merged with rape to constitute the element of a special complex
crime of rape with homicide with a specific penalty. (Sanchez v.
DemetHou, G.R. Nos. 111771-77, November 9, 1993)
M a y a woman be guilty of rape against another woman?
Y e s . One may be considered a principal by direct

participation, by inducement, or by indispensable cooperation.
This is true in a charge of rape against a woman, provided a
man is charged together with her.
Villamala found husband and wife guilty for raping

their "kumare." T h e wife visited the victim at her home on
the pretext of inquiring as to the whereabouts of her husband.
Once inside, she whistled for her husband and he immediately
appeared at the doorstep. T h e wife then suddenly pinned
her "kumare" to the floor. T h e husband then forcefully
consummated the rape. In Saba, the couple victimized a
14-year-old epileptic w h o stayed at their home for treatment
by the wife who was a healer. On the pretext of conducting a
healing session, the wife ordered the victim to lie down on the
floor then pinned the victim's hands to the floor and covered
her mouth while her husband raped the young girl. (People v.
Dela Torre, G.R. Nos. 121213, 121216-23, January 13, 2004)
What is necessary for an effective pardon by the offended?
T h e valid marriage between the offender and the offended

party shall extinguish the action or the penalty imposed. All
elements for valid marriage should be present, hence, if the
victim or the offender is under 18, or their marriage would
be incestuous or contrary to public policy as provided in the
Family Code, pardon cannot be granted by marriage. This is
considering the fact that rape is now primarily against the
State being a crime against person or a "public crime." As such,
it may be prosecuted without the need of the consent of the
private offended party for the institution of the suit.
723
Forgiveness by the wife as the offended victim shall

extinguish the action or the penalty imposed unless the
marriage is void ab initio. (In the Family Code, cohabitation is
forgiveness.)
• What are the presumptions added by the new law?

1. A n y physical overt act manifesting resistance against the
act of rape in any degree from the offended party.
2. Where the offended party is so situated as to render him/
her incapable of giving valid consent.
SEXUAL HARRASMENT
xxx xxx xxx
Sec. 3. Work, Education or Training-related Sexual

Harassment Defined. — W o r k , e d u c a t i o n or t r a i n i n g - r e l a t e d
sexual h a r a s s m e n t i s committed b y a n e m p l o y e r , e m p l o y e e ,
m a n a g e r , s u p e r v i s o r , a g e n t o f the e m p l o y e r , t e a c h e r ,
instructor, p r o f e s s o r , coach, t r a i n o r , o r a n y o t h e r p e r s o n
w h o , h a v i n g authority, influence o r m o r a l a s c e n d a n c y o v e r
another in a w o r k or t r a i n i n g or e d u c a t i o n e n v i r o n m e n t ,
d e m a n d s , requests o r o t h e r w i s e r e q u i r e s a n y s e x u a l f a v o r
f r o m the other, r e g a r d l e s s o f w h e t h e r the d e m a n d , r e q u e s t
o r r e q u i r e m e n t for s u b m i s s i o n i s a c c e p t e d b y the object o f
said act.
(a) In a work-related or employment environment,

sexual h a r a s s m e n t is c o m m i t t e d w h e n :
1) T h e s e x u a l f a v o r is m a d e as a c o n d i t i o n in the
h i r i n g or in the e m p l o y m e n t , r e - e m p l o y m e n t
or continued employment of said individual,
or in granting said individual favorable
c o m p e n s a t i o n , terms, conditions, p r o m o t i o n s ,
o r p r i v i l e g e s , o r the r e f u s a l t o g r a n t the
s e x u a l f a v o r results in limiting, s e g r e g a t i n g
<jr classifying the e m p l o y e e w h i c h in a n y
w a y w o u l d discriminate, deprive or diminish
724
RAPE
employment opportunities or otherwise

a d v e r s e l y affect s a i d e m p l o y e e ;
2) T h e a b o v e acts w o u l d i m p a i r the employee's

r i g h t s o r p r i v i l e g e s u n d e r existing l a b o r l a w s ;
or
3) T h e a b o v e acts w o u l d result i n a n intimidating

hostile, or offensive e n v i r o n m e n t for the
employee.
(b) I n a n e d u c a t i o n o r t r a i n i n g e n v i r o n m e n t , sexual
h a r a s s m e n t is committed:
1) A g a i n s t one w h o is u n d e r the c a r e , custody or
s u p e r v i s i o n of the offender;
2) Against one whose education, training,
a p p r e n t i c e s h i p or t u t o r s h i p is entrusted to the
offender;
3) W h e n the s e x u a l f a v o r is m a d e a condition to
the g i v i n g of a p a s s i n g g r a d e , or the g r a n t i n g of
h o n o r s a n d s c h o l a r s h i p s , or the p a y m e n t of a
stipend, a l l o w a n c e o r other benefits, privileges
or considerations; or
4) W h e n the s e x u a l a d v a n c e s result in an
intimidating, hostile or offensive e n v i r o n m e n t
for the student, t r a i n e e or a p p r e n t i c e .
What elements constitute the offense of sexual harassment?

1. T h e employer, employee, manager, supervisor, agent
of the employer, teacher, instructor, professor, coach,
trainor, or any other person has authority, influence or
moral ascendancy over another;
2. T h e authority, influence or moral ascendancy exists in a
working environment;
3. T h e employer, employee, manager, supervisor, agent of
the employer, teacher, instructor, professor, coach, or
any other person having authority, influence or moral
ascendancy makes a demand, request or requirement of a
sexual favor.
725
Is a casual buss on the cheek by the superior on his subordinate

sexual harassment?
A mere casual buss on the cheek is not a sexual conduct
or favor and does not fall within the purview of sexual
harassment under R . A . 7877. In a work-related or employment
environment, sexual harassment is committed when:
1. T h e sexual favor is made as a condition in the hiring
or in the employment, re-employment of said individual,
or in granting said individual favorable compensation,
terms, conditions, promotions or privileges; or the
refusal to grant sexual favor results in limiting,
segregating or classifying the employee which in anyway
would discriminate, deprive or diminish employment
opportunities or otherwise adversely affect said
employees;
2. The above acts would impair the employee's right or
privileges under existing labor law; or
3. T h e above acts would result in an intimidating, hostile, or
offensive environment for the employee.
There is no showing that respondent demanded, requested
or required any sexual favor from complainant in exchange
for "favorable compensation, terms, conditions, promotion or
privileges." N o r did he, by his actuations, violate the Canons
of Judicial Ethics or the Code of Professional Responsibility.
(Aquino v. Acosta, A.M. CTA-01-1, April 2, 2002)
What is the philosophy underlying this gender-related law on

sexual harassment?
"Under our system of governance, the very tenets of our

republican democracy presuppose that the w i l l of the people
is expressed, in large part, through the statutes passed by the
Legislature. Thus, the Court, in instances such as these, may
take judicial notice of the heightened sensitivity of the people
to gender-related issues as manifested through legislative
issuances. It would not be remiss to point out that no less than
the Constitution itself has expressly recognized the invaluable
contributions of the women's sector to national development,
thus the need to provide women with a working environment
conducive to productivity and befitting their dignity.
726
RAPE
"In the community of nations, there was time when

discrimination was institutionalized through the legislation
of now prohibited practices. Indeed, even within this century,
persons were discriminated against merely because of gender,
creed, or the color of their skin, to the extent that the validity
of human beings treated as mere chattel was judicially upheld
in other jurisdictions. But in humanity's march towards a more
refined sense of civilization, the law has stepped in and seen
it fit to condemn this type of conduct for, at bottom, history
reveals that the moving force of civilization has been to realize
and secure a more humane existence. Ultimately, this is what
humanity as a whole seeks to attain as we strive for a better
quality of life or higher standard of living. Thus, in our nation's
very recent history, the people have spoken through Congress,
to deem conduct constitutive of sexual harassment or hazing,
acts previously considered harmless by custom, as criminal. In
disciplining erring judges and personnel of the Judiciary, then
this Court can do no less." (Vedana v. Valencia, 295 SCRA 1)
VAWC
S E C T I O N 1. Short Title. — T h i s A c t shall b e k n o w n as

the "Anti-Violence A g a i n s t W o m e n a n d T h e i r C h i l d r e n A c t o f
2004."
S E C T I O N 2. Declaration of Policy. — It is h e r e b y
d e c l a r e d that the State v a l u e s the dignity of w o m e n a n d
children a n d g u a r a n t e e s full respect for h u m a n rights. T h e
State also recognizes the n e e d to protect the family a n d its
m e m b e r s p a r t i c u l a r l y w o m e n a n d children, f r o m violence
a n d threats to their p e r s o n a l safety a n d security.
T o w a r d s this e n d , the State shall exert efforts to address

violence committed a g a i n s t w o m e n a n d children in keeping
with the f u n d a m e n t a l freedoms g u a r a n t e e d u n d e r the
Constitution a n d the P r o v i s i o n s of the U n i v e r s a l Declaration
of H u m a n Rights, the convention on the Elimination of all
forms of discrimination A g a i n s t W o m e n , Convention on the
Rights of the C h i l d a n d other international h u m a n rights
instruments of w h i c h the Philippines is a party.
727
S E C T I O N 3. Definition of Terms. — As used in this Act,

(a) "Violence against women and their children"
refers to any act or a series of acts committed by any p e r s o n
against a w o m a n w h o is his wife, f o r m e r wife, or against a
w o m a n with w h o m the person has or h a d a sexual or d a t i n g
relationship, or with w h o m he has a common child, or
against her child w h e t h e r legitimate or illegitimate, w i t h i n
or without the family a b o d e , w h i c h result in or is likely to
result in physical, sexual, psychological h a r m or suffering,
or economic a b u s e i n c l u d i n g threats of such acts, b a t t e r y ,
assault, coercion, h a r a s s m e n t or a r b i t r a r y d e p r i v a t i o n of
liberty. It includes, b u t is not limited to, the f o l l o w i n g acts:
A. "Physical Violence" refers to acts that include b o d i l y or

physical h a r m ;
B. "Sexual violence" refers to an act w h i c h is s e x u a l in
n a t u r e , committed a g a i n s t a w o m a n or h e r child. It
includes, b u t is not limited to:
(a) r a p e , s e x u a l h a r a s s m e n t , acts o f lasciviousness,

t r e a t i n g a w o m a n or h e r child as a sex object,
making demeaning and sexually suggestive
r e m a r k s , physically a t t a c k i n g the s e x u a l p a r t s of
the victim's b o d y , f o r c i n g h e r / h i m to w a t c h o b s c e n e
p u b l i c a t i o n s a n d indecent s h o w s o r f o r c i n g the
w o m a n o r h e r child t o d o indecent acts a n d / o r m a k e
films thereof, f o r c i n g the w i f e a n d mistress/lover to
live in the c o n j u g a l h o m e or sleep t o g e t h e r in the
same r o o m w i t h the a b u s e r ;
( b ) acts c a u s i n g or a t t e m p t i n g to c a u s e the victim to

e n g a g e in a n y s e x u a l activity by force, t h r e a t of
force, physical o r o t h e r h a r m o r t h r e a t o f p h y s i c a l
o r other h a r m o r coercion;
(c) P r o s t i t u t i n g the w o m a n o r child.
C. "Psychological violence" r e f e r s to acts or omissions

c a u s i n g or likely to cause m e n t a l or e m o t i o n a l s u f f e r i n g
of the victim such as b u t not limited to intimidation,
h a r a s s m e n t , stalking, d a m a g e t o p r o p e r t y , p u b l i c
r i d i c u l e o r humiliation, r e p e a t e d v e r b a l a b u s e a n d
mental infidelity. It includes c a u s i n g or a l l o w i n g the
728
RAPE
victim to witness the physical, s e x u a l or psychological

a b u s e of a m e m b e r of the family to w h i c h the victim
belongs, o r t o w i t n e s s p o r n o g r a p h y i n any f o r m o r
to witness a b u s i v e i n j u r y to pets or to u n l a w f u l or
u n w a n t e d d e p r i v a t i o n of the r i g h t to custody and/or
visitation of c o m m o n c h i l d r e n .
D. "Economic abuse" r e f e r s to acts that m a k e or attempt to
m a k e a w o m a n financially d e p e n d e n t w h i c h includes,
b u t is not limited to the f o l l o w i n g :
1. w i t h d r a w a l of financial s u p p o r t or p r e v e n t i n g the
victim f r o m e n g a g i n g i n a n y legitimate profession,
o c c u p a t i o n , b u s i n e s s or activity, except in cases
w h e r e i n the o t h e r s p o u s e / p a r t n e r objects o n v a l i d ,
serious a n d m o r a l g r o u n d s as defined in A r t i c l e 73
of the F a m i l y C o d e ;
2. d e p r i v a t i o n or t h r e a t of d e p r i v a t i o n of financial
r e s o u r c e s a n d the r i g h t to the use a n d enjoyment
of the c o n j u g a l , c o m m u n i t y or p r o p e r t y o w n e d in
common;
3. destroying household property;
4. controlling the victims' o w n m o n e y or properties or
solely c o n t r o l l i n g the c o n j u g a l m o n e y or properties.
( b ) "Battery" refers to an act of inflicting physical h a r m
u p o n the w o m a n or h e r child r e s u l t i n g to the physical a n d
psychological or emotional distress.
( c ) "Battered Woman Syndrome" refers to a scientifically
defined pattern of psychological a n d b e h a v i o r a l symptoms
found in w o m e n living in b a t t e r i n g relationships as a result
of cumulative a b u s e .
( d ) "Stalking" refers to an intentional act committed
by a person w h o , k n o w i n g l y a n d w i t h o u t l a w f u l justification
follows the w o m a n or h e r child or places the w o m a n or
her child u n d e r surveillance directly or indirectly or a
combination thereof.
(e) "Dating relationship" refers to a situation w h e r e i n
the parties live as h u s b a n d a n d wife without the benefit of
m a r r i a g e or are romantically involved over time and on a
729
continuing basis d u r i n g the course of the relationship. A

casual acquaintance or o r d i n a r y socialization b e t w e e n t w o
individuals in a business or social context is not a dating
relationship.
(f) "Sexual relations" refers to a single sexual act
which may or m a y not result in the b e a r i n g of a c o m m o n
child.
( g ) "Safe place or shelter''' refers to a n y h o m e or
institution maintained or m a n a g e d by the D e p a r t m e n t of
Social W e l f a r e a n d D e v e l o p m e n t ( D S W D ) o r b y a n y other
agency o r v o l u n t a r y o r g a n i z a t i o n accredited b y the D S W D
for the p u r p o s e s of this A c t or a n y other suitable place the
resident of w h i c h is w i l l i n g t e m p o r a r i l y to receive the victim.
( h ) "Children" refers to those b e l o w eighteen (18) y e a r s
of a g e or o l d e r b u t a r e i n c a p a b l e of t a k i n g c a r e of themselves
as defined u n d e r R e p u b l i c A c t N o . 7610. As u s e d in this A c t ,
it includes the b i o l o g i c a l c h i l d r e n of the victim a n d other
children u n d e r h e r c a r e .
S E C T I O N 4. Construction. — T h i s A c t shall be l i b e r a l l y
construed to p r o m o t e the protection a n d safety of victims of
violence a g a i n s t w o m e n a n d their c h i l d r e n .
S E C T I O N 5. Acts of Violence Against Women and Their

Children. — T h e c r i m e of violence a g a i n s t w o m e n a n d their
children is committed t h r o u g h a n y of the f o l l o w i n g acts:
(a) C a u s i n g physical h a r m t o the w o m a n o r h e r child;
( b ) T h r e a t e n i n g t o cause the w o m a n o r h e r child

physical h a r m ;
(c) Attempting to cause the woman or her child

physical h a r m ;
( d ) P l a c i n g the w o m a n o r h e r child i n f e a r o f i m m i n e n t
physical h a r m ;
( e ) A t t e m p t i n g t o compel o r c o m p e l l i n g the w o m a n o r
h e r child t o e n g a g e i n conduct w h i c h the w o m a n o r h e r child
has the r i g h t to desist f r o m or desist f r o m c o n d u c t w h i c h the
w o m a n or h e r child has the r i g h t to e n g a g e in, or a t t e m p t i n g
to restrict or restricting the w o m a n ' s or h e r child's f r e e d o m
730
RAPE
o f m o v e m e n t o r c o n d u c t b y force o r t h r e a t o f force, physical

o r other h a r m o r t h r e a t o f p h y s i c a l o r other h a r m , o r
intimidation d i r e c t e d a g a i n s t the w o m a n o r child. This shall
include, b u t not limited to, the f o l l o w i n g acts committed
w i t h the p u r p o s e or effect of c o n t r o l l i n g or restricting the
w o m a n ' s o r h e r child's m o v e m e n t o r conduct:
(1) T h r e a t e n i n g to d e p r i v e or a c t u a l l y d e p r i v i n g the
w o m a n o r h e r c h i l d o f c u s t o d y t o her/his family;
(2) D e p r i v i n g o r t h r e a t e n i n g t o d e p r i v e the w o m a n o r
her children of financial s u p p o r t legally due her or
h e r f a m i l y , o r d e l i b e r a t e l y p r o v i d i n g the w o m a n ' s
c h i l d r e n insufficient f i n a n c i a l s u p p o r t ;
(3) D e p r i v i n g o r t h r e a t e n i n g t o d e p r i v e the w o m a n o r
h e r child of a l e g a l right;
(4) P r e v e n t i n g the w o m a n i n e n g a g i n g i n a n y
legitimate p r o f e s s i o n , o c c u p a t i o n , business or
activity o r c o n t r o l l i n g the victim's o w n m o n e y o r
p r o p e r t i e s , or solely c o n t r o l l i n g the c o n j u g a l or
common money, or properties;
(f) Inflicting or t h r e a t e n i n g to inflict physical h a r m

on oneself for the p u r p o s e of c o n t r o l l i n g h e r actions or
decisions;
( g ) C a u s i n g o r a t t e m p t i n g t o cause the w o m a n o r
h e r child to e n g a g e in a n y s e x u a l activity w h i c h does not
constitute r a p e , by force or t h r e a t of force, physical h a r m ,
o r t h r o u g h intimidation directed a g a i n s t the w o m a n o r her
child or her/his immediate family;
( h ) E n g a g i n g i n p u r p o s e f u l , k n o w i n g , o r reckless
conduct, p e r s o n a l l y or t h r o u g h a n o t h e r , that a l a r m s or
causes substantial emotional or psychological distress to the
w o m a n or her child. T h i s shall include, b u t not be limited to,
the f o l l o w i n g acts:
(1) S t a l k i n g or f o l l o w i n g the w o m a n or her child in
p u b l i c or private places;
(2) P e e r i n g in the w i n d o w or l i n g e r i n g outside the
residence of the w o m a n or her child;
731
(3) E n t e r i n g or r e m a i n i n g in the d w e l l i n g or on the

property of the w o m a n or her child against her/his
will;
(4) Destroying the p r o p e r t y a n d personal b e l o n g i n g s
or inflicting h a r m to animals or pets of the w o m a n
or her child; a n d
(5) E n g a g i n g in any f o r m of h a r a s s m e n t or violence;
(i) C a u s i n g mental o r emotional a n g u i s h , p u b l i c
ridicule or humiliation to the w o m a n or h e r child, including,
but not limited to, r e p e a t e d v e r b a l a n d emotional a b u s e , a n d
denial of financial s u p p o r t or custody of m i n o r c h i l d r e n of
access to the woman's child/children.
S E C T I O N 6. Penalties. — T h e crime of violence a g a i n s t
w o m e n a n d their c h i l d r e n , u n d e r Section 5 h e r e o f shall be
p u n i s h e d a c c o r d i n g to the f o l l o w i n g rules:
( a ) Acts falling u n d e r Section 5 ( a ) constituting
attempted, f r u s t r a t e d o r c o n s u m m a t e d p a r r i c i d e o r m u r d e r
o r homicide shall b e p u n i s h e d i n a c c o r d a n c e w i t h the
provisions of the R e v i s e d P e n a l C o d e .
If these acts resulted in mutilation, it shall be p u n i s h a b l e

in a c c o r d a n c e w i t h the R e v i s e d P e n a l C o d e ; those constituting
serious physical i n j u r i e s shall h a v e the p e n a l t y of p r i s o n
m a y o r ; those constituting less s e r i o u s p h y s i c a l i n j u r i e s shall
be p u n i s h e d by prision correccional; a n d those constituting
slight physical injuries shall be p u n i s h e d by arresto mayor.
Acts falling u n d e r Section 5 ( b ) shall b e p u n i s h e d b y

i m p r i s o n m e n t o f t w o d e g r e e s l o w e r t h a n the p r e s c r i b e d
penalty for the c o n s u m m a t e d c r i m e as specified in the
p r e c e d i n g p a r a g r a p h b u t shall i n n o case b e l o w e r t h a n
arresto mayor.
( b ) Acts falling u n d e r Section 5(c) a n d 5 ( d ) shall b e

p u n i s h e d by arresto mayor;
(c) Acts falling u n d e r Section 5(e) shall b e p u n i s h e d b y

prision correccional;
( d ) A c t s falling u n d e r Section 5(f) shall b e p u n i s h e d b y

arresto mayor;
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RAPE
( e ) Acts falling u n d e r Section 5 ( g ) shall b e p u n i s h e d b y

prision mayor;
(f) Acts falling u n d e r Section 5(h) a n d Section 5(i)
shall be p u n i s h e d by prision mayor.
I f the acts a r e committed w h i l e the w o m a n o r child
is p r e g n a n t or committed in the p r e s e n c e of h e r child, the
penalty t o b e a p p l i e d shall b e the m a x i m u m p e r i o d o f penalty
p r e s c r i b e d in the section.
In a d d i t i o n to i m p r i s o n m e n t , the p e r p e t r a t o r shall
( a ) p a y a fine in the a m o u n t of not less t h a n O n e h u n d r e d
t h o u s a n d pesos (P100,000.00) b u t not m o r e t h a n t h r e e h u n d r e d
t h o u s a n d pesos (P300,000.00); ( b ) u n d e r g o m a n d a t o r y
psychological c o u n s e l i n g o r psychiatric t r e a t m e n t a n d shall
r e p o r t c o m p l i a n c e to the court.
S E C T I O N 7. Venue. — T h e R e g i o n a l T r i a l C o u r t
d e s i g n a t e d as a F a m i l y C o u r t shall h a v e o r i g i n a l a n d
exclusive j u r i s d i c t i o n o v e r cases of violence a g a i n s t w o m e n
a n d their c h i l d r e n u n d e r this l a w . I n the a b s e n c e o f such
court in the place w h e r e the offense w a s committed, the case
shall be filed in the R e g i o n a l T r i a l C o u r t w h e r e the crime
or any of its elements w a s committed at the option of the
complaint.
xxx xxx xxx
S E C T I O N 21. Violation of Protection Orders. — A com-
plaint for a violation of a B P O issued u n d e r this A c t must
b e f i l e d directly w i t h a n y m u n i c i p a l trial court, metropoli-
tan trial court, or m u n i c i p a l circuit trial court that has ter-
ritorial jurisdiction o v e r the b a r a n g a y that issued the B P O .
Violation of a B P O shall be p u n i s h a b l e by imprisonment of
thirty (30) days w i t h o u t p r e j u d i c e to a n y other criminal or
civil action that the offended p a r t y m a y file for any of the
acts committed.
A j u d g m e n t of violation of a B P O m a y be a p p e a l e d
a c c o r d i n g to the Rules of C o u r t . D u r i n g trial a n d upon
j u d g m e n t , the trial court m a y motu proprio issue a protection
o r d e r as it deems necessary without need of an application.
Violation of any provision of a T P O or P P O issued u n d e r
this A c t shall constitute contempt of court punishable u n d e r
733
Rule 71 of the Rules of C o u r t , without prejudice to any other

criminal or civil action that the offended p a r t y m a y file for
any of the acts committed.
S E C T I O N 22. Applicability of Protection Orders to
Criminal Cases. — T h e f o r e g o i n g provisions on protection
o r d e r s shall be a p p l i c a b l e in impliedly instituted w i t h the
criminal actions involving violence against w o m e n a n d their
children.
S E C T I O N 23. Bond to Keep the Peace. — T h e C o u r t m a y
o r d e r any person against w h o m a protection o r d e r is issued
to give a b o n d to keep the peace, to present t w o sufficient
sureties w h o shall u n d e r t a k e that such p e r s o n w i l l not
commit the violence s o u g h t to be p r e v e n t e d .
S h o u l d the r e s p o n d e n t fail to give the b o n d as r e q u i r e d ,

he shall be detained for a p e r i o d w h i c h shall in no case
exceed six (6) months, if he shall h a v e b e e n p r o s e c u t e d for
acts p u n i s h a b l e u n d e r Section 5 ( a ) to 5(f) a n d not e x c e e d i n g
thirty (30) days, if for acts p u n i s h a b l e u n d e r Section 5 ( g ) to
5(1).
T h e protection o r d e r s r e f e r r e d to in this section a r e the
T P O s a n d the P P O s issued only b y the courts.
S E C T I O N 24. Prescriptive Period. — A c t s f a l l i n g u n d e r
Sections 5 ( a ) to 5(f) shall p r e s c r i b e in t w e n t y (20) y e a r s . A c t s
falling u n d e r Sections 5 ( g ) to 5(i) shall p r e s c r i b e in ten (10)
years.
S E C T I O N 25. Public Crime. — V i o l e n c e a g a i n s t w o m e n

a n d their c h i l d r e n shall be c o n s i d e r e d a p u b l i c offense
w h i c h m a y b e p r o s e c u t e d u p o n the f i l i n g o f a c o m p l a i n t b y
a n y citizen h a v i n g p e r s o n a l k n o w l e d g e o f the c i r c u m s t a n c e s
i n v o l v i n g the commission of the c r i m e .
S E C T I O N 26. Battered Woman Syndrome as a Defense. —

V i c t i m - s u r v i v o r s w h o a r e f o u n d b y the c o u r t s t o b e s u f f e r i n g
f r o m b a t t e r e d w o m a n s y n d r o m e d o not i n c u r a n y c r i m i n a l
a n d civil liability n o t w i t h s t a n d i n g the a b s e n c e of a n y of the
elements for justifying c i r c u m s t a n c e s of self-defense u n d e r
the R e v i s e d P e n a l C o d e .
I n the d e t e r m i n a t i o n o f the state o f m i n d o f the w o m a n

w h o w a s s u f f e r i n g f r o m b a t t e r e d w o m a n s y n d r o m e a t the
734
RAPE
time of the commission of the crime, the courts shall be

assisted by e x p e r t psychiatrists/psychologists.
S E C T I O N 27. Prohibited Defense. — B e i n g u n d e r the
influence of alcohol, a n y illicit d r u g , or a n y other m i n d -
a l t e r i n g substance shall not be a defense u n d e r this Act.
S E C T I O N 28. Custody of children. — T h e w o m a n victim

of violence shall be entitled to the custody a n d s u p p o r t of h e r
child/children. C h i l d r e n b e l o w seven (7) y e a r s old o l d e r b u t
w i t h m e n t a l or physical disabilities shall automatically be
given to the m o t h e r , w i t h r i g h t to s u p p o r t , unless the court
finds compelling reasons to order otherwise.
A victim w h o is s u f f e r i n g f r o m b a t t e r e d w o m a n
s y n d r o m e shall not b e disqualified f r o m h a v i n g custody o f
h e r c h i l d r e n . In no case shall custody of m i n o r c h i l d r e n be
given to the p e r p e t r a t o r of a w o m a n w h o is suffering f r o m
battered w o m a n syndrome.
xxx xxx xxx
S E C T I O N 33. Prohibited Acts. — A Punong Barangay,

Barangay Kagawad or the c o u r t h e a r i n g an application for
a protection o r d e r shall not o r d e r , direct, force or in any
w a y u n d u l y influence he a p p l i c a n t for a protection o r d e r
to c o m p r o m i s e or a b a n d o n a n y of the reliefs sought in the
application for protection u n d e r this A c t . Section 7 of the
F a m i l y C o u r t s A c t of 1997 a n d Sections 410, 411, 412 a n d
413 of the L o c a l G o v e r n m e n t C o d e of 1991 shall not a p p l y in
p r o c e e d i n g s w h e r e relief is sought u n d e r this Act.
F a i l u r e to comply w i t h this Section shall r e n d e r the
official or j u d g e administratively liable.
S E C T I O N 34. Persons Intervening Exempt from Liability.
— In every case of violence against w o m e n a n d their children
as h e r e i n defined, any person, private individual or police
authority or b a r a n g a y official w h o , acting in accordance
with l a w , responds or intervenes without using violence
or restraint g r e a t e r than necessary to ensure the safety
of the victim, shall not be liable for any criminal, civil or
administrative liability resulting therefrom.
xxx xxx xxx
735
S E C T I O N 44. Confidentiality. — A l l records p e r t a i n i n g

to cases of violence against w o m e n a n d their children
including those in the b a r a n g a y shall be confidential a n d all
public officers a n d employees a n d p u b l i c or private clinics
to hospitals shall respect the right to p r i v a c y of the victim.
W h o e v e r publishes or causes to be p u b l i s h e d , in any format,
the n a m e , address, telephone n u m b e r , school, business
address, employer, or other identifying information of a
victim or an immediate family m e m b e r , w i t h o u t the latter's
consent, shall be liable to the contempt p o w e r of the court.
A n y p e r s o n w h o violates this p r o v i s i o n shall suffer the

penalty of one (1) y e a r i m p r i s o n m e n t a n d a fine of not m o r e
than F i v e H u n d r e d T h o u s a n d pesos (P500,000.00).
xxx
S E C T I O N 47. Suppletory Application. — F o r p u r p o s e s of

this A c t , the R e v i s e d P e n a l C o d e a n d other a p p l i c a b l e l a w s ,
shall h a v e s u p p l e t o r y a p p l i c a t i o n .
xxx xxx xxx
S E C T I O N 49. Repealing Clause. — A l l l a w s , P r e s i d e n t i a l

decrees, executive o r d e r s a n d rules a n d r e g u l a t i o n s , o r p a r t s
thereof, inconsistent w i t h the p r o v i s i o n s of this A c t a r e
h e r e b y r e p e a l e d o r modified a c c o r d i n g l y .
xxx
S E C T I O N 50. Effectivity. — T h i s A c t shall t a k e effect

fifteen (15) d a y s f r o m the date of its complete p u b l i c a t i o n in
a t least t w o (2) n e w s p a p e r s o f g e n e r a l c i r c u l a t i o n .
A p p r o v e d : M a r c h 08, 2004.
(For the other provisions of the law and annotations, see Notes and
Cases on Special Penal L a w s by the same author)
• What constitutes violence against women and children?
"Violence against women and their children" covers any

act or series of acts by any person against his wife, former
wife, or with whom the person has or had sexual or dating
736
RAPE
relationship, or with whom he has a common child, or against

her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in
physical, sexual, psychological harm or suffering, or economic
abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty.
"Battery" is inflicting physical harm upon the woman

or her child resulting to the physical and psychological or
emotional distress. "Stalking" is the intentional act by one who
knowingly and without lawful justification follows a woman
or her child or places them under surveillance directly or
indirectly or a combination thereof. "Dating relationship" is a
situation wherein unmarried parties live as husband and wife
or are romantically involved over time and on a continuing basis
during the course of the relationship. A casual acquaintance or
ordinary socialization between two individuals in a business or
social context is not a dating relationship. "Sexual relations"
refers to a single sexual act which may or may not result in
the bearing of a common child. "Children" are those below
18 or older but are incapable of taking care of themselves as
defined under R . A . 7610. T h e term includes biological children
of victim and other children under her care.
• What are the acts of violence punished under the law?
1. Sexual violence which includes:

a) rape, sexual harassment, acts of lasciviousness,
treating a woman or her child as sex object, making
demeaning and sexually suggestive remarks,
physically attacking the sexual parts of the victim's
body, forcing her to watch obscene publications and
indecent shows or forcing the woman or her child to
do indecent acts and/or make films thereof, forcing
the wife and mistress/lover to live in the conjugal
home or sleep together in the same room with the
abuser;
b) acts causing or attempting to cause the victim to
engage in any sexual activity by force, threat of
force, physical or other harm or threat of physical or
other harm or coercion;
737
c) Prostituting the woman or her child.

Psychological violence or those acts or omissions causing
or likely to cause mental or emotional suffering of the
victim such as intimidation, harassment, stalking,
damage to property, public ridicule or humiliation,
repeated verbal abuse and marital infidelity. It includes
causing or allowing the victim to witness the physical,
sexual or psychological abuse of a member of the family
to which the victim belongs, or to witness pornography
in any form or to witness abusive injury to pets or to
unlawful or unwanted deprivation of the right to custody
and/or visitation of common children.
Economic abuse that make or attempt to make a woman

financially dependent which includes:
a. withdrawal of financial support or preventing

victim from engaging in any legitimate profession,
occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
serious and moral grounds as defined in Article 73 of
the Family Code;
b. deprivation or threat of deprivation of financial

resources and the right to the use and enjoyment
of the conjugal, community or property owned in
common;
c. destroying household property;
d. controlling the victim's own money or properties or

solely controlling the conjugal money or properties.
Battering, assault, coercion, harassment or arbitrary

deprivation of liberty committed as follows:
a. Causing physical harm to the woman or her child;
b. Threatening to cause the woman or her child

physical harm;
c. Attempting to cause the woman or her child physical

harm;
738
RAPE
Placing the woman or her child in fear of imminent

physical harm;
Attempting to compel or compelling the woman or her

child to engage in conduct which they have the right
to desist from or to desist from conduct which they
have the right to engage in, or attempting to restrict or
restricting the their freedom of movement or conduct
by force, threat of force, physical or other harm, threat
thereof, intimidation directed against the woman or
child. This includes the following acts for the purpose
or effect of controlling or restricting the woman's or her
child's movement or conduct:
Threatening to deprive or actually depriving

woman or her child of custody to her/his family;
D e p r i v i n g or threatening to deprive them

of financial support legally due her or her
family, or deliberately providing the woman's
children insufficient financial support;
Depriving or threatening to deprive them of a

legal right;
Preventing her from engaging in legitimate
profession, occupation, business or activity or
controlling her own money or properties, or
solely controlling conjugal or common money,
or properties;
Inflicting or threatening to inflict physical harm on
oneself for the purpose of controlling her actions or
decisions;
Causing or attempting to cause woman or her child
to engage in any sexual activity not constituting
rape, by force or threat of force, physical harm, or
through intimidation directed against the woman or
her child or her/his immediate family;
Engaging in purposeful, knowing or reckless conduct,
personally or through another that alarms or causes
substantial emotional or psychological distress, e.g.:
739
Stalking or following the woman or her child in

public or private places;
Peering in the window or lingering outside
their residence
Entering/remaining in their dwelling or
property against her will;
Destroying the property and personal

belongings or inflicting harm to animals or pets
of the woman or her child; and
Engaging in any form of harassment or

violence;
i. Causing mental or emotional anguish, public

ridicule, humiliation to the woman or her child,
including repeated verbal and emotional abuse,
denial of financial support or custody of minor
children or access to her child/children.
If these acts are committed while the woman or her child

is pregnant or committed in the presence of her child, the
maximum period of the penalty prescribed shall be imposed.
What protective policies were put in place under the law?
1. Victims suffering from the battered w o m a n syndrome do

not incur any criminal and civil liability notwithstanding
the absence of any of the elements for justifying
circumstances of self-defense under the R P C . (Section 26)
2. Protection order shall be issued to prevent further acts

of violence against a woman or her child and granting
other necessary relief to be enforced by law enforcement
agencies. These are the Barangay Protection Order,
Temporary Protection Order and Permanent Protection
Order. T h e relief shall be granted even in absence of
decree of legal separation/annulment or declaration of
absolute nullity of marriage. It granted ex parte.
3. A petition for protection order may be filed by any of:
the offended party;
740
RAPE
parents or guardians of the offended party;
ascendants, descendants collateral relatives within

fourth civil degree of consanguinity or affinity;
officers or social workers of the D S W D or of L G U s ;
police officers, preferably those in charge of women

and children's desks;
Punong Barangay or Barangay K a g a w a d ;
lawyer, counselor, therapist or healthcare provider

of the petitioner;
at least t w o concerned responsible citizens of city/

municipality where committed and who has personal
knowledge of the offense committed.
T h e orders are enforceable anywhere in

country. Violation thereof shall be punished with
fine of P5,000 to P50,C00 and/or imprisonment of six
months.
People v. Genosa, G . R . N o . 135981, J a n u a r y 15, 2004
• W h o is a battered woman?
A battered woman ( B W ) is one who is repeatedly subjected

to any forceful physical or psychological behavior by a man in
order to coerce her to do something he wants her to do without
concern for her rights. BW includes wives or women in any
form of intimate relationship with men. To be classified as
such, the couple must go through the battering cycle at least
twice. A n y woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in
the situation, she is a B W .
BW exhibit common personality traits, such as low self-
esteem, traditional beliefs about the home, the family and the
female sex role; emotional dependence upon the dominant
male; the tendency to accept responsibility for the batterer's
actions; and false hopes that the relationship will improve.
741
• What are the characteristics of the "battered woman syndrome"?

The battered woman syndrome ( B W S ) is characterized by
the "cycle of violence," which has three phases: (1) the tension-
building phase; (2) the acute battering incident; and (3) the
tranquil, loving (or, at least, nonviolent) phase.
At the tension-building phase, minor battering occurs —
verbal, physical abuse or other form of hostile behavior. The
woman tries to pacify the batterer but this placatory/passive
behavior legitimizes her belief that the man has the right to
abuse her. At some point, violence "spirals out of control" and
leads to acute battering incident.
Acute battering incident is said to be characterized by
brutality, destructiveness and, sometimes, death. T h e BW
deems this incident as unpredictable, yet also inevitable. At
this stage, she has a sense of detachment from the attack and
the terrible pain. Acute battering incidents are often very
savage and out of control, that bystanders or intervenors likely
to get hurt.
The final phase of cycle of violence begins when the acute

battering incident ends. During this tranquil period, the couple
experience profound relief. On the one hand, the batterer may
show a tender and nurturing behavior towards his partner.
» What effect does the recurrence of the cycle of violence have

upon the woman victim?
Because of the recurring cycles of violence experienced

by the B W , her state of mind metamorphoses. In determining
her state of mind, expert evidence on psychological effect of
battering on wives and common law partners are relevant and
necessary. Expert opinion is essential to clarify and refute
myths and misconceptions about B W . "Overwhelming brutality,
trauma" could result in post traumatic stress disorder, a form
of "anxiety neurosis or neurologic anxcietism." After being
repeatedly and severely abused, B W s believe that they are
essentially helpless, lacking power to change their situation.
Acute battering incidents can have the effect of stimulating the
development of coping responses to the trauma at the expense
of the victim's ability to muster an active response to try to
742
RAPE
escape further trauma. She ceases to believe that anything

she can do will have a predictable positive effect. Just as she
believes that she may be responsible for violent behavior of her
partner, she also believes that he is capable of killing her and
that there is no escape. She feels unsafe, suffers from pervasive
anxiety, and usually fails to leave the relationship.
• What is the nature of the defense of battered woman syndrome?

It is a form of self-defense which is a justifying
circumstance. W h e r e the brutalized person is already suffering
from the syndrome, further evidence of actual physical assault
at the time of the killing is not required. Incidents of domestic
battery usually have a predictable pattern. To require the
battered person to await an obvious, deadly attack before she
can defend her life "would amount to sentencing her to 'murder
by installment.'" Still, impending danger prior to defendant's
use of deadly force must be shown. Threatening behavior or
communication can satisfy the required imminence of danger.
Considering such circumstances and the existence of the B W S ,
self-defense may be appreciated.
• For the defense of battered woman syndrome to absolve the

offender, what must the battered woman prove?
T h e defense must prove that all three phases of cycle of
violence have occurred at least twice. Here, the defense fell short
of proving the cycle supposedly characterizing the relationship
of BB and M M . There were acute battering incidents as
she explained in detail typical characteristics of this stage.
However, that single incident does not prove the existence of
the B W S . She failed to prove that in at least another battering
episode in the past, she had gone through a similar pattern. In
criminal cases, all elements of modifying circumstance must be
proven.
The existence of the B W S in a relationship does not
in itself establish legal right of woman to kill her partner.
Evidence must still be considered in the context of self-defense.
Crucial to this defense is her state of mind at the time of the
offense — she must have actually feared imminent harm from
her batterer and honestly believed in the need to kill him in
order to save her life. The one who resorts to self-defense must
face a real threat on his life; the peril sought to be avoided
must be imminent and actual, not merely imaginary.
743
Unlawful aggression is the most essential element of self-

defense. It presupposes actual, sudden and unexpected attack
— or an imminent danger thereof — on the life or safety of a
person. According to M M , there was sufficient time interval
between the unlawful aggression of BB and her fatal attack
upon him. She had already withdrawn from his violent behavior
and escaped to their children's bedroom. He apparently ceased
his attack and went to bed. The reality or even the imminence
of the danger he posed had ended altogether.
Aggression, if not continuous, does not warrant self-
defense. In the absence of such aggression, there can be no self-
defense — complete or incomplete — on the part of the victim.
Thus, M M ' s killing of BB was not completely justified.
In fine, for B W S to justify the killing:

1. Each of the phases of cycle of violence must be proved to
have characterized at least two battering episodes.
2. T h e final acute battering episode preceding the killing

of batterer must have produced in her mind an actual
fear of an i m m i n e n t harm from batterer and an honest
belief that she needed to use force in order to save her
life.
3. At the time of killing, the batterer must have posed

probable — not necessarily immediate and actual —
grave harm to accused based on the history of violence by
the former against the latter.
Taken altogether, these circumstances could satisfy the

requisites of self-defense.
(Section 26 of R . A . 9262 provides that the victim shall not

incur any criminal liability despite the absence of any of the
elements of justifying circumstance of self-defense in Article
11. Genosa was promulgated prior to R . A . 9262.)
If the invocation of self-defense fails, what shall the battered

woman syndrome amount to?
It gives rise to two mitigating circumstances: (a)

psychological paralysis or diminution of freedom of action,
intelligence or intent analogous to illness that diminishes
744
RAPE
exercise of will power without depriving her of consciousness of

her acts, and (b) passion and obfuscation, of having acted upon
an impulse so powerful as to have naturally produced passion
and obfuscation. This state of mind is present when a crime is
the result of an uncontrollable burst of passion provoked by
prior unjust or improper acts or by a legitimate stimulus so
powerful as to overcome reason, as in acute battering incident.
These two circumstances did not arise from the same set
of facts. T h e first circumstance arose from the cyclical nature
and severity of battery. T h e second is from violent aggression
he had inflicted on her prior to the killing. T h a t the incident
occurred when she was eight months pregnant was deemed by
her as an attempt not only on her life, but likewise on that
of the unborn child which naturally produced passion and
obfuscation on her part.
745
TITLE NINE
C R I M E S A G A I N S T P E R S O N A L LIBERTY
AND SECURITY
What crimes are covered by Title 9?
1. Kidnapping and Serious Illegal Detention (267);
2. Slight Illegal Detention (268);
3. Unlawful arrest (269);
4. Kidnapping and failure to return a minor (270);
5. Inducing a minor to abandon his home (271);
6. Slavery (272);
7. Exploitation of child labor (273);
8. Services rendered in compulsion of payment of debt (274);
9. Abandonment of persons in danger and one's victim (275);
10. Abandoning a minor (276-77);
11. Exploitation of minors (278-79);
12. Qualified trespass to dwelling (280);
13. Other forms of trespass (trespass to property) (281);
14. Grave threats, light threats, other light threats (282-85);
15. Grave coercions, light coercions (286-89);
16. Discovery and revelation of secrets (290-92).
746
Chapter One
CRIMES A G A I N S T LIBERTY
Section O n e . — Illegal detention
A r t . 267. Kidnapping and serious illegal detention. — A n y

p r i v a t e i n d i v i d u a l w h o shall k i d n a p o r d e t a i n another, o r i n
any other m a n n e r d e p r i v e h i m of his liberty, shall suffer the
penalty of reclusion perpetua to death:
1. If the k i d n a p p i n g or detention shall h a v e lasted
more than three days.
2. If it shall h a v e b e e n committed s i m u l a t i n g p u b l i c
authority.
3. If a n y s e r i o u s p h y s i c a l injuries shall h a v e b e e n
inflicted u p o n the p e r s o n k i d n a p p e d o r detained,
or if threats to kill h i m shall h a v e b e e n m a d e .
4. If the p e r s o n k i d n a p p e d or d e t a i n e d shall be a
m i n o r , except w h e n the a c c u s e d is a n y of the
p a r e n t s , female or a p u b l i c officer.
T h e penalty shall b e d e a t h w h e r e the k i d n a p p i n g
or detention w a s committed for the p u r p o s e of extorting
r a n s o m f r o m the victim or a n y other p e r s o n , even if none
of the circumstances a b o v e m e n t i o n e d w e r e present in the
W h e n the victim is killed or dies as a consequence
of the detention or is r a p e d , or is subjected to torture or
d e h u m a n i z i n g acts, the m a x i m u m penalty shall be imposed.
(As amended by Sec. 8, R.A. No. 7659.)
• What is the essence of kidnapping?

The essence of kidnapping is restraint or deprivation of
liberty, or that the victim was transported away against his
will with the primary or original intent to effect that restraint
or deprivation.
747
Cabanag, 8 Phil. 64(1907), said that in arbitrary or illegal

detention, it is essential that there is actual confinement or
restriction of the person of the offended party. T h e deprivation
of liberty must be proved, just as the intent of the accused to
deprive the victim of his liberty. Fajardo, G.R. Nos. 105954-55,
September 28,1999, reiterated the above ruling that there must
be uncontroverted proof of both intent to deprive the victim
of his liberty, as well as actual confinement or restriction.
An uncorroborated circumstantial evidence is insufficient
for conviction when the evidence itself is in serious doubt.
The prosecution was not able to prove a possible motive w h y
accused would arbitrarily detain SS. (People v. Flores, G.R. No.
116488, May 31, 2001)
The primary element of kidnapping is actual confinement,

detention and restraint of the victim. T h e intent of the accused
to deprive the victim of the latter's liberty, in any manner,
must be established by indubitable proof. (People v. Ubongen,
G.R. No. 126024, April 20, 2001)
When shall deprivation of liberty fall under Article 267?
Kidnapping may be committed whether or not the victim

is transported from one place to another or just detained
or deprived of liberty without transportation. Detention
constitutes kidnapping and serious illegal detention if any one
of the following attended its commission:
1. The detention lasted more than three days;
2. The offenders simulated public authority;
3. Physical injuries w e r e inflicted on the victim;
4. Threats to kill the victim w e r e made; or
5. T h e victim is a female, public officer, or minor except
when accused is any of the parents.
T h e following are the qualifying circumstances:
1. Ransom is demanded;
2. T h e victim is killed or dies as a consequence;

3. T h e victim is raped; or
4. T h e victim is subjected to torture or dehumanizing acts.
748
C R I M E S A G A I N S T LIBERTY
Kidnapping for ransom was committed as the essential

element that the victim must have been restrained or deprived
of his liberty was present when both victims were tied and
when the gun was brandished and fired to intimidate them.
In addition, accused recorded a ransom demand with the
intention of sending it to RR's parents.
T h e records indicate that accused intended to detain only

RR and hold him for ransom as he was the son of a gasoline
owner. T h e same cannot be said of Q Q . They could not have
possibly detained and held him for ransom as he was the
son of a jeepney driver. Thus, the crime with respect to QQ
should be homicide and not kidnapping with murder since they
never intended to hold QQ for ransom. Accused's query as to
his preference on the manner of his death shows the former's
intent to kill the latter. As treachery was not alleged in the
information, it could not have qualified the crime to murder.
(People v. Nunez, G.R. Nos. 112429-30, July 23, 1997)
• Will any and all kinds of deprivation result to kidnapping?
N o . For kidnapping to exist, there must be proof that

the intent of the malefactors was to deprive the offended of
her liberty, and not where such restraint of freedom of action
was merely an incident in the commission of another offense
primarily intended by the offenders. T h e detention or forcible
taking of the victims even for an appreciable period of time but
for the primary and ultimate purpose of killing them, holds the
offenders liable for taking their lives or such other offenses they
committed in relation thereto, but the incidental deprivation of
the victims' liberty does not constitute kidnapping and serious
illegal detention. (People v. Puno, G.R. No. 97471, February 17,
1993)
The essential object is to kidnap or detain another or

in any other manner deprive him of his liberty. The idea of
kidnapping in this case has been the result of the continuous
but uninformed use of that term by the peace officers involved
in the investigation. The offense actually committed is robbery
with homicide.
749
As far as SS understood it, and as far as may be deduced

from the evidence, the plan was not so much to capture W
and deprive him of liberty, even less to assassinate him, but
to steal his Pajero by violent means. The kidnapping was not
the principal objective; it was merely incidental to the forcible
taking of the vehicle. Unfortunately, by reason or on the
occasion of the seizure of the Pajero, its driver was killed, and
the lone passenger seriously wounded. (People v. Sinoc, G.R.
No. 113511-12, July 11, 1997; People v. Astor, April 1987)
(Had the crimes been committed after December 31, 1993

— the date of effectivity of R . A . 7659 — SS would have been
penalized under Section 14 for carnapping with homicide.)
Who should be the offender in kidnapping?
The offender must be a private individual. Thus, accused

cannot be charged with or convicted of kidnapping and serious
illegal detention for they were members of the C A F G U at the
time the alleged crime was committed. (People v. Flores, G.R.
No. 116488, May 31, 2001)
What special complex crimes may arise in kidnapping?
Kidnapping with homicide, kidnapping with rape,

kidnapping with physical injuries are special complex crimes
or composite crimes. T h e last paragraph of Article 267 provides
that when the victim is killed or dies as a consequence of the
detention or is raped, or is subjected to torture or dehumanizing
acts, the maximum penalty shall be imposed. T h e killing,
rape or physical injuries are not separate crimes but are
circumstances which convert the kidnapping into special
complex crime. These are not complex crimes under Article 48
for there is a specific provision specifying the penalty for the
specific crimes composing the single indivisible felonies treated
in this article.
But this is only true if the kidnap victim was killed, raped
or tortured. It is unlike in robbery with homicide where it
does not matter whether it is the victim or one of the robbers
themselves who is killed. In kidnapping if the one killed
were a third person, there will be two separate offenses and
750
if such third person is a policeman rescuing the victim, the

second crime will be direct assault with homicide because the
policeman is an agent of a person in authority.
• What is the nature of the crime committed when the kidnapped

victim was killed by his abductor?
Ramos, 297 S C R A 618, citing Parodan v. Rodas, 78 Phil.

855 summarized the rules on the correct designation of the
crime when the kidnapped victim is killed by his abductor. Prior
to 31 December 1993, the date of effectivity of R . A . 7659, the
rule was that where the kidnapped victim was subsequently
killed by his abductor, the crime committed would either be a
complex crime of kidnapping with murder under Article 48 or
two separate crimes of kidnapping and murder. Thus, where
the accused kidnapped the victim for the purpose of killing him,
and he was in fact killed by his abductor, the crime committed
was the complex crime of kidnapping with murder under
Article 48, as the kidnapping of the victim was a necessary
means of committing the murder. On the other hand, where
the victim was kidnapped not for the purpose of killing him
but was subsequently slain as an afterthought, two separate
crimes of kidnapping and murder were committed.
However, R . A . 7659 amended Article 267 by adding a last

paragraph which provides that when the victim is killed or
dies as a consequence of the detention, or raped, or subjected
to torture or dehumanizing acts, the maximum penalty shall
be imposed. This amendment introduced the special complex
crime of kidnapping with murder or homicide. It effectively
eliminated the distinction drawn by the courts between those
cases where the killing of the kidnapped victim was purposely
sought by the accused, and those where the killing of the
victim was not deliberately resorted to but was merely an
afterthought. Consequently, the rule now is: Where the person
kidnapped is killed in the course of the detention, regardless
of whether the killing was purposely sought or was merely an
afterthought, the kidnapping and murder or homicide can no
longer be complexed under Article 48 nor treated as separate
crimes, but shall be punished as a special complex crime under
the last paragraph of Article 267, as amended by R . A . 7659.
(People v. Rimorin, 332 SCRA 178)
751
R . A . 9346 removed the distinction between simple

kidnapping and kidnapping with homicide, for the penalty
shall be the same — reclusion perpetua. Even if the kidnappers
will kill the victim to eliminate possible witnesses against them
or several persons will be killed or rapes will be committed
against the victim, the penalty will just be the same — reclusion
perpetua.)
• How should the composite crime be denominated?

The crime is denominated kidnapping with homicide.
Homicide is used in the generic sense and includes murder
because killing is not a crime but a qualifying circumstance.
This is a single indivisible offense, not a complex crime
under Article 48. Regardless of the number of persons killed
(who must be the kidnap victims) there is one crime only of
kidnapping with homicide. T h e killing or death here is with
reference only to the victim; if other persons were killed, killing
is a separate crime. (Rimorin said that R.A. 7659 introduced
kidnapping with murder or homicide. Since this is a special
complex crime and the law says "is killed or dies," homicide
should be used in the generic sense to include murder.)
• When is the crime homicide or murder and not kidnapping?
W h e r e the taking of the victim was incidental to the basic

purpose to kill, the crime is murder, and this is true even if
before the killing but for purposes thereof, the victim was taken
from one place to another. Thus, where the evident purpose of
taking the victim was to kill them, and from the acts of the
accused it cannot be inferred that the purpose was actually to
detain or deprive the victims of their liberty, the subsequent
killing of the victims constitute the crime of murder, hence, the
crime of kidnapping does not exist and cannot be considered
as a component felony to produce the crime of kidnapping with
homicide.
T h e crime was murder qualified by treachery and abuse

of superior strength. T h e essential element in kidnapping that
the victim have been restrained or deprived of his liberty,
or that he was transported away against his will with the
primary or original intent to effect that restraint, is absent.
The malefactors evidently had only murder in their hearts
752
when they invited FF to go with them, and not to confine or

detain him for any length of time or for any other purpose. He
was neither forced nor coerced in going along with his killers.
He voluntarily boarded the car and went with the accused.
That from the beginning of their criminal venture, accused

intended to kill the victim can readily be deduced from the
manner by which they swiftly and cold-bloodedly snuffed out
his life once they reached the isolated plantation in Laguna.
There was no evidence to show that from the outset, the accused
intended to exchange his freedom for ransom. T h e ransom
appears to be an afterthought, as it was relayed to the victim's
family very late in the afternoon after a sufficient interval for
consultation and deliberation among the felons who had killed
the victims five hours earlier. (People v. Marajas, April 1993)
• Where detention and killing of the victim both occurred, what

will determine the crime was committed?
W h e r e the taking of the victim was incidental to the basic

purpose to kill, the crime is only murder even if, before the
killing but for purposes thereof, the victim was taken from one
place to another. Although the accused had planned to kidnap
the victim for ransom and they demanded and obtained the
money, such demand for ransom did not convert the crime into
kidnapping since no detention or deprivation of liberty was
involved, hence, the crime committed was only murder, (id.)
Where the detention of the victim is not shown to have

been for the purpose of liquidating him, the crime is kidnapping
under Article 267, not murder. Although the accused were
charged for kidnapping with murder which was a complex
crime before R.A. 7659 took effect the accused can be convicted
for one of the component offenses included in the complex
crime charged, when properly established, despite the failure
of evidence to hold the accused for the other offense. The fact
that two of the accused are organic members of the N A R C O M
and regular members of the P N P still they are liable for
kidnapping (not arbitrary detention) as they acted neither in
furtherance of official function nor in pursuit of their authority
but in purely private capacity. (People v. Santiano, December
1998)
753
• Will the fact alone that ransom is demanded indicative of

kidnapping?
N o . Under Article 267, that the kidnapping is perpetrated
for the purpose of ransom raises the imposable penalty. It is
essential, however, that the element of deprivation or restraint
of liberty of the victim be present. T h e fact alone that ransom
is demanded would not per se qualify the act of preventing
the liberty of movement of the victim into kidnapping, unless
the victim is actually restrained or deprived of his liberty for
some appreciable period of time or that such restraint was the
basic intent of the accused. Absent such determinant intent
and duration of restraint, the mere curtailment of freedom
of movement would at most constitute coercion. (People v.
Marajas, Jr., April 1993)
• What is ransom? Is it an element of kidnapping?
It is the money, price or consideration paid or demanded

for the redemption of a captured person, a payment that
releases from captivity. W h e n ransom is demanded, the crime
is kidnapping under Article 267. Tomio, 202 SCRA 77 said that
even if what is demanded is due to the offender such as debt or
rent, it is still ransom because predicated on the release of the
victim.
If the ransom note is late, i.e., the victim has already

been rescued, it is not an impossible crime of kidnapping
because this is a crime against security. T h e crime is already
kidnapping even without the ransom, for ransom is merely a
qualifying circumstance and not an element of this crime.
• When is demand for money robbery, not kidnapping for ransom?
Ransom is the payment that releases one from captivity.

It can hardly be assumed that when complainant readily gave
the cash/checks demanded of her at gunpoint, what she gave
under the circumstances can be equated with or was in the
concept of ransom in kidnapping. These w e r e merely amounts
involuntarily surrendered by the victim upon the occasion of a
robbery or of which she was summarily divested by appellants.
Accordingly, the crime committed is robbery. (People v. Puno,
754
February 1993) (Here, motive is material for when variant

crimes may arise in a particular case the motive of the offender
will determine what crime the accused should be convicted of.
In this case, the motive of the offenders was not to detain the
complainant as in kidnapping but to divest her of valuables.
• Distinguish kidnapping from grave coercion.
T h e Spanish version of Article 267 uses the term "lockup"

(encerrar) rather than "kidnap" (secuestar or raptar). Lockup
is included in the broader term of "detention" which refers not
only to the placing of a person in an enclosure but also to any
other deprivation of liberty which does not necessarily involve
locking up.
Grave coercion or coaccion grave has three elements:
(a) A n y person is prevented by another from doing something
not prohibited by law, or compelled to do something
against his w i l l be it right or wrong;
(b) T h e prevention or compulsion is effected by violence
either by material force or such display of it as would
produce intimidation and consequently, control over the
will of the offended party; and
(c) The person who restrains the will and liberty of another
has no right to do so, or in other words, the restraint is
not made under authority of a law or in the exercise of any
lawful right.
When a person is prevented from leaving or going to
another place, the crime could either be kidnapping or grave
coercion. T h e difference would now depend on whether or not
there was an actual confinement or lockup of the victim.
W h e n appellant forcibly dragged and slapped Y Y , he
took away her right to go home. Appellant's forcible dragging
of YY to a place only he knew cannot be said to be an actual
confinement or restriction on the person of Y Y . There was no
lockup. Accordingly, he cannot be convicted of kidnapping under
Article 267. (People v. Astorga, G.R. No. 110097, December 22,
1997) (Contra: Dela Cruz, where the refusal of the offender
to let go of a child, without "dragging" the victim was held as
attempted kidnapping.)
755
• Cite an example of kidnapping in the attempted stage.

The accused held the victim's hand and refused to let go
when the child asked to go over to her neighbor, who saw what
was happening. This happened for a very brief span of time.
There was a number of people present at the time, a guard was
stationed at the gate, and there was at least a teacher nearby.
(People u. Dela Cruz, G.R. No. 120988, August 11, 1997)
The attempted phase is that stage when the offender

commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution, which should
produce the felony by reason of some cause or accident other
than his own spontaneous desistance. T h e overt act must
be an external one which has a direct connection with the
felony, it being necessary to prove that said beginning of
execution, if carried to its complete termination, following its
natural course without being frustrated by external obstacles
or by the voluntary desistance of the offender, w i l l logically
and necessarily ripen to a concrete offense. Accused already
commenced her criminal scheme by taking hold of WW by the
hand and leading her out of the school premises. These do not
sufficiently establish that kidnapping had been consummated.
(id.)
• What distinguishes kidnapping from forcible abduction?
T h e difference between kidnapping and forcible abduction

is the presence or absence of l e w d designs. If the taking is with
lewd designs, the crime is forcible abduction. If the original
intent is to detain or deprive her of liberty, it is kidnapping.
Although forcible abduction may be more reprehensible

than kidnapping because of the presence of l e w d designs, the
penalty for the abduction is lighter than that for kidnapping.
Kidnapping with rape is a composite crime if the victim

kidnapped is also raped. Rape here is not a crime but a
qualifying circumstance. If at the outset, the taking is with
lewd designs and rape was committed, the crime is forcible
abduction with rape. A n d , if the woman is raped several times,
only one rape will be complexed with the forcible abduction and
756
the rest will be separate crimes of rape. (People v. Garcia, G.R.

No. 141125, February 28, 2002). Whereas, in kidnapping with
rape, no matter how many rapes there are, there is only one
kidnapping with rape. T h e excess rapes are not aggravating
because rape is not one of the circumstances under Article 14.
(People v. Regala, G.R. No. 130508, April 5, 2000)
In kidnapping w i t h rape, both should be consummated. If

rape was merely attempted, there w i l l be two separate crimes,
because in composite crimes, the two offenses must exactly
be what the law specified and in the stage of accomplishment
stated therein. In forcible abduction, if the rape was merely
attempted, there is no complex crime and neither separate
crimes but only forcible abduction because the attempt to rape
is merely a manifestation of the l e w d design. (People v. Jose,
February 1971)
Distinguish between kidnapping with rape and forcible

abduction with rape.
Kidnapping with Rape:
1. This is a composite crime or special complex crime or a

single indivisible felony.
2. There is no lewd design

3. Rape is not a separate crime but a qualifying circumstance.
4. Even if there are multiple rapes, there is only one

kidnapping with rape. T h e excess rapes are absorbed.
5. If rape was merely attempted, two separate crimes —

kidnapping and attempted rape.
Forcible Abduction with Rape:
1. The crime is complex under Article 48 since forcible
abduction is a necessary means to commit the rape.
2. At the outset, there is lewd design.
3. Rape is also a crime, not merely qualifying circumstance
4. If there are multiple rapes, only the first rape shall be
complexed with forcible abduction because the abduction
757
is necessary to commit only the first rape, and the other

rapes will be treated as separate crimes.
5. If rape is merely attempted, there is only forcible
abduction, the attempt to rape is merely a manifestation
of lewd designs.
For instance, four men abducted a woman with lewd
designs and raped her successively. There should be separate
information for the complex crime of forcible abduction with
rape plus three informations for each rape of the offenders.
For each rape, the four are liable. (People v. Jose) If the
taking of the woman was without lewd designs and the rapes
were committed merely as an afterthought, there will be one
kidnapping with rape.
The crime committed is not the complex crime of forcible
abduction with rape, for forcible abduction is absorbed in the
crime of rape if the real objective of the accused is but to rape
the victim. (People v. Mendi, G.R. Nos. 112978-81, February 19,
2001; People v. Albior, G.R. No. 115079, February 19, 2001)
If the injuries inflicted were merely slight, may the crime be

kidnapping with physical injuries?
Y e s . 'Tortured or subjected to dehumanizing act" results
in kidnapping with physical injuries even if the physical injury
inflicted is only slight. N o t e that this is not a complex crime
under Article 48 where it is required that the crimes are grave
and/or less grave, or a separate crime even if the physical injury
is merely slight because kidnapping with physical injuries is a
composite crime.
Will the victim's disappearance negative criminal liability?
W h a t is important is to determine and prove the fact

of seizure, and the subsequent disappearance of the victim
will not exonerate an accused from prosecution therefor.
Otherwise, kidnappers can easily avoid punishment by the
simple expedient of disposing of their victim's bodies. For the
charge of kidnapping to prosper, the deprivation of the victim's
liberty, which is the essential element of the offense, must be
duly proved. (People v. Bernal, G.R. No. 113685, June 19, 1997)
758
A r t . 268. Slight illegal detention. — T h e penalty of reclusion

temporal shall b e i m p o s e d u p o n a n y p r i v a t e i n d i v i d u a l w h o
shall commit the c r i m e s d e s c r i b e d in the next p r e c e d i n g
article w i t h o u t the a t t e n d a n c e of a n y of the circumstances
enumerated therein.
T h e s a m e p e n a l t y shall b e i n c u r r e d b y a n y o n e w h o shall
f u r n i s h the p l a c e for the p e r p e t r a t i o n of the crime.
If the offender shall v o l u n t a r i l y r e l e a s e the p e r s o n

s o k i d n a p p e d o r d e t a i n e d w i t h i n t h r e e d a y s f r o m the
c o m m e n c e m e n t of the detention w i t h o u t h a v i n g attained
the p u r p o s e i n t e n d e d , a n d b e f o r e the institution of c r i m i n a l
p r o c e e d i n g s a g a i n s t h i m , the p e n a l t y shall be prision mayor
in its m i n i m u m a n d m e d i u m p e r i o d s a n d a fine not e x c e e d i n g
700 pesos. (As amended by Rep. Act No. 18, approved September
25, 1946.)
• When is slight illegal detention committed?
T h e crime is slight illegal detention if none of the

circumstances in kidnapping and serious illegal detention are
present. W h e n ransom, however, is demanded, although none
of the circumstances in Article 267 are present, kidnapping
and serious illegal detention, is committed for Article includes
detention for "the purpose of extorting ransom from the victim
or any other person, even if none of the circumstances above
mentioned were present in the commission of the offense."
• Compare slight illegal detention, and kidnapping and serious

illegal detention.
1. In slight illegal detention, none of the circumstances in

kidnapping and serious illegal detention are present.
2. In the former, voluntary release can mitigate the liability

but not in the latter.
3. The same penalty as the principal is incurred by anyone
who shall furnish the place (accomplice) in slight illegal
detention; in kidnapping the general rule on the penalty
for accomplice is observed which is one degree lower.
759
• What are the requisites for the specific mitigating circumstance

of voluntary release?
a. The release should have been made within three days
from the commencement of the detention;
b. The release must be made before the offender has
accomplished his purpose; and
c. It must be made before criminal prosecution has been
commenced
A fourth requisite is that the crime should be slight illegal
detention, not kidnapping because in the latter, voluntary
release is not mitigating.
A r t . 269. Unlawful arrest. — T h e penalty of arresto mayor

a n d a fine not e x c e e d i n g 500 pesos shall be i m p o s e d u p o n
a n y p e r s o n w h o , i n a n y case o t h e r t h a n those a u t h o r i z e d
b y l a w , o r w i t h o u t r e a s o n a b l e g r o u n d t h e r e f o r , shall a r r e s t
or detain a n o t h e r for the p u r p o s e of d e l i v e r i n g h i m to the
p r o p e r authorities.
• What is the essence of the crime of unlawful arrest?
The purpose of the arrest must be to deliver the person

arrested to the proper authorities but it was made without any
reasonable ground. The arrest is without a warrant but not
under the circumstances in Rule 113(5) of the RRRCP.
If the offender did not turn over the arrested to the judicial
authority, the crime will be kidnapping because the element of
turnover of the victim to the judicial authorities is missing.
• W h o can commit the crime of unlawful arrest?
Unlike kidnapping which is committed only by private

persons, unlawful arrest can be committed by private persons
and by public officers (Morales v. Enrile, G.R. No. L-61016,
April 26, 1983) as long as the purpose of the arrest is to bring
the victim to proper authority and file a charge. If a charge
is filed, the detention is deemed an incident of the arrest and
filing of charges against him. It is the arrest that is penalized.
760
In Article 124, the public officer had no intention to bring

the offended to proper authorities but merely to detain the
victim. If the public officer falsely imputes a crime against a
person to be able to arrest him and appears not determined to
file a charge against him, the crime is arbitrary detention. If
he plants evidence against the victim, it is arbitrary detention
through incriminating innocent persons under Article 363.
• What are the grounds for a lawful arrest without a warrant?
A warrantless arrest under the circumstances in Section

5(a), Rule 113 is one "in flagrante delicto/' that under Section
5(b), a "hot pursuit" arrest. V a l i d warrantless searches are
limited to: ( a ) customs searches; (b) search of moving vehicles;
(c) seizure of evidence in plain v i e w ; (d) consent searches; (e)
search incidental to a lawful arrest; and (f) "stop and frisk."
(Malacat v. CA, G.R. No. 123595, December 12, 1997)
Section T w o . — Kidnapping of Minors
A r t . 270. Kidnapping and failure to return a minor. — T h e

penalty of reclusion perpetua shall be i m p o s e d u p o n any
p e r s o n w h o , b e i n g e n t r u s t e d w i t h the custody of a m i n o r
p e r s o n , shall d e l i b e r a t e l y fail to r e s t o r e the latter to his
p a r e n t s or g u a r d i a n s . (As amended by R.A. No. 18.)
• What are the elements of the crime of failure to return a minor?
(a) T h e offender has been entrusted with the custody of the

minor; and
(b) He deliberately fails to restore said minor to his parents
or guardians. (People v. Gutierrez, G.R. No. 81020, May
28, 1991)
• What is the gravamen of the crime of failure to return a minor?

The essential element is that the offender is entrusted
with the custody of the minor but what is actually punishable
is not the kidnapping of the minor, as the title of the article
seems to indicate, but rather the deliberate failure or refusal of
the custodian of the minor to restore the latter to his parents or
guardians. Said failure or refusal must not only be deliberate
761
but must also be persistent as to oblige the parents or the

guardians of the child to seek the aid of the courts in order to
obtain custody. The key word deliberate. (People v. Ty, G.R. No.
121519, October 30, 1996)
• What is shown by the phrase "deliberately fails"?

Black's L a w Dictionary defines "deliberate" as "Well
advised; carefully considered; not sudden or rash; circumspect;
slow in determining; willful rather than merely intentional;
formed, arrived at, or determined upon as a result of careful
thought and weighing of considerations, as a deliberate
judgment or plan."
By the use of this word in describing the crime, the

perpetrator weighs the motives for the act and its consequences,
the nature of the crime, or other things connected with his
intentions, with a view to a decision thereon; that he carefully
considers all these, and that the act is not suddenly committed.
It implies that the perpetrator must be capable of the exercise
of such mental powers as are called into use by deliberation and
the consideration and weighing of motives and consequences.
Essentially, the word deliberate as used in the article

must imply something more than mere negligence; it must
be premeditated, obstinate, headstrong, foolishly daring or
intentionally and maliciously wrong. (People v. Gutierrez)
(In People v. Ty, deliberate means more than mere

negligence; in People v. Reyes, wanton and gross negligence
denotes deliberate and willful failure.)
A r t . 271. Inducing a minor to abandon his home. — T h e

p e n a l t y of prision correccional a n d a fine not e x c e e d i n g
700 pesos shall be i m p o s e d u p o n a n y o n e w h o shall i n d u c e a
m i n o r t o a b a n d o n the h o m e o f his p a r e n t s o r g u a r d i a n s o r
the p e r s o n s e n t r u s t e d w i t h his custody.
If the p e r s o n committing a n y of the c r i m e s c o v e r e d by

the t w o p r e c e d i n g articles shall be the f a t h e r or the m o t h e r
of the m i n o r , the penalty shall be arresto mayor or a fine not
e x c e e d i n g 300 pesos, or both. (As amended by R.A. No. 18.)
762
(Note the error of the phrase "the two preceding articles" in

Article 271 which literally refers to Articles 270 and 269, a totally
unrelated provision to this article as it deals with unlawful arrest.
It should be read as "this and the next preceding article.")
• Relate kidnapping with inducing a minor to abandon his home.
Kidnapping cannot be committed by the parents of the

minor because paragraph 4 of Article 267 says, "except when
the accused is any of the parents." In Article 271, a parent can
commit the crime against his own child. Thus, the kidnapping
of a minor by the parent should be under Article 271.
T h e kidnapping by the parent of his adult child would fall

within Article 267 as that provision specified "minor."
Section T h r e e . — Slavery and Servitude
A r t . 272. Slavery. — T h e p e n a l t y of prision mayor a n d

a fine of not e x c e e d i n g 10,000 pesos shall be i m p o s e d u p o n
a n y o n e w h o shall p u r c h a s e , sell, k i d n a p or detain a h u m a n
b e i n g for the p u r p o s e of e n s l a v i n g h i m .
If the crime be committed for the purpose of assigning the

offended party to some immoral traffic, the penalty shall be
imposed in its m a x i m u m period.
A r t . 273. Exploitation of child labor. — T h e penalty ofprision

not exceeding 500 pesos shall be, i m p o s e d u p o n a n y o n e w h o ,
u n d e r the pretext of r e i m b u r s i n g himself of a d e b t i n c u r r e d
by an ascendant, g u a r d i a n or p e r s o n entrusted with the
custody of a minor, shall, a g a i n s t the latter's will, retain him
in his service.
A r t . 274. Services rendered under compulsion in payment of

debt. — T h e penalty of arresto mayor in its m a x i m u m period
to prision correccional in its m i n i m u m p e r i o d shall be
imposed u p o n any person w h o , in o r d e r to r e q u i r e or enforce
the payment of a debt shall compel the d e b t o r to w o r k for
him, against his will, as household servant or f a r m l a b o r e r .
763
• Compare Articles 272, 273 and 274 with Article 267.

These articles, although of a graver nature than simple
detention under Article 267 are punished with a considerably
lesser penalty. They are examples of lesser felonies absorbing
a graver one.
• Compare Article 274 with Article 287.

In Article 274, it is the debtor that is seized while in
Article 287, his property is seized to be applied to the debt.
Chapter Two
CRIMES A G A I N S T SECURITY
Section O n e . — Abandonment of Helpless Persons

and Exploitation of Minors
A r t . 275. Abandonment of persons in danger and abandonment

of one's own victim. — T h e p e n a l t y of arresto mayor shall be
imposed u p o n :
1. A n y o n e w h o shall fail to r e n d e r assistance to
a n y p e r s o n w h o m h e shall find i n a n u n i n h a b i t e d
place w o u n d e d o r i n d a n g e r o f d y i n g , w h e n h e
can r e n d e r such assistance w i t h o u t detriment to
himself, unless such omission shall constitute a
m o r e serious offense.
2. A n y o n e w h o shall fail to h e l p or r e n d e r assistance
t o a n o t h e r w h o m h e has accidentally w o u n d e d o r
injured.
3. A n y o n e w h o , h a v i n g f o u n d a n a b a n d o n e d child
u n d e r seven y e a r s of a g e , shall fail to d e l i v e r said
child to the authorities or to his family, or shall fail
to take h i m to a safe p l a c e .
• What are the different kinds of abandonment?

a. Failure to render assistance to a person found in an
uninhabited place;
b. Abandonment of one's own victim in an accident; and
c. Failure to render assistance to a child below seven years
old.
• How should the word "uninhabited" be construed?

Paragraph 1 applies only if the place is uninhabited.
"Uninhabited" should mean a place where no one is roaming
765
around unlike in uninhabited place in Article 14 which refers

to a place where no one resides within a radius of 200 meters.
A park cannot qualify as an uninhabited place for purposes of
this article as help is immediately available. Hence, if a person
chanced upon an injured person in a park and he abandoned the
latter, he cannot be charged of this crime. Practically, no one
can be charged with this crime for lack of possible witness to
the crime and it has become too dangerous to render assistance
to another in a remote area.
• Compare "abandonment" in Article 275 with that in Article 365.
1. If a person caused injury to another through accident

under Article 12(4), he is not criminally liable, but if he
fails to render assistance to the victim, he will be liable
under Article 275(2). In Article 365, offender will be
criminally liable for the injury caused.
2. T h e cause of the injury in this article is accident as defined

under Article 12(4); in Article 365, the cause of the injury
is imprudence or negligence.
3. Abandonment in Article 365 is a qualifying circumstance

where the penalty is two degrees higher. Abandonment in
this article is a crime with its own penalty.
• How old should be the abondoned child?
T h e child in this and in the next article should be under

seven years old. If it w e r e seven years old or over, the liability
of the offender will be under R . A . 7610.
A r t . 276. Abandoning a minor. — T h e p e n a l t y of arresto

mayor a n d a fine not e x c e e d i n g 500 pesos shall be i m p o s e d
u p o n a n y o n e w h o shall a b a n d o n a c h i l d u n d e r seven y e a r s o f
a g e , the custody of w h i c h is i n c u m b e n t u p o n h i m .
W h e n the d e a t h o f the m i n o r shall r e s u l t f r o m s u c h

a b a n d o n m e n t , the c u l p r i t shall be p u n i s h e d by prision
correccional in its m e d i u m a n d m a x i m u m p e r i o d s ; b u t if the
life of the m i n o r shall h a v e b e e n in d a n g e r only, the p e n a l t y
shall be prision correccional in its m i n i m u m a n d m e d i u m
periods.
766
C R I M E S A G A I N S T SECURITY
T h e p r o v i s i o n s c o n t a i n e d i n the t w o p r e c e d i n g
p a r a g r a p h s shall not p r e v e n t the imposition of the penalty
p r o v i d e d for the act committed, w h e n the same shall
constitute a m o r e s e r i o u s offense.
If either Article 4, paragraph 1 or the doctrine of proximate

cause would be followed, the penalty on the person abandoning
a child less than seven who died as a result should be reclusion
temporal for homicide. This is so for one committing a felony is
liable for all the consequences of his unlawful act although different
from that intended. H o w e v e r , under the second paragraph of this
article, his penalty when death of the child supervenes in view of
such abandonment is only prision correccional of a maximum of only
six years, a probationable penalty.
A r t . 277. Abandonment of minor by person entrusted with his

custody; indifference of parents. — T h e p e n a l t y of arresto mayor
a n d a fine not e x c e e d i n g 500 pesos shall be i m p o s e d u p o n
a n y o n e w h o , h a v i n g c h a r g e o f the r e a r i n g o r e d u c a t i o n o f
a m i n o r , shall d e l i v e r s a i d m i n o r to a p u b l i c institution or
other p e r s o n s , w i t h o u t the consent of the one w h o entrusted
such child to his c a r e or in the a b s e n c e of the latter, w i t h o u t
the consent of the p r o p e r authorities.
T h e same p e n a l t y shall b e i m p o s e d u p o n the parents

w h o shall neglect their c h i l d r e n by not g i v i n g them the
education w h i c h their station in life r e q u i r e s a n d financial
condition permits.
A r t . 278. Exploitation of minors. — T h e penalty of prision

exceeding 500 pesos shall be i m p o s e d u p o n :
1. A n y p e r s o n w h o shall cause a n y b o y or girl u n d e r

sixteen y e a r s of a g e to p e r f o r m any d a n g e r o u s feat
of b a l a n c i n g , physical strength, or contortion.
2. A n y p e r s o n w h o , b e i n g an acrobat, gymnast,
r o p e w a l k e r , diver, w i l d - a n i m a l tamer or circus
m a n a g e r or e n g a g e d in a similar calling, shall
employ in exhibitions of these kinds, children
u n d e r sixteen years of a g e w h o a r e not his children
or descendants.
767
3. A n y person e n g a g e d in any of the callings

e n u m e r a t e d i n the next p r e c e d i n g p a r a g r a p h w h o
shall employ any descendant of his u n d e r twelve
years of age in such d a n g e r o u s exhibitions.
4. A n y ascendant, g u a r d i a n , teacher or p e r s o n
entrusted in any capacity w i t h the c a r e of a child
u n d e r sixteen y e a r s of a g e , w h o shall d e l i v e r such
child gratuitously to a n y p e r s o n f o l l o w i n g a n y of
the callings e n u m e r a t e d in p a r a g r a p h 2 hereof, or
to any habitual vagrant or beggar.
If the d e l i v e r y shall h a v e b e e n m a d e in
consideration of a n y p r i c e , c o m p e n s a t i o n or
p r o m i s e , the p e n a l t y shall in e v e r y case be i m p o s e d
in its m a x i m u m p e r i o d .
I n either case, the g u a r d i a n o r c u r a t o r

convicted shall also be r e m o v e d f r o m office as
g u a r d i a n o r c u r a t o r ; a n d i n the case o f the p a r e n t s
o f the child, they m a y b e d e p r i v e d , t e m p o r a r i l y o r
p e r p e t u a l l y , in the discretion of the c o u r t , of their
p a r e n t a l authority.
5. A n y p e r s o n w h o shall i n d u c e a n y child u n d e r
sixteen y e a r s of a g e to a b a n d o n the h o m e of its
ascendants, g u a r d i a n s , c u r a t o r s o r t e a c h e r s t o
follow a n y p e r s o n e n g a g e d i n a n y o f the callings
m e n t i o n e d in p a r a g r a p h 2 hereof, or to a c c o m p a n y
any habitual vagrant or beggar.
• What kind of business does Article 278 speak of?
This crime treats of the calling of persons engaged in the

circus business and in no. 5 of mendicancy or begging. Under
R . A . 7610, a higher penalty is imposed for exploitation of
minor where the welfare and development of the minor was
prejudiced by the establishment w h e r e he is employed.
A r t . 279. Additional penalties for other offenses. — T h e

imposition of the penalties p r e s c r i b e d in the p r e c e d i n g
articles, shall not p r e v e n t the imposition u p o n the s a m e
768
p e r s o n of the p e n a l t y p r o v i d e d for a n y other felonies d e n n e d

a n d p u n i s h e d b y this C o d e .
• What penalties are imposable when the abandonment resulted

to other crimes?
T h e offender is liable not only for the abandonment or

exploitation but also for all its consequences. If as a result,
physical injuries or death resulted, another crime is committed
by authority of Article 279.
R E P U B L I C A C T N O . 7610, a s a m e n d e d
Child Abuse L a w
Article I — Title, Policy, Principles and Definition

of Terms
xxx xxx xxx
Sec. 3. Definition of Terms. —
(a) "Children" r e f e r s to p e r s o n s b e l o w 18 y e a r s of
a g e o r those w h o a r e u n a b l e t o fully take c a r e o f
themselves o r protect themselves f r o m a b u s e ,
neglect, cruelty, exploitation or discrimination
b e c a u s e of a p h y s i c a l or mental disability or
condition;
( b ) "Child Abuse" r e f e r s to the maltreatment, w h e t h e r
h a b i t u a l or not, of the child w h i c h includes any of
the following:
(1) P s y c h o l o g i c a l a n d physical a b u s e , neglect,
cruelty, sexual abuse and emotional
maltreatment;
(2) A n y act b y deeds o r w o r d s w h i c h debases,
d e g r a d e s o r d e m e a n s the intrinsic w o r t h a n d
dignity of a child as a h u m a n being;
(3) U n r e a s o n a b l e d e p r i v a t i o n of his basic needs
for survival, such as food a n d shelter; or
(4) F a i l u r e to immediately give medical treatment
to an i n j u r e d child resulting in serious
769
impairment of his g r o w t h a n d d e v e l o p m e n t or
in his p e r m a n e n t incapacity or death.
"Circumstances which gravely threaten or
e n d a n g e r the survival a n d n o r m a l d e v e l o p m e n t
of children" include, b u t a r e not limited to, the
following:
(1) B e i n g in a community w h e r e there is a r m e d
conflict or b e i n g affected by a r m e d conflict-
related activities;
(2) W o r k i n g u n d e r conditions hazardous to life,
safety a n d morals w h i c h unduly interfere with
their normal development;
(3) L i v i n g in or f e n d i n g for themselves in the
streets o f u r b a n o r r u r a l a r e a s w i t h o u t the
c a r e of p a r e n t s or a g u a r d i a n or a n y a d u l t
s u p e r v i s i o n n e e d e d for their w e l f a r e ;
(4) Being a m e m b e r of an indigenous cultural
c o m m u n i t y a n d / o r l i v i n g u n d e r conditions
of extreme poverty or in an area which
i s u n d e r d e v e l o p e d a n d / o r lacks o r h a s
i n a d e q u a t e access to b a s i c services n e e d e d for
a g o o d q u a l i t y of life;
(5) B e i n g a victim of a m a n - m a d e or n a t u r a l
disaster or calamity; or
(6) C i r c u m s t a n c e s a n a l o g o u s t o that a b o v e s t a t e d
w h i c h e n d a n g e r the life, safety o r n o r m a l
development of children.
"Comprehensive p r o g r a m against child abuse,
exploitation a n d d i s c r i m i n a t i o n " r e f e r s t o the
c o o r d i n a t e d p r o g r a m o f services a n d facilities t o
protect c h i l d r e n against:
(1) C h i l d prostitution a n d o t h e r s e x u a l a b u s e ;
(2) C h i l d trafficking;
(3) Obscene publications a n d indecent shows;
(4) O t h e r acts o f a b u s e ; a n d
770
(5) Circumstances which threaten or endanger

the s u r v i v a l a n d n o r m a l d e v e l o p m e n t o f
children.
xxx xxx xxx

A r t . I l l — Child Prostitution and Other Sexual Abuse
Sec. 5. Child Prostitution and Other Sexual Abuse. —

C h i l d r e n , w h e t h e r m a l e o r f e m a l e , w h o for m o n e y , profit, o r
a n y other c o n s i d e r a t i o n or d u e to the c o e r c i o n or influence of
any a d u l t , syndicate o r g r o u p , i n d u l g e i n s e x u a l intercourse
or lascivious c o n d u c t , a r e d e e m e d to be c h i l d r e n exploited in
prostitution a n d o t h e r s e x u a l a b u s e .
T h e p e n a l t y of reclusion temporal in its m e d i u m p e r i o d

to reclusion perpetua shall be i m p o s e d u p o n the following:
(a) T h o s e w h o e n g a g e i n o r p r o m o t e , facilitate o r
i n d u c e c h i l d prostitution w h i c h include, b u t a r e
not limited to, the f o l l o w i n g :
(1) A c t i n g as a p r o c u r e r of a child prostitute;
(2) I n d u c i n g a p e r s o n to be a client of a child

prostitute b y m e a n s o f w r i t t e n o r o r a l
a d v e r t i s e m e n t s or other similar means;
(3) T a k i n g a d v a n t a g e o f influence o r relationship
to p r o c u r e a child as a prostitute;
(4) T h r e a t e n i n g or u s i n g violence t o w a r d s a child
to e n g a g e h i m as a prostitute; or
(5) G i v i n g m o n e t a r y consideration, goods or other
p e c u n i a r y benefits to a child with the intent to
e n g a g e such child in prostitution.
( b ) Those w h o commit the act of sexual intercourse
or lascivious conduct with a child exploited in
prostitution or subjected to other sexual abuse:
Provided, T h a t w h e n the victim is u n d e r 12 years
of age, the p e r p e t r a t o r s shall be prosecuted u n d e r
A r t . 335, par. 3, for r a p e a n d A r t . 336 of Act 3815, as
a m e n d e d , the R P C , for r a p e or lascivious conduct,
as the case may be: Provided, That the penalty
771
for lascivious conduct w h e n the victim is u n d e r

12 years of a g e shall be reclusion temporal in its
m e d i u m period; and
(c) Those w h o derive profit or a d v a n t a g e therefrom,
w h e t h e r as m a n a g e r or o w n e r of the establishment
w h e r e the prostitution takes place, or of the
sauna, disco, b a r , resort, place of entertainment or
establishment s e r v i n g as a cover or w h i c h e n g a g e s
in prostitution in a d d i t i o n to the activity for w h i c h
the license has b e e n issued to said establishment.
Sec. 6. Attempt to Commit Child Prostitution. — T h e r e is
an attempt to commit child prostitution u n d e r Sec. 5, p a r . ( a )
hereof w h e n any p e r s o n w h o , not b e i n g a relative of a child,
is found alone w i t h the said child inside the r o o m or cubicle
of a house, an inn, hotel, motel, p e n s i o n h o u s e , a p a r t e l l e or
other similar establishments, vessel, vehicle or a n y other
h i d d e n o r secluded a r e a u n d e r circumstances w h i c h w o u l d
lead a r e a s o n a b l e p e r s o n to b e l i e v e that the child is a b o u t to
b e exploited i n prostitution a n d other s e x u a l a b u s e .
T h e r e is also an attempt to c o m m i t child prostitution,
u n d e r p a r . ( b ) of Sec. 5 h e r e o f w h e n a n y p e r s o n is r e c e i v i n g
services f r o m a child in a s a u n a p a r l o r or b a t h , m a s s a g e
clinic, health c l u b a n d o t h e r s i m i l a r establishments. A
penalty l o w e r b y t w o d e g r e e s t h a n that p r e s c r i b e d for the
c o n s u m m a t e d felony u n d e r Sec. 5 h e r e o f shall be i m p o s e d
u p o n the p r i n c i p a l s of the attempt to c o m m i t the c r i m e of
child prostitution u n d e r this A c t , o r , i n the p r o p e r case,
u n d e r the R P C .
A r t . I V . — Child Trafficking
Sec. 7. Child Trafficking. — A n y p e r s o n w h o shall e n g a g e
in t r a d i n g a n d dealing with children including, b u t not limited
to, the act of b u y i n g a n d selling of a child for money, or for
any other consideration, or b a r t e r , shall suffer the penalty of
reclusion temporal to reclusion perpetua. T h e penalty shall
be imposed in its m a x i m u m p e r i o d w h e n the victim is u n d e r
twelve years of age.
Sec. 8. Attempt to Commit Child Trafficking. — T h e r e is

an attempt to commit child trafficking u n d e r Sec. 7 of this
Act:
772
a. W h e n a child t r a v e l s a l o n e to a f o r e i g n country
w i t h o u t v a l i d r e a s o n t h e r e f o r a n d w i t h o u t clear-
ance issued b y the D S W D o r w r i t t e n p e r m i t o r justi-
f i c a t i o n f r o m the child's p a r e n t s o r legal g u a r d i a n ;
b. W h e n a p r e g n a n t m o t h e r executes an affidavit of
consent for a d o p t i o n f o r a consideration;
c. W h e n a p e r s o n , a g e n c y , e s t a b l i s h m e n t or child-car-
i n g institution r e c r u i t s w o m e n o r couples t o b e a r
c h i l d r e n for the p u r p o s e of child trafficking;
d. W h e n a d o c t o r , hospital or clinic official or employ-
ee, n u r s e , m i d w i f e , local civil r e g i s t r a r or a n y other
p e r s o n simulates b i r t h for the p u r p o s e of child traf-
ficking; or
e. W h e n a p e r s o n e n g a g e s in the act of finding chil-
d r e n a m o n g l o w i n c o m e families, hospitals, clinics,
n u r s e r i e s , d a y - c a r e centers, o r other child-caring
institutions w h o c a n b e offered for the p u r p o s e o f
child trafficking.
A penalty l o w e r b y t w o d e g r e e s t h a n that p r e s c r i b e d
for the c o n s u m m a t e d felony u n d e r Sec. 7 h e r e o f shall be
imposed u p o n the p r i n c i p a l s of the attempt to commit child
trafficking u n d e r this A c t .
A r t . V. — Obscene Publications and Indecent Shows

Sec. 9. Obscene Publications and Indecent Shows. —
A n y p e r s o n w h o shall h i r e , e m p l o y , use, p e r s u a d e , induce
or coerce a child to p e r f o r m in obscene exhibitions a n d
indecent s h o w s , w h e t h e r live or in v i d e o , pose, or model in
obscene publications or p o r n o g r a p h i c materials or to sell
or distribute the said m a t e r i a l s shall suffer the penalty of
prision mayor in its m e d i u m p e r i o d .
If the child u s e d as a p e r f o r m e r , subject or seller/
distributor is b e l o w 12 y e a r s of a g e , the penalty shall be
imposed in its m a x i m u m p e r i o d .
A n y ascendant, g u a r d i a n , or p e r s o n entrusted in any
capacity w i t h care of a child w h o shall cause and/or allow
such child to be e m p l o y e d or to participate in an obscene
play, scene, act, movie or s h o w or in any other acts covered
by this section shall suffer the penalty of prision mayor in its
m e d i u m period.
773
A r t . V I . — Other Acts or Abuse

Sec. 10. Other Acts of Neglect, Abuse, Cruelty or
Exploitation and Other Conditions Prejudicial to the Child's
Development. —
( a ) A n y person w h o shall commit any other acts of child
abuse, cruelty or exploitation or be responsible
for other conditions p r e j u d i c i a l to the child's
development i n c l u d i n g those c o v e r e d by A r t . 59 of
P . D . N o . 603, as a m e n d e d , b u t not c o v e r e d by the
R P C , as a m e n d e d , shall suffer the penalty of prision
mayor in its m i n i m u m p e r i o d .
( b ) A n y p e r s o n w h o shall k e e p o r h a v e i n his c o m p a n y
a m i n o r , 12 y e a r s or u n d e r or w h o is ten y e a r s or
m o r e his j u n i o r in a n y p u b l i c or p r i v a t e place,
hotel, motel, b e e r joint, d i s c o t h e q u e , c a b a r e t ,
pension house, s a u n a o r m a s s a g e p a r l o r , b e a c h a n d /
or other tourist r e s o r t or s i m i l a r places shall suffer
the penalty of prision mayor in its m a x i m u m p e r i o d
a n d a fine of not less t h a n fifty t h o u s a n d pesos:
Provided, T h a t this p r o v i s i o n shall not a p p l y to a n y
p e r s o n w h o i s r e l a t e d w i t h i n the f o u r t h d e g r e e o f
c o n s a n g u i n i t y o r affinity o r a n y b o n d r e c o g n i z e d
b y l a w , local c u s t o m a n d t r a d i t i o n , o r acts i n the
p e r f o r m a n c e of a social, m o r a l or l e g a l duty.
(c) A n y p e r s o n w h o shall i n d u c e , d e l i v e r o r offer a
m i n o r t o a n y o n e p r o h i b i t e d b y this A c t t o k e e p o r
h a v e in his c o m p a n y a m i n o r as p r o v i d e d in the
p r e c e d i n g p a r a g r a p h , shall suffer the p e n a l t y o f
prision mayor in its m e d i u m p e r i o d a n d a fine of
not less t h a n P50,000.00: Provided, however, T h a t
s h o u l d the p e r p e t r a t o r b e a n a s c e n d a n t , s t e p p a r e n t
o r g u a r d i a n o f the m i n o r , the p e n a l t y t o b e i m p o s e d
shall be prision mayor in its m a x i m u m p e r i o d , a fine
of not less that P50.000.00, a n d the loss of p a r e n t a l
authority o v e r the m i n o r .
( d ) A n y person, o w n e r , m a n a g e r or one entrusted

w i t h the o p e r a t i o n o f a n y p u b l i c o r p r i v a t e p l a c e
o f a c c o m m o d a t i o n , w h e t h e r for o c c u p a n c y , food,
d r i n k o r o t h e r w i s e , i n c l u d i n g r e s i d e n t i a l places,
774
w h o a l l o w s a n y p e r s o n t o take a l o n g w i t h h i m t o
such p l a c e o r places a n y m i n o r h e r e i n d e s c r i b e d
shall be i m p o s e d a p e n a l t y of prision mayor in its
m e d i u m p e r i o d a n d a fine of not less t h a n P50,000.00,
a n d the loss of the license to o p e r a t e such a place or
establishment.
(e) A n y p e r s o n w h o shall use, coerce, force o r intimidate
a street c h i l d or a n y o t h e r child to:
(1) B e g or use b e g g i n g as a m e a n s of living;
(2) A c t a s c o n d u i t o r m i d d l e m a n i n d r u g trafficking
or pushing; or
(3) C o n d u c t a n y illegal activities, shall suffer the
p e n a l t y of prision correccional in its m e d i u m
p e r i o d to reclusion perpetua.
F o r p u r p o s e s of this A c t , the penalty for the commission

of acts p u n i s h a b l e u n d e r A r t s . 248, 249, 262, p a r . 2, a n d 263,
p a r . 1 of A c t 3815, as a m e n d e d , the R P C , for the crimes of
m u r d e r , h o m i c i d e , other intentional mutilation, a n d serious
physical injuries, respectively, shall be reclusion perpetua
w h e n the victim is u n d e r 12 y e a r s of a g e . T h e penalty for
the commission of acts p u n i s h a b l e u n d e r A r t s . 337, 339, 340
a n d 341 of A c t 3815, as a m e n d e d , the R P C , for the crimes of
qualified seduction, acts of lasciviousness w i t h the consent
of the offended p a r t y , c o r r u p t i o n of m i n o r s , a n d white slave
t r a d e , respectively, shall be one d e g r e e h i g h e r than that
imposed by l a w w h e n the victim is u n d e r 12 y e a r s of age.
xxx xxx xxx
WORST FORMS OF CHILD LABOR
xxx xxx xxx
Sec. 2. — Section 12 of the same Act, as a m e n d e d , is
h e r e b y further a m e n d e d to r e a d as follows:
"Sec. 2. Employment of Children. — C h i l d r e n b e l o w
fifteen (15) years of a g e shall not be employed except:
"1) W h e n a child w o r k s directly u n d e r the sole re-
sponsibility of his/her parents or legal g u a r d i a n
775
and w h e r e only m e m b e r s of his/her family are em-

ployed: Provided, however, T h a t his/her employ-
ment neither e n d a n g e r s his/her life, safety, health,
and morals, n o r impairs his/her n o r m a l develop-
ment: Provided, further, T h a t the p a r e n t or legal
g u a r d i a n shall p r o v i d e the said child w i t h the p r e -
scribed p r i m a r y and/or s e c o n d a r y education;
"2) W h e r e a child's e m p l o y m e n t or participation in
public entertainment o r information t h r o u g h
cinema, theater, r a d i o , television or other forms of
m e d i a is essential: Provided, T h a t the e m p l o y m e n t
contract is c o n c l u d e d by the child's p a r e n t s or legal
g u a r d i a n , w i t h the express a g r e e m e n t of the child
concerned, if possible, a n d the a p p r o v a l of the
D e p a r t m e n t of L a b o r a n d E m p l o y m e n t : Provided,
further, T h a t the f o l l o w i n g r e q u i r e m e n t s in all
instances a r e strictly c o m p l i e d with:
" ( a ) T h e e m p l o y e r shall e n s u r e the protection,
health, safety, m o r a l s a n d n o r m a l d e v e l o p m e n t
of the child;
"(b) The employer shall institute measures
to prevent the child's exploitation or
d i s c r i m i n a t i o n t a k i n g into a c c o u n t the system
a n d level o f r e m u n e r a t i o n , a n d the d u r a t i o n
a n d a r r a n g e m e n t o f w o r k i n g time; a n d
"(c) T h e e m p l o y e r shall f o r m u l a t e a n d i m p l e m e n t ,
subject t o the a p p r o v a l a n d s u p e r v i s i o n o f
competent authorities, a c o n t i n u i n g p r o g r a m
for t r a i n i n g a n d skills a c q u i s i t i o n of the child.
"In the a b o v e e x c e p t i o n a l cases w h e r e a n y such child
m a y b e e m p l o y e d , the e m p l o y e r shall f i r s t s e c u r e , b e f o r e
e n g a g i n g such child, a w o r k p e r m i t f r o m the D e p a r t m e n t o f
L a b o r a n d E m p l o y m e n t w h i c h shall e n s u r e o b s e r v a n c e o f
the a b o v e r e q u i r e m e n t s .
"For p u r p o s e s of this A r t i c l e , the t e r m "child" shall
a p p l y to all p e r s o n s u n d e r e i g h t e e n (18) y e a r s of age."
Sec. 3. — T h e s a m e A c t , as a m e n d e d , is h e r e b y f u r t h e r
a m e n d e d b y a d d i n g n e w sections t o b e d e n o m i n a t e d a s
Sections 12-A, 12-B, 12-C, a n d 12-D to r e a d as follows:
776
"Sec. 12-A. Hours of Work of a Working Child. — U n d e r

the exceptions p r o v i d e d in Section 12 of this Act, as a m e n d e d :
"(1) A c h i l d b e l o w fifteen (15) y e a r s of a g e m a y be
allowed t o w o r k for n o t m o r e t h a n t w e n t y (20)
hours a w e e k : Provided, T h a t the w o r k shall not
be more t h a n f o u r (4) h o u r s a t a n y g i v e n day;
"(2) A child fifteen (15) y e a r s of a g e b u t b e l o w eighteen
(18) shall not be a l l o w e d to w o r k for m o r e than
eight (8) h o u r s a d a y , a n d in no case b e y o n d forty
(40) h o u r s a w e e k ;
"(3) No child b e l o w fifteen (15) y e a r s of a g e shall be
a l l o w e d to w o r k b e t w e e n eight o'clock in the
e v e n i n g a n d six o'clock in the m o r n i n g of the
f o l l o w i n g d a y a n d n o child f i f t e e n (15) years o f age
b u t b e l o w eighteen (18) shall b e a l l o w e d t o w o r k
b e t w e e n ten o'clock in the e v e n i n g a n d six o'clock
in the m o r n i n g of the f o l l o w i n g day."
xxx xxx xxx
"Sec. 12-D. Prohibition against Worst Forms of Child

Labor. — No child shall be e n g a g e d in the w o r s t forms of
child l a b o r . T h e p h r a s e "worst forms of child l a b o r " shall
refer to a n y of the following:
"(1) A l l forms of slavery, as defined u n d e r the "Anti-

trafficking in P e r s o n s A c t of 2003," or practices
similar to slavery such as sale a n d trafficking of
children, d e b t b o n d a g e a n d s e r f d o m a n d forced
or c o m p u l s o r y l a b o r , i n c l u d i n g recruitment of
children for use in a r m e d conflict; or
"(2) T h e use, p r o c u r i n g , offering or exposing of a child

for prostitution, for the p r o d u c t i o n of p o r n o g r a p h y
or for p o r n o g r a p h i c performances; or
"(3) The use, p r o c u r i n g or offering of a child for illegal
or illicit activities, including the production
and trafficking of d a n g e r o u s drugs and volatile
substances prohibited u n d e r existing laws; or
"(4) W o r k w h i c h , by its nature or the circumstances in
w h i c h it is carried out, is h a z a r d o u s or likely to be
777
h a r m f u l to the health, safety or m o r a l s of children,

such that it:
"a) D e b a s e s , d e g r a d e s or d e m e a n s the intrinsic
w o r t h a n d dignity of a child as a h u m a n being;
or
"b) Exposes the child to physical, emotional or
sexual a b u s e , or is f o u n d to be h i g h l y stressful
psychologically o r m a y p r e j u d i c e m o r a l s ;
"c) Is p e r f o r m e d u n d e r g r o u n d , u n d e r w a t e r or at
d a n g e r o u s heights;
"d) Involves the use of d a n g e r o u s m a c h i n e r y ,
e q u i p m e n t a n d tools such a s p o w e r - d r i v e n o r
explosive p o w e r - a c t u a t e d tools;
"e) E x p o s e s the child to p h y s i c a l d a n g e r such

as, b u t not limited to the d a n g e r o u s feats of
b a l a n c i n g , physical s t r e n g t h o r contortion, o r
w h i c h r e q u i r e s the m a n u a l t r a n s p o r t o f h e a v y
loads; o r
"f) Is p e r f o r m e d in an unhealthy environment

exposing the child to h a z a r d o u s w o r k i n g
conditions, elements, substances, co-agents or
processes involving ionizing, radiation, fire,
flammable substances, noxious components
a n d the like, or to extreme temperatures, noise
levels, or vibrations; or
"g) Is performed under particularly difficult

conditions; or
"h) E x p o s e s the child to b i o l o g i c a l a g e n t s s u c h as

bacteria, fungi, viruses, protozoans, nematodes
a n d other p a r a s i t e s ; o r
"i) I n v o l v e s the m a n u f a c t u r e o r h a n d l i n g o f
explosives a n d o t h e r p y r o t e c h n i c p r o d u c t s . "
Sec. 4. xxx xxx xxx
Sec. 5. Section 14 of the s a m e A c t is h e r e b y a m e n d e d to

r e a d as follows:
778
"Sec. 14. Prohibition on the Employment of Children

in Certain Advertisements. — No child shall be e m p l o y e d
as a m o d e l in a n y a d v e r t i s e m e n t directly or indirectly
p r o m o t i n g alcoholic b e v e r a g e s , intoxicating d r i n k s , tobacco
a n d its b y p r o d u c t s , g a m b l i n g o r a n y f o r m o f violence o r
pornography."
Sec. 6. Section 16 of the s a m e A c t , is h e r e b y a m e n d e d to

r e a d as follows:
"Sec. 16. Penal Provisions. —
"a) A n y e m p l o y e r w h o violates Sections 12, 12-A,

a n d Section 14 of this act, as a m e n d e d , shall be
p e n a l i z e d b y i m p r i s o n m e n t o f six (6) months a n d
one (1) d a y to six (6) y e a r s or a fine of not less t h a n
Fifty t h o u s a n d pesos (P50,000.00) b u t not m o r e
t h a n T h r e e h u n d r e d t h o u s a n d pesos (P300,000.00)
or b o t h at the discretion of the court.
"b) A n y p e r s o n w h o violates the p r o v i s i o n o f Section

12-D of this act or the e m p l o y e r of the s u b c o n t r a c t o r
w h o e m p l o y s , o r the one w h o facilitates the
e m p l o y m e n t of a child in h a z a r d o u s w o r k , shall
suffer the p e n a l t y of a fine of not less t h a n O n e
h u n d r e d t h o u s a n d pesos (P100,000.00) b u t not
m o r e t h a n O n e million pesos (PI,000,000.00), or
i m p r i s o n m e n t of not less t h a n t w e l v e (12) years a n d
one (1) d a y to t w e n t y (20) y e a r s , or both such fine
a n d i m p r i s o n m e n t at the discretion of the court.
"c) A n y p e r s o n w h o violates Sections 12-D(1) a n d

12-D(2) shall be p r o s e c u t e d a n d penalized in
a c c o r d a n c e w i t h the penalty p r o v i d e d for by R.A.
9208 o t h e r w i s e k n o w n as the "Anti-trafficking in
P e r s o n s A c t of 2003": Provided, T h a t Such penalty
shall be imposed in its m a x i m u m period.
"d) A n y person w h o violates Section 12-D (3) shall be
prosecuted a n d penalized in accordance with R.A.
9165, otherwise k n o w n as the "Comprehensive
D a n g e r o u s D r u g s A c t of 2002"; Provided, That such
penalty shall be imposed in its m a x i m u m period.
779
"e) If a corporation commits any of the violations

aforecited, the b o a r d of directors/trustees a n d
officers, w h i c h include the president, t r e a s u r e r a n d
secretary of the said c o r p o r a t i o n w h o participated
in or k n o w i n g l y a l l o w e d the violation, shall be
penalized accordingly as p r o v i d e d for u n d e r this
Section.
"f) Parents, biological or by legal fiction, a n d legal
g u a r d i a n s found to be violating Sections 12, 12-A,
12-B a n d 12-C of this A c t shall p a y a fine of not less
than T e n t h o u s a n d pesos (P10,000.00) b u t not m o r e
than O n e h u n d r e d t h o u s a n d pesos (P100,000.00),
or be r e q u i r e d to r e n d e r c o m m u n i t y service for
not less than thirty (30) d a y s b u t not m o r e t h a n
one (1) y e a r , or both such fine a n d c o m m u n i t y
service at the discretion of the court: Provided,
T h a t the m a x i m u m length o f c o m m u n i t y service
shall b e i m p o s e d o n p a r e n t s o r l e g a l g u a r d i a n s
w h o h a v e violated the p r o v i s i o n s o f this A c t t h r e e
(3) times; Provided, further, T h a t in a d d i t i o n to the
c o m m u n i t y service, the p e n a l t y of i m p r i s o n m e n t of
thirty (30) d a y s b u t not m o r e t h a n o n e (1) y e a r o r
both at the discretion of the c o u r t , shall be i m p o s e d
o n the p a r e n t s o r l e g a l g u a r d i a n s w h o h a v e v i o l a t e d
the p r o v i s i o n s of this A c t m o r e t h a n t h r e e (3) times.
"g) T h e S e c r e t a r y , o f L a b o r a n d E m p l o y m e n t o r his/
h e r d u l y a u t h o r i z e d r e p r e s e n t a t i v e m a y , after d u e
notice a n d h e a r i n g , o r d e r the c l o s u r e o f a n y b u s i n e s s
firm or e s t a b l i s h m e n t f o u n d to h a v e v i o l a t e d a n y of
the p r o v i s i o n s of this A c t m o r e t h a n t h r e e (3) times.
He/she shall l i k e w i s e o r d e r the i m m e d i a t e c l o s u r e
of such firm or e s t a b l i s h m e n t if:
"(1) T h e violation of a n y p r o v i s i o n of this A c t

has resulted in the d e a t h , insanity or serious
physical i n j u r y of a c h i l d e m p l o y e d in such
establishment;
"(2) S u c h f i r m o r e s t a b l i s h m e n t i s e n g a g e d o r
e m p l o y e d i n prostitution o r i n o b s c e n e o r l e w d
shows.
780
"h) In case of such c l o s u r e , the e m p l o y e r shall be

r e q u i r e d t o p a y the e m p l o y e e ( s ) the s e p a r a t i o n p a y
a n d o t h e r m o n e t a r y benefits p r o v i d e d for b y l a w . "
xxx xxx xxx

A p p r o v e d : D e c e m b e r 19, 2003.
xxx xxx xxx
Sec. 3. Definition of Terms. — As u s e d in this Act:
(a) Trafficking in Persons — r e f e r s to the recruitment,
t r a n s p o r t a t i o n , t r a n s f e r o r h a r b o r i n g , o r receipt
of p e r s o n s w i t h or w i t h o u t the victim's consent
o r k n o w l e d g e , w i t h i n o r across national b o r d e r s
by m e a n s of t h r e a t or use of force, or other forms
o f coercion, a b d u c t i o n , f r a u d , deception, a b u s e
of p o w e r or of position, t a k i n g a d v a n t a g e of the
v u l n e r a b i l i t y of the p e r s o n , or, the g i v i n g or
r e c e i v i n g of p a y m e n t s or benefits to achieve the
consent of a p e r s o n h a v i n g control o v e r a n o t h e r
p e r s o n for the p u r p o s e of exploitation w h i c h
includes at a m i n i m u m , the exploitation or the
prostitution of others or other forms of sexual
exploitation, forced l a b o r or services, slavery,
servitude or the r e m o v a l or sale of o r g a n s .
T h e r e c r u i t m e n t , t r a n s p o r t a t i o n , transfer,
h a r b o r i n g or receipt of a child for the p u r p o s e of
exploitation shall also be c o n s i d e r e d as "trafficking
in persons" even if it does not involve any of the
m e a n s set forth in the p r e c e d i n g p a r a g r a p h .
( b ) Child — refers to a p e r s o n b e l o w eighteen (18)
years of a g e or one w h o is o v e r eighteen (18) but
is u n a b l e to fully take c a r e of or protect himself/
herself f r o m a b u s e , neglect, cruelty, exploitation,
or discrimination because of a physical or mental
disability or condition.
(c) Prostitution — refers to any act, transaction,
scheme or design involving the use of a person
781
by another, for sexual intercourse or lascivious

conduct in exchange for money, profit or any other
consideration.
( d ) Forced Labor and Slavery — refer to the extraction
of w o r k or services f r o m any p e r s o n by m e a n s
of enticement, violence, intimidation or threat,
use of force or coercion, including d e p r i v a t i o n of
freedom, a b u s e of authority or m o r a l a s c e n d a n c y ,
d e b t - b o n d a g e or deception.
(e) Sex Tourism — refers to a p r o g r a m o r g a n i z e d by
travel a n d tourism-related establishments a n d
individuals w h i c h consists of t o u r i s m p a c k a g e s or
activities, utilizing a n d offering escort a n d s e x u a l
services as enticement for tourists. T h i s includes
sexual services a n d practices offered d u r i n g rest
a n d r e c r e a t i o n p e r i o d s for m e m b e r s of the military.
(f) Sexual Exploitation — refers to participation
by a p e r s o n in prostitution or the p r o d u c t i o n
of p o r n o g r a p h i c m a t e r i a l s as a result of b e i n g
subjected to a threat, deception, coercion,
a b d u c t i o n , force, a b u s e o f authority, d e b t b o n d a g e ,
f r a u d or t h r o u g h a b u s e of a victim's v u l n e r a b i l i t y .
(g) Debt Bondage — refers to the p l e d g i n g by the
d e b t o r o f his/her p e r s o n a l services o r l a b o r o r those
of a p e r s o n u n d e r his/her control as security or
p a y m e n t for a debt, w h e n the l e n g t h a n d n a t u r e of
services is not clearly defined or w h e n the v a l u e of
the services as r e a s o n a b l y assessed is not a p p l i e d
t o w a r d the l i q u i d a t i o n o f the d e b t .
( h ) Pornography — r e f e r s to any representation,
through publication, exhibition, cinematography,
indecent s h o w s , i n f o r m a t i o n t e c h n o l o g y , o r b y
w h a t e v e r m e a n s , of a p e r s o n e n g a g e d in r e a l
or simulated explicit s e x u a l activities or a n y
r e p r e s e n t a t i o n of the s e x u a l p a r t s of a p e r s o n for
p r i m a r i l y sexual p u r p o s e s .
(i) Council — shall m e a n the I n t e r - A g e n c y C o u n c i l
A g a i n s t Trafficking c r e a t e d u n d e r Section 2 0 o f
this A c t .
782
Sec. 4. Acts of Trafficking in Persons. — It shall be

u n l a w f u l for a n y p e r s o n , n a t u r a l o r j u r i d i c a l , t o commit any
of the f o l l o w i n g acts:
(a) T o r e c r u i t , t r a n s p o r t , transfer; h a r b o r , p r o v i d e ,
or receive a p e r s o n by a n y m e a n s , i n c l u d i n g those
d o n e u n d e r the p r e t e x t of domestic or overseas
e m p l o y m e n t o r t r a i n i n g o r a p p r e n t i c e s h i p , for
the p u r p o s e o f prostitution, p o r n o g r a p h y , sexual
exploitation, f o r c e d l a b o r , slavery, i n v o l u n t a r y
servitude or debt bondage;
( b ) T o i n t r o d u c e o r m a t c h for m o n e y , profit, o r
m a t e r i a l , e c o n o m i c o r other consideration, any
p e r s o n or, a s p r o v i d e d for u n d e r R e p u b l i c A c t N o .
6955, a n y F i l i p i n o w o m a n to a f o r e i g n national,
for m a r r i a g e for the p u r p o s e o f a c q u i r i n g , b u y i n g ,
offering, selling or t r a d i n g h i m / h e r to e n g a g e in
prostitution, p o r n o g r a p h y , sexual exploitation,
f o r c e d l a b o r , s l a v e r y , i n v o l u n t a r y servitude o r d e b t
bondage;
(c) T o offer o r contract m a r r i a g e , r e a l o r simulated,
for the p u r p o s e of a c q u i r i n g , b u y i n g , offering,
selling, or t r a d i n g t h e m to e n g a g e in prostitution,
p o r n o g r a p h y , s e x u a l exploitation, forced l a b o r o r
slavery, i n v o l u n t a r y s e r v i t u d e o r d e b t b o n d a g e ;
( d ) To undertake or organize tours a n d travel plans
consisting of tourism packages or activities for
the p u r p o s e of utilizing a n d offering persons for
prostitution, p o r n o g r a p h y or sexual exploitation;
(e) To m a i n t a i n or h i r e a p e r s o n to engage in
prostitution o r p o r n o g r a p h y ;
(f) To a d o p t or facilitate the a d o p t i o n of persons for
the p u r p o s e of prostitution, p o r n o g r a p h y , sexual
exploitation, forced l a b o r , slavery, involuntary
servitude o r d e b t b o n d a g e ;
(g) To recruit, hire, adopt, t r a n s p o r t or abduct a
person, by means of threat or use of force, fraud,
deceit, violence, coercion, or intimidation for the
p u r p o s e of r e m o v a l or sale of o r g a n s of said person;
and
783
(h) To recruit, transport or adopt a child to e n g a g e in

a r m e d activities in the Philippines or a b r o a d .
Sec. 5. Acts that Promote Trafficking in Persons. — T h e
following acts w h i c h promote or facilitate trafficking in
persons, shall be unlawful:
(a) To k n o w i n g l y lease or sublease, use or a l l o w to be
used any house, b u i l d i n g or establishment for the
p u r p o s e of p r o m o t i n g trafficking in persons;
( b ) T o p r o d u c e , print a n d issue o r distribute u n i s s u e d ,
tampered or fake counseling certificates,
registration stickers and certificates of a n y
g o v e r n m e n t a g e n c y w h i c h issues these certificates
a n d stickers as p r o o f of c o m p l i a n c e w i t h g o v e r n m e n t
r e g u l a t o r y a n d p r e - d e p a r t u r e r e q u i r e m e n t s for the
p u r p o s e of p r o m o t i n g trafficking in persons;
(c) T o advertise, p u b l i s h , print, b r o a d c a s t o r d i s t r i b u t e ,

or cause the advertisement, p u b l i c a t i o n , p r i n t i n g ,
broadcasting or distribution by any means,
i n c l u d i n g the use of i n f o r m a t i o n t e c h n o l o g y a n d the
internet, o f a n y b r o c h u r e , f l y e r , o r a n y p r o p a g a n d a
m a t e r i a l that p r o m o t e s trafficking in persons;
(d) To assist in the c o n d u c t of m i s r e p r e s e n t a t i o n or

f r a u d for p u r p o s e s o f facilitating the a c q u i s i t i o n
o f clearances a n d n e c e s s a r y exit d o c u m e n t s
f r o m g o v e r n m e n t a g e n c i e s that a r e m a n d a t e d t o
p r o v i d e p r e - d e p a r t u r e r e g i s t r a t i o n a n d services
for d e p a r t i n g p e r s o n s for the p u r p o s e o f p r o m o t i n g
trafficking in persons;
(e) To facilitate, assist or h e l p in the exit a n d e n t r y of

p e r s o n s from/to the c o u n t r y at i n t e r n a t i o n a l a n d
local a i r p o r t s , t e r r i t o r i a l b o u n d a r i e s a n d s e a p o r t s
w h o a r e i n possession o f u n i s s u e d , t a m p e r e d o r
f r a u d u l e n t travel d o c u m e n t s f o r the p u r p o s e o f
p r o m o t i n g trafficking in p e r s o n s ;
(f) To confiscate, conceal, or d e s t r o y the p a s s p o r t ,

t r a v e l documents, o r p e r s o n a l d o c u m e n t s o r
b e l o n g i n g s of trafficked p e r s o n s in f u r t h e r a n c e
784
of trafficking or to p r e v e n t t h e m f r o m leaving the

c o u n t r y o r s e e k i n g r e d r e s s f r o m the g o v e r n m e n t o r
a p p r o p r i a t e agencies; a n d
(g) T o k n o w i n g l y benefit f r o m , f i n a n c i a l o r o t h e r w i s e ,
or m a k e use of, the l a b o r or services of a p e r s o n
h e l d to a condition of i n v o l u n t a r y servitude, forced
l a b o r , o r slavery.
Sec. 6. Qualified Trafficking in Persons. — T h e f o l l o w i n g
a r e c o n s i d e r e d as qualified trafficking:
( a ) W h e n the trafficked p e r s o n is a child;
( b ) W h e n the a d o p t i o n i s effected t h r o u g h R e p u b l i c A c t
N o . 8043, o t h e r w i s e k n o w n as the "Inter-Country
A d o p t i o n A c t of 1995" a n d said a d o p t i o n is for
the p u r p o s e of prostitution, p o r n o g r a p h y , sexual
exploitation, f o r c e d l a b o r , slavery, i n v o l u n t a r y
servitude or debt bondage;
(c) W h e n the c r i m e is committed by a syndicate, or in

l a r g e scale. T r a f f i c k i n g is d e e m e d committed by
a syndicate if c a r r i e d out by a g r o u p of three (3)
o r m o r e p e r s o n s c o n s p i r i n g o r confederating with
one a n o t h e r . It is d e e m e d committed in l a r g e scale
if committed a g a i n s t t h r e e (3) or m o r e persons,
i n d i v i d u a l l y or as a g r o u p ;
(d) W h e n the offender is an ascendant, p a r e n t , sibling,
g u a r d i a n or a p e r s o n w h o exercises authority
o v e r the trafficked p e r s o n or w h e n the offense is
committed by a p u b l i c officer or employee;
(e) W h e n the trafficked p e r s o n is r e c r u i t e d to engage

in prostitution w i t h any m e m b e r of the military or
l a w enforcement agencies;
(f) W h e n the offender is a m e m b e r of the military or

l a w enforcement agencies; a n d
(g) W h e n by reason or on occasion of the act of

trafficking in persons, the offended party dies,
becomes insane, suffers mutilation or is afflicted
with H u m a n Immunodeficiency V i r u s ( H I V ) o r the
A c q u i r e d I m m u n e Deficiency S y n d r o m e ( A I D S ) .
785
Sec. 7. Confidentiality. — At any stage of the investiga-

tion, prosecution a n d trial of an offense u n d e r this Act, l a w
enforcement officers, prosecutors, j u d g e s , court personnel
and medical practitioners, as w e l l as parties to the case,
shall recognize the right to p r i v a c y of the trafficked p e r s o n
a n d the accused. T o w a r d s this e n d , l a w enforcement officers,
prosecutors a n d j u d g e s to w h o m the complaint has b e e n re-
ferred may, w h e n e v e r necessary to e n s u r e a fair a n d i m p a r -
tial proceeding, a n d after c o n s i d e r i n g all circumstances for
the best interest of the parties, o r d e r a closed-door inves-
tigation, prosecution or trial. T h e n a m e a n d p e r s o n a l cir-
cumstances of the trafficked p e r s o n or of the a c c u s e d , or a n y
other information t e n d i n g to establish their identities a n d
such circumstances or i n f o r m a t i o n shall not be disclosed to
the public.
In cases w h e n p r o s e c u t i o n or trial is c o n d u c t e d b e h i n d
closed-doors, it shall be u n l a w f u l for a n y editor, p u b l i s h e r ,
a n d r e p o r t e r or columnist in case of p r i n t e d m a t e r i a l s ,
a n n o u n c e r o r p r o d u c e r i n case o f television a n d r a d i o ,
p r o d u c e r a n d d i r e c t o r of a film in case of the m o v i e i n d u s t r y ,
or any p e r s o n utilizing t r i - m e d i a facilities or i n f o r m a t i o n
technology to cause p u b l i c i t y of a n y case of trafficking in
persons.
xxx xxx xxx
Sec. 10. Penalties and Sanctions. — T h e f o l l o w i n g

penalties a n d sanctions a r e h e r e b y e s t a b l i s h e d for the
offenses e n u m e r a t e d in this Act:
( a ) A n y p e r s o n f o u n d guilty o f c o m m i t t i n g a n y o f the
acts e n u m e r a t e d in Section 4 shall suffer the p e n a l t y
of i m p r i s o n m e n t of t w e n t y (20) y e a r s a n d a fine of
not less t h a n O n e million pesos (P1,000,000.00) b u t
not m o r e t h a n T w o million pesos (P2,000,000.00);
( b ) A n y p e r s o n f o u n d guilty o f c o m m i t t i n g a n y o f
the acts e n u m e r a t e d in Section 5 shall suffer the
p e n a l t y of i m p r i s o n m e n t of fifteen (15) y e a r s a n d a
f i n e o f not less t h a n F i v e h u n d r e d t h o u s a n d pesos
(P500,000.00) b u t not m o r e t h a n O n e m i l l i o n pesos
(P1,000,000.00);
786
(c) A n y p e r s o n f o u n d guilty o f qualified trafficking

u n d e r Section 6 shall suffer the penalty of life
i m p r i s o n m e n t a n d a fine of not less t h a n T w o
million pesos (P2,000,000.00) b u t not m o r e than
F i v e m i l l i o n pesos (P5,000,000.00);
( d ) A n y p e r s o n w h o violates Section 7 h e r e o f shall

suffer the p e n a l t y of i m p r i s o n m e n t of six (6) years
a n d a fine of not less t h a n F i v e h u n d r e d t h o u s a n d
pesos (P500,000.00) b u t not m o r e t h a n O n e million
pesos (P1,000,000.00);
(e) If the o f f e n d e r is a c o r p o r a t i o n , p a r t n e r s h i p ,
association, c l u b , e s t a b l i s h m e n t o r a n y j u r i d i c a l
p e r s o n , the p e n a l t y shall b e i m p o s e d u p o n the o w n e r ,
p r e s i d e n t , p a r t n e r , m a n a g e r , a n d / o r any r e s p o n s i b l e
officer w h o p a r t i c i p a t e d in the commission of the
crime o r w h o shall h a v e k n o w i n g l y permitted o r
failed to p r e v e n t its commission;
(f) T h e r e g i s t r a t i o n w i t h the Securities a n d E x c h a n g e

C o m m i s s i o n ( S E C ) a n d license to o p e r a t e of the
e r r i n g a g e n c y , c o r p o r a t i o n , association, religious
g r o u p , t o u r o r t r a v e l agent, c l u b o r establishment,
or a n y p l a c e of e n t e r t a i n m e n t shall be cancelled
a n d r e v o k e d p e r m a n e n t l y . T h e o w n e r , president,
p a r t n e r or m a n a g e r t h e r e o f shall not be a l l o w e d to
o p e r a t e s i m i l a r establishments in a different name;
(g) If the offender is a f o r e i g n e r , he shall be immediately

d e p o r t e d after s e r v i n g his sentence a n d be b a r r e d
p e r m a n e n t l y f r o m e n t e r i n g the country;
( h ) A n y employee or official of g o v e r n m e n t agencies

w h o shall issue or a p p r o v e the issuance of travel
exit clearances, passports, registration certificates,
counseling certificates, m a r r i a g e license, a n d other
similar documents to persons, w h e t h e r juridical
or n a t u r a l , recruitment agencies, establishments
or other individuals or g r o u p s , w h o fail to observe
the p r e s c r i b e d p r o c e d u r e s a n d the requirement as
p r o v i d e d for by l a w s , rules a n d regulations, shall
be held administratively liable, without prejudice
787
to criminal liability u n d e r this Act. T h e concerned

government official or employee shall, u p o n
conviction, be dismissed from the service a n d be
b a r r e d permanently to hold public office. His/her
retirement a n d other benefits shall likewise be
forfeited; a n d
(i) Conviction by final j u d g m e n t of the a d o p t e r for any
offense u n d e r this A c t shall result in the immediate
rescission of the decree of adoption.
Sec. 11. Use of Trafficked Persons. — A n y p e r s o n w h o
buys or e n g a g e s the services of trafficked p e r s o n s for
prostitution shall be p e n a l i z e d as follows:
(a) First offense — six (6) months of c o m m u n i t y service
as m a y be d e t e r m i n e d by the c o u r t a n d a fine of
Fifty t h o u s a n d pesos (P50,000.00); a n d
( b ) Second a n d s u b s e q u e n t offenses — i m p r i s o n m e n t
of one (1) y e a r a n d a fine of O n e h u n d r e d t h o u s a n d
pesos (P100,000.00).
Sec. 12. Prescriptive Period. — T r a f f i c k i n g cases u n d e r

this A c t shall p r e s c r i b e in ten (10) years: Provided, however,
T h a t trafficking cases committed by a syndicate or in a l a r g e
scale as defined u n d e r Section 6 shall p r e s c r i b e in t w e n t y
(20) years.
T h e p r e s c r i p t i v e p e r i o d shall c o m m e n c e t o r u n f r o m the
d a y on w h i c h the trafficked p e r s o n is d e l i v e r e d or r e l e a s e d
f r o m the conditions o f b o n d a g e a n d shall b e i n t e r r u p t e d b y
the filing of the c o m p l a i n t or i n f o r m a t i o n a n d shall c o m m e n c e
t o r u n a g a i n w h e n such p r o c e e d i n g s t e r m i n a t e w i t h o u t the
accused b e i n g convicted o r a c q u i t t e d o r a r e unjustifiably
stopped for a n y r e a s o n not i m p u t a b l e to the a c c u s e d .
Sec. 13. Exemption from Filing Fees, x x x
Sec. 14. Confiscation and Forfeiture of the Proceeds

and Instruments Derived from Trafficking in Persons. — In
a d d i t i o n to the penalty i m p o s e d for the v i o l a t i o n of this
Act, the court shall o r d e r the confiscation a n d f o r f e i t u r e , in
f a v o r of the g o v e r n m e n t , of all the p r o c e e d s a n d p r o p e r t i e s
d e r i v e d f r o m the commission of the c r i m e , unless they a r e
788
the p r o p e r t y of a t h i r d p e r s o n not liable for the u n l a w f u l

act; Provided, however, T h a t all a w a r d s for d a m a g e s shall
be t a k e n f r o m the p e r s o n a l a n d s e p a r a t e p r o p e r t i e s of the
offender; Provided, further, T h a t if such p r o p e r t i e s a r e
insufficient, the b a l a n c e shall be t a k e n f r o m the confiscated
a n d forfeited p r o p e r t i e s .
W h e n the p r o c e e d s , p r o p e r t i e s a n d instruments o f
the offense h a v e b e e n d e s t r o y e d , d i m i n i s h e d in v a l u e or
o t h e r w i s e r e n d e r e d w o r t h l e s s b y a n y act o r omission,
directly or indirectly, of the offender, or it has b e e n
concealed, r e m o v e d , c o n v e r t e d or t r a n s f e r r e d to p r e v e n t the
same f r o m b e i n g f o u n d or to a v o i d forfeiture or confiscation,
the offender shall be o r d e r e d to p a y the a m o u n t e q u a l to the
v a l u e of the p r o c e e d s , p r o p e r t y or instruments of the offense.
xxx xxx xxx
Sec. 17. Legal Protection to Trafficked Persons. —
Trafficked p e r s o n s shall be r e c o g n i z e d as victims of the act
or acts of trafficking a n d as such shall not be penalized for
crimes directly r e l a t e d to the acts of trafficking e n u m e r a t e d
in this A c t or in o b e d i e n c e to the o r d e r m a d e by the trafficker
in relation thereto. In this r e g a r d , the consent of a trafficked
p e r s o n to the i n t e n d e d exploitation set forth in this A c t shall
b e irrelevant.
Sec. 18. Preferential Entitlement Under the Witness
Protection Program. — A n y p r o v i s i o n of R e p u b l i c A c t N o .
6981 to the c o n t r a r y n o t w i t h s t a n d i n g , any trafficked p e r s o n
shall be entitled to the witness protection p r o g r a m p r o v i d e d
therein.
Sec. 19. Trafficked Persons Who are Foreign Nationals.
— Subject to the guidelines issued by the Council, trafficked
persons in the P h i l i p p i n e s w h o a r e nationals of a foreign
country shall also be entitled to a p p r o p r i a t e protection,
assistance a n d services a v a i l a b l e to trafficked persons u n d e r
this Act: Provided, T h a t they shall be permitted continued
presence in the P h i l i p p i n e s for a length of time prescribed
by the Council as necessary to effect the prosecution of
offenders.
xxx xxx xxx
A p p r o v e d : M a y 26, 2003.
789
Who are included in the definition of "children" in R.A. 7610?

Children includes those who by reason of physical or
mental disability which prevents them from fully taking care
of themselves or protecting themselves from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or
mental disability or condition. The I R R of R . A . 7610 defines
a "child" as one who is below 18 years of age or over said age
who, upon evaluation of a qualified physician, psychologist or
psychiatrist, is found to be incapable of taking care of herself
fully because of a physical or mental disability or condition or
of protecting herself from abuse.
AA cannot be considered a child. W h i l e A A ' s polio is a

physical disability that rendered her incapable of normal
function, no evidence was presented showing compliance with
the rules. There was no evidence of any medical evaluation
or medical finding from a qualified physician, psychologist or
psychiatrist attesting that A A ' s physical condition rendered
her incapable of fully taking care of herself or of protecting
herself against sexual abuse.
Since R . A . 7610 is a special l a w referring to a particular

class in society, it must be shown that the victim truly belongs
to this particular class to warrant the application of its
provisions. A n y doubt in this regard must be resolved in favor
of the accused. (People v. Abello, G.R. No. 151952, March 25,
2009)
What are the specific crimes penalized under R.A. 7610?
1. Child prostitution and other sexual abuse under Section 5

which includes:
(a) Engaging in or promoting, facilitating or inducing

child prostitution;
(b) Committing the act of sexual intercourse or lascivious

conduct with a child exploited in prostitution or
subjected to other sexual abuse; or
(c) Deriving profit or advantage therefrom, as manager/

owner of the establishment where the prostitution
takes place.
790
2. A t t e m p t to commit child prostitution penalized under

Section 5(a) when any person who, not being a relative of
a child, is found alone with the said child inside a room,
cubicle, vessel, vehicle or any other hidden or secluded
area under circumstances which would lead a reasonable
person to believe that the child is about to be exploited in
prostitution and other sexual abuse. (Section 6)
3. A t t e m p t to commit child prostitution under Section 5(b)

when any person is receiving services from a child in a
sauna parlor or bath, massage clinic, health club and
other similar establishments. (Section 6)
4. Child trafficking or trading and dealing with children.

(Section 7)
5. A t t e m p t to Commit Child Trafficking. (Section 8)
6. Hiring, employing, using, persuading, inducing or

coercing a child to perform in obscene exhibitions and
indecent shows, pose, or model in obscene publications or
pornographic materials or to sell or distribute the said
materials. (Section 9)
7. Commission of any other acts of child abuse, cruelty or

exploitation or being responsible for other conditions
prejudicial to the child's development. (Section 10)
8. Keeping or having in his company a minor, 12 years or

under or who is 10 years or more his junior in any public
or private place, hotel, motel, beer joint, discotheque,
cabaret, pension house, sauna or massage parlor, beach
and/or other tourist resort or similar places unless he
is related within the fourth degree of consanguinity or
affinity or has any bond recognized by law, local custom
and tradition, or acts in the performance of a social, moral
or legal duty. (Section 10)
9. Inducing, delivering or offering a minor to anyone

prohibited to keep or have in his company a minor as
provided in the preceding paragraph.
10. Allowing any person to take along with him to such place
or places any minor. (Section 10)
791
11. Using, coercing, forcing or intimidating a street child or

any other child to:
(a) Beg or use begging as a means of living;
(b) Act as conduit or middleman in drug trafficking or
pushing; or
(c) Conduct any illegal activities. (Section 10)
To be free from liability under Article 6, Section 10(b), the
child must be: 1) related to him within the fourth civil degree,
or 2) there is legal, moral or social duty giving such person
authority to have the minor with him in such places, or 3) the
age difference between them is less than 10 years.
A n y kind of employment which risks the physical, mental
or spiritual development of the child is child exploitation.
Under the R P C , the age must be less than 16 but under R . A .
7610, less than 18.
What are the two kinds of child prostitution and other sexual
abuse?
Child prostitution and other sexual abuse penalized

in paragraphs (a) and (b) of Section 5, A r t i c l e I I I are of two
kinds. Paragraph (a) essentially punishes acts pertaining to
or connected with child prostitution. It contemplates sexual
abuse of a child exploited in prostitution. In other words, the
child is abused primarily for profit. T h e offender does not
engage in sexual relations w i t h the child but merely promotes
the prostitution or sexual abuse of the child for profit.
Paragraph (b) punishes sexual intercourse or lascivious

conduct not only with a child exploited in prostitution but also
with a child subjected to other sexual abuse. It covers not only
a situation where a child is abused for profit but also one in
which a child, through coercion, intimidation or influence,
engages in sexual intercourse or lascivious conduct. (Malto v.
People, G.R. No. 164733, September 21, 2007)
T h e elements of paragraph ( a ) are:
1. T h e accused engages in, promotes, facilitates or induces

child prostitution;
792
2. T h e act is done through, but not limited to, the following:

a. acting as a procurer of a child prostitute;
b. inducing a person to be a client of a child prostitute
by means of written or oral advertisements or other
similar means;
c. taking advantage of influence or relationship to

procure a child as a prostitute;
d. threatening or using violence towards a child to

engage him as a prostitute; or
e. giving monetary consideration, goods or other

pecuniary benefit to a child with intent to engage
such child in prostitution.
3. T h e child is exploited or intended to be exploited in

prostitution; and
4. T h e child, male or female, is below 18 years of age.
The elements of paragraph (b) are:
1. Accused commits the act of sexual intercourse or lascivious
conduct;
2. T h e act is performed w i t h a child exploited in prostitution
or subjected to other sexual abuse; and
3. T h e child, male or female, is below 18 years of age.
T h e first element pertains to the act or acts committed
by the accused; the second refers to the state or condition of
the offended party; and the third, to the minority or age of the
offended party.
T h e information against MM was that he committed
sexual intercourse and lascivious conduct with A A , a minor;
she was induced and/or seduced by MM who was her professor
to indulge in sexual intercourse and lascivious conduct. These
allegations support a charge for violation of paragraph (b), not
(a) as charged in the information.
T h e designation in the information of the specific statute
violated is imperative to avoid surprise and to afford accused
the opportunity to prepare his defense accordingly. However,
the failure to designate the offense by statute or to mention
793
the specific provision penalizing the act, or an erroneous speci-

fication of the law violated does not vitiate the information if
the facts alleged clearly recite the facts constituting the crime
charged. What controls is not the title of the information or
the designation of the offense but the actual facts recited in
the information. In fine, it is the recital of facts, not the no-
menclature of offense that determines the crime charged in the
information.
Due to the influence of petitioner, AA indulged in lascivi-

ous acts with or allowed him to commit lascivious acts on her.
This was repeated and she also indulged in sexual intercourse
with petitioner as a result of his influence and moral ascen-
dancy. Thus, she was a "child subjected to other sexual abuse."
(id.)
• What situations are covered by sexual abuse of children under

Section 5 of R.A. 7610?
Section 5 does not merely cover a situation of a child

being abused for profit, but also one in which a child engages
in any lascivious conduct through coercion or intimidation.
Intimidation need not necessarily be irresistible. It is sufficient
that some compulsion equivalent to intimidation annuls or
subdues the free exercise of the will of the offended party. This
is especially true in the case of young, innocent and immature
girls who could not be expected to act with equanimity of
disposition and with nerves of steel. Y o u n g girls cannot be
expected to act like adults under the same circumstances or
to have the courage and intelligence to disregard the threat.
(People v. Larin, G.R. No. 128777, October 7, 1998)
• Distinguish sexual abuse and child abuse.

People v. CA, G.R. No. 171863, August 20, 2008 explained
the difference between sexual abuse and child abuse. Child
abuse is punished under Section 10(a) which treats of "Other
Acts of Neglect, Abuse, Cruelty or Exploitation and Other
Conditions Prejudicial to the Child's Development" and
includes by reference those covered by Article 59 of P . D . 603,
as amended.
794
Section 5(b) covers exclusively sexual abuse specifically

sexual intercourse or lascivious conduct with a child exploited
in prostitution or subject to other sexual abuse, provided that
when the victim is under 12, the perpetrator shall be prosecuted
under the R P C but with a higher penalty for lascivious conduct.
Section 10 refers to acts of child abuse prejudicial to
the child's development other than child prostitution and
other sexual abuse under Section 5, attempt to commit
child prostitution, child trafficking, attempt to commit child
trafficking, and obscene publications and indecent shows.
Sexual abuse is a completely distinct and separate offense from
child abuse.
Consensual sexual intercourse or even acts of
lasciviousness with a minor who is 12 years old or older could
constitute a violation of Section 5(b) of RA 7610. For it punishes
sexual intercourse or lascivious conduct not only with a child
exploited in prostitution but also with a child subjected to other
sexual abuse.
Section 2 ( g ) of the I R R defines "sexual abuse" as including
"the employment, use, persuasion, inducement, enticement
or coercion of a child to engage in, or assist another person
to engage in, sexual intercourse or lascivious conduct or the
molestation, prostitution, or incest with children."
For consensual sexual intercourse or lascivious conduct
with a minor, who is not exploited in prostitution, to thus fall
within the purview of Section 5(b), "persuasion, inducement,
enticement or coercion" of the child must be present.
Larin convicted accused for the information alleged
that he took advantage of his authority, influence, and moral
ascendancy as trainor of the minor victim which constituted
"psychological coercion." In convicting the accused for lascivious
acts, it held that the law covers not only a situation in which a
child is abused for profit, but also one in which a child, through
coercion or intimidation, engages in any lascivious conduct.
Malto convicted accused under Section 5(b) as the information
alleged that accused, the minor's professor, obtained her
consent by taking advantage of his relationship and moral
ascendancy to exert influence on her.
795
In the case at bar, even if respondent were charged under

Section 5(b), instead of Section 10(a), respondent would be
acquitted as there was no allegation that coercion or influence
or intimidation attended its commission.
Montinola, G.R. No. 178061, January 31, 2008 modified
the conviction of MM by the lower court for acts of lascivious-
ness under Section 10 (a), RA 7610. T h e Court rather held him
liable under Section 5(b), for Section 5(b) covers acts of lascivi-
ousness while Section 10(a) covers other acts of abuse.
Explain the relationship between rape and sexual abuse.

Abay, G.R. No. 177752, February 24, 2009 explains that
per Section 5(b), Article I I I of R . A . 7610 in relation to rape,
if the victim is below 12 years old, the offender should not
be prosecuted for sexual abuse but for statutory rape and
penalized with reclusion perpetua. On the other hand, if the
victim is 12 years or older, the offender should be charged with
either sexual abuse (sexual intercourse with a child subjected
to abuse) under Section 5(b) or rape under Article 266-A
(except paragraph l [ d ] ) . However, offender cannot be accused
of both crimes for the same act because his right against double
jeopardy w i l l be prejudiced. A person cannot be subjected twice
to criminal liability for a single criminal act. L i k e w i s e , rape
cannot be complexed with violation of Section 5(b). A r t i c l e 48
of the R P C does not allow a felony to be complexed with an
offense penalized by a special law.
Here, the victim was over 12 years when the crime was
committed against her. T h e Information against appellant
stated that AA was 13 then. Therefore, he may be prosecuted
either under Section 5(b), R . A . 7610 or for rape.
Violation of Section 5(b) is an offense under a special

law while rape is a felony under the R P C . T h e y have different
elements; are separate and distinct crimes. Thus, one can be
held liable for violation of R . A . 7610 despite a finding that he
did not commit rape.
How relevant is the sweetheart theory in rape; In R.A. 7610?
T h e sweetheart theory applies in acts of lasciviousness

and rape, felonies committed against or without the consent
796
of the victim. It operates on the theory that the act was

consensual. It requires proof that accused and the victim were
lovers and that she consented to the sexual relations.
For purposes of sexual intercourse and lascivious conduct

under R . A . 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. T h e l a w is clear: it punishes those who commit
sexual intercourse or lascivious conduct with a child exploited
in prostitution or subjected to other sexual abuse.
U n l i k e rape, therefore, consent is immaterial in cases

involving violation of Section 5, Article I I I of R . A . 7610. The
mere act of having sexual intercourse or committing lascivious
conduct with a child exploited in prostitution or subjected to
sexual abuse constitutes the offense. It is a malum prohibitum,
an evil that is proscribed.
People vs. CA, expounded that the child must be exploited

in prostitution or subjected to other sexual abuse. If not, as
long as the minor is not less than 12, the sweetheart theory is
a valid defense. For consensual sexual intercourse or lascivious
conduct with a minor, who is not exploited in prostitution, to fall
within the Section 5(b), "persuasion, inducement, enticement
or coercion" of the child must be present.
What are required for conviction for child abuse through

lascivious conduct under Section 5 of R.A. 7610?
Before an accused can be convicted of child abuse through
lascivious conduct on a minor below 12 years of age, the
requisites for acts of lasciviousness under Article 336, R P C
must be met in addition to the requisites for sexual abuse
under Section 5 of R . A . 7610. (Amployo v. People, G.R. No.
157718, April 26, 2005)
What is meant by the word lewd or lascivious?

The term "lewd" is commonly defined as something
indecent or obscene; it is characterized by or intended to excite
crude sexual desire. That an accused is entertaining a lewd or
unchaste design is necessarily a mental process the existence
of which can be inferred by overt acts carrying out such
797
intention, i.e., by conduct that can only be interpreted as lewd or

lascivious. The presence or absence of lewd designs is inferred
from the nature of the acts themselves and the environmental
circumstances. What is or what is not lewd conduct, by its very
nature, cannot be pigeonholed into a precise definition. Gomez,
G.R. No. 10341, March 3, 1915, conceded that —
It would be somewhat difficult to lay down any rule
specifically establishing just what conduct makes one amenable
to the provisions of Article 439 of the Penal Code. W h a t
constitutes lewd or lascivious conduct must be determined
from the circumstances of each case. It may be quite easy to
determine in a particular case that certain acts are lewd and
lascivious, and it may be extremely difficult in another case
to say just where the line of demarcation lies between such
conduct and the amorous advances of an ardent lover.
• How is "lewd designs" defined for purposes of R.A. 7610?
T h e Implementing Rules and Regulations ( I R R ) of R . A .

7610 defines lascivious conduct as — 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, whether of the
same or opposite sex, with an intent to abuse, humiliate, harass,
degrade or arouse or gratify the sexual desire of any person,
bestiality, masturbation, lascivious exhibition of the genitals or
pubic area of a person. (But the introduction of any object or
thing into the genitalia or anus of another is now rape under
R . A . 8353.)
• Are sexually abused children entitled to moral damages even

without proof of mental anguish, etc.?
Y e s . Upon a finding of guilt of the accused for acts of

lasciviousness, the amount of P30.000 as moral damages
may be further awarded to the victim in the same w a y that
moral damages are awarded to victims of rape even without
need of proof because it is assumed that they suffered moral
injury (Article 2210[3], N C C ) . Considering that the crime of
acts of lasciviousness or abusos dishonestos is necessarily
included in rape and both cases involve sexual assault albeit
in different degrees, the rationale for foregoing with proof of
798
moral damages in rape cases applies with equal force to crimes

of acts of lasciviousness, the rationale being:
One other cognate development in the case law on rape

is applicable to the present disposition. The Court has also
resolved that in crimes of rape, such as that under consideration,
moral damages may additionally be awarded to the victim in
the criminal proceeding, in such amount as the Court deems
just, without the need for pleading or proof of the basis thereof
as has heretofore been the practice. Indeed, the conventional
requirement of allegata et probate in civil procedure and for
essentially civil cases should be dispensed with in criminal
prosecutions for rape with the civil aspect included therein, since
no appropriate pleadings are filed wherein such allegations can
be made. (People v. Solmoro, G.R. No. 139187-94, November 27,
2002)
That complainant has suffered the trauma of mental,

physical and psychological sufferings which constitute the
bases for moral damages are too obvious to require the recital
thereof at the trial by the victim, since the Court itself assumes
and acknowledges such agony on her part as a gauge of her
credibility, (id.)
• What are the other laws on child trafficking?
Aside from R . A . 7610, as amended, the following are the

laws on protection to children:
1. R . A . 9262 - Anti-violence against W o m e n and Children

2. R . A . 9208 - on the Anti-Trafficking in Persons Act of 2003
3. Article 340, R P C - on corruption of minors

4. R . A . 9208 - Anti-Child Pornography Act
R A 9208 - A N T I - C H I L D P O R N O G R A P H Y A C T O F 2009
xxx xxx xxx
( F o r the text a n d annotations, see Notes a n d Cases on
Special P e n a l L a w s b y the same a u t h o r )
799
• What is child pornography and who are deemed children?

Child pornography ( C P ) refers to any representation,
whether visual, audio, or written combination thereof, by
electronic, mechanical, digital, optical, magnetic or any other
means, of child engaged or involved in real or simulated
explicit sexual activity. In view of this definition of CP, R . A .
9775 expanded the definition of children as covering not only
(1) minors because of age; (2) adults who cannot take care or
protect themselves from abuse, neglect, cruelty, exploitation
or discrimination because of a physical or mental disability or
condition; but to include: (3) a person regardless of age who
is presented, depicted or portrayed as child as defined herein;
and (4) computer-generated or digitally or manually crafted
image or graphics of person presented or made to appear to be
a child.
• What are the punishable acts in the law?
1. Section 4 on unlawful or prohibited acts by any person:
(a) Hire, employ, use, persuade, induce or coerce a child

to perform in the creation or production of any form
of C P
(b) Produce, direct, manufacture or create any form of

CP
(c) Publish, offer, transmit, sell, distribute, broadcast,

advertise, promote, export or import any form of CP
(d) Possess any form of CP with the intent to sell,

distribute, publish, or broadcast
(e) Knowingly, willfully and intentionally provide a

venue for the commission of prohibited acts such
as dens, private rooms, cubicles, cinemas, houses
or in establishments purporting to be a legitimate
business
(f) For film distributors, theaters and telecommuni-

cation companies, by themselves or in cooperation
with other entities, to distribute any form of CP
(g) For a parent, legal guardian or person having

custody or control of a child to knowingly permit the
child to engage, participate or assist in any form of
CP
(h) Engage in the luring or grooming of a child. Luring

means communicating, by means of a computer
system, w i t h a child or someone who the offender
believes to be a child for the purpose of facilitating
the commission of sexual activity or production of
any form of CP
(i) Engage in pandering by offering, advertising,

promoting, representing, or distributing though any
means any material or purported material that is
intended to cause another to believe that the said
material contains any form of C P , regardless of the
actual content thereof
(j) To willfully access any form of CP
(k) To conspire to commit any of these prohibited acts;

and
(1) To possess any form of CP;

2. Syndicated CP committed by a group of three or more
persons conspiring or confederating with one another;
3. Violation of the rule on confidentiality or the right of the
child to privacy;
4. Willful and knowing failure by the Internet content

host to comply with his duties, viz.: ( a ) not to host any
form of CP; (b) within seven days, report the presence of
any form of C P , as well as the particulars of the person
maintaining, hosting, distributing or in any manner
contributing to such internet address, to the proper
authorities; (c) preserve such evidence for purposes of
investigation and prosecution by relevant authorities;
and (d) upon the request of proper authorities, furnish
the particulars of users who gained or attempted to gain
access to an internet address that contains any form of
CP;
801
5. Willful and knowing failure by the Internet service

provider ( I S P ) to comply with its duties. The I S P must
notify the P N P or the N B I within seven days from
obtaining facts and circumstances that any form of CP is
being committed using its service or facility and to install
available software, program or technology to ensure that
access to or transmittal of any form of CP will be blocked
or filtered;
6. Willful and knowing failure of mall owners/operators and
owners or lessors of other business establishments to no-
tify the P N P or the N B I within seven days from obtaining
facts and circumstances that CP is being committed in
their premises. Photo developers, information technol-
ogy professionals, credit card companies, banks and any
person with direct knowledge of any form of CP activities
must report suspected CP materials or transactions to the
proper authorities within seven days from discovery.
T h e law makes the R P C apply suppletorily and uses

R P C nomenclature of penalty.
• What presumptions on child pornography are prescribed?
1. Possession of three or more articles of the same form of

CP is prima facie evidence of the intent to sell, distribute,
publish or broadcast penalized under Section 4(d) on
possession with intent to sell, distribute, publish or
broadcast any form of child pornography.
2. Knowledge by mall owners/ operators and owners or

lessors of other business establishments is disputably
presumed; that they should know or reasonably know
that a violation of the law is being committed in their
premises.
3. Knowledge of the mall owners/operators and owners or

lessors of other business establishments is conclusively
presumed of the violation of the law when there is public
display of any form of CP within their premises.
4. Conclusive presumption of willful and intentional viola-
tion on the basis of the failure of the internet content host
to remove any form of CP within 48 hours from receiving
the notice that any form of CP is hitting its server.
802
Section T w o . — Trespass to Dwelling
A r t . 280. Qualified trespass to dwelling. — A n y private

p e r s o n w h o shall enter the d w e l l i n g o f a n o t h e r against the
latter's will, shall be p u n i s h e d by arresto mayor a n d a fine
not e x c e e d i n g 1,000 pesos.
If the offense be c o m m i t t e d by m e a n s of violence or
intimidation, the p e n a l t y shall be prision correccional in
its m e d i u m a n d m a x i m u m p e r i o d s a n d a fine not exceeding
1,000 pesos.
T h e p r o v i s i o n s of this article shall not be a p p l i c a b l e to
any p e r s o n w h o shall enter a n o t h e r person's d w e l l i n g for
the p u r p o s e of p r e v e n t i n g some serious h a r m to himself, the
occupants of the d w e l l i n g or a t h i r d p e r s o n , n o r shall it be
a p p l i c a b l e to a n y p e r s o n w h o shall enter a d w e l l i n g for the
p u r p o s e of r e n d e r i n g some service to h u m a n i t y or justice,
n o r to a n y o n e w h o shall enter cafes, t a v e r n s , inns a n d other
p u b l i c houses, w h i l e the s a m e a r e o p e n .
A r t . 281. Other forms of trespass. — T h e penalty of arresto
menor or a fine not e x c e e d i n g 200 pesos, or both, shall be
imposed u p o n a n y p e r s o n w h o shall enter the closed premises
or the fenced estate of a n o t h e r , w h i l e either of them a r e
u n i n h a b i t e d , if the p r o h i b i t i o n to enter be manifest a n d the
trespasser h a s not s e c u r e d the p e r m i s s i o n of the o w n e r or
the c a r e t a k e r thereof.
• What determines whether the crime committed is trespass to

dwelling or trespass to property?
The use of the place determines the crime committed. If
the place is inhabited, the crime is trespass to dwelling. Even
if it is a residential place, if at the time of the commission of
the felony it is not inhabited, e.g., vacant apartment for rent,
the crime is trespass to property. It is not the structure that
determines whether the offense is trespass to dwelling or to
property. A garage used as a dwelling is covered by the law.
In trespass to property there is clear or manifest

prohibition for entering. The offender enters without the
consent of the overseer or owner (not occupant because there
must be none).
803
A store used as dwelling will not give rise to trespass to

dwelling if the store is open for business. But if the portion
used as dwelling is separate, entry without consent is trespass
to dwelling.
What does the phrase "against the will of the owner" denote?
"Against the will of the owner" denotes that there is
prohibition against entering. T h e prohibition maintains the
privacy of dwelling. Whenever one enters through an opening
not intended for entering, there is violation of privacy or
qualified trespass to dwelling. It is qualified because use of
force is implied from entry through an opening not used for
ingress.
If the purpose of the entry is to commit a more serious

crime (e.g., rape or murder) and the trespasser has commenced
overt acts directly related to the more serious offense, the
proper offense to charge is the more serious offense. D w e l l i n g is
aggravating except in robbery or other crimes against property.
Is the occupant required to be the owner of the dwelling?
N o , because the law used "dwelling" without qualification

as to who should own the place. Thus, this crime may be
committed against a boarder or a tenant. A n d this crime may
be committed by the owner of the dwelling if his entry therein
is against the will of the present occupant. A tenant or boarder
has the better right of possession (juridical) over the property,
hence, his privacy should be respected even by the owner.
Under what instances is the crime of trespass not committed?
1. Purpose of entry to dwelling is to prevent some serious

harm to the person entering, the occupants or third
persons.
2. Purpose of entry is to render some aid to humanity or

justice.
3. Places entered are cafes, taverns, inns and similar places

while they are open. But these places are not dwelling,
hence, the crime is trespass to property if entry is when
these are not open.
• Relate the crime of trespass with other crimes.
Instead of the crime of trespass, the crime may be:
a. violation of domicile (Title I I ) if committed by public

officers whose function involves enforcement of warrants
b. unjust vexation or light coercion ( A r t i c l e 287)
c. other form of theft (Article 308, paragraph 3)
d. vagrancy (Article 202, N o . 4)
In Article 308, no. 3, the purpose of entry is to fish, harvest

or gather, cereals, etc. T h e crime is attempted or consummated
theft.
If the public officer is not one authorized to serve a

warrant of arrest or search warrant or to enter the place, he
may commit trespass instead of violation of dwelling.
If the vacant property is not fenced, and there is no

prohibition to entry, the loiterer w i l l be liable for vagrancy.
R . A . 8368 repealed P . D . 772, the Anti-Squatting Law;

only civil action for ejectment remains. Therefore, if one merely
enters or loiters a private land, there is a crime committed —
either vagrancy or trespass to property. But if he erects a house
and live there, there may be no crime committed.
• W h o should give permission or prohibit entry to dwelling?

Permission to enter may be given by a person of sufficient
discretion, not necessarily adult member of the household. Once
permission is given to enter, trespass is no longer committed.
Section T h r e e . — Threats and Coercion

A r t . 282. Grave threats. — A n y p e r s o n w h o shall threaten
another w i t h the infliction u p o n the person, honor, or
p r o p e r t y of the latter or of his family of any w r o n g amounting
to a crime, shall suffer:
1. T h e penalty next l o w e r in d e g r e e than that
p r e s c r i b e d by l a w for the crime he threatened to
commit, if the offender shall have m a d e the threat
d e m a n d i n g money or imposing any other condition,
805
even though not u n l a w f u l , a n d said offender shall

not have attained his p u r p o s e , the penalty l o w e r by
t w o degrees shall be imposed.
If the threat be m a d e in w r i t i n g or t h r o u g h
a m i d d l e m a n , the penalty shall be imposed in its
m a x i m u m period.
2. T h e penalty of arresto mayor a n d a fine not

exceeding 500 pesos, if the threat shall not h a v e
b e e n m a d e subject to a condition.
A r t . 283. Light threats. — A t h r e a t to commit a w r o n g

not constituting a crime, m a d e in the m a n n e r e x p r e s s e d in
subdivision 1 of the next p r e c e d i n g article, shall be p u n i s h e d
by arresto mayor.
A r t . 284. Bond for good behavior. — In all cases falling

within the t w o next p r e c e d i n g articles, the p e r s o n m a k i n g
the threats m a y also be r e q u i r e d to give b a i l not to molest
the p e r s o n t h r e a t e n e d , or if he shall fail to give s u c h b a i l , he
shall be sentenced to destierro.
A r t . 285. Other light threats. — T h e p e n a l t y of arresto

menor in its m i n i m u m p e r i o d or a fine not e x c e e d i n g 200
pesos shall be i m p o s e d u p o n :
1. A n y p e r s o n w h o , w i t h o u t b e i n g i n c l u d e d in the
provisions of the next p r e c e d i n g article, shall
threaten a n o t h e r w i t h a w e a p o n , o r d r a w such
w e a p o n in a q u a r r e l , unless it be in l a w f u l self-
defense;
2. A n y p e r s o n w h o , in the h e a t of a n g e r , shall o r a l l y
threaten a n o t h e r w i t h some h a r m not constituting
a crime, a n d w h o by s u b s e q u e n t acts s h o w s that he
d i d not persist in the i d e a i n v o l v e d in his threat,
p r o v i d e d that the c i r c u m s t a n c e s of the offense
shall not b r i n g it w i t h i n the p r o v i s i o n s of A r t i c l e
282 of this C o d e ;
3. A n y p e r s o n w h o shall o r a l l y t h r e a t e n t o d o a n y
h a r m not constituting a felony.
• Distinguish among the three kinds of threat.
T h e three kinds of threat are grave threat, light threat,

and other light threats. T h e distinctions among these are:
1. Between grave and light threats: in grave threats, the

wrong threatened amounts to a crime which may or may
not be accompanied by any condition. In light threats,
the wrong threatened does not amount to a crime but is
always accompanied with condition.
2. Between light threat and other light threats: in light

threat, the threat does not amount to a crime and there is
a demand for conditions; in other light threat, the wrong
does not also amount to a crime but there is no demand
for money or other conditions.
3. In grave threat, the harm or wrong threatened is in

the nature of a crime like a threat to kill and there
are indications that offender persists in that purpose.
However, although in the nature of crime, if the threat
was made in the heat of anger and subsequent event
shows that he does not intend to pursue the threat, it is
other light threat. (Article 285, N o . 2)
• Compare Light Threat with blackmailing.
Light threat is similar to blackmailing. T h e wrong

threatened does not amount to a crime, but is always with a
demand for money or other conditions.
There are two possible crimes involving blackmailing:
1. Article 283 (light threat), if the material is not defamatory.

For instance, threatening a young movie star to pay or
offender will publish that she is married and with kids;
2. Article 356 (threatening to publish a libel), if the threat is

to publish something defamatory unless money is paid. In
the above example, threatening a young movie star to pay
or offender will publish that she was a child prostitute. It
is indispensable that there is a demand for money or any
consideration to prevent the publication.
807
• How should the phrase "some harm not constituting a crime" in

Article 285, no. 2 be construed?
The phrase should be "some harm constituting a crime"
because the provision states in the ultimate phrase "provided
that the circumstances of the offense shall not bring it within
the provisions of Article 282 of this Code." If it were not
constituting a crime, that phrase will become a mere surplusage
because the act can never come within the provisions of Article
282 since this latter provision refers to a wrong "amounting to a
crime." Moreover, no. 3 of Article 285 provides for the situation
where the offender shall orally threaten to do "any harm not
constituting a felony." It is easier to commit an error with one
word (not) than an error with a whole phrase of "provided that
the circumstances. . ."
• What is bond for good behavior?
In the crimes of grave threat and light threat, the law

imposes in the discretion of the court bond for good behavior.
This is different from bond to keep the peace. Failure to post
bond to keep the peace will result to imprisonment while in
bond for good behavior, it will rebut to destierro. T h e latter is
limited to grave threat and light threat; bond to keep the peace
is not limited to a specific felony.
• What are the nature and the forms of other light threat?
Other light threat is not subject to a demand for money

or any material consideration. T h e wrong threatened does not
always amount to a crime. It may be in the form of:
1. Drawing a weapon during a quarrel but not in self-defense

and the weapon is not discharged. ( I f discharged, illegal
discharge of firearm if intent to kill is not established. If in
self-defense, no crime is committed because it is a justifying
circumstance.) The provision, "without being included in
the provisions of the next preceding article," is erroneous.
T h e next preceding article is on bond for good behavior and
prior to that is on light threat which involves a wrong not
constituting a crime. Drawing a weapon cannot but be a
wrong constituting a crime. Hence, the article must refer
to Article 282 on grave threat.
2. Orally threatening another with an act constituting

a crime in the heat of anger and subsequent acts show
that he did not persist in the threat (grave threat if
circumstances show that he means the threat made).
3. Orally threaten to do another any harm not constituting

a felony.
• Is a threat to sue in court unlawful?
N o , because the threatened act must be a "wrong" and

threatening to sue is not a "wrong."
Petitioner's demand that the private respondent return

the proceeds of the check accompanied by a threat to file
criminal charges was not improper. There is nothing unlawful
on the threat to sue. It is a practice followed not only by banks
but even by individuals to demand payment of their accounts
with the threat that upon failure to do so an action would be
instituted in court. Such a threat is proper within the realm of
the law as a means to enforce collection. Such a threat cannot
constitute duress even if the claim proves to be unfounded so
long as the creditor believes that it was his right to do so. (Berg
v. National City Bank of New York, 102 Phil. 309)
A r t . 286. Grave coercions. — T h e penalty of prision

correccional a n d a fine not e x c e e d i n g P6,000 shall be imposed
u p o n any p e r s o n w h o , w i t h o u t a u t h o r i t y o f l a w , shall, b y
m e a n s of violence, threats or intimidation, p r e v e n t another
f r o m d o i n g something not p r o h i b i t e d by l a w or compel h i m to
do something a g a i n s t his w i l l , w h e t h e r it be right or w r o n g .
If the coercion be committed in violation of the exercise
of the right of suffrage or for the p u r p o s e of compelling
another to p e r f o r m any religious act or to p r e v e n t h i m from
exercising such or f r o m so d o i n g such act, the penalty next
h i g h e r in d e g r e e shall be imposed. (As amended by R.A. No.
7890, February 20, 1995.)
A r t . 287. Light coercions. — A n y p e r s o n , w h o by means of
violence, shall seize anything b e l o n g i n g to his debtor for the
p u r p o s e of a p p l y i n g the same to the payment of the debt,
shall suffer the penalty of arresto mayor in its m i n i m u m
period a n d a fine equivalent to the value of the thing, but in
no case less than 75 pesos.
809
A n y other coercion or unjust vexation shall be punished

by arresto menor or a fine r a n g i n g from 5 to 200 pesos, or
both.
• What are the principal distinctions between threat and coercion?
In threat:
1. The threatened harm or wrong is future and conditional.
2. It may be done through an intermediary or in writing.
3. Generally, it is committed by means of intimidation which

is future and conditional.
In coercion:
1. The threatened harm or wrong is immediate, personal

and direct.
2. It cannot be done by means of an intermediary or in

writing.
3. It is generally committed by violence, although it may

also be by intimidation if it is serious enough, direct,
immediate and personal, as for example, intimidation
with firearm.
Illustrating the distinction:
Threat: " I f you are still here when I come back, I w i l l kill
you."
Coercion: " I f you do not get out, I will kill you." ( N o t e that here,
the intimidation is immediate.)
In grave coercion, violence through force or such display

of force that would produce intimidation and control the will
of the offended party is an essential ingredient. In grave
threats, the intimidation as distinguished from that in robbery
and coercion — which is direct, immediate and personal —
is conditional and may not be personal for it may be by an
intermediary, (id.)
810
• What are the elements of grave coercion?
Grave coercion or coaccion grave has three elements:
(a) A n y person is prevented by another from doing something

not prohibited by law, or compelled to do something
against his will be it right or wrong;
(b) T h e prevention or compulsion is effected by violence

either by material force or such display of it as would
produce intimidation and consequently, control over the
will of the offended party; and
(c) T h e person who restrains the will and liberty of another

has no right to do so, or the restraint is not made under
authority of a law or in the exercise of any lawful right.
(id.)
If it is compulsion, even if the offender has the right to

compel the doing of the act, there can be coercion. (Lee v. CA)
Whether F E N I C S is indebted to F T I is immaterial. It is

elementary that in no case may possession be acquired through
force or intimidation as long as there is a possessor who objects
thereto, and that he whio believes that he has an action or a
right to deprive another of the holding of a thing must invoke
the aid of the competent court if the holder should refuse to
deliver the thing.
In Mena, the Court, affirming the conviction for coaccion

under Article 497 of the old Penal Code, rejected the defense
that accused owned the carabaos which he forced therein
complaining witness to release. T h e defendant was not
clothed with any judicial or administrative authority, and it
is a maxim of the law that no man is authorized to take the
law into his own hands and enforce his rights with threats of
violence, except in certain well-defined cases, where one acts
in the necessary defense of one's life, liberty, or property,
against unlawful aggression, and manifestly the defendant
canot successfully maintain that his action was taken in
defense of life, liberty or property. The carabaos were in the
possession of the complaining witness for the purpose of
turning them over to the justice of the peace; the defendant
denied the right of the complaining witness to this possession
811
and claimed the absolute right to possession in himself; but in

forcibly depriving the complaining witness of possession of the
carabaos the defendant was not acting in defense of his right
to the possession of the carabaos fron unlawful aggression, but
rather asserting his right to take the possession from another,
and thus he himself became the agressor. (Navarro v. OMB,
G.R. No. 176291, December 4, 2009)
• What are the kinds of grave coercion?

Grave coercion is of two kinds:
1. Preventive — the offender uses violence or intimidation
to prevent the victim from doing what he wants to do, and
2. Compulsive — the offender uses violence or intimidation
to compel the offended to do what he does not want to do.
The distinctions between the two are:
1. Preventive — the act prevented is N O T prohibited by law
Compulsive — the act compelled may or may not be
prohibited by law.
2. Preventive — if the act prevented is prohibited by law,
there is no grave coercion, but some other crimes, e.g.,
physical injuries, if injuries resulted, or unjust vexation,
if no injury resulted. T h e preventive act however, should
not amount to defense of self or relatives or strangers.
For example, in order to prevent Diether from

entering in the house of Rosario against her will, Rico
boxed Diether resulting to the loss of his t w o front teeth.
Rico is liable for serious physical injuries and not grave
coercion because the desired forcible entry is an act
prohibited by law. But Diether can put up the justifying
circumstance of defense of stranger.
Compulsive — if the act compelled is prohibited by law,

grave coercion is still committed. In compulsive coercion,
whether the act is prohibited or not is immaterial;
whether the offender has the right to compel another to
do something not prohibited by law is immaterial. T h e
purpose here is to prevent a person from putting the l a w
into his hands.
812
Why is the distinction between preventive and compulsive

coercion significant?
T h e distinction between preventive and compulsive

coercion is significant in the sense that the violence or
intimidation w i l l bring about grave coercion if the act prevented
is not prohibited by law; if prohibited by law, the liability is for
some other crime. In compulsive, whether prohibited or not, it
is grave coercion.
M a y coercion be in writing?
N o , since it must be direct, immediate and personal. Only

threat can be in writing as expressly provided for in Article
282(1) since threat is inherently future and conditional.
What different crimes can arise from intimidation?
Intimidation is:
1. Robbery, if the intimidation is immediate but conditional

with demand for money or any consideration which is
intent to gain.
2. Threat, if it is future or conditional.
3. Coercion, if it is direct, immediate, and personal or serious

enough like threatening with a weapon.
T h e offender may be liable for either: (a) robbery under

Article 294(5) if the subject matter is personal property and
there is intent to gain or animus furandi, or (b) grave coercion
if such intent does not exist. (People v. Alfeche, Jr., G.R. No.
124213, August 17, 1998)
What is required of intimidation to make the act grave coercion?

If the act compelled is one which the offender has a right to
demand, even though there may be some form of intimidation,
there is no grave coercion unless the intimidation is carried out
to a point that deprived the offended of his freedom of will.
There is a need to make a distinction between a case
where a person gives his consent reluctantly and against his
good sense and judgment and where he gives no consent at all,
as where he acts against his will under a pressure he cannot
813
resist. Thus, in Valles v. Villa, 35 Phil. 795: "It is clear that

one acts as voluntarily and independently in the eye of the
law when he acts reluctantly and with hesitation as when he
acts spontaneously and joyously." Legally speaking, he acts
as voluntarily and freely when he acts wholly against his
better sense and judgment as when he acts in conformity with
them. Between the two acts, there is no difference in law. But
when his sense, judgment, and his will rebel and he refuses
absolutely to act as requested, but is nevertheless overcome
by force or intimidation to such an extent that he becomes a
mere automaton and acts mechanically only, a new element
enters, namely, a disappearance of the personality of the actor.
He ceases to exist as an independent entity with faculties and
judgment, and in his place is substituted another — the one
exercising the force or making use of the intimidation. W h i l e
his hand signs, the will which moves it is another's. W h i l e a
contract is made, it has, in reality and in law, only one party
to it; and, there being only one party, the one using force or
the intimidation, it is unenforceable for lack of a second party.
From these considerations, it is clear that every case of alleged
intimidation must be examined to determine within which
class it falls. If it is within the first class, it is not duress in
law; if it falls in the second, it is. (Lee v. CA, G.R. No. 90423,
September 6, 1991)
What should characterize the force in grave coercion?
The force which is claimed to have compelled criminal

conduct against the will of the actor must be immediate and
continuous and threaten grave danger to his person during
all of the time the act is being committed. T h a t is, it must
be a dangerous force threatened 'in praesenti.' It must be a
force threatening great bodily harm that remains constant in
controlling the will of the unwilling participant while the act is
being performed and from which he cannot then withdraw in
safety, (id.)
When property of a debtor is seized, what crimes may result?

Seizure of the property of a debtor may amount to:
1. Light coercion, if by means of violence, the property is
applied to the debt. (Article 287)
814
2. Robbery, if the value of the property seized is greater

than the debt (intent to gain is present) and violence or
intimidation is employed.
3. Estafa, if there is no obligation on the part of the offended
but was feigned; the deceit caused damage to the offended.
In the law on obligation and contract, payment can be in
the form of property instead of money (dacion en pago). In order
that the creditor shall not be charged with light coercion when
the transaction is actually dacion, public writing evidencing
dacion should be executed for his protection.
What is unjust vexation?
Unjust vexation is a form of light coercion. It is any

form of annoyance of another person. It is a crime against
personal security and not against property. Malicious mischief
is the crime against property. For instance, destruction of the
property to annoy another is malicious mischief, not unjust
vexation.
T h e unjust vexation must not amount to dishonor of
another, otherwise, the crime is slander by deed. (Article 359)
For instance, slapping a person or kissing a girl in public can
amount to:
1. Unjust vexation if the purpose is to annoy the offended;
2. Maltreatment (slapping) if the purpose is to injure;
3. Acts of lasciviousness (kissing) if with lewd intent; or
4. Slander by deed if the purpose is to humiliate the victim.
Relate unjust vexation and attempted rape.

The information alleged that petitioner forcefully covered
the face of MM with a piece of cloth soaked in chemical. While the
series of acts committed do not determine attempted rape, they
constitute unjust vexation (light coercion) under Article 287.
In the context of the constitutional assurance to the right to be
informed of the nature and cause of the accusation, petitioner
was not kept in the dark of the inculpatory acts for which he
was proceeded against. It contains sufficient details to enable
him to make his defense. There is no need to allege malice,
restraint or compulsion in an information for unjust vexation.
Unjust vexation exists even without the element of restraint
815
or compulsion since this term is broad enough to include any

human conduct which, although not productive of some physical
or material harm, would unjustly annoy or irritate an innocent
person. The paramount question is whether the offender's act
causes annoyance, irritation, torment, distress or disturbance
to the mind of the person to whom it is directed. That MM
after the incident cried while relating to her classmates what
she perceived to be a sexual attack and the fact that she filed
a case for attempted rape proved that she was disturbed, if not
distressed by the acts of petitioner. (Baleros, Jr. v. People, G.R.
No. 138033, February 22, 2006)
A r t . 288. Other similar coercions. — (Compulsory purchase

of merchandise and payment of wages by means of tokens). — T h e
penalty of arresto mayor or a fine r a n g i n g f r o m 200 to 500
pesos, o r both shall b e i m p o s e d u p o n a n y p e r s o n , agent, o r
officer of any association or c o r p o r a t i o n w h o shall force or
compel, directly o r indirectly, o r shall k n o w i n g l y p e r m i t
any l a b o r e r o r e m p l o y e e e m p l o y e d b y h i m o r b y s u c h firm
or c o r p o r a t i o n to be forced or c o m p e l l e d , to p u r c h a s e
m e r c h a n d i s e o r commodities o f a n y k i n d .
T h e same penalties shall b e i m p o s e d u p o n a n y p e r s o n

w h o shall p a y the w a g e s d u e a l a b o r e r o r e m p l o y e e e m p l o y e d
b y him, b y m e a n s o f tokens o r objects o t h e r t h a n the l e g a l
tender c u r r e n c y o f the P h i l i p p i n e I s l a n d s , unless e x p r e s s l y
requested b y the l a b o r e r o r e m p l o y e e .
A r t . 289. Formulation, maintenance, and prohibition of

combination of capital or labor through violence or threats. — T h e
penalty of arresto mayor a n d a fine not e x c e e d i n g 300 pesos
shall b e imposed u p o n a n y p e r s o n w h o , for the p u r p o s e o f
organizing, maintaining, or p r e v e n t i n g coalition of capital or
l a b o r , strike of l a b o r e r s , or lockout of e m p l o y e r s , shall e m p l o y
violence or threats in such a d e g r e e to c o m p e l or force the
l a b o r e r s or employers in the free a n d legal exercise of their
industry or w o r k , if the act shall not constitute a m o r e serious
offense in a c c o r d a n c e w i t h the p r o v i s i o n s of this C o d e .
(See the provisions of the Labor Code.)
816
R . A . 9995
A n t i - P h o t o V o y e u r i s m A c t of 2009
What is photo or video voyeurism and how is it committed?

Photo or video voyeurism means:
a. T h e act of taking photo or video coverage of a person or
group of persons performing sexual act or any similar
activity or of capturing an image of the private area of
a person or persons without the latter's consent, under
circumstances in which such person has a reasonable
expectation of privacy, or
b. T h e act of selling, copying, reproducing, broadcasting,
sharing, showing or exhibiting the photo or video coverage
or recordings of such sexual act or similar activity through
V C D / D V D , internet, cellular phones and similar means
or device without the written consent of the persons
involved, notwithstanding that consent to record or take
photo or video coverage of the same was given by such
persons.
"Under circumstances in which a person has a reasonable
expectation of privacy" means:
a. That the subject believes that he or she could disrobe
in privacy, without being concerned that an image or a
private area of said person was being captured; or
b. Those circumstances in which a reasonable person would
believe that a private area of the person would not be
visible to the public, regardless of whether that person is
in a public or private place.
T h e prohibition to copy, reproduce, sell, distribute, publish

or broadcast shall apply even if the parties or any of them
consented to the recording or taking photo or video coverage
of the same. In other words, if the parties consented to the
taking of video or photo but not to the selling, etc., the law is
still violated. On the other hand, if the parties consented to
the recording and to the copying, selling or publishing of the
recording, this is a crime under the RPC under Article 201(2)(b)
for indecent shows.
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The law does not cover peeping toms who do not take
photo or video recording but merely stares at a woman walking
up the overpass where the stairs are not solid but have spaces
in between the steps. Her undergarment clad private area may
be visible to a person below or, in a public toilet, a male may
use a mirror or a hole to peep through and watch a female in
an undignified pose. These situations are not covered in the
law for what is penalized are the capturing, photographing,
recording or copying of sexual acts or private parts.
Chapter Three
DISCOVERY A N D REVELATION
OF SECRETS
A r t . 290. Discovering secrets through seizure of correspondence.

— T h e penalty of prision correccional in its m i n i m u m a n d
m e d i u m p e r i o d s a n d a fine not e x c e e d i n g 500 pesos shall
be imposed upon any private individual w h o , in order to
discover secrets of a n o t h e r , shall seize his p a p e r s or letters
a n d r e v e a l the contents thereof.
If the o f f e n d e r shall not r e v e a l such secrets, the penalty
shall be arresto mayor a n d a fine not e x c e e d i n g 500 pesos.
T h i s p r o v i s i o n shall not be a p p l i c a b l e to parents,
g u a r d i a n s , or p e r s o n s e n t r u s t e d with the custody of m i n o r s
w i t h respect to the p a p e r s or letters of the children or
m i n o r s p l a c e d u n d e r their c a r e or custody, n o r to spouses
w i t h respect to the p a p e r s or letters of either of them.
A r t . 291. Revealing secrets with abuse of office. — T h e penalty
of arresto mayor a n d a fine not e x c e e d i n g 500 pesos shall
b e imposed u p o n a n y m a n a g e r , employee, o r servant w h o ,
in such capacity, shall l e a r n the secrets of his p r i n c i p a l or
master a n d shall r e v e a l such secrets.
A r t . 292. Revelation of industrial secrets. — T h e penalty of
prision correccional in its m i n i m u m a n d m e d i u m periods
a n d a fine not e x c e e d i n g 500 pesos shall be imposed upon
the p e r s o n in c h a r g e , employee, or w o r k m a n of any
m a n u f a c t u r i n g or industrial establishment w h o , to the
prejudice of the o w n e r thereof, shall reveal the secrets of the
industry of the latter.
• What are penalized in Article 290?

Article 290 penalizes the acts of seizing correspondence,
opening and reading the same. Whether offender revealed
the contents or not is immaterial. But if he did, the penalty is
higher.
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The contents of the correspondence must be "secrets"

which implies that the letter is of confidential character, e.g.,
enclosed in an envelope. If an open letter, such as post card,
the crime cannot be committed because of the absence of
confidentiality or secrecy.
• What other crimes involving correspondence may be

committed?
1. Malicious mischief if the purpose of seizure is not to
know the contents but simply to destroy the mail or letter
to prevent the addressee from receiving it. Malicious
mischief is the deliberate destruction of the property of
another and mail is property as it can be the subject of
theft under Article 310;
2. Arson if the mail matter is burned for the value of the
mail is irrelevant as the law on arson does not require a
minimum value for the property and since mail matter is
considered property;
3. Estafa, under Article 315(3)(c) if the offender knew that
the addressee must receive the mail, otherwise, the latter
will be prejudiced; e.g., pawnshop notices or notice of
disconnection of electric or water service;
4. Qualified theft of mail matter if the purpose is to take
valuables inside the mail;
5. Infidelity in the custody of documents, if the mail matter
is officially entrusted to the public officer for transmittal;
» Who are exempted from the provisions of Article 290?
Parents, guardians, and persons exercising legal author-

ity over minors are exempt because it is within their author-
ity to check the activities of minors. T h e same is true with re-
spect to husband and wife to maintain fidelity with each other,
provided they are not legally separated and living apart. T h e
guardianship contemplated here is over the person of the ward
as the guardian has the duty to know the ward's communica-
tions for the latter's protection. This is especially true today
when text and internet messages have resulted to the rape of
many minors by persons they got acquainted with thru such
facilities.
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DISCOVERY A N D REVELATION OF SECRETS
ANTI-WIRE TAPPING ACT
S E C T I O N 1. It shall be u n l a w f u l for a n y p e r s o n , not b e i n g

a u t h o r i z e d b y all the p a r t i e s t o a n y p r i v a t e c o m m u n i c a t i o n
o r s p o k e n w o r d , t o t a p a n y w i r e o r c a b l e , o r b y using any
other device or a r r a n g e m e n t , to secretly o v e r h e a r , intercept,
o r r e c o r d such c o m m u n i c a t i o n o r s p o k e n w o r d b y using a
device c o m m o n l y k n o w n as a d i c t a p h o n e or d i c t a g r a p h or
detectaphone or walkie-talkie or tape recorder, or however
otherwise described.
It shall also be u n l a w f u l for a n y p e r s o n , be he a

p a r t i c i p a n t or not in the act or acts p e n a l i z e d in the next
p r e c e d i n g sentence, t o k n o w i n g l y possess a n y t a p e r e c o r d ,
w i r e r e c o r d , disc r e c o r d , o r a n y other such r e c o r d , o r copies
thereof, o f a n y c o m m u n i c a t i o n o r s p o k e n w o r d s e c u r e d either
b e f o r e or after the effective d a t e of this A c t in the m a n n e r
p r o h i b i t e d by this l a w ; or to r e p i a y the same for a n y other
p e r s o n or persons; or to c o m m u n i c a t e the contents thereof,
either v e r b a l l y or in w r i t i n g , or to f u r n i s h transcriptions
thereof, w h e t h e r complete or p a r t i a l , to a n y other person:
Provided, T h a t the use of such r e c o r d or any copies thereof
as evidence in a n y civil, c r i m i n a l investigation or trial of
offenses m e n t i o n e d in Section 3 hereof, shall not be covered
by this p r o h i b i t i o n .
S E C T I O N 2 . A n y p e r s o n w h o wilfully o r k n o w i n g l y
does or w h o shall a i d , p e r m i t , or cause to be done any of
the acts d e c l a r e d to be u n l a w f u l in the p r e c e d i n g section
or w h o violates the p r o v i s i o n s of the f o l l o w i n g section or
of any o r d e r issued t h e r e u n d e r , or aids, permits, or causes
such violation shall, u p o n conviction thereof, be punished by
imprisonment for not less t h a n six months or m o r e than six
years a n d w i t h the accessory penalty of p e r p e t u a l absolute
disqualification f r o m p u b l i c office if the offender be a public
official at the time of the commission of the offense, and, if
the offender is an alien he shall be subject to deportation
proceedings.
S E C T I O N 3. N o t h i n g contained in this Act, however,
shall r e n d e r it u n l a w f u l or p u n i s h a b l e for any peace officer,
821
w h o is authorized by a written o r d e r of the C o u r t , to execute

any of the acts declared to be u n l a w f u l in the t w o p r e c e d i n g
sections in cases involving the crimes of treason, espionage,
p r o v o k i n g w a r a n d disloyalty in case of w a r , piracy, mutiny
in the high seas, rebellion, conspiracy a n d p r o p o s a l to commit
rebellion, inciting to rebellion, sedition, conspiracy to
commit sedition, inciting to sedition, k i d n a p p i n g as defined
by the Revised P e n a l C o d e , a n d violations of C o m m o n w e a l t h
Act N o . 616, p u n i s h i n g e s p i o n a g e a n d other offenses against
national security: Provided, T h a t such w r i t t e n o r d e r shall
only be issued or g r a n t e d u p o n w r i t t e n a p p l i c a t i o n a n d the
examination u n d e r oath or affirmation of the a p p l i c a n t a n d
the witnesses he m a y p r o d u c e a n d a s h o w i n g : (1) that there
a r e r e a s o n a b l e g r o u n d s to b e l i e v e that a n y of the crimes
e n u m e r a t e d h e r e i n a b o v e has b e e n committed or is b e i n g
committed or is a b o u t to be committed: Provided, however,
T h a t in cases involving the offenses of r e b e l l i o n , c o n s p i r a c y
a n d p r o p o s a l to commit r e b e l l i o n , inciting to r e b e l l i o n ,
sedition, c o n s p i r a c y to commit sedition, a n d inciting to
sedition, such a u t h o r i t y shall b e g r a n t e d only u p o n p r i o r
p r o o f that a r e b e l l i o n or acts of sedition, as the case m a y
b e , have actually b e e n c r a r e b e i n g committed; ( 2 ) that
there a r e r e a s o n a b l e g r o u n d s t o b e l i e v e that e v i d e n c e w i l l
be o b t a i n e d essential to the conviction of a n y p e r s o n for, or
to the solution of, or to the p r e v e n t i o n of, a n y such crimes;
a n d ( 3 ) that there a r e n o o t h e r m e a n s r e a d i l y a v a i l a b l e for
o b t a i n i n g such evidence. T h e o r d e r granted or issued
shall specify: (1) the identity of the p e r s o n or p e r s o n s w h o s e
communications, c o n v e r s a t i o n s , discussions, o r s p o k e n
w o r d s are to be overheard, intercepted, or recorded and,
in the case of t e l e g r a p h i c or t e l e p h o n i c c o m m u n i c a t i o n s ,
the t e l e g r a p h line o r the t e l e p h o n e n u m b e r i n v o l v e d a n d
its location; ( 2 ) the identity of the p e a c e officer a u t h o r i z e d
to o v e r h e a r , intercept, or r e c o r d the c o m m u n i c a t i o n s ,
conversations, discussions, o r s p o k e n w o r d s ; ( 3 ) the offense
o r offenses committed o r s o u g h t t o b e p r e v e n t e d ; a n d (4)
the p e r i o d o f the a u t h o r i z a t i o n . T h e a u t h o r i z a t i o n shall b e
effective for the p e r i o d specified in the o r d e r w h i c h shall not
exceed sixty (60) d a y s f r o m the d a t e of issuance of the o r d e r ,
unless e x t e n d e d o r r e n e w e d b y the c o u r t u p o n b e i n g satisfied
that such extension or r e n e w a l is in the p u b l i c interest.
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A l l r e c o r d i n g s m a d e u n d e r c o u r t a u t h o r i z a t i o n shall,
w i t h i n forty-eight h o u r s after the e x p i r a t i o n of the p e r i o d
fixed in the o r d e r , be d e p o s i t e d w i t h the c o u r t in a sealed
e n v e l o p e o r sealed p a c k a g e , a n d shall b e a c c o m p a n i e d b y a n
affidavit of the p e a c e officer g r a n t e d such a u t h o r i t y stating
the n u m b e r o f r e c o r d i n g s m a d e , the dates a n d times c o v e r e d
by each r e c o r d i n g , the n u m b e r of tapes, discs, or r e c o r d s
included in the deposit, a n d certifying that no duplicates
o r copies o f the w h o l e o r a n y p a r t t h e r e o f h a v e b e e n m a d e ,
or if m a d e , that all such d u p l i c a t e s or copies a r e included
in the e n v e l o p e or p a c k a g e d e p o s i t e d w i t h the court. T h e
envelope or p a c k a g e so d e p o s i t e d shall not be o p e n e d , or the
r e c o r d i n g s r e p l a y e d , or u s e d in e v i d e n c e , or their contents
r e v e a l e d , except u p o n o r d e r of the court, w h i c h shall not be
g r a n t e d except u p o n motion, w i t h d u e notice a n d o p p o r t u n i t y
to be h e a r d to the p e r s o n or p e r s o n s w h o s e c o n v e r s a t i o n or
communications h a v e b e e n r e c o r d e d .
T h e c o u r t r e f e r r e d to in this section shall be u n d e r s t o o d

to m e a n the C o u r t of F i r s t I n s t a n c e w i t h i n w h o s e territorial
jurisdiction the acts for w h i c h a u t h o r i t y is a p p l i e d for a r e to
be executed.
S E C T I O N 4 . A n y c o m m u n i c a t i o n o r s p o k e n w o r d , o r the
existence, contents, s u b s t a n c e , p u r p o r t , effect, or m e a n i n g
of the same or a n y p a r t thereof, or a n y information therein
contained o b t a i n e d or s e c u r e d by a n y p e r s o n in violation
of the p r e c e d i n g sections of this A c t shall not be admissible
in evidence in a n y j u d i c i a l , quasi-judicial, legislative or
administrative h e a r i n g o r investigation.
S E C T I O N 5. A l l l a w s inconsistent w i t h the provisions of
this Act a r e h e r e b y r e p e a l e d or a c c o r d i n g l y a m e n d e d .
S E C T I O N 6. T h i s A c t shall take effect u p o n its a p p r o v a l .
A p p r o v e d : J u n e 19, 1965.
• What kind of communication is covered by R.A. 4200?

Only private communication is expressly prohibited to be
recorded secretly by any person including one party thereto.
Therefore, recording of "public" conversations such as those
held in barangay centers involving conversation between
contending parties or in police stations during investigations
cannot be considered as within the law's prohibition.
823
Ramirez v. CA, G.R. No. 93833, September 28, 1995

SS filed a civil case for damages against EE because the
latter allegedly vexed and humiliated her. She presented in
evidence a verbatim transcript of the event culled from a tape
recording made by SS of the confrontation.
Is R.A. 4200 violated if the recording was done by a party to the

conversation?
Y e s . Section 1 of the law makes it illegal for any person,
not authorized by all the parties to any private communication
to secretly record such communication by means of a tape
recorder. The law makes no distinction as to whether the party
sought to be penalized is other than or different from those
involved in private communication. T h e statute's intent to
penalize all persons unauthorized to make such recording is
underscored by the use of the qualifier "any." Consequently,
"even a (person) privy to a communication who records his
private conversation with another without the knowledge of
the latter ( w i l l ) qualify as a violator" of R . A . 4200.
There must be consent of all the parties to any private

communication or spoken word to tap any w i r e or cable or to
use any device or arrangement to hear, intercept or record.
Should the conversation be alleged in the information?
N o . W h a t R . A . 4200 penalizes are the acts of secretly

overhearing, intercepting or recording private communications
by means of the devices enumerated therein. T h e mere
allegation that an individual made a secret recording of a
private communication by means of a tape recorder would
suffice to constitute an offense under Section 1 of R . A . 4200.
Nowhere is it required that before one can be regarded as a
violator, its substance as well as its communication to a third
person should be professed.
Does "private communication" include "private conversations"?
It does. A contrary contention narrows the ordinary

meaning of the word "communication" to a point of absurdity.
In its ordinary signification, communication connotes the act
of sharing or imparting, as in conversation, or signifies the
824
process by which meanings or thoughts are shared between

individuals through common system or symbols (as language
signs or gestures). These definitions are broad enough to include
verbal or non-verbal, written or expressive communications of
"meanings or thoughts."
• Are tape recorders among the prohibited devices?
Y e s . T h e law expressly includes the unauthorized

recording of private communications with the use of tape
recorders among the acts punishable.
Gaanan, which dealt with the issue of telephone

wiretapping, held that the use of a telephone extension for
the purpose of overhearing private conversation without
authorization did not violate R . A . 4200. For, a telephone
extension device was not among those "devices or arrangements"
enumerated therein and the existence of telephone extension
is so common that it can be taken for granted. T h e instant
case turns on a different note, because the applicable facts
and circumstance pointing to a violation of R . A . 4200 suffer no
ambiguity.
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TITLE TEN
CRIMES AGAINST PROPERTY
What crimes are covered under this title?

1. Robbery with violence against or intimidation of persons
(294)
2. Robbery in band (295-96)
3. Attempted and frustrated robbery with homicide (297)
4. Execution of deeds by means of violence or intimidation

(298)
5. Robbery by the use of force upon things (299-303)
6. Possession of picklocks or similar tools (304-5)
7. Brigandage (306-7)
8. Theft (308-11)
9. Usurpation (312)
10. Altering boundaries or landmarks (313)
11. Culpable insolvency (314)
12. Swindling and other deceits (315-8)
13. Chattel mortgage (319)
14. Arson and other crimes involving destruction (320) and
15. Malicious mischief (327-23)
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Chapter One
ROBBERY I N G E N E R A L
A r t . 293. Who are guilty of robbery. — A n y p e r s o n w h o , w i t h

intent t o g a i n , shall take a n y p e r s o n a l p r o p e r t y b e l o n g i n g
to another, by m e a n s of violence a g a i n s t or intimidation of
a n y p e r s o n , o r u s i n g force u p o n a n y t h i n g , shall b e guilty o f
robbery.
• Compare the crimes of robbery and theft.
Robbery and theft are analogous crimes involving taking

with intent to gain of personal property. T h e crime is robbery
if committed with violence against or intimidation upon person
or with force upon things. Otherwise, it is theft.
• Can real property be subject of robbery?
In a limited sense, yes. Articles 298 and 312 are two

articles which may involve "taking" of real property. Article
298 holds liable for robbery any person who defrauds another
by means of violence or intimidation by compelling the latter to
sign, execute or deliver any public instrument or document. The
law did not qualify what is involved in such public instrument
or document, thus, may include real property.
Alfeche said that usurpation under Article 312 which

involves the occupation of real property or real rights is similar
to robbery except that in the latter, the subject is personal
property.
• What is asportation? When is it present?

Asportation is the taking of personal property out of
the possession of the owner, without his privity and consent
and without animus revertendi. Asportation is present once
the property is in fact taken from the owner. Severance of
goods from the possession of the owner and absolute control
of the property by the taker, even for an instant, constitutes
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asportation. (People v. Apolinario, G.R. No. 97426, June 3,

1993)
Appellant was initially seen in the act of unlawfully
taking away the bag of TT and that he succeeded in forcibly
taking possession of the same. T h e element of taking or
asportation was completed when appellant violently got hold
of the bag, however momentarily. In robbery, the element of
asportation — which requires the unlawful taking of personal
property from the possession of its owner, without his privity
and consent and without animus revertendi — is present once
the property is in fact taken from the owner, even for just an
instant. The subsequent disposition of the property taken, or
the failure to dispose of the same, is irrelevant in so far as the
characterization of the offense as robbery is concerned. (People
v. Gavina, G.R. No. 118076, November 20, 1996)
How is animus lucrandi determined?
Animus lucrandi or intent to gain is an internal act which

can be established through the overt acts of the offender. Sia
Teb Ban, 54 Phil., said that "one's intention may be gathered
from one's deeds." Appellant's act of obtaining possession of the
victim's clutch bag through violence speaks for itself. A n d , the
fact that the clutch bag of the victim contained a considerable
amount of money confirms that appellant had intended to rob
TT all along, (id.)
What will give rise to the presumption of animus lucrandi?
Intent to gain or animus lucrandi is presumed w h e n one

is found in possession of stolen goods precisely because the
taking of another's property is an unlawful act. Reyes, G.R. No.
135682, March 26, 2003, held:
Appellant's contention that the animus lucrandi was not

sufficiently established by the prosecution is devoid of merit.
Animus lucrandi or intent to gain is an internal act which
can be established through the overt acts of the offender.
Although proof of motive for the crime is essential when the
evidence of the robbery is circumstantial, intent to gain may be
presumed from the furtive taking of useful property pertaining
to another, unless special circumstances reveal a different
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ROBBERY IN G E N E R A L
intent on the part of the perpetrator. T h e intent to gain may be

presumed from the proven unlawful taking. CC's act of taking
the victim's wristwatch while RR poked a knife behind him
sufficiently gave rise to the presumption.
• When is robbery or theft consummated?
W h e n the offender takes complete control of the property,

robbery or theft is consummated. T h e r e is complete control
when the offender has acquired and substituted his will over
the property. It is not necessary that the offender has taken
away the property or used the same. (Dunlao, Sr. v. CA, G.R.
Nos. 117267-117310, August 22, 1996)
• Can there be frustrated theft?
N o n e . By its definition under Article 308, theft can only be

attempted or consummated. It does not have a frustrated stage
as its element of unlawful taking, or apoderamiento, is deemed
complete from the moment the offended gains possession of the
thing, even if he has no opportunity to dispose of the same.
T h e difference between a frustrated and consummated

crime lies in whether the felony itself was actually produced by
the acts of execution because in both stages, all the elements
have been completed by the offender. Therefore, the statutory
definition of theft cannot admit of a frustrated stage as theft
is produced upon the completion of the element of unlawful
taking. (Valenzuela v. People, G.R. No. 160188, June 21, 2007)
Valenzuela lays to rest the controversy about the existence

of frustrated theft created by Dino ( N o . 924-R, February 18,
1948, 45 O.G. 3446) and Flores (6 C A . Rep. 2d 835 [1964]).
While Dino and Flores considered the mindset of the offended,
the statutory definition of theft considers only the perspective
of intent to gain on the part of the offender, compounded by the
deprivation of property on the part of the victim.
• Must the person divested of personal property be its owner?

N o . Article 293 employs the phrase "belonging to another"
and this merely requires that the property taken does not
belong to the offender. Actual possession of the property by
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the person dispossessed thereof suffices. In fact, robbery

may be committed against a bailee or a person who himself
has stolen it (US v. Albao, 29 Phil. 1914). So long as there is
apoderamiento of personal property from another against the
latter's will through violence or intimidation, with animo de
lucro, robbery is the offense imputable to the offender. And, if
the victim is killed on the occasion or by reason of the robbery,
the offense is converted into the composite crime of robbery
with homicide, (id.)
• When is the element of "taking" not present?
"Taking" as an element of robbery means depriving

the offended party of ownership of the thing taken with the
character of permanency. T h e taking of personal property
belonging to another should not be under a claim of ownership.
One who takes the property openly and avowedly under claim
of title offered in good faith is not guilty of robbery even though
the claim of ownership is untenable. T h e intent to gain, being
an internal act, cannot be established by direct evidence, except
in case of confession by the accused. It must, therefore, be
deduced from the circumstances surrounding the commission
of the offense. (Bernal v. CA, G.R. No. L-32798, August 30,
1988)
• Compare robbery with violence against or intimidation of

persons to robbery with force upon things.
1. Robbery with violence against or intimidation of persons

is deemed more serious than robbery with force upon
things.
2. T h e penalty on the former is based on the gravity of the

violence or intimidation; on the latter upon the value of
the thing taken.
3. W h e n both kinds of robbery are present, the former shall

take precedence over the latter for it is more serious,
unless the penalty for robbery with force upon things
is higher, in which case the crime shall be complexed.
(Napolis v. CA)
830
Section 1. — Robbery with violence against or intimida-

tion of persons
A r t . 294. Robbery with violence against or intimidation of

persons — Penalties. — A n y p e r s o n guilty of r o b b e r y with the
use of violence a g a i n s t or intimidation of a n y p e r s o n shall
suffer:
1. T h e p e n a l t y of reclusion perpetua to death, w h e n

b y r e a s o n o r o n occasion o f the r o b b e r y , the crime
o f h o m i c i d e shall h a v e b e e n committed; o r w h e n
the r o b b e r y shall h a v e b e e n a c c o m p a n i e d b y r a p e
o r intentional m u t i l a t i o n o r a r s o n .
2. T h e p e n a l t y of reclusion temporal in its m e d i u m

p e r i o d to reclusion perpetua, w h e n or if by r e a s o n
or on occasion of such r o b b e r y , a n y of the physical
injuries p e n a l i z e d in s u b d i v i s i o n 1 of A r t . 263 shall
h a v e b e e n inflicted.
3. T h e penalty of reclusion temporal, w h e n by reason

or on occasion of the r o b b e r y , a n y of the physical
injuries p e n a l i z e d in s u b d i v i s i o n 2 of the article
m e n t i o n e d in the next p r e c e d i n g p a r a g r a p h , shall
h a v e b e e n inflicted.
4. T h e p e n a l t y of prision mayor in its m a x i m u m

p e r i o d to reclusion temporal in its m e d i u m p e r i o d ,
if the violence or intimidation e m p l o y e d in the
commission of the r o b b e r y shall h a v e b e e n c a r r i e d
to a d e g r e e clearly u n n e c e s s a r y for the commission
of the crime, or w h e n in the course of its execution,
the offender shall h a v e inflicted u p o n any person
not responsible for its commission any of the
physical injuries c o v e r e d by subdivisions 3 and 4 of
said A r t . 263.
5. T h e penalty of prision correccional in its m a x i m u m

period to prision mayor in its m e d i u m period in
other cases. (As amended by Sec. 9, R.A. No. 7659.)
831
What crimes are penalized under Article 294?

Article 294 defines and penalizes the following:
(a) Robbery with homicide;
(b) Robbery with rape, with intentional mutilation, or with
physical injuries penalized in subdivision 1 of Article 263;
(c) Robbery with physical injuries penalized in subdivision 2
of Article 263;
(d) Robbery committed with unnecessary violence or with
physical injuries covered by subdivisions 3 and 4 of Article
263; and
(e) Robbery in other cases or simple robbery where the
violence against or intimidation of persons cannot be
subsumed by, or where it is not sufficiently specified so as
to fall under the first four paragraphs. (People v. Alfeche,
Jr.)
T h e first four are composite crimes or special complex

crimes and the fifth is a separate crime. T h e above order should
be observed. Thus, if both homicide and rape are present, the
crime is robbery with homicide; the rape however is N O T
aggravating because it is not an aggravating circumstance
under Article 14. T H E R E I S N O " R O B B E R Y W I T H H O M I C I D E
A N D RAPE."
What is the nature of the homicide, rape, mutilation, arson or

physical injuries committed with the robbery?
T h e homicide, rape, etc. are not separate crimes but

circumstances which are component elements of the special
complex crimes of robbery with homicide, etc.
T h e injuries treated in Article 294(2) to (4) composing the

special complex crimes of robbery with physical injuries are
serious physical injuries found in A r t i c l e 263. Therefore, the
injuries comprising the simple robbery in Article 294(5) are
those of less serious and slight physical injuries.
Robbery with homicide is a crime primarily classified

as one against property and not against persons. (People v.
Esperraguerra, 248 SCRA)
832
• What is the nature of the crime of robbery with homicide?
This special complex crime is primarily a crime against

property and not against persons, homicide being a mere
incident of the robbery with the latter being the main purpose
and object of the criminal.
In robbery with homicide, what is essential is that there

be a direct relation, an intimate connection between robbery
and the killing, whether the latter is prior or subsequent to the
former or whether both crimes are committed at the same time.
(People v. Navales, Jr., G.R. No. 112977, January 23, 1997)
• In charging the complex crime of robbery with homicide, what

should the Information contain?
T h e information should charge each element of the

complex offense with the same precision as if the two constituent
offenses w e r e the subject of separate prosecutions. (People v.
Bulalayao, 48 SCAD)
T h e elements of robbery are as follows:
a. T h e res be: (1) personal property; (2) belonging to another;
b. There is (3) unlawful taking of that property;
c. T h e taking must be (4) with intent to gain; and
d. There is (5) violence against or intimidation of any person,
or force upon anything.
A n d the elements of homicide are as follows:
a. A person was killed;
b. T h e accused killed him without any justifying circum-
stance;
c. T h e accused had the intention to kill, which is presumed;
d. T h e killing was not attended by any of the qualifying
circumstances of murder, parricide or infanticide.
(However, homicide is used in the generic sense and
includes murder, parricide, infanticide.)
833
In robbery with homicide, the following elements must be

proved:
1. The taking of personal property is committed with
violence or intimidation against persons;
2. The property taken belongs to another;
3. The taking is done with animo lucrandi; and
4. By reason of the robbery or on the occasion thereof,
homicide (used in its generic sense) is committed.
It was proved that: (1) appellants asported a gun with
violence and intimidation against the victim; (2) the gun
belonged to the deceased; and (3) the security guard was
killed. Animus lucrandi is presumed when there is proof of
asportation. (People v. Salazar, G.R. No. 99355, August 11,
1997)
Intimidation is present in the taking when acts are

performed which, in their own nature or by reason of the
circumstances under which they are executed, restrict or
hinder the free exercise of the will of the victim or inspire him
with fear. (People v. Pa-el, G.R. No. 108733, September 16,
1996)
What does "homicide" in robbery with homicide encompass?
Homicide is used in the generic sense. A n y kind of death,

even accidental w i l l bring about robbery with homicide. Both
robbery and homicide must be consummated. If the robbery is
merely attempted, the crime will be attempted robbery with
homicide under Article 297. H o w e v e r , if there is intent to kill
but not consummated, there w i l l be t w o separate crimes (use
the correct term, e.g., attempted or frustrated homicide or
murder, and attempted robbery). If accidental, hence, no intent
to kill and injury resulted, attempted robbery with serious
physical injuries under Article 48.
T h e crime becomes robbery with homicide when by reason
or on occasion of a robbery with the use of violence against
or intimidation of person, the crime of homicide is committed.
The term "homicide" is used in its generic sense, hence, it
includes the commission of murder and slight injuries during
the robbery. (People v. Camat, April 1994)
834
In fine, homicide in its generic sense includes parricide,

infanticide, murder and absorbs physical injuries committed
together with homicide on the occasion or by reason of the
robbery.
• When the special complex crime of robbery with homicide is

not proved, for what can the defendants be convicted?
W h e r e a complex crime is charged and the evidence fails

to support one of the component offenses, the defendant can be
convicted of the offense proved, (id.)
As there w e r e no eyewitnesses to the alleged robbery,
and although the evidence already showed that at the time of
the killing the money in the bag of the deceased was missing,
it cannot be presumed that there was robbery. (People v.
Ambahang, 108 Phil. 325 [I960]) It is essential to prove intent
to rob. This necessarily includes evidence to the effect that the
accused carried away the effects or personalty of the deceased.
In the instant case, there is absence of positive proof that
appellant intended to rob the deceased or that he was the one
who carried away the money belonging to the victim. His mere
presence at the locus criminis is not sufficient to implicate him.
(id.)
To sustain a conviction for the complex crime of robbery

with homicide, which is primarily an offense against property, it
is essential that the robbery itself be proved beyond reasonable
doubt. Proof of the homicide alone is not sufficient to support
a conviction for the crime of robbery with homicide. (People v.
Pagal, 79 SCRA)
• What is the significance of the phrase "by reason" in Article 294

on robbery with homicide?
T h e phrase "by reason" covers homicide committed before
or after the taking of personal property of another, as long as
the motive of the offender in killing a person before the robbery
is to deprive the victim of his personal property which is sought
to be accomplished by eliminating an obstacle or opposition
or to defend the possession of the stolen property. (People v.
Torres, G.R. No. 130661, June 27, 2001)
835
From all indications, accused, a C A F G U member, was

primarily interested in taking the life of the two deceased
whom he suspected of exacting quota from the Barangay
Captain and the taking of the subject engine was merely an
afterthought that arose subsequent to the killing of the victim.
Such taking after the culprit has successfully carried out the
primary criminal intent to kill the victim is theft for the use of
violence or force is no longer necessary. (People v. Consejero,
G.R. No. 118334, February 20, 2001)
• Is it necessary for the robbery to precede the killing for the

crime to be "robbery with homicide"?
Article 294(1) uses the term "by reason or on the occasion
of the homicide (unlike in the case of rape, mutilation, etc.),
therefore, the homicide may be before or after the robbery,
provided, the taking is not merely an afterthought (People v.
Pacapac, 248 SCRA). If the purpose of the offenders is to kill
the victim and the taking is an afterthought, the crimes are
homicide or murder as the case may be and theft, not robbery
because a dead person cannot be intimidated.
• In robbery with homicide, should robbery be the sole purpose

of the offenders?
N o , it is not necessary to show that the sole purpose was

robbery and by reason thereof homicide was committed. Article
294 provides that there is robbery with homicide not only when
"by reason of the robbery" homicide is committed but also when
"on the occasion" thereof homicide is committed. If robbery
and homicide are committed on the same occasion, the special
complex crime is deemed committed. (People v. Alberca, G.R.
No. 117106, June 26, 1996)
In a case, it was held that to sustain conviction for the

special complex crime of robbery with homicide, it must be
established with certitude that the killing was a mere incident
to the robbery, the latter being the main purpose and objective
of the criminals. It contemplates a situation where the
homicide resulted by reason or on the occasion of the robbery.
In the case at bar, appellant can only be convicted of two counts
of homicide, there being no proof with moral certainty that
the homicide was committed by reason or on the occasion of

robbery. (People v. Evardo, G.R. No. 100724, December 1, 1992)
Pamintuan, G.R. No. 100771, May 28, 1993, found guilty

of robbery with homicide the prisoners who escaped from jail,
killing the jail guards and taking firearms from the armory.
In Tolentino, G.R. No. L-59097, September 20, 1988, three
individuals w e r e creating trouble in a store. W h e n a policeman
across the street was summoned for help by the storeowner,
the three turned to him and ganged up on him. T h e accused
took the service revolver of the policeman and shot him and
then fled with the gun. It was contended that the taking of the
gun was a mere afterthought and that to prove robbery with
homicide the prosecution must show that the robbery preceded
the killing. In rejecting this contention, the Court held:
"The contentions of the accused-appellant are untenable.

The testimony of Lourdes Santos clearly shows that there was
an intent to rob the victim of his gun. The gun was first taken
from the victim before he was killed. The gun was then taken
away and hidden. Nevertheless, whether or not the taking was
before or after the death of the victim is of no moment in this
case. It is immaterial that homicide preceded the robbery where
robbery was the real motive of the culprits. (People vs. Gapasin
145 SCRA 178) In the case at bar, the accused intended both to
take the gun and kill the victim."
In Hasiron, three individuals went to the house of the

victim and, when told that he was asleep, left with the advice
that they would return. An hour later they returned. They
talked with the victim outside his house and after awhile one
of the trio shot the victim, another one went inside his house
and took his M-16 Armalite, while the accused took the victim's
service pistol which was tucked in his waist. It was contended
that robbery was not the primary motive because if this had
been their intention, they would have robbed the victim of his
guns the first time they came. Indeed, the trial court said that
the groups' purpose in looking for the victim was to "confront
[him] about something." T h e contention was dismissed. The
accused convicted of robbery with homicide, thusly:
"[TJhere is no reasonable doubt that a principal (though

not necessarily the only) objective of the malefactors was to take
837
away the firearms in the possession of the deceased policeman.

They evidently knew that Abdulmonim had a firearm in his
house, apart from the handgun tucked in his waist; Jerry
Hayudini promptly and unerringly went inside the Aspi house
and secured the M-16 armalite, while appellant pulled out the
handgun from Abdulmonim's waist."
In Ga, G.R. No. L-49831, June 27,1990, the accused
planned to rob a house at Forbes Park in Makati. They killed
the house owner, his wife and houseboy and seriously wounded
his daughter and, as help was coming, they fled without being
able to take anything from the house. Instead they took a
wristwatch and transistor radio belonging to a houseboy.
The crime was robbery with homicide. In Balanag, G.R. No.
103225, September 15, 1994, the accused entered the house of
L L and then killed him for having filed a case against one of
the accused. They fled after taking with them a shoulder bag of
L L ' s daughter. This was robbery with homicide.
Accused-appellant is guilty of robbery with homicide.

While he and his companions failed to rob SS, the fact is that
they took the gun of the security guard for the purpose of
gain. Since the group in addition killed the guard, the crime
committed is the complex one of robbery with homicide. It is
not necessary that the person robbed be the same person whom
the malefactors originally intended to rob. N o r is it necessary to
show that the sole purpose was robbery and by reason thereof
homicide was committed. Article 294 provides that there is
robbery with homicide not only when "by reason of the robbery"
homicide is committed but also when "on the occasion" thereof
homicide is committed. If robbery and homicide are committed
on the same occasion, the special complex crime is deemed
committed. (People v. Alberca) [But see Milliam]
Does it necessarily follow that when a killing was done during a

robbery, the offense committed is robbery with homicide?
N o . A conviction for robbery with homicide requires

certitude that the robbery was the main purpose and objective
of the criminals and that the killing was merely incidental
resulting merely by reason or on the occasion of the robbery.
Article 294 specifically states that: "Any person guilty of
robbery with the use of violence against or intimidation of
any person shall suffer: 1. T h e penalty of reclusion perpetua
838
to death, when by reason or on the occasion of the robbery, the

crime of homicide shall have been committed..."
T h e Spanish version of Article 294(1) of the Code reads:
"1.0 — Con la pena de reclusion perpetua a muerte, cuando
con motivo o con occasion del robo resultare homicidio."
Chief Justice Ramon C. Aquino explains that the use of the
words "con motivo... del robo"permits no interpretation other
than that the intent of the actor must supply the connection
between the homicide and the robbery in order to constitute the
complex offense. If that intent comprehends the robbery, it is
immaterial that the homicide may in point of time immediately
precede instead of follow the robbery. W h e r e the original
design comprehends robbery and homicide is perpetrated by
reason or on the occasion of the consummation of the former,
the crime committed is the special complex offense even if
homicide precedes the robbery by an appreciable interval
of time. On the other hand, if the original criminal design
does not clearly comprehend robbery but robbery follows the
homicide as an afterthought or as a minor incident of the
homicide, the criminal acts should be viewed as constitutive
of two offenses and not of a single complex offense. Robbery
with homicide arises only when there is a direct relation, an
intimate connection, between the robbery and the killing even
if the killing is prior to, concurrent with, or subsequent to the
robbery, (id.)
W h e r e the taking of the victim's gun was done to prevent
the victim from retaliating, the crimes committed are homicide
and theft, not robbery with homicide. (People v. Milliam,
January 2000) (Alberca said that the robbery need not be the
sole purpose of the malefactors.)
Is there a crime of robbery with double homicide?

None. Accused was wrongly charged with robbery with
double homicide and was erroneously sentenced to two terms
of reclusion perpetua. Such crime does not exist in the statute
books. Article 294(1) imposes only one penalty for the special
complex crime of robbery with homicide regardless of the
number of persons killed (People v. Dulatre, 248 SCRA; People
v. Visas, 232 SCRA). This special complex crime does not limit
the homicide to one victim as to make the killings in excess of
that number punishable as separate offense. A l l the homicides
839
are merged in the composite, integrated whole that is robbery

with homicide so long as the killings were perpetrated by
reason or on the occasion of the robbery. (People v. Fabula,
G.R. No. 115401, December 16, 1996)
THERE IS NO "ROBBERY WITH MULTIPLE
H O M I C I D E " because this is not a complex crime but a single
indivisible offense. Being a single indivisible offense, all who
participated will be charged with robbery with homicide.
Regardless of the number of homicides committed on the
occasion of robbery, the crime is still robbery with homicide.
In this special complex crime, the number of persons killed is
immaterial and does not increase the penalty prescribed in
Article 294. There is no crime of robbery with multiple homicide.
The same crime is committed even if rape and physical injuries
are also committed on the occasion of said crime. (People v.
Pulusan, G.R. No. 110037, May 21, 1998)
• Is there robbery with homicide and frustrated homicide; robbery

with homicide and physical injuries?
None. Homicide in Article 294(1) is to be understood in

its generic sense. It absorbs not only the act which results in
death but also all other act producing anything short of death,
assuming that death occurs by reason or on the occasion of the
robbery. It is designated as robbery with homicide regardless
of the number of homicides and physical injuries committed.
Hence, the frustrated homicide aspect of the present charge is
deemed merged in the special complex crime of robbery with
homicide.
Robbery with homicide is a single indivisible crime, a

special complex crime with the specific penalty provided for
in the law. Despite the physical injuries sustained by F F , the
crime is still robbery with homicide. T h e word "homicide" is
used in its generic sense as it includes murder and absorbs
serious physical injuries committed during the robbery. (People
v. Camat, G.R. No. 112262, April 2, 1996)
• If the robbery was accompanied by homicide, will those who

did not take part in the killing be liable?
Y e s . Whenever the special complex crime of robbery with

homicide is proven to have been committed, all those who took
840
part in the robbery are liable as principals therein although

they did not actually take part in the homicide. (People v.
Pulusan)
W h e n e v e r a homicide has been committed as a consequence

or on the occasion of a robbery, all those who took part as
principals in the robbery will also be held guilty as principals
in the special complex crime of robbery with homicide, even if
they did not all actually take part in the homicide; unless it
appears that those who did not do so endeavored to prevent the
homicide. (People v. Lago, G.R. No. 21272, June 6, 2001)
[It must be noted that Articles 295 and 296 are not
applicable to robbery under Article 294(1) as the former articles
are expressly limited to paragraphs 3, 4 and 5 of the latter
article (People v. Apduhan). Therefore, it is submitted that the
defense by the robbers who did not take part in the homicide
of having "attempted to prevent" the commission of "any of
the assaults committed by the band" should not be considered
(Article 296, second paragraph^. As the crime of robbery with
homicide is a single indivisible offense, it should not be divided
into its component parts and make some members liable for
the whole while others liable for the parts thereof.]
• If the robbery was accompanied by killings (or rapes), will the

other homicides (or rapes) be aggravating?
N o . This ticklish issue was the subject of conflicting views

when in some cases it was held that the additional rapes/
homicides committed on the occasion of robbery would not
increase the penalty; while in other cases, the ruling was, the
multiplicity of rapes/homicides committed would be appreciated
as aggravating as it would be absurd to give the same penalty
to a case where only one homicide/rape was committed to that
where multiple rapes/homicides accompanied the robbery.
Regala settled the issue and said that no law provides that
the additional rape or homicide should be considered as
aggravating circumstance. The enumeration of aggravating
circumstances under Article 14 is exclusive, as opposed to the
enumeration in Article 13 regarding mitigating circumstances,
where paragraph 10 provides for analogous circumstances.
(People v. Gano, G.R. No. 134373, February 28, 2001)
841
Distinguish the special complex crime of robbery with homicide

from the complex crime under Article 48.
Article 48 contemplates a situation where one offense
is a necessary means to commit the other or where a single
act results in two or more offenses. The homicide in Article
294 is not necessary for the accomplishment of the robbery.
However, it could be committed to avoid future identification
of the robbers or as a consequence or incident thereof, (id.)
A special complex crime is different from a complex crime

under Article 48. Therein, the crimes composing the complex
crime are not specific but should meet the criteria of (1) being
a grave or less grave felony or (2) being necessary to commit
the other. Moreover, the penalty is also not specific, but rather
the general description of "for the most serious offense in the
maximum period." Special complex crimes are specifically
provided for in the different provisions of Book I I , where the
composite crimes are specified by the provision and the penalty
is likewise specified. In composite crimes, the excess crimes are
absorbed which is not the case in complex crimes under Article
48.
What is the rationale for penalizing as a special complex crime,

robbery with homicide?
Robo con homicidio is an indivisible offense, a special

complex crime. T h e penalty for robbery with homicide is more
severe because the law sees in this crime that men place lucre
above the value of human life, thus justifying the imposition
of a more severe penalty than that for simple homicide or
robbery. In view of the said graver penalty, jurisprudence
exacts a stricter requirement before convicting the accused of
this crime. W h e r e the homicide is not conclusively shown to
have been committed for the purpose of robbing the victim, or
where the robbery was not proven, there can be no conviction
for robo con homicidio. (id.)
Is the aggravating circumstance of dwelling appreciated in

robbery with homicide?
Although dwelling is considered as inherent in crimes
which can be only committed in the abode of the victim, such
842
ROBBERY IN GENERAL
as trespass to dwelling and robbery in an inhabited house, it

is aggravating in robbery with homicide because the author
thereof could have accomplished the heinous deed of snuffing
out the victim's life without having to violate his domicile.
(People v. Mesias, 199 SCRA 20 [1991])
• Is the value of the stolen articles relevant to the criminal liability

of the accused?
As a matter of law and not on the excuse that after all
appellant cannot satisfy his civil liability, the real value of the
asported properties would nonetheless be irrelevant to the
criminal liability of appellant. Insofar as the component crime
of robbery is concerned, the same was committed through
violence against or intimidation of persons, and not through
force upon things, hence the value of the property subject of
the crime is immaterial. T h e special complex crime of robbery
with rape has, therefore, been committed by the felonious
acts of appellant and his cohorts, with all acts of rape on that
occasion being integrated in one composite crime. The value of
the objects of the apoderamiento relates only to the civil aspect.
(People v. Martinez, G.R. No. 116918, June 19, 1997)
• When the detention of the victims was made by the robbers

to shield themselves from the police, is illegal detention
committed?
T h e offenders after committing the robbery was surprised

and trapped by the police and for their protection herded the
members of the household who were women and minors.
The crime is robbery only because the detention was merely
incidental. W e r e the offenders not trapped by the early arrival
of the police at the scene of the crime, they would not have
anymore detained the people inside. Obviously, they were left
with no choice but to resort to the detention of these people as
security, until arrangements for their safe passage were made.
This is not the crime of illegal detention punishable under
the penal laws, but an act of restraint in order to delay the
pursuit of the criminals by peace officers. Where the victims
in a robbery case were detained in the course of robbery, the
detention is absorbed by the crime of robbery. The victims were
used only as a shield. (People v. Astor, April 1987)
843
If, however, the offenders used the detention to exact a

bigger amount from the victim, the detention becomes a means
to extort an amount which is in the nature of ransom, subject
of robbery. Aside from robbery, serious illegal detention is
also committed. The crime is complex because serious illegal
detention is a means to commit robbery.
What two principles of conspiracy are relevant in a conviction

for robbery with rape?
(a) That in a conspiracy, the act of one is the act of all —
a conspiracy being amply demonstrated by the proofs
among the eight in this case; and
(b) That when more than three armed malefactors take part
in the commission of robbery, it shall be deemed to have
been committed by a band, in which case, any member of
the band who is present at the commission of a robbery
by (said) 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 same. (Liang v. People,
January 2000). [It should be noted that Articles 295 and
296 on robbery in band is not applicable to Article 294(1)
as expressly provided in 295 and 296. Thus, this principle
could not be relevant in robbery with rape.]
This notwithstanding, only CC should be held responsible
for the crime because he alone perpetrated the rape. T h e
others could not be held liable therefor. For while the evidence
does convincingly suggest that the agreement was to commit
robbery only, there is no evidence that the other members
of the band of robbers w e r e aware of CC's lustful intent and
his consummation thereof so that they could have attempted
to prevent the same. (People v. Villaruel, G.R. No. 105006,
September 4, 1996). (But see Pulusan and Logo)
In robbery with rape, when should the rape be committed?

In the special complex crime of robbery with rape, the
intent to take personal property of another must precede the
rape. T h e taking of the cash and pieces of j e w e l r y against
N N ' s will appears to be an afterthought. Dinola, held that
if the intention of the accused was to rob but rape was also
committed even before the asportation, the crime is robbery
with rape. But if the original plan was to rape but the accused
after committing the rape also committed the robbery when
the opportunity presented itself, the offenses should be viewed
as separate and distinct. (People v. Faigano, 254 SCRA)
• What determines whether the crime committed is the special

complex crime of robbery with rape or separate crimes for the
taking and the rape?
In the special complex crime of robbery with rape, the
true intent of the accused must first be determined because
it is his intent that determines the offense he has committed.
Dinola, 183 S C R A 493, Canastre, 82 Phil. 480, and Faigano,
254 S C R A 10 held:
"x x x if the intention of the accused was to rob, but
rape was committed even before the asportation, the crime is
robbery with rape. But if the original plan was to rape but the
accused after committing the rape also committed the robbery
when the opportunity presented itself, the offense should be
viewed as separate and distinct. To be liable for the complex
crime of robbery with rape the intent to take personal property
of another must precede the rape."
Article 294 used the word "accompanied" by rape. It does

not distinguish whether the rape was committed before, during
or after the robbery.
T h e tricycle driver mauled D D . She was strangled, boxed

and kicked then repeatedly stabbed on her face, head, and
different parts of her body. H e r head was banged against the
sidecar. She was brought to an abandoned place and after
raping her, the driver took her valuables.
It is obvious from the degree and character of the violence

and intimidation which the appellant employed (and when
he employed it) upon DD that his intent was to rape her. He
applied such force as to render her resistance to his lust inutile.
The kind of force used was unnecessary if he only planned to
rob D D . Second, he transported her to an abandoned place. A l l
the time that DD was helpless after her mauling, appellant did
not concern himself with robbing DD even if he could have done
so with ease if not with impunity. Lastly, at no time did the
appellant ask for the belongings of D D . Neither did he search
845
her for valuables, except for the wallet in her pants. What is
apparent is that he only: (1) took her watch and bracelet, both
easily seen and noticeable, and (2) fled with her bag which was
already in the tricycle. These overt acts only indicate that he
decided to take DD's belongings as an afterthought and only
when the opportunity presented itself.
He should be convicted of theft because when he took

the personal properties of D D , the element of violence and
intimidation was no longer present. W h i l e it is true that he
inflicted force upon her person, that was with the view and in
pursuance of the rape, not of the taking. W h e n the asportation
happened, DD was near lifeless, incapable of putting any form
of opposition. (People v. Naag, G.R. No. 136394, February 15,
2001)
• What is required of the execution of the robbery and the rape?
Both robbery and rape must be consummated. W h e n the

robbery was merely attempted, there is no attempted robbery
with rape unlike in robbery with homicide, where there is
attempted robbery with homicide (Article 297).
• If the sequence is: rape, homicide, then robbery, what crimes

are committed?
a. If they raped, then killed the girl, then robbed the place
(with force upon things), the crimes are (1) rape with
homicide, and (2) robbery.
b. If they raped, then killed the girl and took jewelry or
other valuables from her person (or without force upon
things), the crimes are (1) rape with homicide, and (2)
theft because the dead can no longer be intimidated.
c. If they robbed, then raped, then killed her, robbery with
homicide; rape is absorbed. T h e same if they raped, then
robbed then killed her as she was still alive when they
committed the robbery. Homicide takes precedence over
rape in the order of priority under A r t i c l e 294.
T h e crime committed is not special complex crime of
robbery with rape, instead, the crimes are separate crimes of
rape and theft, for rape was the primary intent of the accused
and his taking away of the belongings of the victim was a mere
ROBBERY IN GENERAL
afterthought. Accused should only be convicted of theft when

he took the personal properties of the victim, as the element
of violence and intimidation was no longer present. W h i l e he
inflicted force upon her person, that was with the v i e w and
in pursuance of rape, not of the taking. W h e n the asportation
happened, the victim was near lifeless and incapable of putting
any form of opposition. (People v. Naag)
• When several rapes are committed during a robbery, how many

crimes are committed?
Only one composite crime of robbery with rape. T h e special

complex crime of robbery with rape covers cases of multiple
rapes. T h e juridical concept of the crime does not limit the
consummation of rape against one single victim or to one single
act, making other rapes in excess of that number as separate,
independent offenses. So long as the rapes accompanied the
robbery, all rapes are merged in the composite, integrated
whole that is robbery with rape and it does not matter whether
the rape occurred before, during, or after the robbery. (People
v. Seguis, G.R. No. 135034, January 18, 2001)
• What should be the stage of execution in robbery with

mutilation?
Robbery and intentional mutilation must both be

consummated to be classified as robbery with intentional
mutilation. There must be intent to mutilate, for if mutilation
merely resulted as a consequence of the injury inflicted, the
crime would be robbery with serious physical injuries.
• What is the peculiar nature of robbery with arson?

Arson is directed against property. This is out of place in
Article 294 for the violence there pertains to persons. Thus, in
order to have robbery with arson, there must be violence and
intimidation upon persons first and thereafter, the premises
are burned and there is no killing, rape or mutilation. Take
note of the sequence of priority of violence under Article 294.
If robbery is with force upon things and thereafter the
house was burned to cover up the crime, two crimes are
committed: robbery and arson because robbery with arson is
847
under Article 294 whereas Article 299 is robbery with force

upon things and it does not include arson. Arson is not a
circumstance under Article 299 or 302 which should have been
more logical. Under said articles, the crimes are robbery with
force upon things and arson. Neither will it be complex under
Article 48 because the arson is not to commit robbery but to
conceal the crime.
In robbery with serious physical injuries, what should be the

nature of the physical injuries?
The physical injuries must be serious to fall under Article
294. In paragraph 4, the serious physical injuries covered by
Article 263 paragraphs 3 and 4 must be inflicted when robbery
was not yet consummated because of the phrase in paragraph 4
of "in the course of its execution." If inflicted after the robbery
was consummated, two separate crimes — for Article 294, no.
5 (simple robbery) and for the serious physical injuries.
If what is inflicted is less serious or slight physical injuries,
these are absorbed under paragraph 5 on simple robbery.
Who is the victim in robbery with homicide, with serious physical

injuries, and with less serious or slight physical injuries?
Even if the person killed or injured is one of the robbers

themselves, the crime is still robbery with homicide or
robbery with serious physical injury, because the law does
not distinguish. But not if under paragraph 4, for the law
says the injuries should be inflicted while robbery is not yet
consummated A N D on the persons not responsible for the
crime. Here, if the persons injured are the robbers themselves,
there is no robbery with physical injuries.
Snatching may constitute what crime?
Robbery if the snatcher employed force more than

necessary upon the person whose valuables w e r e snatched;
theft if no added force in taking is employed except that
necessary to effect the snatching.
A r t . 295. Robbery with physical injuries, committed in

uninhabited place and by a band, or with the use of firearm
a street, road or alley. — If the offenses m e n t i o n e d in
subdivisions 3, 4, a n d 5 of the next p r e c e d i n g article shall

h a v e b e e n committed i n a n u n i n h a b i t e d place o r b y a b a n d
or by attacking a m o v i n g t r a i n , street c a r , m o t o r vehicle or
a i r s h i p , or by e n t e r i n g the p a s s e n g e r s ' c o m p a r t m e n t s in a
t r a i n or, i n a n y m a n n e r , t a k i n g the p a s s e n g e r s thereof b y
s u r p r i s e in the respective c o n v e y a n c e s , or on a street, r o a d ,
h i g h w a y , or alley, a n d the i n t i m i d a t i o n is m a d e w i t h the use
of a firearm, the o f f e n d e r shall be p u n i s h e d by the m a x i m u m
p e r i o d o f the p r o p e r penalties.
In the s a m e cases, the p e n a l t y next h i g h e r in d e g r e e
shall be i m p o s e d u p o n the l e a d e r of the b a n d . (As amended
by R.A. No. 12 and 373.)
A r t . 296. Definition of a band and penalty incurred by the
members thereof. — W h e n m o r e t h a n t h r e e a r m e d malefactors
take p a r t in the c o m m i s s i o n of a r o b b e r y , it shall be d e e m e d
t o h a v e b e e n committed b y a b a n d . W h e n a n y o f the a r m s
used in the c o m m i s s i o n of the offense be an unlicensed
firearm, the penalty to be i m p o s e d u p o n all the malefactors
shall b e the m a x i m u m o f the c o r r e s p o n d i n g penalty p r o v i d e d
by l a w , w i t h o u t p r e j u d i c e to the c r i m i n a l liability for illegal
possession of such u n l i c e n s e d firearm.
A n y m e m b e r of a b a n d w h o is p r e s e n t at the commission
of a r o b b e r y by the b a n d , shall be p u n i s h e d as p r i n c i p a l of
any of the assaults committed by the b a n d , unless it be s h o w n
that he attempted to p r e v e n t the same. (As amended by R.A.
No. 12.)

R . A . 8294 provides that there is simple illegal possession
provided no other crime is committed. On the other hand,
Article 296 says that the liability of the malefactors is without
prejudice to the liability for illegal possession. Article 296
should be deemed modified by R . A . 8294 in that there is no
more separate liability for the unlicensed firearm.
People v. Apduhan, Jr., G . R . N o . L-19491, A u g u s t 30, 1968
• In what kind of robbery do Articles 295 and 296 apply?

Article 294 enumerates five classes of robbery with
violence against or intimidation of persons and prescribes the
849
corresponding penalties. Article 295 provides that when the

offenses in Article 294(3), (4) and (5) are committed by a band,
the penalty must be imposed in the maximum period. Band is
therefore qualifying only in robbery under Article 294(3), (4)
and (5). Consequently, Article 295 is inapplicable to robbery
with homicide, rape, intentional mutilation, and lesiones graves
resulting in insanity, imbecility, impotency or blindness. If
such classes of robbery described in Article 294(1) and (2) are
perpetrated by a band, they would not be punishable under
Article 295, but then cuadrilla would be a generic aggravating
under Article 14. Hence, with the present wording of Article
295, there is no crime as "robbery with homicide in band." If
robbery with homicide were committed by a band, the indictable
offense would still be robbery with homicide but band would be
a generic aggravating circumstance.
• How is Article 296 related to Articles 294 and 295?
Article 296 defines "band," creates the special aggravating

circumstance of use of unlicensed firearm, and provides the
criminal liability incurred by the members of the band.
It is contended that in robbery with homicide committed
by a band, the use of unlicensed firearm must be a special
aggravating circumstance pursuant to A r t i c l e 296. Contrarily,
the accused contends that the use of unlicensed firearm is
only generic aggravating which may be offset by mitigating
circumstances.
Both contentions are untenable. A r t i c l e 296 is exclusively

linked and singularly applicable to the immediately antecedent
provision of Article 295 on robbery in band, as the latter article
in turn is explicitly limited in scope to subdivisions 3, 4, 5 of
Article 294. Consequently, although the use of unlicensed
firearm is a special aggravating circumstance under Article
296, as amended by R . A . 12, it cannot be appreciated as such
in relation to robbery with homicide.
Article 295 provides that if any of the classes of robbery

in Article 294(3), (4) and (5) is committed by a band, the
offender shall be punished by the maximum period of the
proper penalty. Correspondingly, the immediately following
provisions of Article 296 define the term "band," prescribe the
collective liability of the members of the band, and state that
"when any of the arms used in the commission of the offense
850
be an unlicensed firearm, the penalty to be imposed upon all

the malefactors shall be the maximum of the corresponding
penalty provided by law."
• To what does the word "offense" in Article 296 refer?
V i e w e d from the contextual relation to Articles 295 and

296, the word "offense" logically means the crime of robbery
committed by a band, as the phrase "all the malefactors"
indubitably refers to the members of the band and the phrase
"the corresponding penalty provided by law" relates to the
offenses of robbery described in the last three subdivisions
of Article 294 which are all encompassed within the ambit
of Article 295. Evidently, therefore Article 296 in its entirety
is designed to amplify and modify the provision on robbery
in band which is nowhere to be found but in Article 295 in
relation to Article 294 (3), (4) and ( 5 ) . In order that the special
aggravating circumstance of use of unlicensed firearm may be
appreciated to justify the imposition of the maximum period
of the proper penalty, it is a condition sine qua non that the
offense charged be robbery committed by a band within the
contemplation of Article 295.
Since Article 295 does not apply to subdivisions 1 and 2 of

Article 294, the special aggravating factor in question, which is
solely applicable to robbery in band under Article 295, cannot
be considered in fixing the penalty imposable for robbery with
homicide even if the said crime was committed by a band with
the use of unlicensed firearms.
A r t . 297. Attempted and frustrated robbery committed under

certain circumstances. — W h e n by r e a s o n or on occasion of an
attempted or frustrated r o b b e r y a homicide is committed,
the person guilty of such offenses shall be punished by
reclusion temporal in its m a x i m u m period to reclusion
perpetua, unless the homicide committed shall deserve a
h i g h e r penalty u n d e r the provisions of this Code.
• Does the rule on liability for conspirators in robbery with

homicide apply to attempted robbery with homicide?
Yes. Appellant is liable for attempted robbery with
homicide even if he was not himself the author of the killing,
851
for lack of evidence showing that he endeavored to prevent

such slaying. Thus, the general rule applies that whenever
homicide is committed on the occasion or as a consequence of
robbery, all those who took part as principals in the robbery
shall be held guilty of the special complex crime of robbery
with homicide although they did not actually take part in the
homicide (People v. Cobre, 239 SCRA). T h e same principle
applies even if the crime committed is attempted robbery with
homicide. (People v. Dalanon, 237 SCRA)
How is attempted robbery committed?
The failure to cart away the goods due to their weight may
not be considered as voluntary desistance from the commission
of the crimes as to remove the element of asportation from the
special complex crime of attempted robbery with homicide. Such
failure to consummate the robbery was not caused solely by
the robbers' own volition and inability. It was likewise brought
about by factors such as their unmasking and the arrival
of neighbors who responded to EE's shouts for help. These
circumstances forced them to flee, leaving behind the objects.
Appellant is guilty of the crime of attempted robbery with
homicide as defined in Article 297. Robbery was the intended
purpose of the intruders' trespass into the residence of JJ. JJ's
killing was on the occasion of a robbery which, however, was
not consummated. (People v. Pareja, G.R. No. 88043, December
9, 1996) (Since pursuant to jurisprudence theft is consummated
when there is apoderamiento, by the same token, robbery
should be deemed complete upon the unlawful taking. T h e r e
should therefore be no frustrated robbery despite this A r t i c l e . )
If in the course of the attempted robbery, parricide, murder, or

infanticide was committed, what will be the proper charge?
If the robbery is attempted and the killing is in the

character of parricide, murder or infanticide, there w i l l be two
separate crimes. T h e killing must not be one punished with a
higher penalty in order to fall under A r t i c l e 297 ("unless the
homicide committed shall deserve a higher penalty under the
provisions of this Code").
852
• W h o should be the killer in attempted robbery with homicide?
It must be one of the robbers also unlike in Article 294.

Although an Information for attempted robbery contained
the allegation that one of the robbers was killed during such
attempt, this does not warrant a conviction for the special
complex crime [or composite crime] of attempted robbery with
homicide. Article 297 provides that the attempted robbery and
killing should be perpetrated by the same person. Said article
speaks of the same "person being guilty of such offenses," that
is, robbery and homicide. In this case, it is clear that the dead
robber was killed not by his cohorts but by one of the passengers
(People v. Manalili, G.R. No. 121671, August 1998). As long as
the killer is one of the robbers, it does not matter whether the
deceased is one of the victims or one of the robbers themselves.
A r t . 298. Execution of deeds by means of violence or intimidation.

— A n y p e r s o n w h o , w i t h intent t o d e f r a u d a n o t h e r , b y m e a n s
of violence or intimidation, shall c o m p e l h i m to sign, execute
o r deliver a n y p u b l i c i n s t r u m e n t o r d o c u m e n t , shall b e held
guilty o f r o b b e r y a n d p u n i s h e d b y the penalties respectively
p r e s c r i b e d in this C h a p t e r .
This article deals with robbery where the subject matter is

covered by a public instrument or document. T h e law did not specify
whether the public instrument involves real or personal property.
Since the law did not distinguish, the coverage of the article must
not be limited to personal property only. The public instrument or
document must be a deed of conveyance of a thing of value to which
offender is not entitled because his intention must be to defraud the
victim. The crime is not grave coercion because of the presence of the
element of intent to gain. It is not also estafa because the means is
violence or intimidation, not deceit or unfaithfulness.
Compared with Article 312, this article specifically deals with

the mode of defrauding another by making the latter sign, execute
or deliver any public instrument or document. Article 312 on the
other hand treats of taking possession of real property or usurping
real rights therein by violence or intimidation.
853
Section T w o . — Robbery by the use of force upon things
• If both violence against or intimidation of persons and force

upon things are present, what is the proper crime to charge?
If both violence against or intimidation upon persons
( V A I P ) and force upon things ( F U T ) are employed, it shall be
considered as robbery with V A I P (Article 294) because this is
more serious than robbery with F U T (Articles 299 or 302). But
when the robbery under Article 294 falls within no. 4 and 5, the
penalty is lower than in Article 299. In such case, a complex
crime following Article 48 should be imputed so that the higher
penalty will be the one imposed without sacrificing the principle
that the robbery with V A I P is greater than robbery with F U T .
Robbery with V A I P is evidently graver than ordinary robbery
committed by F U T . (Napolis v. CA, February 1972)
If the penalty for robbery with V A I P is higher, the charge

should be under Article 294, and should not be complexed. T h e
crime is a single indivisible offense or special complex crime,
viz., robbery with homicide, robbery with rape, robbery with
arson, or robbery with intentional mutilation.
A r t . 299. Robbery in an inhabited house or public building

or edifice devoted to worship. — A n y a r m e d p e r s o n w h o shall
commit r o b b e r y i n a n i n h a b i t e d h o u s e o r p u b l i c b u i l d i n g o r
edifice devoted t o r e l i g i o u s w o r s h i p , shall b e p u n i s h e d b y
reclusion temporal, if the v a l u e of the p r o p e r t y t a k e n shall
exceed 250 pesos, a n d if —
(a) T h e malefactors shall enter the h o u s e o r b u i l d i n g

i n w h i c h the r o b b e r y w a s committed, b y a n y o f the
following means:
1. T h r o u g h an o p e n i n g not i n t e n d e d for e n t r a n c e
or egress;
2. B y b r e a k i n g a n y w a l l , roof, o r floor o r b r e a k i n g
any door or w i n d o w ;
3. By u s i n g false keys, p i c k l o c k s or s i m i l a r tools;
4. By u s i n g a n y fictitious n a m e or p r e t e n d i n g the
exercise of p u b l i c a u t h o r i t y .
854
O r if —
(b) T h e r o b b e r y b e committed under any o f the
f o l l o w i n g circumstances:
1. By the b r e a k i n g of d o o r s , w a r d r o b e s , chests,
o r a n y o t h e r k i n d o f l o c k e d o r sealed furniture
o r receptacle;
2. By t a k i n g such f u r n i t u r e or objects a w a y to be
b r o k e n or f o r c e d o p e n outside the place of the
r o b b e r y . (As amended by R.A. No. 18.)
W h e n the o f f e n d e r s d o not c a r r y a r m s , a n d the v a l u e o f
the p r o p e r t y t a k e n e x c e e d s 250 pesos, the p e n a l t y next l o w e r
i n d e g r e e shall b e i m p o s e d .
T h e same r u l e shall b e a p p l i e d w h e n the offenders a r e
a r m e d , b u t the v a l u e of the p r o p e r t y t a k e n does not exceed
250 pesos.
W h e n said o f f e n d e r s d o not c a r r y a r m s a n d the v a l u e
of the p r o p e r t y t a k e n does not e x c e e d 250 pesos, they shall
suffer the penalty p r e s c r i b e d in the t w o next p r e c e d i n g
p a r a g r a p h s , in its m i n i m u m p e r i o d .
If the r o b b e r y be committed in one of the dependencies
o f a n i n h a b i t e d h o u s e , p u b l i c b u i l d i n g , o r b u i l d i n g dedicated
to religious w o r s h i p , the penalties next l o w e r in d e g r e e than
those p r e s c r i b e d in this article shall be imposed.
• What three places are covered by this article?

1. Inhabited house which means any shelter, ship, or vessel
constituting the dwelling of one or more persons, even
though the inhabitants thereof shall temporarily be
absent therefrom when the robbery is committed.
2. Public building referring to a building owned, used
or rented by the Government although temporarily
unoccupied by it.
3. Edifice devoted to religious worship.
• To be robbery, the taking must be done under what situations?

1. By entering the premises. In entering the same, construc-
tive force will suffice, e.g., through an opening not intend-
855
ed for ingress/egress, using picklocks and similar tools,

and simulating public authority or false names; or actual
force by breaking walls, floors, doors, roof, etc.;
Basis: The means of entering. If he did not enter,
it is theft only even if there are such destructions. T h e
whole body must be inside because "entering" denotes
that the entire body must have gone inside.
2. By breaking walls, doors, and receptacles while inside to

extract personal property. T h e offender may have entered
without violence but inside actual force is required, not
merely constructive force. T h e r e must be actual breaking
of doors, walls, etc. If picklock and similar tools were used
in this situation, it is theft only. T h e use of picklocks and
similar tools would qualify theft to robbery if used to enter
the premises.
3. By taking furniture and receptacles to be broken outside.

The receptacles must necessarily be locked or sealed
otherwise there would be no necessity to break them.
The mere taking of receptacles consummates the robbery
since force w i l l be used to open it.
Outside of the above three situations, there will only be

theft. These circumstances apply when the place robbed is an
inhabited house, public building or edifice devoted to worship.
In the case of other buildings, the circumstances under Article
302 govern. N o t e that in Article 302, the circumstances are
the same except that there is no simulation of authority or use
of fictitious name. If the entry under Article 302 was through
simulation of public authority, the crime is theft only. Example,
entry in warehouse to get goods simulating customs officials.
When entry is through a window, it is not necessary that

the offender broke the windows. Entering through an opening
not for ingress/egress will be robbery if he took anything.
Constructive force only is required in this case.
In the circumstance of breaking of door although the door

itself is not damaged, but the lock or accessory of the door was
broken, robbery is still committed because the lock is a main
part of the door which would be useless without it.
856
The use of fictitious name or simulation of authority must

be done when the offender had not yet entered and such use was
the necessary means that made the occupant let him inside.
Use thereof while inside w i l l not elevate theft into robbery.
• When the offender is a family member or servant who broke a

receptacle inside to take property of his housemate, what crime
is committed?
T h e crime is robbery with force upon things, not qualified

theft because what qualifies the taking is the force upon
things. Robbery is committed not only by strangers but also
by household members. If he did not break anything, then
the crime is qualified theft since the abuse of confidence is
the essential element. Both robbery and qualified theft can
be committed by family members or servant. T h e distinction
is significant in determining the applicability of Article 332
which covers theft and not robbery.
A r t . 300. Robbery in an uninhabited place and by a band.

— T h e r o b b e r y m e n t i o n e d in the next p r e c e d i n g article, if
committed in an u n i n h a b i t e d place a n d by a b a n d , shall be
p u n i s h e d b y the m a x i m u m p e r i o d o f the p e n a l t y p r o v i d e d
therefor.
Note the use of the conjunctive word "and" showing that the
circumstances of uninhabited place and by a band should concur.
A r t . 301. What is an inhabited house, public building, or

building dedicated to religious worship and their dependencies.
— I n h a b i t e d house m e a n s any shelter, ship, or vessel
constituting the d w e l l i n g of one or m o r e persons, even
t h o u g h the inhabitants thereof shall t e m p o r a r i l y be absent
therefrom w h e n the r o b b e r y is committed.
A l l interior courts, corrals, w a r e h o u s e , g r a n a r i e s , b a r n s ,

coach-houses, stables or other departments, or inclosed
places contiguous to the b u i l d i n g or edifice, h a v i n g an
interior entrance connected t h e r e w i t h a n d w h i c h form part
of the w h o l e , shall be deemed dependencies of an inhabited
house, public b u i l d i n g , or b u i l d i n g dedicated to religious
worship.
857
O r c h a r d s a n d other lands used for cultivation or

production a r e not included in the terms of the next p r e c e d i n g
p a r a g r a p h , even if closed, contiguous to the b u i l d i n g , a n d
having direct connection t h e r e w i t h .
The t e r m "public b u i l d i n g " includes every b u i l d i n g
o w n e d by the G o v e r n m e n t or b e l o n g i n g to a p r i v a t e p e r s o n
but used or rented by the G o v e r n m e n t , a l t h o u g h t e m p o r a r i l y
unoccupied by the same.
A r t . 302. Robbery in an uninhabited place or in a private
building. — A n y r o b b e r y committed in an u n i n h a b i t e d place
or in a b u i l d i n g other t h a n those m e n t i o n e d in the first
p a r a g r a p h of A r t i c l e 299, if the v a l u e of the p r o p e r t y t a k e n
exceeds 250 pesos shall be p u n i s h e d by prision correccional
in its m e d i u m a n d m a x i m u m p e r i o d s , p r o v i d e d that a n y of
the f o l l o w i n g circumstances is present:
1. If the e n t r a n c e has b e e n effected t h r o u g h a n y

o p e n i n g not i n t e n d e d for e n t r a n c e or egress;
2. If a n y w a l l , roof, floor, or outside d o o r or w i n d o w

has b e e n b r o k e n ;
3. If the e n t r a n c e h a s b e e n effected t h r o u g h the use of

false keys, picklocks, or other s i m i l a r tools;
4. If a n y d o o r , w a r d r o b e , chest, or a n y s e a l e d or closed
furniture or receptacle has been broken;
5. If a n y closed or s e a l e d r e c e p t a c l e , as m e n t i o n e d in
the p r e c e d i n g p a r a g r a p h , h a s b e e n r e m o v e d , e v e n
i f the same b e b r o k e n o p e n e l s e w h e r e .
W h e n the v a l u e o f the p r o p e r t y t a k e n d o e s not e x c e e d

250 pesos, the p e n a l t y next l o w e r in d e g r e e shall be i m p o s e d .
In the cases specified in A r t i c l e s 294, 295, 297, 299, 300,

a n d 302 of this C o d e , w h e n the p r o p e r t y t a k e n is m a i l m a t t e r
or l a r g e cattle, the o f f e n d e r shall suffer the penalties next
h i g h e r in d e g r e e t h a n those p r o v i d e d in s a i d articles. (As
A r t . 303. Robbery of cereals, fruits, or firewood in an

uninhabited place or private building. — In the cases e n u m e r a t e d
in Articles 299 a n d 302, w h e n the r o b b e r y consists in the
858
t a k i n g of cereals, fruits, or f i r e w o o d , the c u l p r i t shall suffer

the penalty next l o w e r in d e g r e e t h a n that p r e s c r i b e d in said
articles.
• What peculiar provisions on robbery should be amended?
1. T h e value of the property is the same since 1932. In Article

299 that if the value of the property taken is over P250,
such as P251, the penalty is reclusion temporal (12 - 20
years) if the robbers are armed and prison mayor ( 6 - 1 2
years) if not armed.
2. In the last paragraph of Article 302, when the property
taken is mail matter or large cattle, the penalty shall be
next higher in degree than those provided for in Articles
294, 295, 297, 299, 300, and 302. Assuming there were
large cattle in an inhabited dwelling place and the
crime falls under Article 294(1), the penalty of reclusion
perpetua can no longer be increased.
3. In Article 303, the robbers shall take the risk of going
inside a private building to take cereals, fruits, or firewood
and suffer the penalty of one degree lower than reclusion
temporal which is prision mayor (6 - 12 years).
4. In a vintage case, uninhabited place was defined as a
habitable building other than those mentioned in Article
299. Thus, if the unlawful taking was for instance from a
parked car where valuables were left by the owner and its
window was smashed by the malefactors to get the articles
inside, it would seem that it is not robbery although there
was force upon things because the "uninhabited place"
should be a habitable building.
A r t . 304. Possession of picklocks or similar tools. — A n y

person w h o shall w i t h o u t l a w f u l cause h a v e in his possession
picklocks or similar tools specially a d o p t e d to the commission
of the crime of r o b b e r y , shall be p u n i s h e d by arresto mayor in
its m a x i m u m p e r i o d to prision correccional in its m i n i m u m
period.
T h e same penalty shall be imposed u p o n any person

w h o shall m a k e such tools. If the offender be a locksmith, he
shall suffer the penalty of prision correccional in its m e d i u m
a n d m a x i m u m periods.
859
A r t . 305. False keys. — T h e t e r m "false keys" shall be

deemed to include:
1. T h e tools mentioned in the next p r e c e d i n g article;
2. G e n u i n e keys stolen f r o m the o w n e r ;
3. A n y keys other t h a n those intended by the o w n e r
for use in the lock forcibly o p e n e d by offender.
• What is the nature of the act of possessing picklocks?

Possession of picklocks is a crime by itself. W h e n used
in robbery, possession is absorbed. Article 304 covers only
picklocks and similar tools; it does not include genuine keys
stolen from the owner or any other keys not intended by the
owner for use in the lock forcibly opened by the offender. N o t e
that possession of picklocks is mentioned separately in Article
305 (no. 1) from stolen keys or any keys other than those
intended by the owner of the lock and Article 304 specifies
picklocks and similar tools the possession of which is criminally
punishable.
Chapter Two
BRIGANDAGE
A r t . 306. Who are brigands — Penalty. — W h e n m o r e than

three a r m e d p e r s o n s f o r m a b a n d o f r o b b e r s for the p u r p o s e
o f committing r o b b e r y i n the h i g h w a y , o r k i d n a p p i n g p e r -
sons for the p u r p o s e of extortion or to o b t a i n r a n s o m , or for
a n y other p u r p o s e t o b e a t t a i n e d b y m e a n s o f force a n d vio-
lence, they shall b e d e e m e d h i g h w a y r o b b e r s o r b r i g a n d s .
P e r s o n s f o u n d guilty of this offense shall be p u n i s h e d

by prision mayor in its m e d i u m p e r i o d to reclusion temporal
in its m i n i m u m p e r i o d , if the act or acts committed by t h e m
a r e not p u n i s h a b l e by h i g h e r penalties, in w h i c h case, they
shall suffer such h i g h penalties.
I f a n y o f the a r m s c a r r i e d b y a n y said p e r s o n s b e a n
unlicensed f i r e a r m , it shall be p r e s u m e d that said persons
a r e h i g h w a y r o b b e r s o r b r i g a n d s , a n d i n case o f conviction,
the penalty shall be i m p o s e d in the m a x i m u m p e r i o d . (As
amended by R.A. No. 12.)
A r t . 307. Aiding and abetting a band of brigands. — A n y

p e r s o n k n o w i n g l y a n d i n a n y m a n n e r a i d i n g , abetting, o r
protecting a b a n d of b r i g a n d s as d e s c r i b e d in the next pre-
ceding article, or g i v i n g t h e m information of the movements
of the police or other peace officers of the G o v e r n m e n t , or
of the forces of the U n i t e d States A r m y , w h e n the latter are
acting in aid of the G o v e r n m e n t , or a c q u i r i n g or receiving
the p r o p e r t y taken by such b r i g a n d s , shall be punished by
prision correccional in its m e d i u m p e r i o d to prision mayor
in its m i n i m u m period.
It shall be p r e s u m e d that the person p e r f o r m i n g any

of the acts p r o v i d e d in this article has p e r f o r m e d them k n o w -
ingly, unless the contrary is proven.
861
Distinguish brigandage under the Code from P.D. 532.

Article 306, R P C P . D . 532
[ R o b b e r y in a H i g h w a y ] [Highway Robbery]
1. Mere formation of band Prohibited act is
punishable. committed
2. There are more than three Only one suffices
malefactors
3. There is preconceived victim Anybody could be the
victim
4. That the robbery was Must not be an isolated
committed for the first time is case of robbery
immaterial
5. Those who profit from the loot Those who abet
liable under Article 307 or for brigandage are
fencing accomplice under
Section 4
Brigandage under P . D . 532 and Article 306 are the same

except that what is penalized by the latter is the mere
formation of a band whose purpose is to commit robbery
in a highway. (People v. Puno)
P . D . 532 is violated if the robbery is: ( a ) committed in a

highway, (b) indiscriminately, i.e., against anybody, (c) by one
or more offenders who commit such act with habituality, i.e.,
it is not an isolated case of robbery. P . D . 532 does not require
that there be a group of persons; even one will do. Even then,
the concept is the same because the basis is the brigandage
under the R P C . In P . D . 532, however, the acts prohibited are
committed.
What is the purpose of the malefactors under P.D. 532?
T h e accused were organized specifically for the purpose

of committing robbery indiscriminately. T h e purpose of
brigandage is inter alia indiscriminate highway robbery. If
the purpose is only a particular robbery, the crime is only
robbery or robbery in band if there are at least four armed
participants. P . D . 532 punishes as highway robbery only acts
of robbery perpetrated by outlaws indiscriminately against
862
BRIGANDAGE
any person or persons on Philippine highways, and not acts of

robbery committed against only a predetermined or particular
victim although in a highway. T h e number of perpetrators is
no longer an essential element of brigandage as defined by P . D .
532. (People v. Mendoza, 254 SCRA)
What is the gravamen of brigandage under Article 306?

W h a t is penalized under the R P C is the mere formation
of a band consisting of more than three armed persons whose
purpose is to commit robbery in a highway. Under paragraph 2
of Article 306, if the unlawful acts are carried out, their being
brigands is aggravating but the crime is for the illegal acts
carried out. It is brigandage only under the R P C as long as
they have not carried out their purpose. (People v. Puno, 219
SCRA)
What is the liability of abettors of brigandage?

In brigandage [highway robbery], those who participate
in the loot commit the crime of abetting brigandage. They are
neither accessory nor fence. T h e y are accomplices (Section 4,
P . D . 532 is equivalent to Article 307). If the crime were robbery
under Article 294 [robbery in a highway], they are principals,
liable as fence under the anti-fencing law, or under Article 307
— aiding and abetting brigandage. (N.B.: T h e venue of anti-
fencing law is where the property is found because fencing is
distinct from theft or robbery and is not a continuing offense.)
Whether the brigandage is under the R P C or under P.D.
532, there is the crime of abetting brigandage. However, under
P . D . 532, the offender is an accomplice.
Is highway robbery with homicide a heinous crime?

N o . R . A . 7659, while having specifically imposed the
death penalty or restored it for certain crimes, failed to do so
for highway robbery with homicide — in fact, R . A . 7659 does
not mention P . D . 532 at all. Clearly, by failing to squarely deal
with this crime, Congress is deemed not to have considered
highway robbery with homicide a "heinous crime."
Does the situs determine whether the crime is highway robbery?

It is not because the taking or robbery was perpetrated on
a national highway that P.D. 532 would be the statute violated.
863
Puno ruled that it takes more than the situs of the robbery to
bring it within the ambit of P . D . 532. A finding of brigandage
or highway robbery involves not just the locus of the crime
or the fact that more than three persons perpetrated it. It is
essential to prove that the outlaws were purposely organized
not just for one act of robbery but for several indiscriminate
commissions thereof. (Filoteo, Jr. v. Sandiganbayan, G.R. No.
79543, October 16, 1996)
• What is the import of the word "indiscriminate" in P.D. 532?

The robbery must be indiscriminate under P . D . 532.
Indiscriminate means that the victim is not predetermined
and that the malefactors have been habitually engaged in
depredation of innocent inhabitants who travel from place to
place.
There is no evidence that the accused w e r e a band of

outlaws organized for the purpose of "depredation upon the
persons and properties of innocent and defenseless inhabitants
who travel from one place to another." W h a t was proven
is one isolated hijacking of a postal van. T h e r e was also no
evidence of any previous attempts at similar robberies by the
accused to show the "indiscriminate" commission thereof. T h e
facts alleged in the information and proved by the evidence
constitute the offense of robbery denned in Article 293 in
relation to Article 295 and punished by Article 294(5). (Filoteo,
Jr. v. Sandiganbayan)
Chapter Three
THEFT
A r t . 308. Who are liable for theft. — Theft is committed by

a n y p e r s o n w h o , w i t h intent t o g a i n b u t w i t h o u t violence
against, o r i n t i m i d a t i o n o f p e r s o n s n o r force u p o n things,
shall take p e r s o n a l p r o p e r t y of a n o t h e r w i t h o u t the latter's
consent.
Theft is l i k e w i s e c o m m i t t e d by:
1. A n y p e r s o n w h o , h a v i n g f o u n d lost p r o p e r t y , shall
fail to d e l i v e r the s a m e to the local authorities or to
its o w n e r ;
2. A n y p e r s o n w h o , after h a v i n g maliciously d a m a g e d
the p r o p e r t y of a n o t h e r , shall r e m o v e or m a k e use
of the fruits or objects of the d a m a g e c a u s e d by
him; a n d
3. A n y p e r s o n w h o shall enter an enclosed estate or a

field w h e r e t r e s p a s s is f o r b i d d e n or w h i c h belongs
to a n o t h e r a n d w i t h o u t the consent of its o w n e r ,
shall h u n t o r f i s h u p o n the same o r shall g a t h e r
fruits, cereals, o r other forest o r f a r m products.
• What are the elements of theft?

1. T h e taking of personal property;
2. T h e property belongs to another;
3. T h e taking was done with intent to gain;
4. T h e taking was done without the consent of the owner;
and
5. T h e taking away is accomplished without violence or
intimidation against persons or force upon things.
T h e fifth element differentiates theft from robbery.
865
What is encompassed by the element of intent to gain?

Actual gain is irrelevant as the important consideration
is the intent to gain (animus lucrandi). T h e term "gain" is
not merely limited to pecuniary benefit but also includes the
benefit which in any other sense may be derived or expected
from the act which is performed. Thus, the mere use of the
thing which was taken without the owner's consent constitutes
gain.
Intent to gain or animus lucrandi is an internal act,
presumed from the unlawful taking of the thing. (People v.
Gulinao, 179 SCRA 774). When one takes the motor vehicle of
another without the latter's consent even if the motor vehicle is
later returned, there is theft, there being intent to gain as the
use of the thing unlawfully taken constitutes gain. (Association
of Baptists for World Evangelism v. Fieldmen's Ins. Co., Inc.,
G.R. No. L-28772, September 21, 1983)
Assuming, that the taking was "temporary" and for a "joy

ride" the better v i e w is that which holds that when a person,
either with the object of going to a certain place, or learning
how to drive, or enjoying a free ride, takes possession of a
vehicle belonging to another, without the consent of its owner,
he is guilty of theft because by taking possession of the personal
property belonging to another and using it, his intent to gain
is evident since he derives therefrom utility, satisfaction,
enjoyment and pleasure. (People v. Bustinera, G.R. No. 148233,
June 8, 2004)
What will make the crime theft and homicide, not robbery with
homicide?
When it cannot be said with moral certainty that the

intention of the accused was to steal the valuables, and that
the killing of the victim was a mere incident to the robbery. T h e
offender hit the victim with a piece of wood and in his escape,
he grabbed his transistor radio as a souvenir and the P i 0 0 bill
as his fare. Thus, he cannot be convicted of the crime of robbery
with homicide but of two specific crimes, that of homicide and
theft. (People v. Alay-ay, G.R. No. 94310, June 30, 1993)
THEFT
• Can theft be committed by a co-owner of the property?
N o . Theft cannot be committed between co-owners when

no division yet is made because they are co-owners as to each
part of the property, and theft cannot be committed by the
owner over his own property.
PP took the sugarcane and bananas believing them to be
her own. That being so, she could not have any criminal intent.
To prove the crime of theft, it is necessary and indispensable
to clearly identify who, as a result of a criminal act, without
his knowledge and consent, was wrongfully deprived of a thing
belonging to him.
• What other circumstances may constitute theft?
1. In case of lost property. A property is "lost" if the nature

of the property is such that it must necessarily have an
owner or claimant. If res nullius no theft can be committed.
If hidden treasure, the government or the property owner
has 1/2 share. If the findei keeps the whole thing, he is
guilty of theft as to the 1/2.
T h e "finder" may be either a finder in fact or a

finder in law. A finder in fact is the actual finder who
misappropriates lost personal property; a finder in law
is one who did not actually find lost property but who
received the same from the actual finder for the purpose of
turning it over to the proper authorities. By fiction of law,
he is considered its finder. If he instead misappropriates
the same, he is liable for theft. (People v. Avila, 44 Phil.)
2. A n y person who, after having maliciously damaged the
property of another, shall remove or make use of the fruits
of the damage caused by him. T h e crime is originally
malicious mischief but with the added factor of use or
removal, intent to gain is added making the crime theft.
In case of large cattle, P . D . 533 punishes cattle rustling
with or without intent to gain. The mere killing of large
cattle constitutes cattle rustling. Therefore, there can
be no theft or malicious mischief involving large cattle,
except where the large cattle was not killed or taken but
merely injured so that it could no longer become a beast
of burden — malicious mischief is committed.
867
3. A n y person who shall enter an enclosed estate or a field

where trespass is forbidden or which belongs to another
and without the consent of its owner, shall hunt or fish
or shall gather fruits, cereals, or other forest or farm
products. If he entered without the knowledge or consent
of the caretaker but did not take anything, he commits
trespass to property. If however, it is a coconut plantation
and coconut was taken, it is qualified theft.
When property is received where only physical or
material possession is acquiesced and he appropriates the
same, theft is committed. T h e subsequent appropriation
constitutes the unlawful taking of the property. If juridical
possession is transferred, estafa is committed because the
possession here is better than that of the owner. Juridical
possession is one where the possessor can assert his right
to possession even against the owner as the law gives him
the right to possess.
What offenses are penalized by the Revised Forestry Law?
"SEC. 68. Cutting, Gathering and/or Collecting Timber, or

Other Forest Products Without License. — A n y person who shall
cut, gather, collect, remove timber or other forest products from
any forest land, or timber from alienable or disposable public
land, or from private land, without any authority, or possess
timber or other forest products without the legal documents as
required under existing forest laws and regulations, shall be
punished with the penalties imposed under Articles 309 and
310 of the Revised Penal Code: Provided, T h a t in the case of
partnerships, associations, or corporations, the officers who
ordered the cutting, gathering, collection or possession shall
be liable, and if such officers are aliens, they shall, in addition
to the penalty, be deported without further proceedings on the
part of the Commission on Immigration and Deportation."
' T h e Court shall further order the confiscation in favor

of the government of the timber or any forest products cut,
gathered, collected, removed, or possessed, as w e l l as the
machinery, equipment, implements and tools illegally used in
the area where the timber or forest products are found."
T h e r e are two distinct and separate offenses punished

under Section 68 of P . D . 705:
THEFT
1. Cutting, gathering, collecting, and removing timber or

other forest products from any forest land, or timber from
alienable or disposable public land, or from private land,
or without any authority; and
2. Possession of timber or other forest products without legal

documents required under existing forest law regulations.
In the first offense, one can raise as a defense the legality

of the acts of cutting, gathering, collecting or removing timber
or other forest products by presenting the authorization
issued by the D E N R . In the second, however, it is immaterial
whether the cutting, gathering, collecting and removal of the
forest products without the proper documents consummate the
crime. Whether or not the lumber comes from a legal source
is immaterial because E.O. 277 considers the mere possession
of timber or other forest products without the proper legal
documents as malum prohibitum. (People v. Que, G.R. No.
120365, December 17, 1996)
• What amendment was made by E.O. 277 on the Revised Forestry

Law?
Article 68 of the Revised Forestry L a w , as amended by

E.O. 277 provides that any violation thereof shall be punished
with the penalties imposed under Articles 309 and 310 of R P C .
This amendment — which eliminated the phrase "shall be
guilty of qualified theft as defined and punished under Articles
309 and 310 of the Revised Penal Code" — means that the acts
of cutting, gathering, collecting, removing or possessing forest
products without authority constitute distinct offenses that are
now independent of the crime of theft but that the penalty to be
imposed is that which is provided under these articles.
The value of the lumber was PI2,000. Under Articles 309

and 310, the statutory penalty should be two degrees higher
than prision correccional in its medium and maximum periods;
or prision mayor in its maximum period to reclusion temporal in
its minimum period. The ISL, however, reduces the sentence to
an indeterminate penalty anywhere in the range of 6 years and
1 day of prision mayor, as minimum, to 14 years and 8 months
of reclusion temporal as maximum. In view of the finding
869
that no mitigating or aggravating circumstance attended the

commission of the offense, the penalty imposed should be more
in accord with the liberal spirit of the law towards the accused.
Hence, it shall be the indeterminate sentence of 7 years, 4
months and 1 day of prision mayor as minimum to 11 years,
6 months and 21 days of prision mayor as maximum. (Bon v.
People, G.R. No. 152160, January 13, 2004)
• When is one who benefited in the loot without participating

in the commission of the offense (1) a principal and (2) an
accessory?
He is a principal (as a fence) when charged in a separate
information for fencing. Otherwise, he is merely an accessory
under Article 19 even though he is actually a fence because
fencing is a distinct crime from theft or robbery. To be liable as
a fence he must be charged separately from the principals and
specifically for fencing.
A r t . 309. Penalties. — A n y p e r s o n guilty of theft shall be

p u n i s h e d by:
1. T h e p e n a l t y of prision mayor in its m i n i m u m a n d

m e d i u m p e r i o d s , if the v a l u e of the t h i n g stolen is
m o r e t h a n 12,000 pesos b u t d o e s not e x c e e d 22,000
pesos; b u t if the v a l u e of the t h i n g stolen b u t if the
v a l u e exceeds the latter a m o u n t , the p e n a l t y shall
b e the m a x i m u m p e r i o d o f the o n e p r e s c r i b e d i n
this p a r a g r a p h , a n d o n e y e a r for e a c h a d d i t i o n a l
ten t h o u s a n d pesos, b u t the total of the p e n a l t y
w h i c h m a y b e i m p o s e d shall not e x c e e d t w e n t y
y e a r s . I n such cases, a n d i n c o n n e c t i o n w i t h the
accessory penalties w h i c h m a y b e i m p o s e d a n d for
the p u r p o s e of the o t h e r p r o v i s i o n s of this C o d e , the
penalty shall be t e r m e d prision mayor or reclusion
temporal, as the case m a y b e .

a n d m a x i m u m p e r i o d s , i f the v a l u e o f the t h i n g
stolen is m o r e t h a n 6,000 pesos b u t does not e x c e e d
12,000 pesos.
870
THEFT
3. T h e p e n a l t y of prision correccional in its m i n i m u m

a n d m e d i u m p e r i o d s , if the v a l u e of the p r o p e r t y
stolen is m o r e t h a n 200 pesos b u t does not exceed
6,000 pesos.
4. Arresto mayor in its m e d i u m p e r i o d to prision

correccional in its m i n i m u m p e r i o d , if the v a l u e of
the p r o p e r t y stolen is o v e r 50 pesos b u t does not
exceed 200 pesos.
5. Arresto mayor in its full extent, if such v a l u e is over

5 pesos b u t does not e x c e e d 50 pesos.
6. Arresto mayor in its m i n i m u m a n d m e d i u m p e r i o d s ,

if such v a l u e does not e x c e e d five pesos.
7. Arresto menor or a fine not e x c e e d i n g 200 pesos,

if the theft is committed u n d e r the circumstances
e n u m e r a t e d in p a r a g r a p h 3 of the next p r e c e d i n g
article a n d the v a l u e of the thing stolen does
not e x c e e d 5 pesos. If such v a l u e exceeds said
a m o u n t , the p r o v i s i o n s of a n y of the five p r e c e d i n g
s u b d i v i s i o n s shall b e m a d e a p p l i c a b l e .
8. Arresto menor in its m i n i m u m p e r i o d or a fine not

e x c e e d i n g 50 pesos, w h e n the v a l u e of the thing
stolen is not o v e r 5 pesos, a n d the offender shall
h a v e acted u n d e r the impulse o f h u n g e r , proverty,
or the difficulty of e a r n i n g a livelihood for the
s u p p o r t of himself or his family.
A r t . 310. Qualified theft. — T h e crime of theft shall be

punished by the penalties next h i g h e r by t w o degrees than
those respectively specified in the next p r e c e d i n g articles,
if committed by a domestic servant, or w i t h g r a v e abuse
of confidence, or if the p r o p e r t y stolen is motor vehicle,
mail matter or l a r g e cattle or consists of coconuts taken
from the premises of a plantation or fish taken from a
fishpond or fishery, or if p r o p e r t y is taken on the occasion
of fire, e a r t h q u a k e , typhoon, volcanic eruption, or any
other calamity, v e h i c u l a r accident or civil disturbance. (As
amended by B.P. Big. 71, and R.A. No. 120, approved May
1980.)
871
A r t . 311. Theft of the property of the National Library and

National Museum. — If the p r o p e r t y stolen be any p r o p e r t y of
the N a t i o n a l L i b r a r y or of the N a t i o n a l M u s e u m , the penalty
shall be arresto mayor or a fine r a n g i n g f r o m 200 to 500 pesos,
or both, unless a h i g h e r penalty should be p r o v i d e d u n d e r
other provisions of this C o d e , in w h i c h case, the offender
shall be p u n i s h e d by such h i g h e r penalty.
• What circumstances can qualify theft?

1. Those personal to the offender, e.g., domestic servant or
with grave abuse of confidence.
Only the offender with such circumstance shall be
guilty of qualified theft. T h e others will be guilty of simple
theft. The rules on conspiracy will not apply pursuant to
Article 62, no. 3 which provides that circumstance which
arise from the moral attributes of the offender, or from his
personal relations with the offended party, or from any
other personal cause shall serve to aggravate the liability
of him to whom such circumstance is attendant.
2. Those that refer to the object taken. A l l those who
participated in the taking shall be liable for qualified
theft.
Coconut — taking from plantation whether from
the tree or fallen on the ground because when fallen on
the ground, the owner may still use the same for seedling
purposes. It is qualified theft as long as the coconut is
within the premises.
Fish — qualified theft if taken from the pond. If fished
out and then taken by the offender from the possessor
even if still in the premises, simple theft because its use
for breeding is already absent.
Motor vehicle — now under R . A . 6539 and is malum
prohibitum.
L a r g e cattle — now penalized by P . D . 533 and
remains a malum in se it being a mere amendment of
Articles 308, 309 and 310. (Canta v. People)
M a i l matter — the taking must be with intent to
gain for there are other crimes involving mail matter
such as estafa under Article 315(3)(c) and revelation and
discovery of secrets under Article 290.
872
THEFT
3. Circumstances during the taking such as calamity and

misfortune. A l l who participated in the crime shall be
liable for qualified theft.
Accused took P36,480.30 with grave abuse of confidence

by forging the signature of officers authorized to sign the
check and had it deposited in the account of a fictitious payee
without any legitimate transaction with the bank. Theft is
qualified if committed with grave abuse of confidence. The
fact that accused, as assistant cashier of the bank had custody
of the checks and had access not only in the preparation but
also in the release of cashier's checks, suffices to designate the
crime as qualified theft. Falsification of the cashier's check
was a necessary means to commit qualified theft resulting in
a complex crime under Article 48, which provides that where
an offense is a necessary means for committing the other, the
penalty for the more serious crime in its maximum period shall
be imposed. (People v. Salonga, G.R. No. 131131, June 21,
2001)
• What kind of confidence between employer and employee is

required to bring about qualified theft?
That the offender is an employee of the offended does not
suffice to create the relation of confidence and intimacy required
by law to designate the crime as qualified theft. Free access
to the place where the taking was committed or to the article
stolen is essential. A truck driver who steals the load of his
truck belonging to his employer commits qualified theft. And
such driver's use of the truck in transporting the stolen article
to the place where they were sold makes the use of a motor
vehicle in the commission of the crime a generic aggravating
circumstance. (Cariaga v. CA, June 2001)
T h e elements of the crime of theft as provided for in Article
308 are: (1) that there be taking of personal property; (2) that
said property belongs to another; (3) that the taking be done
with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of persons or
force upon things. Theft is qualified when any of the following
circumstances is present: (1) the theft is committed by a
domestic servant; (2) the theft is committed with grave abuse
873
of confidence; (3) the property stolen is either a motor vehicle,

mail matter or large cattle; (4) the property stolen consists
of coconuts taken from the premises of a plantation; (5) the
property stolen is fish taken from a fishpond or fishery; and
(6) the property was taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity, vehicular
accident or civil disturbance. (People v. Bustinera)
How is the offense of illegal fishing under P.D. 704 committed?
Illegal fishing is committed when a person catches, takes

or gathers or causes to be caught, taken or gathered fish,
fishery or aquatic products in Philippine waters with the use of
explosives, electricity, obnoxious or poisonous substances. T h e
law presumes that the boat owner, operator or fishermen have
engaged in illegal fishing when:
a) Explosives, obnoxious or poisonous substances,

equipment or device for electric fishing are found in
a fishing boat or in the possession of a fisherman; or
b) Fish caught or killed with the use of explosives,

obnoxious or poisonous substances or by electricity
are found in a fishing boat.
Is the presumption of guilt contrary to the presumption of

innocence?
N o . Paragraph 3 of Section 33 of P . D . 704 creates

a presumption of guilt based on facts proved and hence,
constitutionally permissible. It makes the discovery of
obnoxious or poisonous substances, explosives, or devices for
electric fishing in any fishing boat or in the possession of a
fisherman the basis of the presumption that he had used such
substances in catching fish. T h e ultimate fact presumed is
that the owner and operator of the boat or the fisherman w e r e
engaged in illegal fishing and this presumption arose from
the discovery of the substances and the contaminated fish in
the possession of the fisherman in the fishing boat. T h e fact
presumed is a natural inference from the fact proved. (Hizon v.
CA, G.R. No. 119619, December 13, 1996)
874
THEFT
R E P U B L I C A C T N O . 6539, a s a m e n d e d
Section 1. Title. — T h i s A c t shall be k n o w n a n d m a y be

cited as the " A n t i - C a r n a p p i n g A c t of 1972."
Sec. 2. Definition of terms. — T h e terms "carnapping,"
"motor vehicle," "defacing or t a m p e r i n g with," "repainting,"
"body-building," "remodelling," "dismantling," and
"overhauling," as u s e d in this A c t , shall be u n d e r s t o o d ,
respectively, to m e a n —
" C a r n a p p i n g " is the t a k i n g , w i t h intent to g a i n , of a
motor vehicle b e l o n g i n g to a n o t h e r w i t h o u t the latter's
consent, or by m e a n s of v i o l e n c e a g a i n s t or intimidation of
persons, o r b y u s i n g force u p o n things.
"Motor vehicle" is a n y vehicle p r o p e l l e d by any p o w e r
other t h a n m u s c u l a r p o w e r u s i n g the p u b l i c h i g h w a y s ,
b u t excepting r o a d r o l l e r s , trolley cars, streets-sweepers,
s p r i n k l e r s , l a w n m o w e r s , b u l l d o z e r s , g r a d e r s , fork-lifts,
a m p h i b i a n trucks, a n d c r a n e s if not used on p u b l i c h i g h w a y s ,
vehicles, w h i c h r u n only o n r a i l s o r tracts, a n d tractors,
trailers a n d reaction e n g i n e s of all k i n d s used exclusively for
a g r i c u l t u r a l p u r p o s e s . T r a i l e r s h a v i n g any n u m b e r o f wheels,
w h e n p r o p e l l e d or i n t e n d e d to be p r o p e l l e d by attachment to
a motor vehicle, shall be classified as s e p a r a t e m o t o r vehicle
w i t h n o p o w e r rating.
"Defacing or t a m p e r i n g with" a serial n u m b e r is the
erasing, scratching, a l t e r i n g or c h a n g i n g of the original
factory-inscribed serial n u m b e r on the motor vehicle engine,
engine block or chassis of any motor vehicle. W h e n e v e r any
motor vehicle is found to h a v e a serial n u m b e r on its motor
engine, engine b l o c k or chassis w h i c h is different from that
w h i c h is listed in the r e c o r d s of the B u r e a u of Customs for
motor vehicles i m p o r t e d into the Philippines, that motor
vehicle shall be considered to h a v e a defaced or tampered
w i t h serial n u m b e r .
"Repainting" is c h a n g i n g the color of a motor vehicle
by means of painting. T h e r e is repainting w h e n e v e r the
n e w color of a motor vehicle is different from its color as
registered in the L a n d T r a n s p o r t a t i o n Commission.
875
"Body-building" is a j o b u n d e r t a k e n on a motor vehicle

in o r d e r to replace its entire b o d y with a n e w b o d y .
"Remodelling" is the introduction of some changes in
the shape or form of the b o d y of the motor vehicle.
"Dismantling" is the t e a r i n g a p a r t , piece by piece or
p a r t by part, of a motor vehicle.
"Overhauling" is the c l e a n i n g or r e p a i r i n g of the w h o l e
engine of a motor vehicle by s e p a r a t i n g the motor engine
a n d its parts from the b o d y of the m o t o r vehicle.
Sec. 3. Registration of motor vehicle engine, engine block and
chassis. — W i t h i n one y e a r after the a p p r o v a l of this A c t ,
every o w n e r o r possessor o f u n r e g i s t e r e d m o t o r vehicle o r
parts thereof in k n o c k d o w n condition shall r e g i s t e r w i t h the
L a n d T r a n s p o r t a t i o n C o m m i s s i o n the m o t o r vehicle e n g i n e ,
engine block a n d chassis in his n a m e or in the n a m e of the
real o w n e r w h o shall b e r e a d i l y a v a i l a b l e t o a n s w e r a n y c l a i m
over the registered m o t o r vehicle e n g i n e , e n g i n e b l o c k a n d
chassis. T h e r e a f t e r , all m o t o r vehicle e n g i n e s , e n g i n e b l o c k
a n d chassis not r e g i s t e r e d w i t h the L a n d T r a n s p o r t a t i o n
Commission shall b e c o n s i d e r e d a s u n t a x e d i m p o r t a t i o n o r
coming f r o m all illegal s o u r c e s o r c a r n a p p e d , a n d shall b e
confiscated in f a v o r of the G o v e r n m e n t .
A l l o w n e r s of m o t o r vehicles in all cities a n d

municipalities a r e r e q u i r e d t o r e g i s t e r t h e i r c a r s w i t h the
local police w i t h o u t p a y i n g a n y c h a r g e s .
xxx xxx xxx
Sec. 5. Registration of sale, transfer, conveyance, substitution
or replacement of a motor vehicle engine, engine block or chassis. —
E v e r y sale, transfer, c o n v e y a n c e , substitution o r r e p l a c e m e n t
of a m o t o r vehicle e n g i n e , e n g i n e b l o c k or chassis of a m o t o r
vehicle, shall b e r e g i s t e r e d w i t h the L a n d T r a n s p o r t a t i o n
Commission. M o t o r vehicles a s s e m b l e d a n d r e b u i l t o r
r e p a i r e d b y r e p l a c e m e n t w i t h m o t o r vehicle e n g i n e s ,
engine b l o c k s a n d chassis not r e g i s t e r e d w i t h the L a n d
T r a n s p o r t a t i o n C o m m i s s i o n shall not be issued certificates
o f registration a n d shall b e c o n s i d e r e d a s u n t a x e d i m p o r t e d
m o t o r vehicles o r m o t o r vehicles c a r n a p p e d o r p r o c e e d i n g
f r o m illegal sources.
876
THEFT
X X X
Sec. 12. Defacing or tampering with serial numbers of motor

vehicle engines, engine blocks and chassis. — It shall be u n l a w f u l
for any p e r s o n to deface or o t h e r w i s e t a m p e r w i t h the o r i g i n a l
o r registered serial n u m b e r o f m o t o r vehicle engines, engine
blocks a n d chassis.
Sec. 12-A. A l l c a r n a p p e d or stolen motor vehicle,

r e c o v e r e d a n d i m p o u n d b y l a w e n f o r c e m e n t agencies w h i c h
after a p e r i o d of t h r e e (3) m o n t h s f r o m the date of its seizure/
recovery have remained unclaimed or whose real owners
could n o l o n g e r b e d e t e r m i n e d o r established b e c a u s e the
o r i g i n a l n u m b e r s o f the m o t o r e n g i n e o r chassis n u m b e r s
could no longer be determined and restored, are considered
a s a b a n d o n e d m o t o r vehicles a n d shall b e sold a n d
disposed of by the C h i e f of C o n s t a b u l a r y or his a u t h o r i z e d
representative in a p u b l i c auction: Provided, T h a t , in all
cases b e f o r e a n y p u b l i c auction is effected, there shall be
p u b l i s h e d once a w e e k for t h r e e (3) consecutive w e e k s in a
n e w s p a p e r of g e n e r a l c i r c u l a t i o n in the P h i l i p p i n e s or in the
place w h e r e it w a s r e c o v e r e d or f o u n d , a description of the
vehicles intended to be a u c t i o n e d w i t h a notice that after
the lapse of one m o n t h f r o m the date of the last publication,
should no p e r s o n file a c l a i m for the r e c o v e r y of the same,
said motor vehicles w i l l be sold at p u b l i c auction: Provided,
finally, T h a t the date a n d p l a c e of the p u b l i c auction to be
conducted by the C h i e f of C o n s t a b u l a r y or his authorized
representative shall a l r e a d y be fixed in the last publication
aforementioned. (As inserted by P.D. No. 1911, prom. March
23, 1983.)
Sec. 12-B. A f t e r the p u b l i c auction, the proceeds shall

be a p p l i e d to a n s w e r for c h a r g e s i n c l u d i n g storage and cost
of publication a n d related expenses i n c u r r e d in connection
therewith: Provided, T h a t , the r e m a i n d e r , if any, shall
be retained by the P h i l i p p i n e Constabulary/Integrated
N a t i o n a l Police to be used for the operational expenses of
the A n t i - C a r n a p p i n g T a s k F o r c e or any such unit as may
hereinafter be created for a similar p u r p o s e for which the
A n t i - C a r n a p p i n g T a s k Force w a s created. (As inserted by
P.D. No. 1911.)
877
Sec. 13. Penal Provisions. — A n y person w h o violates any

provision of this Act shall be p u n i s h e d with imprisonment
for not less than t w o years n o r m o r e than six y e a r s a n d a fine
equal in amount to the acquisition cost of the motor vehicle,
motor vehicle engine or any p a r t involved in the violation:
Provided, T h a t if the person violating any provisions of this
Act is a j u r i d i c a l person, the penalty h e r e i n p r o v i d e d shall
be imposed on its president or secretary a n d / o r m e m b e r s of
the b o a r d of directors or any of its officers a n d employees
w h o may have directly p a r t i c i p a t e d in the violation.
A n y g o v e r n m e n t official o r employee w h o directly
commits the u n l a w f u l acts defined in this A c t or is guilty
of gross negligence of duty or connives w i t h or permits
the commission of any of the said u n l a w f u l acts shall,
in addition to the penalty p r e s c r i b e d in the p r e c e d i n g
p a r a g r a p h , b e dismissed f r o m the service w i t h p r e j u d i c e t o
his reinstatement a n d w i t h disqualification f r o m voting or
b e i n g voted for in a n y election a n d f r o m a p p o i n t m e n t to a n y
p u b l i c office.
Sec. 14. Penalty for Carnapping. — A n y p e r s o n w h o is
found guilty of c a r n a p p i n g , as this t e r m is defined in Section
T w o of this A c t , shall, i r r e s p e c t i v e of the v a l u e of m o t o r
vehicle taken, be p u n i s h e d by i m p r i s o n m e n t for not less
than fourteen y e a r s a n d eight m o n t h s a n d not m o r e t h a n
seventeen y e a r s a n d f o u r m o n t h s , w h e n the c a r n a p p i n g i s
committed w i t h o u t violence or i n t i m i d a t i o n of p e r s o n s ,
or force u p o n things, a n d by i m p r i s o n m e n t for not less
than seventeen y e a r s a n d f o u r m o n t h s a n d not m o r e t h a n
thirty years, w h e n the c a r n a p p i n g i s committed b y m e a n s
o f violence against o r i n t i m i d a t i o n o f a n y p e r s o n , o r force
u p o n things; a n d the p e n a l t y of reclusion perpetua to d e a t h
shall b e i m p o s e d w h e n the o w n e r , d r i v e r o r o c c u p a n t o f the
c a r n a p p e d motor vehicle is k i l l e d or r a p e d in the c o u r s e of
the commission of the c a r n a p p i n g or on the occasion thereof.
(As amended by Sec. 20, R.A. No. 7659.)
x x x
xxx xxx
• Compare carnapping to robbery and qualified theft.
Carnapping is defined in Section 2 of R.A. 6539 as 'the

taking, with intent to gain, of a motor vehicle belonging to
another without the latter's consent, or by means of violence
878
THEFT
against or intimidation of persons, or by using force upon

things.' Essentially it is robbery or theft of a motorized vehicle,
the concept of unlawful taking in theft, robbery and carnapping
being the same. But it is a special law different from robbery
and theft. It particularly addresses 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.
A careful comparison of R . A . 6539 with robbery and theft

readily reveals their common features and characteristics:
unlawful taking, intent to gain, and that personal property
belonging to another is taken without the latter's consent.
However, R . A . 6539 particularly deals with the theft and
robbery of motor vehicles. Hence a motor vehicle is said to have
been carnapped when it has been taken, with intent to gain,
without the owner's consent, whether the taking was done with
or without the use of force upon things. Without R . A . 6539,
such unlawful taking of a motor vehicle would fall within the
purview of either theft or robbery which was certainly the case
before its enactment. (People v. Bustinera)
Unlawful taking is deemed complete from the moment

the offender gains possession of the thing, even if he has no
opportunity to dispose of it.
» What are the elements of carnapping?
(1) Taking of a motor vehicle which belongs to another;

(2) T h e taking is without the consent of the owner or by
means of violence against or intimidation of persons or by
using force upon things; and
(3) It is done with intent to gain.
Since appellant is accused of the unlawful taking of a
Daewoo sedan, R . A . 6539 would apply as the said motor vehicle
does not fall within the exceptions mentioned in the law. (id.)
• What changes were introduced by R.A. 7659 on R.A. 6539?

Three amendments to the anti-carnapping law, viz.:
(1) The change of life imprisonment to reclusion perpetua;
(2) The inclusion of rape; and
879
(3) The change of "in the commission of the carnapping" to "in

the course of the commission of the carnapping or on the
occasion thereof." (People v. Latayada, G.R. No. 146865,
February 18, 2004)
R . A . 6539 imposes the penalty of life imprisonment to
death when the owner, driver or occupant of the carnapped
motor vehicle is killed in the commission of carnapping. R . A .
7659 amended R . A . 6539 by changing the penalty to reclusion
perpetua to death when the owner, driver or occupant of the
carnapped motor vehicle is killed or raped in the course of
the commission of the carnapping or on the occasion thereof.
(People v. Ellasos, June 6, 2001)
During the commission of the crime on February 4,

1992, there was no carnapping with homicide. T h e proper
denomination for the crime was carnapping under Sections 2
and 14, R . A . 6539. (People v. Sirad, G.R. No. 130594, July 5,
2000)
• What are the implications of the amendments by R.A. 7659?
1. W i t h the amendment of the penalty of life imprisonment to

reclusion perpetua, the provisions of the R P C is suppletory
in qualified carnapping or carnapping in an aggravated
form as defined in Section 14 of R . A . 6539, as amended by
Section 20 of R . A . 7659 — whenever the owner, driver or
occupant of the carnapped vehicle is killed in the course
of the commission of the carnapping or on the occasion
thereof. In Simon, 234 SCRA 555, when an offense is
defined and punished under a special law but its penalty
is taken from the R P C , then the provisions of the latter
applies suppletorily. If the charge is simple carnapping,
the penalty is imprisonment for not less than 14 years
and 8 months and not more than 17 years and 4 months,
thus, the R P C cannot be applied. (People v. Bustinera)
2. T h e intention of the law is to make the offense a special

c o m p l e x crime, by w a y of analogy vis-a vis Article 294
(1) to (4) on robbery with violence against or intimidation
of persons. As such the killing or the rape merely
qualifies the crime of carnapping which for lack of specific
nomenclature may be known as qualified c a r n a p p i n g
THEFT
or c a r n a p p i n g in an a g g r a v a t e d form. Considering the

phraseology of the amended Section 14, the carnapping
and the killing or the rape may be considered a special
complex crime not covered by Article 48.
3. Since Section 14 uses the words "is killed" no distinction

must be made between homicide and murder. Whether
it is one or the other which is committed "in the course
of carnapping or on the occasion t h e r e o f makes no
difference insofar as the penalty is concerned. T h e killing
whether homicide or murder cannot be treated as a
separate offense, but to qualify the carnapping. (People v.
Mejia, G.R. Nos. 118940-41, July 7, 1997)
Thus, under the last clause of Section 14 of R . A . 6539,

the prosecution not only has to prove the essential requisites
of carnapping and of the homicide or murder but more
importantly, it must show that the original criminal design
was carnapping and that the killing was perpetrated "in the
course of the commission of the carnapping or on the occasion
thereof." W h e r e the elements of carnapping are not proved,
R . A . 6539 would cease to be applicable and the homicide or
murder if proved would be punishable under the R P C .
• When is carnapping presumed to have been committed?

Although only a wheel of a motor tricycle was found in
the possession of the accused, such possession without any
satisfactory explanation, raises the presumption that he
authored the carnapping. T h e unlawful taking of the whole
vehicle is already complete and consummated even if only a
part thereof is taken or appropriated while the rest of it is
abandoned. In the absence of an explanation of how a person
has come into the possession of stolen effects belonging to
another who was killed, the possessor of such effects must be
considered the author of the killing and of the robbery. The
chain of circumstances where the accused were seen riding
with the driver of the tricycle, and two hours later they were
seen riding the same tricycle minus the driver, who was later
found dead/killed treacherously, and the next day, accused
were found in possession of a wheel of the same tricycle, point
to the conclusion that they are guilty of unlawfully taking the
tricycle and killing its driver. (People v. Ellasos, June 6, 2001)
881
What should be the relationship between the carnapping and

the killing?
The original criminal design of the culprit must be carnap-
ping and that the killing, if any, was perpetrated on the occasion
thereof. The unlawful taking must be established. Although
there is a presumption that a person found in possession of the
personal effects belonging to a person robbed or killed is the
author of the killing as well as the robbery, this presumption is
limited to cases where the possession of the personal effects is
unexplained or the proffered explanation is rendered implausi-
ble by independent evidence inconsistent thereto. Once an ex-
planation is offered for the possession of such personal effects,
the presumption arising from unexplained possession may not
anymore be invoked; the burden shifts once more to the prose-
cution to present evidence that would render the defense of the
accused improbable. Otherwise the guilt of the accused was not
established beyond reasonable doubt. (People v. Santos, June
8, 2000)
May qualified theft of motor vehicle be committed despite R.A.

6539 as amended by R.A. 7659?
Yes, but only as to those excepted from the coverage of the
law such as road rollers, trolleys, street-sweepers, sprinklers,
lawn mowers, amphibian trucks and cranes if not used on
public highways, vehicles which run only on rails and tracks,
and tractors, trailers and tractor engines of all kinds and used
exclusively for agricultural purposes. The theft or robbery of
the said vehicles would be covered by the RPC.
Article 310 has been modified, with respect to certain
vehicles, by R.A. 6539, as amended. In Tan, accused took a
Mitsubishi Gallant and in Lobitania, which involved the taking
of a motorized tricycle, the unlawful taking of motor vehicles
is now covered by the anti-carnapping law and not by the
provisions on qualified theft or robbery. (People v. Bustinera)
May a person charged with qualified theft of motor vehicle be

convicted of carnapping?
Yes, for while it is necessary that the statutory designation
be stated in the information, a mistake in the caption of an in-
THEFT
dictment in designating the correct name of the offense is not

a fatal defect as it is not the designation that is controlling but
the facts alleged in the information which determines the real
nature of the crime. (People v. Bali-balita, 340 SCRA 450)
• What crime is committed when a public utility vehicle under the

"boundary" system is appropriated by the driver?
Neither qualified theft nor estafa but carnapping. Where

the information was filed for estafa but the facts show that
what was yielded was only physical possession of the motor
vehicle, the crime is carnapping. T h e description of the motor
vehicle must be alleged in the information, otherwise it is theft.
Juridical possession of public utility vehicle cannot be legally
transferred as there is a prohibition against such practice by the
Public Service Commission. At most only physical possession is
transferred.
People v. Isaac, 96 Phil. 931 (1955), convicted a jeepney
driver of theft and not estafa when he did not return the
jeepney to its owner since the motor vehicle was in the juridical
possession of its owner, although physically held by the driver.
T h e accused was not a lessee or hirer of the jeepney because the
Public Service L a w and its regulations prohibit a motor vehicle
operator from entering into any kind of contract with any
person if by the terms thereof it allows the use and operation
of all or any of his equipment under a fixed rental basis. The
contract with the accused being under the "boundary system,"
legally, the accused was not a lessee but only an employee of
the owner. Thus, the driver's possession of the vehicle was only
an extension of the owner's.
Santos v. People, 181 SCRA 48, distinguished theft from
estafa:
"The principal distinction between the two crimes is
that in theft the thing is taken while in estafa the accused
receives the property and converts it to his own use or benefit.
However, there may be theft even if the accused has possession
of the property. If he was entrusted only with the material
or physical (natural) or de facto possession of the thing, his
misappropriation of the same constitutes theft, but if he has
the juridical possession of the thing, his conversion of the same
constitutes embezzlement or estafa."
883
While the nature of appellant's possession of the taxi

was initially lawful as he was hired as a taxi driver and was
entrusted possession thereof, his not returning it to its owner,
against the owner's consent transformed the character of the
possession into an unlawful one.
Has the Revised Penal Code suppletory effect on R.A. 6539?

None except for qualified carnapping. W h i l e the
information alleges that the crime was attended with grave
abuse of confidence, the same cannot be appreciated as the
suppletory effect of the R P C to special laws, cannot be invoked
when there is a legal impossibility of application, either by
express provision or by necessary implication.
When the penalties under the special law are different

from and are without reference or relation to those under the
R P C , there can be no suppletory effect of the rules, for the
application of penalties under the R P C or by other relevant
statutory provisions are based on or applicable only to said
rules for felonies under the R P C .
Thus, Panida, 310 SCRA 66, where the penalty imposed

was the indeterminate sentence of 14 years and 8 months, as
minimum, to 17 years and 4 months, as maximum, did not
apply the R P C as R . A . 6539 provides for its own penalties
which are distinct and without reference to the R P C .
The charge being simple carnapping, the imposable

penalty is imprisonment for not less than 14 years and 8
months and not more than 17 years and 4 months. W h i l e it is
true that such penalty is virtually equivalent to the duration of
the medium period of reclusion temporal, such technical term
under the R P C is not given to that penalty for carnapping.
Besides, the other penalties for carnapping attended by the
qualifying circumstances in the law do not correspond to those
in the R P C . T h e rules on penalties in the R P C therefore, cannot
suppletorily apply to R . A . 6539 and special laws of the same
formulation.
(But if the crime is carnapping in the aggravated form,

the penalty will be reclusion perpetua which is taken from the
R P C , hence, it shall have suppletory application in this limited
sense only.)
THEFT
• Whether or not attempted and frustrated murder/homicide are

included in qualified carnapping.
T h e answer must be in the negative in light of the use in

said Section 14 of the words IS K I L L E D . The unmistakable
import thereof is that it refers only to the consummated felnny
of either murder or homicide.
If attempted or frustrated murder or homicide is

committed "in the course of the commission of the carnapping
or on the occasion thereof," then it must be deemed to fall under
the clause of Section 14, "when the carnapping is committed
by means of violence against or intimidation of any person."
(People v. Mejia)
• Is a tricycle used within inner streets within the coverage of R.A.

6539?
Y e s . 'Public' means 'common to all or many; general; open

to common use.' (Black's L a w Dictionary 1393 [Revised 4th
Ed.]) 'Highway' refers to a free and public road way, or street;
one which every person has the right to use (id., at p. 862). It is
clear that a street within a town is a public highway if it is used
by the public. To limit the words 'public highways' to a national
road connecting the various towns would create a distinction
which the statute itself does not make. To limit the application
of the A c t to motor vehicles traveling between different towns,
may lead to absurd results. For example, privately-owned
motorcycle used by its owner in traveling from one province
to another would be covered by the law whereas a motorized
tricycle which is more expensive than the former but operated
within towns would not be protected by the law.
"No unreasonable intendment should be read into a

statute so that an injustice may be worked or an absurd result
produced." (Izon v. People, G.R. No. L-51370, August 31, 1981)
The enumeration of excepted vehicle show that any
vehicle which is motorized using the streets which are public,
not exclusively for private use, comes within the concept of
motor vehicle. A tricycle is not included in the exception, thus
is among the motor vehicles the stealing of which comes within
its penal sanction, (id.)
885
Is license to use the public highways required in the law?

Highways are always public, free for the use of every
person. There is nothing in the law that requires a license to
use a public highway to make the vehicle a "motor vehicle"
within the definition given in R . A . 6539. If a vehicle uses the
streets with or without the required license, same comes within
the protection of the law, for the severity of the offense is not
to be measured by what kind of streets or highway the same is
used; but by the very nature of the vehicle itself and the use to
which it is devoted. Otherwise, cars using the streets but still
unlicensed or unregistered as when they have just been bought
from the company, or only on test runs, may be stolen without
the penal sanction of R . A . 6539, but only as simple robbery
punishable. This could not have been the intention of the law.
(id)
What is the nature of the crime of carnapping?
Carnapping is malum prohibitum. If homicide is

committed, a special complex crime of carnapping with
homicide, not falling within Article 48 is committed by virtue
of the amendment made by R . A . 7659. (There is no complex
crime of offense and felony under Article 48; there is special
complex crime of offenses.)
xxx xxx xxx
Sec. 2. Definition of Terms. — T h e f o l l o w i n g t e r m s shall

m e a n as follows:
a. "Fencing" is the act of a n y p e r s o n w h o , w i t h intent

t o g a i n for himself o r for a n o t h e r , shall b u y , receive,
possess, k e e p , a c q u i r e , conceal, sell or d i s p o s e of, or
shall b u y a n d sell, o r i n a n y o t h e r m a n n e r d e a l i n
a n y article, item, object o r a n y t h i n g o f v a l u e w h i c h
he knows, or should be k n o w n to him, to have been
d e r i v e d f r o m the p r o c e e d s o f the c r i m e o f r o b b e r y
or theft.
THEFT
b. "Fence" i n c l u d e s a n y p e r s o n , firm, association,

c o r p o r a t i o n o r p a r t n e r s h i p o r other o r g a n i z a t i o n
w h o / w h i c h commits the act of fencing.
Sec. 3. Penalties. — A n y p e r s o n guilty of fencing shall be

p u n i s h e d as h e r e u n d e r indicated:
a. T h e p e n a l t y of prision mayor, if the v a l u e of the

p r o p e r t y i n v o l v e d is m o r e t h a n 12,000 pesos b u t not
e x c e e d i n g 22,000 pesos; if the v a l u e of such p r o p e r t y
exceeds the latter s u m , the p e n a l t y p r o v i d e d in this
p a r a g r a p h shall b e i m p o s e d i n its m a x i m u m p e r i o d ,
a d d i n g o n e (1) y e a r for e a c h a d d i t i o n a l 10,000
pesos, b u t the total p e n a l t y w h i c h m a y b e imposed
shall not e x c e e d t w e n t y (20) y e a r s . In such cases,
the p e n a l t y shall be t e r m e d reclusion temporal a n d
the accessory p e n a l t y p e r t a i n i n g thereto p r o v i d e d
in the R e v i s e d P e n a l C o d e shall also be imposed.
b. T h e p e n a l t y of prision correccional in its m e d i u m

a n d m a x i m u m p e r i o d s , if the v a l u e of the p r o p e r t y
r o b b e d or stolen is m o r e t h a n 6,000 pesos b u t not
c. T h e p e n a l t y of prision correccional in its m i n i m u m

a n d m e d i u m p e r i o d s , if the v a l u e of the p r o p e r t y
i n v o l v e d is m o r e t h a n 200 pesos b u t not exceeding
6,000 pesos.
d. T h e penalty of arresto mayor in its m e d i u m period

to prision correccional in its m i n i m u m period, if
the v a l u e of p r o p e r t y involved is over 50 pesos but
not e x c e e d i n g 200 pesos.
e. T h e penalty of arresto mayor in its m e d i u m period

if such v a l u e is o v e r five (5) pesos b u t not exceeding
50 pesos.
f. T h e penalty of arresto mayor in its m i n i m u m period,
if such v a l u e does not exceed 5 pesos.
Sec. 4. Liability of Officials of Juridical Persons. — If the
fence is a p a r t n e r s h i p , firm, corporation or association, the
887
president or the m a n a g e r or any officer thereof w h o k n o w s

or should have k n o w n the commission of the offense shall be
liable.
Sec. 5. Presumption of Fencing. — M e r e possession of any
good, article, item, object, or a n y t h i n g of v a l u e w h i c h has
been the subject of r o b b e r y or thievery shall be prima facie
evidence of fencing.
xxx xxx xxx
• What is fencing?
Fencing is the act of any person who, with intent to gain
for himself or for another, shall buy, receive, possess, 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.
(Dunlao u. CA, G.R. No. 111343, August 22, 1996)
• P.D. 1612 covers the proceeds of what crimes?
The crime of fencing covers only proceeds of theft or

robbery. It does not apply to other crimes of gain such as estafa.
The act of a party who took a share of the proceeds of a crime
other than robbery or theft would make him an accessory. Only
in theft or robbery that one, with intent to gain, dealt with the
proceeds that he becomes a fence.
Because cattle rustling is a mere amendment of Article

310 on theft of large cattle, the accessory to cattle rustling thru
profiting from the use of large cattle can be liable for fencing
provided he is charged for the latter crime. (Taer)
• What are the elements of the crime of fencing?
(1) A crime of robbery or theft has been committed;
(2) T h e accused, who is not a principal or accomplice in the

commission of 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;
THEFT
(3) 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; and
(4) There is, on the part of accused, intent to gain for himself
or for another. (D.M. Consunji, Inc. v. Esguerra, G.R. No.
118590, July 30, 1996; Tan u. People, August 1999)
T h e law does not require proof of purchase of the stolen

articles by the petitioner, as mere possession thereof is enough
to give rise to a presumption of fencing. It is incumbent upon
the accused to overthrow this presumption by sufficient and
convincing evidence. (Dunlao, Sr. v. CA)
T h e offender in fencing should otherwise be an accessory

to the crime of theft or robbery by profiting from the fruit or the
instrument of the crime.
• Is fencing a continuing offense?
Fencing is not a continuing crime but separate and

distinct from the predicate crimes of theft and robbery. The
offender may be prosecuted at the place where he took hold of
the property and not at the place of the commission of the theft
or robbery.
xxx xxx xxx
Sec. 2. Definition of terms. — x x x :

a. Large cattle as h e r e i n used shall include the cow,
c a r a b a o , h o r s e , m u l e , ass, or other domesticated
m e m b e r of the b o v i n e family.
b. Owner/raiser shall include the h e r d s m a n , caretaker,
employee or tenant of a n y firm or entity e n g a g e d in
the r a i s i n g of l a r g e cattle or other persons in lawful
possession of such l a r g e cattle.
c. Cattle ruatling is the taking a w a y by means, method
or scheme, without the consent of the owner/raiser,
of any of the a b o v e mentioned animals whether or
889
not for profit or g a i n , or w h e t h e r committed with

or without violence against or intimidation of any
person or force u p o n things. It includes the killing
of l a r g e cattle, or taking its meat or h i d e without
the consent of the o w n e r / r a i s e r .
Sec. 3. Duty of owner /raiser to register. — T h e o w n e r / r a i s e r

shall, before the l a r g e cattle b e l o n g i n g to h i m shall attain
the age of six months, register the same w i t h the office of the
city/municipal t r e a s u r e r w h e r e such l a r g e cattle a r e raised.
T h e city/municipality c o n c e r n e d m a y impose a n d collect the
fees, authorized by existing l a w s for such r e g i s t r a t i o n a n d
the issuance of certificate of o w n e r s h i p to the o w n e r / r a i s e r .
xxx xxx xxx
Sec. 5. Permit to buy and sell large cattle. — No p e r s o n ,

p a r t n e r s h i p , association, c o r p o r a t i o n or entity shall e n g a g e
in the business of b u y a n d sell of l a r g e cattle w i t h o u t first
securing a p e r m i t for the said p u r p o s e f r o m the P r o v i n c i a l
C o m m a n d e r of the p r o v i n c e w h e r e it shall c o n d u c t such
business a n d the city/municipal t r e a s u r e r of the place
of residence of such p e r s o n , p a r t n e r s h i p , association,
c o r p o r a t i o n or entity. T h e p e r m i t shall o n l y be v a l i d in such
province.
xxx xxx xxx
Sec. 7. Presumption of cattle rustling. — E v e r y p e r s o n

h a v i n g in his possession, control, or custody of l a r g e cattle
shall, u p o n d e m a n d b y c o m p e t e n t a u t h o r i t i e s , e x h i b i t the
documents p r e s c r i b e d in the p r e c e d i n g sections. F a i l u r e to
exhibit the r e q u i r e d d o c u m e n t s shall be prima facie e v i d e n c e
that the l a r g e cattle in his possession, control a n d custody
a r e the fruits of the c r i m e of cattle rustling.
Sec. 8. Penal provisions. — A n y p e r s o n convicted of cattle

r u s t l i n g as h e r e i n defined shall, i r r e s p e c t i v e of the v a l u e of
the l a r g e cattle involved, be p u n i s h e d by prision mayor in its
m a x i m u m p e r i o d to reclusion temporal in its m e d i u m p e r i o d
if the offense is committed w i t h o u t violence a g a i n s t or
intimidation of p e r s o n s or force u p o n things. If the offense is
THEFT
committed w i t h violence a g a i n s t or intimidation of persons

or force u p o n things, the p e n a l t y of reclusion temporal in its
m a x i m u m p e r i o d to reclusion perpetua shall be imposed. If
a p e r s o n is seriously i n j u r e d or killed as a result or on the
occasion of the c o m m i s s i o n of cattle rustling, the penalty of
reclusion perpetua to d e a t h shall be i m p o s e d .
W h e n the o f f e n d e r is a g o v e r n m e n t official or employee,

he shall, in a d d i t i o n to the f o r e g o i n g penalty, be disqualified
f r o m voting o r b e i n g voted u p o n a n y e l e c t i o n / r e f e r e n d u m
a n d f r o m h o l d i n g a n y p u b l i c office o r e m p l o y m e n t .
W h e n the o f f e n d e r i s a n alien, h e shall b e d e p o r t e d
immediately u p o n the c o m p l e t i o n of the service of his
sentence w i t h o u t f u r t h e r p r o c e e d i n g s .
xxx xxx xxx
Sec. 10. Repealing clause. — T h e p r o v i s i o n s of Articles
309 a n d 310 of A c t N o . 3815 o t h e r w i s e k n o w n as the R e v i s e d
P e n a l C o d e , a s a m e n d e d , p e r t i n e n t p r o v i s i o n s o f the R e v i s e d
A d m i n i s t r a t i v e C o d e , a s a m e n d e d , all l a w s , decrees, o r d e r s ,
instructions, r u l e s a n d r e g u l a t i o n s w h i c h a r e inconsistent
w i t h this D e c r e e a r e h e r e b y r e p e a l e d o r modified a c c o r d i n g l y .
(August 8, 1974.)
xxx xxx xxx
• What is cattle rustling?

Cattle rustling is taking away by any means, methods
or schemes, without the consent of the owner/raiser, of any of
the large cattle whether or not for profit or gain, or whether
committed with or without violence against or intimidation
of person or force upon things. It includes the killing of large
cattle, or taking its meat or hide without the consent of the
owner/raiser.
Intent to gain may be inferred from the deliberate failure
to deliver the lost property to the proper person, the finder
knowing that the property does not belong to him. In this case,
the several circumstances enumerated constitute an unbroken
chain of events which leads to one fair and reasonable
conclusion — which is that the accused indeed took the calf
with the intent to appropriate it. (Taer v. CA)
891
• Is the Anti-Cattle Rustling Law a special penal law?

N o . From the nature of the penalty imposed which
is in terms of the classification and duration of penalties as
prescribed in the R P C , the intent seems clear that P . D . 533
shall be deemed as an amendment of the R P C , with respect
to the offense of theft of large cattle under Article 310, or
otherwise to be subject to applicable provisions thereof such
as Article 104 on civil liability of the offender, a provision
which is not found in the decree but which could not have been
intended to be discarded or eliminated by the decree. Article 64
should likewise be applicable under which the presence of two
mitigating circumstances entitles the offender to a lowering by
one degree of the penalty for the offense. (People v. Macatanda,
G.R. No. L-51368, November 6, 1981)
P . D . 533 is not a special law. T h e penalty for its violation

is in terms of the classification and duration of penalties
prescribed in the R P C , thus indicating the intent of the
lawmaker to amend the R P C with respect to the offense of
qualified theft of large cattle. (Canta v. People, G.R. No. 140937,
February 28, 2001)
• When homicide is committed during cattle rustling, are the

offenders liable for cattle rustling and for homicide?
N o . K i l l i n g is absorbed in cattle rustling because it is still

malum in se being an amendment of Article 310. T h e crime is
still cattle rustling albeit qualified cattle rustling.
P . D . 533 is not a malum prohibitum but a modification of

theft and malicious mischief. Therefore, the rules and system
on penalties under the R P C applies. T h e cattle does not have
to be taken whole. T h e taking of the meat or hide is enough.
T h e killing without taking also falls thereunder for it is with
or without intent to gain. P . D . 533 covers taking or killing the
cattle or taking its meat or hide.
Taer held TT as an accessory as cattle rustling is not a

malum prohibitum. He should have been liable for fencing but
since the crime charged is cattle rustling and not fencing, he
cannot be convicted of the latter crime.
THEFT
• Compare carnapping and cattle-rustling.
1. Carnapping is malum prohibitum; cattle-rustling is

malum in se.
2. The penalties for carnapping is not from the R P C except

for carnapping with homicide; for cattle-rustling is taken
from the R P C .
3. Resultantly, the R P C has no suppletory application

to carnapping except for qualified carnapping; it is
suppletory on cattle-rustling.
4. In both, when the driver of motor vehicle or the possessor

of cattle is killed, the crime is special complex crime of
carnapping with homicide or qualified cattle rustling.
5. Both involves moral turpitude.

Chapter Four
USURPATION
A r t . 312. Occupation of real property or usurpation of real

rights in property. — A n y p e r s o n w h o , by m e a n s of violence
against or intimidation of p e r s o n s , shall take possession of
any r e a l p r o p e r t y o r shall u s u r p a n y r e a l r i g h t s i n p r o p e r t y
b e l o n g i n g to another, in a d d i t i o n to the p e n a l t y i n c u r r e d for
the acts o f violence e x e c u t e d b y h i m , shall b e p u n i s h e d b y
a fine f r o m 50 to 100 p e r c e n t u m for the g a i n w h i c h he shall
h a v e o b t a i n e d , b u t not less t h a n 75 pesos.
If the v a l u e of the g a i n c a n n o t be a s c e r t a i n e d a fine f r o m

200 to 500 pesos shall be i m p o s e d .
• What penalties are provided under this provision?
This article provides for a two-layered penalty:
1. T h e penalty for the acts of violence, and
2. T h e penalty of fine for the usurpation.
If the usurpation was committed with killing or physical

injuries, the penalty for robbery with homicide or robbery with
serious physical injuries w i l l be imposed. Usurpation of real
property is similar to robbery except that in robbery, personal
property is involved. (People v. Alfeche, Jr., July 1992, 211
SCRA)
• How should the violence or intimidation in usurpation be

viewed?
T h e intimidation or violence is a w a y of accomplishing the

crime and should not be considered as a separate crime. T h e
reference to the penalty for the result of the intimidation or
violence means that whatever crime results therefrom is added
to the fine but the crime is still usurpation of real property.
(id.)
USURPATION
It is not correct to charge usurpation with homicide or

usurpation with physical injuries. T h e crime is not complex
under Article 48 because the article itself provides that the
fine for usurpation shall be "in addition" to the penalty for
the consequence of the violence or intimidation committed.
Neither is it a special complex crime because there is no single
penalty for the resulting crime composed of the usurpation and
the result of the violence or intimidation. It is sui generis — one
crime with two penalties corresponding to the usurpation and
to the means employed to commit it.
• What is the nature of the crime of usurpation?
It is one of the crimes against property and is committed in

the same manner as the crime of robbery with violence against
or intimidation of persons defined and penalized in Article
294. T h e main difference between these two crimes is that the
former involves real property or real rights in property, while
the latter involves personal property. In short, Article 312
would have been denominated as robbery if the object taken
were personal property, (id.)
• How should the phrase "by means of violence against or

intimidation of persons" in Article 312 be construed?
T h e phrase must be construed to refer to the same phrase

used in Article 294. T h e r e are five classes of robbery under the
latter, namely:
(a) Robbery with homicide;

(b) Robbery with rape, intentional mutilation, or the physical
injuries penalized in Article 263(1);
(c) Robbery with the physical injuries penalized in Article
263(2);
(d) Robbery committed with unnecessary violence or with
physical injuries covered by Article 263(3) and (4); and
(e) Robbery in other cases or simple robbery where the
violence against or intimidation of persons cannot be
subsumed by, or where it is not sufficiently specified so as
to fall under the first four paragraphs.
895
Article 294(1) to (4) involve the use of violence against

persons. The actual physical force inflicted results as therein
enumerated. The simple robbery under paragraph five may
cover physical injuries not included in paragraphs two to four.
Thus, when less serious physical injuries or slight physical
injuries are inflicted upon the offended party on the occasion of
a robbery, the accused may be prosecuted for and convicted of
robbery under paragraph five, (id.)
• What is intimidation?
Black's L a w Dictionary defines intimidation as "unlawful
coercion; extortion; duress; putting in fear." To take, or attempt
to take by intimidation means "willfully to take, or attempt to
take, by putting in fear of bodily harm." Osorio, 21 Phil. 237,
showed that material violence is not indispensable for there to
be intimidation; intense fear produced in the mind of the victim
which restricts or hinders the exercise of the w i l l is sufficient.
Intimidation is not encompassed under paragraphs 1 to 4 of
Article 294 if no actual physical violence is inflicted; evidently
then, it can only fall under paragraph 5.
• What crimes may result from intimidation?
In an appropriate case, the offender may be liable for either:
(a) Robbery under Article 294(5) if the subject matter is

personal property and there is intent to gain or animus
furandi; or
(b) Grave coercion under Article 286 if such intent does not
exist.
(c) Grave threats if the intimidation is conditional and not

personal as when there is an intermediary or is writing.
In grave coercion, violence through force or such display

of force that would produce intimidation and control the will of
the offended party is an essential ingredient. In grave threats
punished under Article 282, intimidation is also present.
However, this intimidation as contra-distinguished from the
intimidation in Article 294(5) or A r t i c l e 286 — which is actual,
immediate and personal — is conditional and not necessarily
personal because it may be caused by an intermediary, (id.)
USURPATION
• Compare the penalty for robbery with homicide, etc. to that for
usurpation.
Article 294 (1) to (5) are single, special and indivisible

felonies, not complex crimes as denned under Article 48.
T h e penalties imposed do not take into account the value of
the personal property taken but the gravity of the effect or
consequence of the violence or intimidation.
Article 312 may also be considered as defining and penal-

izing the single, special and indivisible crime of occupation of
real property or usurpation of real rights in property by means
of violence against or intimidation of persons. It is likewise not
a complex crime as defined under Article 48. However, while
Article 294 provides a single penalty for each class of crime
therein defined, Article 312 provides a single, albeit two-tiered
penalty consisting of principal penalty, which is fine based on
the value of the gain obtained by the accused. This is clear from
the clause "in addition to the penalty incurred for the acts of
violence executed by him." For want of a better term, the ad-
ditional penalty may be designated as an incremental penalty,
(id.)
• How many Informations should be filed against the usurper?
Only one. W h a t Article 312 means then is that when

the occupation of real property is committed by means of
violence against or intimidation of persons, the accused may
be prosecuted under an information for the violation thereof,
and not for a separate crime involving violence or intimidation.
But, whenever appropriate, he may be sentenced to suffer the
penalty for the acts of violence and to pay a fine based on the
value of the gain obtained.
• What possible crimes may accompany the act of usurpation?

If by reason or on the occasion of such occupation or
usurpation:
(a) The crime of homicide, or any of the physical injuries
penalized in Article 263 (1) or (2) is committed; or
(b) When the same shall have been accompanied by rape or
intentional mutilation; or
897
(c) When, in the course of its execution, the offender shall

have inflicted upon any person not responsible for its
commission any of the physical injuries covered by Article
263 (3) and (4); or
(d) When it is committed through intimidation or through the
infliction of physical injuries not covered by Article 263
(1) to (4), i.e., physical injuries penalized under Articles
265 and 266,
the accused may be convicted for the violation of Article 312.
However, he shall be sentenced to:
(a) suffer the penalty for homicide, rape, intentional
mutilation and physical injuries provided under Article
263(1) to (4), other physical injuries or for the intimidation,
which may fall under Article 282 (grave threats) or Article
286 (grave coercion); and
(b) to pay a fine based on the value of the gain obtained

by him, which shall be an amount equivalent to 50% to
100% of such gain, but in no case less than P75, provided,
however, that if such value cannot be ascertained, the
fine shall be from P200 to P500. (id.)
Who is the offended party in Article 312?
T h e real victim is not necessarily the owner but the

person against whom the intimidation/violence w a s employed.
If such person is not named in the information but the owner,
the information may be dismissed because the facts charged do
not constitute an offense. T h e liability to the owner is civil only.
T h e tenant has, at the v e r y least, a real right over the

property — that of possession — which both accused w e r e
alleged to have usurped through the threat to kill. BB is,
therefore, the offended party who was directly threatened by
the accused; while the information expressly states this fact,
BB is not made the offended party. T h e information did not
even suggest that the accused threatened complainants or
their families with the infliction upon their persons, honor or
property of any wrong amounting to a crime so as to bring the
former within the purview of Article 282. At most, the liability
of the accused to the complainants would only be civil in nature.
USURPATION
Hence, to the extent that it limits the offended parties to just

the co-owners of the property who were not even in possession
thereof, the information in question does not charge an offense.
It may therefore, be dismissed in accordance with Section 3(a),
Rule 117 of the Rules of Court, (id.)
R E P U B L I C A C T N O . 8368 — R e p e a l i n g P . D . 772
xxx xxx xxx
Sec. 2. Repeal. — P r e s i d e n t i a l D e c r e e N o . 772, entitled

"Penalizing S q u a t t i n g a n d O t h e r S i m i l a r Acts" i s h e r e b y
repealed.
Sec. 3. Effect on Pending Cases. — A l l p e n d i n g cases

u n d e r the p r o v i s i o n s of P r e s i d e n t i a l D e c r e e N o . 772 shall be
dismissed u p o n the effectivity of this A c t .
Sec. 4. Effect on Republic Act No. 7279. — N o t h i n g h e r e i n

shall be c o n s t r u e d to nullify, eliminate or diminish in a n y
w a y Section 27 of R e p u b l i c A c t N o . 7279 [Urban Development
Act of 1992] or a n y of its p r o v i s i o n s relative to sanctions
a g a i n s t professional s q u a t t e r s a n d s q u a t t i n g syndicates.
xxx xxx xxx
A r t . 313. Altering boundaries or landmarks. — A n y p e r s o n

w h o shall alter the b o u n d a r y m a r k s o r m o n u m e n t s o f
t o w n s , provinces, or estates, or a n y other m a r k s intended to
designate the b o u n d a r i e s of the same, shall be p u n i s h e d by
arresto menor or a fine not e x c e e d i n g 100 pesos, or both.
Chapter Five
CULPABLE INSOLVENCY
Art. 314. Fraudulent insolvency. — Any person who shall
abscond with his property to the prejudice of his creditors,
shall suffer the penalty of prision mayor, if he be a merchant,
and the penalty of prision correccional in its maximum
period to prision mayor in its medium period, if he be not a
merchant.
• Who are liable for culpable insolvency?
Culpable insolvency is committed by debtors who conceal

property to avoid payment of legal debt. The penalty is higher
if committed by merchants. (Refer to the law on insolvency
under mercantile law.)
C h a p t e r Six
S W I N D L I N G A N D OTHER DECEITS
A r t . 315. Swindling (estafa). — A n y p e r s o n w h o shall
d e f r a u d a n o t h e r b y a n y m e a n s m e n t i o n e d h e r e i n b e l o w shall
b e p u n i s h e d by:
1st. T h e p e n a l t y of prision correccional in its m a x i m u m

p e r i o d to prision mayor in its m i n i m u m p e r i o d , if the a m o u n t
of the f r a u d is o v e r 12,000 pesos b u t does not exceed 22,000
pesos; a n d if such a m o u n t e x c e e d s the latter sum, the
penalty p r o v i d e d in this p a r a g r a p h shall be imposed in its
m a x i m u m p e r i o d , a d d i n g one y e a r for each a d d i t i o n a l 10,000
pesos; b u t the total p e n a l t y w h i c h m a y be i m p o s e d shall not
exceed t w e n t y y e a r s . I n such case, a n d i n connection w i t h
the accessory penalties w h i c h m a y b e i m p o s e d a n d for the
p u r p o s e of the o t h e r p r o v i s i o n s of this C o d e , the penalty
shall be t e r m e d prision mayor or reclusion temporal, as the
case m a y b e ;
2nd. T h e penalty of prision correccional in its m i n i m u m

a n d m e d i u m p e r i o d s , if the a m o u n t of the f r a u d is o v e r 6,000
pesos b u t does not e x c e e d 12,000 pesos;
3rd. T h e penalty of arresto mayor in its m a x i m u m p e r i o d
to prision correccional in its m i n i m u m p e r i o d , if such amount
is o v e r 200 pesos b u t does not exceed 6,000 pesos; a n d
4th. By arresto mayor in its m e d i u m a n d m a x i m u m
periods, if such a m o u n t does not exceed 200 pesos, p r o v i d e d
that in the four cases mentioned, the f r a u d be committed by
any of the f o l l o w i n g means:
1. W i t h unfaithfulness or a b u s e of confidence, namely:
(a) By altering the substance, quantity, or quality
of anything of v a l u e w h i c h the offender shall
deliver by virtue of an obligation to do so,
even t h o u g h such obligation be based on an
immoral or illegal consideration;
901
( b ) By m i s a p p r o p r i a t i n g or converting, to the
prejudice of another, money, goods, or any
other personal p r o p e r t y received by the
offender in trust or on commission, or for
administration, o r u n d e r a n y obligation
involving the duty to m a k e delivery of, or to
r e t u r n the same, even t h o u g h such o b l i g a t i o n
be totally or p a r t i a l l y g u a r a n t e e d by a b o n d ;
o r b y d e n y i n g h a v i n g r e c e i v e d such money,
goods, or other p r o p e r t y ;
(c) B y t a k i n g u n d u e a d v a n t a g e o f the s i g n a t u r e
o f the offended p a r t y i n b l a n k , a n d b y w r i t i n g
any d o c u m e n t a b o v e such s i g n a t u r e i n b l a n k ,
to the p r e j u d i c e of the o f f e n d e d p a r t y or a n y
third person.
2. By m e a n s of a n y of the f o l l o w i n g false p r e t e n s e s or
f r a u d u l e n t acts e x e c u t e d p r i o r to or s i m u l t a n e o u s l y
w i t h the c o m m i s s i o n of the f r a u d :
(a) B y u s i n g f i c t i t i o u s n a m e , o r falsely p r e t e n d i n g
to possess p o w e r , influence, qualifications,
p r o p e r t y , credit, a g e n c y , b u s i n e s s o r i m a g i n a r y
transactions; o r b y m e a n s o f o t h e r s i m i l a r
deceits.
(b) B y a l t e r i n g the q u a l i t y , f i n e n e s s , o r w e i g h t o f
a n y t h i n g p e r t a i n i n g t o his a r t o r b u s i n e s s .
(c) By pretending to have bribed any Government

e m p l o y e e , w i t h o u t p r e j u d i c e to the action for
c a l u m n y , w h i c h the o f f e n d e d p a r t y m a y d e e m
p r o p e r t o b r i n g a g a i n s t the o f f e n d e r . I n this
case, the o f f e n d e r s h a l l b e p u n i s h e d b y the
m a x i m u m p e r i o d o f the p e n a l t y .
(d) By p o s t d a t i n g a check, or i s s u i n g a c h e c k in
p a y m e n t o f a n o b l i g a t i o n w h e n the o f f e n d e r
h a d n o f u n d s i n the b a n k , o r his f u n d s d e p o s i t e d
t h e r e i n w e r e not sufficient to c o v e r the a m o u n t
o f the check. T h e f a i l u r e o f the d r a w e r o f the
check to d e p o s i t the a m o u n t n e c e s s a r y to c o v e r
his c h e c k w i t h i n t h r e e (3) d a y s f r o m r e c e i p t o f
902
notice f r o m the b a n k a n d / o r p a y e e o r h o l d e r
that s a i d check h a s b e e n d i s h o n o r e d for lack
or insufficiency of f u n d s shall be prima facie
e v i d e n c e of deceit constituting false pretense
or f r a u d u l e n t act. (As amended by R.A. No.
4885, approved June 17, 1967.)
(e) B y o b t a i n i n g a n y food, r e f r e s h m e n t o r
a c c o m m o d a t i o n at a hotel, inn, r e s t a u r a n t ,
b o a r d i n g house, lodging house, or apartment
h o u s e a n d the like w i t h o u t p a y i n g therefor,
w i t h intent t o d e f r a u d the p r o p r i e t o r o r
m a n a g e r thereof, o r b y o b t a i n i n g credit a t
a hotel, inn, r e s t a u r a n t , b o a r d i n g house,
l o d g i n g h o u s e , o r a p a r t m e n t h o u s e b y the
use o f a n y false p r e t e n s e , o r b y a b a n d o n i n g
o r s u r r e p t i t i o u s l y r e m o v i n g a n y p a r t o f his
b a g g a g e f r o m a hotel, inn, r e s t a u r a n t , b o a r d i n g
h o u s e , l o d g i n g h o u s e , o r a p a r t m e n t house
after o b t a i n i n g credit, food, r e f r e s h m e n t or
a c c o m m o d a t i o n t h e r e i n w i t h o u t p a y i n g for
his food, r e f r e s h m e n t , or a c c o m m o d a t i o n . (As
3. T h r o u g h a n y of the f o l l o w i n g f r a u d u l e n t means:
(a) B y i n d u c i n g a n o t h e r , b y m e a n s o f deceit, t o
sign a n y d o c u m e n t ;
( b ) By r e s o r t i n g to some f r a u d u l e n t practice to
i n s u r e success in a g a m b l i n g g a m e ;
(c) By r e m o v i n g , concealing, or destroying, in
w h o l e or in p a r t , a n y court r e c o r d , office files,
d o c u m e n t , o r a n y other p a p e r s .
How is estafa committed?

There are two forms or ways of committing estafa:
1. With abuse of confidence or unfaithfulness under no. 1 of
Article 315; and
2. Through deceit or false pretense in nos. 2 and 3 thereof
with damage in either case.
903
In the second form, Article 315(2)(a), estafa is committed

by:
(1) Using a fictitious name;
(2) Falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or
imaginary transactions; and
(3) By means of other similar deceits.
Under this class of estafa, the element of deceit is
indispensable (People v. Billaber, G.R. No. 114967-68, January
26, 2004). Also, in the second form, it is essential that the deceit
or false pretense be prior to or simultaneous to the prejudice
and that the same be the v e r y cause of the damage.
People v. Lo, G.R. N o . 175229, January 2009

There are three ways of committing estafa under the under
Article 315(2)(a); (1) by using a fictitious name; (2) by falsely
pretending to possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions, and (3) by
means of other similar deceits. Under this class of estafa, the
element of deceit is indispensable. In the present case, the deceit
consists of accused's false statement or fraudulent representation
which was made prior to, or at least simultaneously within, the
delivery of the money by the complainants. To convict for this
type of crime, it is essential that the false statement or fraudulent
representation constitutes the very cause or the only motive
which induces the complainant to part w i t h the thing of value.
Accused led private complainants to believe that they possessed

the power, means and legal qualifications to provide the latter with
work in Italy, when in fact they did not. P r i v a t e complaints parted with
their hard-earned money and suffered damage by means of accused-
appellants deceitful and illegal acts. T h e elements of deceit and dam-
age for this form of estafa are indisputably present, hence their con-
viction for estafa and for illegal recruitment in large scale was proper.
• What is the nature of the damage suffered by the offended

party?
T h e damage is not limited to material damage; any

disturbance or prejudice is constitutive of damage. Rlustration:
A check was issued out to an impostor who was not able to

encash the same because it was made payable to the company.
The crime was consummated estafa because in so issuing the
check, the offended in effect set aside the amount thereof which
he was not able to use for a certain period. To such extent he
was damaged in his proprietary right.
What are the elements of estafa through misappropriation or

conversion in Article 315(l)(b)?
1. Money, goods or other personal property is received by the

offender in trust, or on commission or for administration,
or under any obligation involving the duty to make
delivery of, or to return, the same;
2. T h e r e was misappropriation or conversion of such money
or property by the offender or denial on his part of such
receipt;
3. Such misappropriation or conversion or denial is to the
prejudice of another; and
4. There is a demand made by the offended party on the
offender.
T h e specific word "demand" need not be used to show

that demand had indeed been made upon the person charged
of the offense. A query as to the whereabouts of the money is
tantamount to demand. Thus, the trial court validly exercised
its jurisdiction over the crime charged against the accused
inasmuch as one of the elements of estafa, of demand, occurred
within its territorial jurisdiction. (Barrameda v. CA, G.R. No.
96428, September 2, 1999; People u. Moreno, September 1999)
When will misappropriation of money or property entrusted to

another constitute estafa? theft?
T h e receipt of the offender of the personal property must
give her juridical possession of the property or the crime
committed will not be estafa. When a bank's cash custodian is
found short of the cash under her primary responsibility her
crime is not estafa but q u a l i f i e d theft. Her possession of the
cash belonging to the bank is similar to the possession of a
bank teller. Her possession is the possession of the bank. Thus,
she only received physical and not juridical possession of the
missing cash.
905
What constitutes juridical possession?

Juridical possession means a possession which gives the
transferee a right over the thing transferred and this he may set
up even against the owner. A commission agent who receives
goods in consequence of the agency has a right of retention
over the proceeds thereof if the principal cannot reimburse the
advances he had made for the agency and indemnify him for
the damages he may have suffered thereby. His possession of
the goods/proceeds is juridical possession (Burce v. CA, April
2000). The possession of tenant as against the landlord; the
borrower as against the lender in commodatum; the lessee
v. the lessor are examples of juridical possession. When the
tenant, borrower, or lessee gained possession of the property
and converted the same, he commits estafa, not theft.
How are the words "convert" and "misappropriate" understood?
The words "convert" and "misappropriate" in the Article

connote an act of using or disposing of another's property as if
it were one's own or of devoting it to a purpose or use different
from that agreed upon. To misappropriate a thing of value
for one's own use or benefit means not only the conversion to
one's personal advantage but also every attempt to dispose of
the property of another without a right. (Lee v. People, G.R.
No. 157781, April 11, 2005)
In estafa through conversion, the offended entrusted to

the offender goods by w a y of administration or deposit where
the obligation is to return the v e r y thing that was received. If
money is the subject of transaction, there is no estafa through
conversion unless the agreement is to return the same serial
numbered currency because when money is deposited, the
relationship is that of creditor-debtor. T h e obligation is civil
not criminal.
M a y a person who failed to liquidate his cash advance be

convicted of estafa?
In order that a person can be convicted of estafa under

Article 3 1 5 ( l ) ( b ) it must be proved that he had the obligation to
deliver or return the same money, goods or personal property
that he had received.
Liquidation simply means the settling of indebtedness.

An employee who liquidates a cash advance is in fact paying
back his debt in the form of a loan of money advanced to him
by his employer, as per diems and allowances. Similarly, if
the amount of the cash advance he received is less than the
amount he spent for actual travel he has the right to demand
reimbursement from his personal funds. In other words, the
money advanced by either party is actually a loan to the other.
Hence, petitioner was under no legal obligation to return the
same cash or money, i.e., the bills or coins, which he received
from the respondent.
In A r t i c l e 1953 of the N C C , a person who receives a loan

of money or any other fungible thing acquires the ownership
thereof, and is bound to pay to the creditor an equal amount
of the same kind and quality. Since ownership of the money
(cash advance) was transferred to petitioner, no fiduciary
relationship was created. Absent this fiduciary relationship
between petitioner and respondent, which is an essential
element of estafa by misappropriation or conversion, estafa
is not committed. (Yong Chan Kim v. People, G.R. No. 84719,
January 25, 1991)
Will delivery to a third person of the thing held in trust constitute

a defense in estafa?
Generally, the delivery to a third person of the thing

held in trust is not a defense in estafa. However, this rule was
modified in Nepomuceno and Trinidad hus:
In cases of estafa, the profit or gain must be obtained by
the accused personally, through his own acts, and his mere
negligence in permitting another to take advantage or benefit
from the entrusted chattel cannot constitute estafa under
Article 3 1 5 ( l ) ( b ) ; unless the evidence should disclose that
the agent acted in conspiracy or connivance with the one who
carried out the actual misappropriation, when the accused
would be answerable for the acts of his co-conspirators. If there
is no such evidence, direct or circumstantial, and if the proof
is clear that the accused herself was the innocent victim of her
sub-agent's faithlessness, her acquittal is in order. (Lim v. CA,
G.R. No. 102784, April 7, 1997)
907
• How is misappropriation or conversion proved?

Misappropriation or conversion may be proved by direct
or by circumstantial evidence. Failure to account upon demand,
whether formal or verbal, for funds or property held in trust, is
circumstantial evidence of misappropriation. (Lee v. People)
• Will the return of the money to the victim free the accused from
criminal liability?
N o . The fact that accused returned their money will not
negate estafa. Criminal liability for estafa is not affected by
compromise or novation of contract, for it is a public offense
which must be prosecuted and punished by the Government on
its own motion even though complete reparation should have
been made of the damage suffered by the offended party. A
criminal offense is committed against the People, the offended
party may not w a i v e or extinguish the criminal liability that
the law imposes for the commission of the offense. (People v.
Moreno, G.R. No. 130067, September 16, 1999)
• What are the elements of estafa under Article 315(2)(a)?
1) There must be a false pretense, fraudulent act or

fraudulent means;
2) Such false pretense, fraudulent act or fraudulent means
must be made or executed prior to or simultaneously with
the commission of the fraud;
3) T h e offended party must have relied on the false pretense,
fraudulent act, or fraudulent means, that is, he was
induced to part with his money or property because of the
false pretense, fraudulent act, or fraudulent means; and
4) As a result thereof, the offended party suffered damage.
T h e act of the petitioner of deliberately and fraudulently

misrepresenting that L P H of which he is the general manager
is the owner of a lot in Baguio City on which the townhouse
units would be built; that he has the authority to offer for
sale the proposed townhouse units so that he could, as he did
collect money as down payment for two townhouse units from
the complainants; his failure to return the amounts he had
collected from them despite several demands; and considering
that the townhouse units w e r e never constructed, constitute

estafa under Article 315(2)(a). (Montano v. People, G.R. No.
141980, December 2001)
Define fraud; deceit.
Fraud, in its general sense, is deemed to comprise

anything calculated to deceive, including all acts, omissions,
and concealment involving a breach of legal or equitable duty,
trust, or confidence justly reposed, resulting in damage to
another, or by which an undue and unconscientious advantage
is taken of another. It is a generic term embracing all
multifarious means which human ingenuity can device, and
which are resorted to by one individual to secure an advantage
over another by false suggestions or by suppression of truth
and includes all surprise, trick, cunning, dissembling and any
unfair w a y by which another is cheated. On the other hand,
deceit is the false representation of a matter of fact whether
by words or conduct, by false or misleading allegations, or by
concealment of that which should have been disclosed which
deceives or is intended to deceive another so that he shall act
upon it to his legal injury. (People v. Balasa, G.R. No. 106357,
September 3, 1998)
W h o should suffer the damage due to the fraud or deceit

committed by accused?
It must be the complainant. W h i l e it may be said that

there was fraud or deceit committed by R R , when she used the
surname " W " to give her semblance of authority to sell the
house, such fraud or deceit was employed upon the CC spouses
who were the ones who parted with their money when they
bought the house. However, the information charging RR of
estafa alleged damage or injury not upon the CC spouses, but
upon complainant A A . Since the deceit or fraud was not the
efficient cause and did not induce AA to part with her property,
RR cannot be held liable for estafa. (Gonzaludo v. People, G.R.
No. 150910, February 6, 2006)
Is the principle of caveat emptor a defense in swindling?

The fact that the buyer makes an independent
investigation or inspection does not preclude him from relying
909
on the representation made by the seller where the seller has

superior knowledge and the falsity of such representation
would not be apparent from such examination or inspection.
A fortiori, where the efforts of a buyer to learn the true profits
or income of a business or property are thwarted by some
device of the seller, such efforts do not preclude a recovery. The
buyer of a business or property is entitled to rely on the seller's
statements concerning its profits, income or rents. Where a
speaker has knowingly and deliberately made a statement
concerning a fact the falsity of which is not apparent to the
hearer, and has thus accomplished a fraudulent result, he
cannot defend against the fraud by proving that the victim was
negligent in failing to discover the falsity of the statement. This
rule is peculiarly applicable where the owner of the property or
a business intentionally makes a false statement concerning
its rents, profits or income. T h e doctrine of caveat emptor has
been held not to apply to such a case. (People v. Balasa)
What is the basis for the penalty for the crime of estafa?
The penalty for estafa depends upon the amount

defrauded. T h e opening paragraph of Article 315 provides
the penalty of prision correccional in its maximum period to
prision mayor in its minimum period, if the amount of the
fraud is over P12,000 but does not exceed P22.000, and if such
amount exceeds P22,000, the penalty shall be imposed in its
maximum period, adding one year for each additional PIO.OOO;
but the total penalty which may be imposed shall not exceed
20 years. In such case, and in connection with the accessory
penalties which may be imposed and for the purpose of the
other provisions of the R P C , the penalty shall be termed prision
mayor or reclusion temporal, as the case may be. (People v.
Benemerito, G.R. No. 120389, November 21, 1996)
Can estafa be committed thru negligence?
No for the essence of estafa thru misappropriation

is the appropriation or conversion of money or property
received to the prejudice of the owner. T h e words "convert"
and "misappropriate" connote an act of using or disposing
of another's property as if it w e r e one's own or devoting
it to a purpose or use different from that agreed upon. To
910
misappropriate for one's own use includes, not only conversion

to one's personal advantage, but also every attempt to dispose
of the property of another without right.
For negligently assuming N N ' s authority to receive the

ring, L L cannot be held criminally liable. There is no estafa
through negligence. She may only be held civilly liable.
Accordingly, she is liable to pay the full amount of the ring
as actual damages plus legal interest of 6% from the time of
extrajudicial demand. (Lim v. CA)
• How is estafa under P.D. 115 (trust receipt) committed?
A n y violation of Section 13, P . D . 115 on trust receipt

transaction constitutes estafa under Article 315(l)(b). Section
13 provides that:
"SEC. 13. Penalty Clause. — T h e failure of an entrustee
to turn over the proceeds of the sale of the goods, documents
or instruments covered by a trust receipt to the extent of the
amount owing to the entrustee or as appears in the trust receipt
or to return said goods, documents or instruments if they were
not sold or disposed of in accordance with the terms of the
trust receipt shall constitute the crime of estafa, punishable
under the provisions of Article [315] paragraph one (b) of
Act Numbered [3815], as amended, otherwise known as the
Revised Penal Code. If the violation or offense is committed by a
corporation, partnership, association or other juridical entities,
the penalty provided for in the Decree shall be imposed upon
the directors, officers, employees or other officials or persons
therein responsible for the offense, without prejudice to the
civil liabilities arising from the criminal offense." (Prudential
Bank v. IAC, G.R. No. 74886, December 8, 1992)
• When the violator is a juridical entity, to whom is the penalty

imposed?
The penalty is upon the directors, officers, employees or
other officials or persons therein responsible for the offense.
The penalty is imprisonment, the duration of which would
depend on the amount of the fraud as provided for in Article
315. The reason for this is that juridical entities cannot be put
in jail. However, it is these entities which are made liable for
911
the civil liability arising from the criminal offense. This is the
import of the clause "without prejudice to the civil liabilities
arising from the criminal offense." A n d since that violation of
a trust receipt constitutes fraud under Article 33 of the Civil
Code, petitioner was acting well within its rights in filing an
independent civil action to enforce the civil liability arising
therefrom, (id.)
• Can a money market transaction give rise to estafa?
N o . A money market transaction partakes of the nature

of a loan and therefore nonpayment thereof would not give
rise to criminal liability for estafa through misappropriation
or conversion. Philfinance was not obliged under the money
market transaction to return the same money the corporation
received from petitioner. (Sesbreno v. CA, G.R. No. 108952,
January 26, 1995)
• Does estafa involve moral turpitude?
Y e s . In re Vinzon disbarred the lawyer who had been

convicted of estafa for "moral turpitude includes everything
which is done contrary to justice, honesty or good morals.
In essence and in all respects, estafa, no doubt, is a crime
involving moral turpitude because the act is unquestionably
against justice, honesty and good morals." (Ressurrecion v.
Say son, December 1998)
• How is estafa by post-dating a check committed?

Article 315(2)(d) as amended by R . A . 4885 penalizes estafa
when committed by means of the false pretense or fraudulent
act executed prior to or simultaneously with the commission of
the fraud, by postdating a check, or issuing a check in payment
of an obligation when the offender had no funds in the bank,
or his funds deposited therein w e r e not sufficient to cover the
amount of the check. T h e essential requirements of the above
offense are that:
(1) A check is drawn or postdated in payment of an obligation

contracted at the time the check was issued;
(2) There are no funds sufficient to cover the check; and
(3) T h e payee sustains damage thereby.
912
T h e law penalizes the issuance of a check only if it were

itself the immediate consideration for the reciprocal receipt of
benefits. T h e check must be issued concurrently with, and in
exchange for, a material gain to make it punishable under the
R P C . In the issuance of a check to pay a pre-existing obligation
the drawer derives no such contemporary gain in return since
the obligation sought to be settled is already incurred and
outstanding before the check is issued. (Castro v. Mendoza,
G.R. No. 50173, September 21, 1993)
When the check was issued after the goods have been delivered,
is estafa committed?
N o . W h a t is punished in estafa is the deceit that brought

about the damage. It is necessary then that the payee would
not have released his consideration for the check if not for the
check issued. W h e r e a seller parts with his goods even without
the payment, it is a credit accommodation. T h e damage is
already there when the deceit was employed.
Recall the rulings as regards the condition precedent for

conviction for estafa thru false pretenses or deceit.
Mendezona (2 Phil. 353) held that accused may be

convicted for estafa only when the deceit or false pretenses,
committed simultaneously with the fraud, were the efficient
cause or primary consideration which induced the offended
party to part with his money or property.
Lilius (2 Phil. 353) acquitted the accused of estafa because
the deceit did not precede the defraudation, which means
that the deceit was not the cause which could have induced
the damage or prejudice to or loss of property suffered by the
injured party.
Quesada (60 Phil. 5154), Fortuno (73 Phil. 407) and Sabio
(86 SCRA 568) over 45 years after Lilius, applied the same
principle in determining criminal liability for estafa, i.e., that
the deceit must have been committed prior to or simultaneous
with the fraudulent act because this was the only way that said
deceit could become the efficient cause or primary consideration
which could have induced the offended party to part with his
money or property. The doctrine remains the same 100 years
after. (Gonzaludo v. People)
913
BOUNCING CHECKS L A W
BATAS P A M B A N S A B L G . 22
Section 1. Checks without sufficient funds. — A n y person
w h o makes or d r a w s a n d issues any check to a p p l y on account
or for value, k n o w i n g at the time of issue that he does not
have sufficient funds in or credit w i t h the d r a w e e b a n k for
the payment of such check in full u p o n its presentment,
w h i c h check is subsequently d i s h o n o r e d by the d r a w e e
b a n k for insufficiency of funds or credit or w o u l d h a v e b e e n
d i s h o n o r e d for the same r e a s o n h a d not the d r a w e r , w i t h o u t
any valid reason, o r d e r e d the b a n k to stop p a y m e n t , shall be
p u n i s h e d by i m p r i s o n m e n t of not less t h a n thirty d a y s b u t
not m o r e than one (1) y e a r or by a fine of not less t h a n b u t
not m o r e t h a n d o u b l e the a m o u n t of the check w h i c h fine
shall i n n o case exceed T w o h u n d r e d t h o u s a n d pesos, o r b o t h
such fine a n d i m p r i s o n m e n t at the discretion of the court.
T h e same p e n a l t y shall b e i m p o s e d u p o n a n y p e r s o n
w h o , h a v i n g sufficient funds i n o r c r e d i t w i t h the d r a w e e
b a n k w h e n he m a k e s or d r a w s a n d issues a check, shall
fail to k e e p sufficient f u n d s or to m a i n t a i n a c r e d i t to cover
the full a m o u n t of the check if p r e s e n t e d w i t h i n a p e r i o d of
ninety (90) d a y s f r o m the d a t e a p p e a r i n g t h e r e o n , for w h i c h
r e a s o n it is d i s h o n o r e d by the d r a w e e b a n k .
W h e r e the check is d r a w n by a c o r p o r a t i o n , c o m p a n y or
entity, the p e r s o n o r p e r s o n s w h o a c t u a l l y s i g n e d the check
i n b e h a l f o f such d r a w e r shall b e l i a b l e u n d e r this A c t .
Sec. 2. Evidence of knowledge of insufficient funds. — T h e
m a k i n g , d r a w i n g a n d i s s u a n c e o f a check p a y m e n t o f w h i c h
is refused by the d r a w e e b e c a u s e of insufficient f u n d s in or
credit w i t h such b a n k , w h e n p r e s e n t e d w i t h i n ninety ( 9 0 )
d a y s f r o m the date of the check, shall be prima facie e v i d e n c e
of k n o w l e d g e of such insufficiency of f u n d s or c r e d i t unless
such m a k e r o r d r a w e r p a y s the h o l d e r t h e r e o f the a m o u n t
due t h e r e o n , o r m a k e s a r r a n g e m e n t s for p a y m e n t i n full b y
the d r a w e e o f such check w i t h i n f i v e (5) b a n k i n g d a y s after
r e c e i v i n g notice that such check has not b e e n p a i d by the
drawee.
Sec. 3. Duty of drawee; rules of evidence. — It shall be the

duty o f the d r a w e e o f a n y check, w h e n r e f u s i n g t o p a y the
914
s a m e to the h o l d e r t h e r e o f u p o n presentment, to cause to

b e w r i t t e n , p r i n t e d o r s t a m p e d i n p l a i n l a n g u a g e thereon,
o r attached thereto, the r e a s o n for d r a w e e ' s d i s h o n o r o r
refusal to p a y the same: Provided, T h a t w h e r e there a r e no
sufficient f u n d s o r c r e d i t w i t h such d r a w e e b a n k , such fact
shall a l w a y s be explicitly stated in the notice of d i s h o n o r or
refusal. In all p r o s e c u t i o n s u n d e r this A c t , the introduction
i n evidence o f a n y u n p a i d a n d d i s h o n o r e d check, h a v i n g
the d r a w e e ' s r e f u s a l t o p a y s t a m p e d o r w r i t t e n thereon, o r
attached thereto, w i t h the r e a s o n t h e r e f o r as a f o r e s a i d , shall
be prima facie e v i d e n c e of the m a k i n g or issuance of said
check, a n d the d u e p r e s e n t m e n t to the d r a w e e for p a y m e n t
a n d the d i s h o n o r thereof, a n d that the same w a s p r o p e r l y
d i s h o n o r e d for the r e a s o n w r i t t e n , s t a m p e d o r attached b y
the d r a w e e o n s u c h d i s h o n o r e d check.
N o t w i t h s t a n d i n g r e c e i p t of an o r d e r to stop payment,
the d r a w e e shall state in the notice that there w e r e no
sufficient funds in or c r e d i t w i t h such b a n k for the p a y m e n t
in full of such check, if such be the fact.
Sec. 4. Credit construed. — T h e w o r d "credit" as used

h e r e i n shall b e c o n s t r u e d t o m e a n a n a r r a n g e m e n t o r
u n d e r s t a n d i n g w i t h the b a n k for the p a y m e n t of such check.
Sec. 5. Liability under the Revised Penal Code. — Prosecution

u n d e r this A c t shall be w i t h o u t p r e j u d i c e to a n y liability for
violation of a n y p r o v i s i o n of the R e v i s e d P e n a l C o d e .
xxx xxx xxx
• What are the distinctions between estafa and B.P. 22?
In B.P. 22:
1. Even though the check was issued in payment of pre-
existing obligation, liability is incurred.
2. Damage or deceit is immaterial to criminal liability.
3. Crime against public interest for the act is penalized due
to the disastrous effect to the stability of the banking
system and prejudice to the economy.
4. Only the drawer is liable and if the drawer was a juridical
entity, the officer thereof who signed the check shall be
liable. The indorser is not liable.
915
5. Drawer is given five banking days from notice of dishonor

to make good the check to avoid criminal liability.
6. This is a malum prohibitum.
In estafa:
1. The check is issued concurrently and reciprocally in
payment of the exchange consideration. It must not be for
a pre-existing obligation.
2. Damage to the offended and deceit of offender are essential
elements.
3. It is a crime against property.
4. Not only the drawer but even the indorsee may incur
liability if he were aware at the time of the indorsement
of the insufficiency of funds.
5. Drawer is given three calendar days after notice of
dishonor to make good the cash value to avoid liability.
6. Malum in se.
Does prosecution for estafa preclude that for B.P. 22?
N o . In the second form of estafa (deceit/false pretense)

the common problem is bouncing check. B . P . 22 provides that
its prosecution shall be without prejudice to the punishment
under the R P C . There is no double jeopardy since B.P. 22 is a
crime against public interest. Even if there is no deceit, mere
dishonor of the check already creates public disturbance and
prejudice to the banking system. Considering the volume of
checks issued daily, serious disturbance in the banking system
is caused. T h e fraud is against the public.
In B.P. 22, one need not prove that the check was issued
in payment of an obligation or that there was damage. T h e
damage done is to the banking system. (Lim v. People)
What are the elements of the offense under B.P. 22?
1. Making, drawing, and issuing any check to apply to

account or for value;
2. Knowledge of the maker, drawer, or issuer that at the
time of issue he does not have sufficient funds in or credit
with the drawee bank for the payment of the check in full
upon its presentment;
916
3. Subsequent dishonor of the check by the bank for

insufficiency of funds or credit, or dishonor of the check
for the same reason had not the drawer, without any valid
cause, ordered the bank to stop payment. (Vaca v. CA)
T h e reason for the dishonor must be insufficiency or lack
of funds. If the cause of the dishonor is other than that, the law
is not violated.
What is the gravamen of the offense of B.P. 22?
T h e gravamen of B.P. 22 is the act of making and

issuing a worthless check or one that is dishonored upon its
presentment for payment and the issuer failed to satisfy the
amount of the check or make arrangement for its payment
within five banking days from notice of dishonor. T h e act is
malum prohibitum, pernicious and inimical to public welfare
(People v. Chua, G.R. No. 130632, September 28, 1999). L a w s
are created to achieve a goal intended to guide and prevent
against an evil or mischief. W h y and to whom the check was
issued is irrelevant in determining culpability. T h e terms and
conditions surrounding the issuance of the checks are also
irrelevant. (Lim v. People)
Even if there had been payment, through compensation or
some other means, there could still be prosecution for violation
of B.P. 22. (Tan v. Mendez, Jr., G.R. No. 138669, June 6, 2002)
How is knowledge of lack or insufficiency of funds established?
T h e maker's knowledge is presumed from the dishonor of

the check for insufficiency of funds (Vaca v. CA, G.R. No.131714,
November 16, 1998). Section 2, B.P. 22 creates a presumption
juris tantum that the second element prima facie exists when
the first and third elements of the offense are present. If not
rebutted, it suffices to sustain a conviction. (Rosa Lim)
Because this element involves a state of mind which is
difficult to establish, the law creates a prima facie presumption
of such knowledge. T h e prima facie presumption arises when a
check is issued. But the law also provides that the presumption
does not arise when the issuer pays the amount of the check or
makes arrangement for its payment "within five banking days
after receiving notice that such check has not been paid by the
drawee." (King v. People, G.R. No. 131540, December 2, 1999)
917
What are the requisites for the presumption of knowledge of

insufficiency of funds?
(a) The check is presented to the bank within 90 days from
the date of the check;
(b) The drawer or maker receives notice that such check has
not been paid by the bank; and
(c) The drawer or maker fails to pay the holder of the check
the amount due thereon, or make arrangements for
payment in full within five banking days after receiving
notice that such check has not been paid by the drawee.
The presumption is brought into existence only after it
is proved that the issuer had received a notice of dishonor and
that within five days from receipt thereof, he failed to pay the
amount of the check or to make arrangements for its payment.
(Yu Oh v. CA, G.R. No. 125297, June 6, 2003)
Issuance of a check to replace the bad one 15 days after

petitioners had been notified of the dishonor of their previous
check cannot negate the presumption that they knew of the
insufficiency of funds to cover the amount of their previous
check. B.P. 22 requires that such replacement check be given
within five days from the notice of dishonor. (Vaca v. CA)
When should the knowledge of insufficiency of funds exist?
The second element involves knowledge on the part of the

issuer at the time of the checks issuance that he did not have
enough funds or credit in the bank for payment thereof upon
its presentment. Such knowledge is legally presumed from
the dishonor of his checks for insufficiency of funds. But such
presumption cannot hold if there is evidence to the contrary.
In such event, the prosecution must prove every element of the
offense charged. (Sycip, Jr. v. CA, March 2000)
In Guilon, G.R. No. 141183, January 18, 2001, the issuer

of the checks is not the lawful owner of the checking account
from which the checks w e r e drawn. At the time of issue, the
payee would never recover from the checks because the drawee
bank would not recognize the signature of the drawer. In this
way, the dishonor of the checks will not only be on account
of lack or insufficiency of funds but also because the checks
918
are invalid for having been issued by an unauthorized person.

Hence, there was no valid issuance of the checks. Y e t , the
issuer of the checks may still be held liable for estafa under
Article 315, (2) [d], even if he is not the owner of the checking
account, if it is shown that he conspired with the owner of the
checking account by knowingly signing the latter's checks to
ensure the payee's inability to encash the checks.
• What will prevent the presumption of knowledge of insufficiency

of funds to arise?
T h e presumption or prima facie evidence cannot arise if

such notice of nonpayment by the drawee bank is not sent to
the maker or drawer, or if there is no proof as to when such
notice was received by the drawer, since there would simply be
no w a y of reckoning the crucial five-day period.
Absent such presumption, the burden of evidence shifts

to the prosecution to prove such knowledge. It must be shown
that the accused received a notice of dishonor and, within
five banking days thereafter failed to satisfy the amount of
the check or make arrangement for its payment. The absence
of a notice of dishonor necessarily deprives an accused the
opportunity to preclude a criminal prosecution. Accordingly
procedural due process clearly enjoins that a notice of dishonor
be actually served on him. (Oh v. CA)
• Is an oral notice of dishonor sufficient?

N o . A written notice of dishonor received by the maker or
drawer of the check is indispensable. T h e notice may be sent
by the offended party or the drawee bank. A mere oral notice
to pay a dishonored check will not suffice. The lack of a written
notice is fatal for the prosecution. (Domagsang v. CA, G.R. No.
139292, December 5, 2000)
While, indeed, Section 2 of B.P. 22 does not state that
the notice be in writing, taken in conjunction, however, with
Section 3, i.e., "that where there are no sufficient funds in
or credit with such drawee bank, such fact shall always be
explicitly stated in the notice of dishonor or refusal," a mere
oral notice or demand to pay would appear to be insufficient for
conviction. Both the spirit and letter of B.P. 22 require not only
919
that the accused issued a check that is dishonored, but that

likewise the accused has actually been notified in writing of the
fact of dishonor. Penal statutes have to be construed strictly
against the State and liberally in favor of the accused.
Ting G.R. No. 140665, November 13, 2000, citing Lao,
June 20, 1997 said:
The State, under this statute, actually offers the violator
"a compromise by allowing him to perform some act which
operates to preempt the criminal action, and if he opts to
perform it the action is abated." This was also compared to
certain laws allowing illegal possessors of firearms a certain
period of time to surrender the illegally possessed firearms
to the Government, without incurring any criminal liability.
In this light, the full payment of the amount appearing in
the check within five banking days from notice of dishonor
is a "complete defense." T h e absence of a notice of dishonor
necessarily deprives an accused an opportunity to preclude
a criminal prosecution. Accordingly, procedural due process
clearly enjoins that a notice of dishonor be actually served on
petitioner. Petitioner has a right to demand - and the basic
postulates of fairness require - that the notice of dishonor be
actually sent to and received by her to afford her the opportunity
to avert prosecution under B.P. 22.
When should the notice of dishonor be sent to the maker or

drawer?
It must be after the dishonor of the check. T h e term

"notice of dishonor" denotes that a check has been presented
for payment and was subsequently dishonored by the drawee
bank. This means that the check must necessarily be due and
demandable because only a check that has become due can
be presented for payment and subsequently dishonored. A
postdated check cannot be dishonored if presented for payment
before its due date. Hence, demand letter sent before the check's
maturity date is not sufficient notice of dishonor. (Marigomen
v. People, G.R. No. 153451, May 26, 2005)
Postdating means that on the date indicated on its face,
the check would be properly funded, not that the checks should
be deemed as issued only then. (Sycip, Jr. v. CA, March 2000)
920
• If the drawer or maker of the check is an officer of a corporation,

how should notice be given?
T h e notice of dishonor to the corporation is not notice to

the employee or officer who drew or issued the check for and in
its behalf.
T h e postulate that the demand on the corporation serves

as demand on the employee is erroneous. T h e corporation
has no obligation to forward the notice addressed to it to the
employee concerned, especially because the corporation itself
incurs no criminal liability under B.P. 22. Responsibility is
personal to the accused; hence, personal knowledge of the
notice of dishonor is necessary. Consequently, constructive
notice to the corporation is not enough to satisfy due process.
Moreover, it is petitioner, as an officer of the corporation, who
is the latter's agent for purposes of receiving notices and other
documents, and not the other w a y around. It is axiomatic that
notice to the corporation, which has a personality distinct and
separate from the petitioner, does not constitute notice to the
latter. (Lao v. CA)
» How is the first element affected by a variance in the identity of

the check issued?
T h e variance in the identity of the check nullifies

petitioner's conviction. T h e identity of the check enters into the
first element of the offense under Section 1 of B.P. 22 — that a
person draws or issues a check on account or for value. There
being a discrepancy in the identity of the checks described
in the information and that presented in court, petitioner's
constitutional right to be informed of the nature of the offense
charged will be violated if his conviction is upheld. Neither can
he be held civilly liable therefor considering that this is not
the check described in the information. (Dico v. CA, G.R. No.
141669, February 28, 2005)
• What is the effect when the "stop payment" order was not due
to insufficiency of funds?
It contradicts the prima facie presumption of knowledge
of insufficiency of funds. The closure of petitioner's Account
N o . 845515 with Citibank was not for insufficiency of funds.
921
It was made upon the advice of the drawee bank to avoid

payment of hefty bank charges each time petitioner issued
a "stop payment" order to prevent encashment of postdated
checks in private respondent's possession. But it establishes
petitioner's state of mind at the time said checks were issued
— that he definitely had no knowledge that his funds or credit
would be insufficient when the checks would be presented
for encashment. He could not have foreseen that he would be
advised by his own bank in the future to close his account to
avoid paying the hefty bank charges for each "stop payment"
order issued. What the prosecution established is the closure
of petitioner's checking account. But this does not suffice to
prove the second element which explicitly requires "evidence of
knowledge of insufficiency of funds." (Sycip, Jr. v. CA)
• If a court acquires jurisdiction over the estafa, does it necessarily

acquire jurisdiction over B.P. 22 violation?
N o . Estafa and violation of B.P. 22 are two different

offenses having different elements and necessarily, for a
court to acquire jurisdiction each of the essential ingredients
of each crime has to be satisfied. Hence, it is incorrect for
the People to conclude that inasmuch as the court in Manila
acquired jurisdiction over the estafa case, then it also acquired
jurisdiction over the violations of B.P. 22. T h e two crimes have
to be treated as separate offenses, and the essential ingredients
of each have to be satisfied. (Uy v. CA, G.R. No. 119068, July
31, 1997)
• What checks are covered by B.P. 22?

Memorandum checks are also governed although they
partake of the character of promissory notes. By so writing
"mem" or "memo," the drawer assumes responsibility to pay
the same. A memo check is also a check and when dishonored,
the reason for B.P. 22 is also there.
Guarantee payment or collateral check is also covered.
But when such guarantee check was issued prior to August
8, 1984, B.P. 22 should not be applied (Co v. CA). A guaranty
deposit check issued to guarantee the return of appliances or
the payment thereof if not returned is not covered by B.P. 22
(Magno v. CA). Sec. 1 provides that check is issued to apply
to account or for value. Hence, if the seller has no right to the
922
check anymore and he deposits the same, it is he who commits

the wrong and not the drawer. It is he who disturbs the banking
system by depositing the check (utilitarian theory).
• What circumstances will negate conviction for violation of B.P.

22?
1. T h e check was not issued to apply to an account or for
value but as a guarantee deposit. (Magno v. CA)
2. T h e required notice of dishonor had not been given to give
the drawer the opportunity to make good the value of the
check within five banking days.
3. T h e drawer had made credit arrangements with the bank
but the bank overlooked the arrangement and dishonored
the check.
4. T h e issuer of the check is allowed by another statute to
suspend payment and for this purpose gave an order to
the bank to stop payment of the check.
5. Issuer has told the creditor that he has no longer funds in
the bank but the checks are issued only as evidence of the
debt.
A buyer can rely on Section 23 of P . D . 957 to suspend
payment until such time as the owner or developer had fulfilled
its obligations to the buyer. This exercise of a statutory right
to suspend installment payments is a valid defense against the
purported violations of B.P. 22.
Given the findings of the H L U R B as to incomplete features
in the construction of petitioner's and other units of the subject
condominium bought on installment, petitioner had a valid
cause to order his bank to stop payment. The third element
of "subsequent dishonor of the check . . . without valid cause"
appears not established by the prosecution. The presumption
of knowledge is unavailing, in the presence of a valid cause to
stop payment, thereby negating the third element.
Protection must be afforded the interest of townhouse
buyers under P . D . 957. A statute must be construed in relation
to other laws so as to carry out the legitimate ends and
purposes intended by the legislature. Courts will not strictly
follow the letter of one statute when it leads away from the
923
true intent of the legislature and when ends are inconsistent

with the general purpose of the act. More so when it will mean
the contravention of another valid statute. Both laws have to
be reconciled and given due effect.
Nothing in the text of B.P. 22 would prevent the Code
from supplementing it. Following Article 11(5), petitioner's
exercise of a right of the buyer under Article 23 of P . D . 957 is a
valid defense to the charges against him. (Sycip, Jr. v. CA)
The first and third elements of violation of B.P. 22 are
absent in this case. T h e parties agreed at the time of the
issuance and postdating of the checks that the same were not
to be encashed or presented to the banks. Hence, the checks
became mere evidence of indebtedness, which cannot give rise
to a liability for estafa. Besides, the lending party could not
have been deceived nor defrauded by petitioners who informed
her that the account against which the checks were drawn was
already closed. Petitioners openly disclosed that they no longer
had funds in the bank then. K n o w l e d g e by the complainant
that the drawer does not have sufficient funds in the bank
at the time the check was issued does not give rise to a case
of estafa through bouncing checks. (Pacheco v. CA, G.R. No.
126670, December 2, 1999)
Is the failure or lack of consideration a defense in B.P. 22?
N o . T h e fact that the object of the contract was not of good

quality is irrelevant in the prosecution of a case involving B.P.
22, for the said law was enacted to prohibit, under pain of penal
sanctions, the making of worthless checks and putting them in
circulation. It is not the non-payment of an obligation which
the law punishes, but the act of making and issuing a check
that is dishonored upon presentment for payment. (Ibasco v.
CA, G.R. No. 117488, September 5, 1996)
In estafa with abuse of confidence or unfaithfulness,

the illegality of the consideration is likewise immaterial.
Only abuse of confidence or unfaithfulness is necessary here.
T h e law punishes abuse of confidence even if the subject is
contraband or prostitution. Rationale: T h e law punishes abuse
of confidence or unfaithfulness because people should have
trust for each other.
924
• What is the proper penalty for B.P. 22 violations?
T h e law provides a penalty of imprisonment of not less

than 30 days but not more than one year or by a fine of not
less than, but not more than double, the amount of the check.
Such fine shall in no case exceed P200.000 or both such fine
and imprisonment at the discretion of the Court. Petitioners
are first-time offenders. T h e y are Filipino entrepreneurs who
contribute to the economy. Apparently, they brought this
appeal, believing in all good faith, although mistakenly, that
they had not committed a violation of B.P. 22. Otherwise, they
could simply have accepted the judgment of the trial court and
applied for probation to evade a prison term. It would best serve
the ends of criminal justice if in fixing the penalty within the
range of discretion allowed by Section 1, paragraph 1, the same
philosophy underlying the I S L is observed - that of redeeming
valuable human material and preventing unnecessary
deprivation of personal liberty and economic usefulness with
due regard to the protection of the social order. A fine in an
amount equal to double the amount of the check involved is an
appropriate penalty to impose on each of the petitioners, (id.)
SC A . C . 12-2000, as clarified by A . C . 13-2001 dated 14
February 2001, established a rule of preference in imposing
penalties in B.P. 22 cases. Section 1 imposes the following
alternative penalties for its violation, to wit:
(a) imprisonment of not less than 30 days but not more than
one year; or
(b) a fine of not less than but not more than double the
amount of the check which fine shall in no case exceed
P200.000; or
(c) both such fine and imprisonment at the discretion of the
court.
T h e rationale of A . C . 12-2000 is found in Vaca and Lim
which held that it would best serve the ends of criminal justice
if, in fixing the penalty to be imposed for violation of B.P. 22,
the same philosophy underlying the Indeterminate Sentence
law is observed, that of redeeming valuable human material
and preventing unnecessary deprivation of personal liberty
and economic usefulness with due regard to the protection of
the social order.
925
It is not the intention to decriminalize violation of B.P.

22. Neither is it the intention to delete the alternative penalty
of imprisonment. As clarified by A . C . 13-2001, the clear tenor
and intention is not to remove imprisonment as an alternative
penalty, but to lay down a rule of preference in the application
of the penalties provided therein. Where the circumstances
clearly indicate good faith or a clear mistake of fact without taint
of negligence, the imposition of a fine alone may be considered
as the more appropriate penalty. This rule of preference does
not foreclose the possibility of imprisonment for violators.
Neither does it defeat the legislative intent behind the law.
The determination of whether the circumstances warrant the
imposition of a fine alone rests solely upon the judge. Should
the judge decide that imprisonment is the more appropriate
penalty, A . C . 12-2000 ought not to be deemed a hindrance.
(Lim v. People, G.R. No. 143231, October 26, 2002)
T h e gravamen of the offense is the issuance of a worthless

check. In case of insolvency to pay the fine for violation of
special laws, subsidiary imprisonment shall be imposed,
notwithstanding the absence of such provision in said laws.
(Diongzon v. CA)
Whether or not B.P. 22 is a continuing crime.
It is. T h e acts involved in checking transactions are

the making, issuing, delivery and presentment of check for
payment. Venue is determined by the place where the elements
of making, issuing, or drawing of the check and delivery
thereof are committed. Yabut, 76 SCRA, explained that a
person indicted with a transitory offense may be validly tried
in any jurisdiction where the offense was in part committed.
T h e place where the bills w e r e written, signed, or dated does
not necessarily fix or determine the place w h e r e they were
executed. W h a t is of decisive importance is the delivery thereof.
T h e delivery of the instrument is the final act essential to its
consummation as an obligation, (id.)
How should the affidavit of desistance be appreciated?
T h e affidavit of desistance of the G A R D S president

deserves no more than passing mention. T h e claim that this
case was simply the result of a misunderstanding between
926
G A R D S and petitioners and that the former did not really

suffer any damage from the dishonor of the check is flimsy.
After prosecuting the case below with tenacity, complainants
going so far as to file another complaint after their first one
had been dismissed, it is trifling with Court for complainants
to now assert that the filing of their case was simply a mistake.
It is for reasons such as this that affidavits of desistance, like
retractions, are generally disfavored. T h e affidavit in this case,
which was made after petitioners' conviction, is nothing but
a last minute attempt to save them from punishment. Even
if the payee suffered no damage as a result of the issuance of
the bouncing check, the damage to the integrity of the banking
system cannot be denied. D a m a g e to the payee is not an
element of the crime punished in B.P. 22. (id.)
Relate B.P. 22 and the Civil Code provision of obligations.
Applying Article 1289 in relation to Article 1254 of the

Civil Code, the unencashed checks amounting to P66,839.25
should have been applied to the earlier dishonored check
amounting to P235,387.33 which is more onerous than the
subject check amounting to only P58,237.75. (Tan v. Mendez,
Jr., G.R. No. 138669, June 6, 2002)
No compensation can take place between petitioners and

respondent as respondent is not a debtor of petitioners insofar
as the two checks representing collections from the Baao ticket
sales are concerned. Article 1278 of the Civil Code requires, as
a prerequisite for compensation, that the parties be mutually
and principally bound as creditors and debtors (CKHIndustrial
and Development Corp. v. CA, G.R. No. 111890, May 7, 1997).
If they were not mutually creditors and debtors of each other,
the law on compensation would not apply. (RP v. Mambulao
Lumber Co., G.R. L-l 7725, February 28, 1962). In this case, the
memorandum shows that some unencashed checks returned to
respondent to allegedly offset the dishonored check were from
the Baao ticket sales which are separate from the ticket sales
of the respondent. Respondent only acted as an intermediary
in remitting the Baao ticket sales and, thus, is not a debtor of
petitioners, (id.)
927
MIGRANT WORKERS ACT
xxx xxx xxx
Sec. 6. Definition. — F o r p u r p o s e s of this Act, illegal
recruitment shall m e a n any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or p r o c u r i n g
w o r k e r s a n d includes r e f e r r i n g , contract services, p r o m i s i n g
or advertising for e m p l o y m e n t a b r o a d , w h e t h e r for profit or
not, w h e n u n d e r t a k e n by a non-licensee or n o n - h o l d e r of
authority contemplated u n d e r A r t i c l e 13(f) of P r e s i d e n t i a l
D e c r e e N o . 442, a s a m e n d e d , o t h e r w i s e k n o w n a s the L a b o r
C o d e of the Philippines: Provided, T h a t a n y such non-licensee
or non-holder w h o , in a n y m a n n e r , offers or p r o m i s e s for
a fee employment a b r o a d to t w o or m o r e p e r s o n s shall be
d e e m e d so e n g a g e d . It shall l i k e w i s e i n c l u d e the f o l l o w i n g
acts, committed by a n y p e r s o n , w h e t h e r a non-licensee, non-
holder, licensee or h o l d e r of authority:
xxx xxx xxx

Illegal r e c r u i t m e n t is d e e m e d committed by a syndicate
if c a r r i e d out by a g r o u p of t h r e e (3) or m o r e p e r s o n s
c o n s p i r i n g or c o n f e d e r a t i n g w i t h one a n o t h e r . It is d e e m e d
committed in l a r g e scale if committed a g a i n s t t h r e e (3) or
m o r e persons i n d i v i d u a l l y or as a g r o u p .
T h e persons c r i m i n a l l y l i a b l e for the a b o v e offenses
a r e the p r i n c i p a l s , a c c o m p l i c e s a n d accessories. I n case o f
j u r i d i c a l persons, the officers h a v i n g control, m a n a g e m e n t
o r direction o f their b u s i n e s s shall b e l i a b l e .
Sec. 7. Penalties. —
( a ) A n y p e r s o n f o u n d guilty o f illegal r e c r u i t m e n t shall
suffer the penalty of i m p r i s o n m e n t of not less t h a n six (6)
y e a r s a n d one (1) d a y b u t not m o r e t h a n t w e l v e (12) y e a r s
a n d a fine of not less t h a n T w o h u n d r e d t h o u s a n d pesos
(P200,000.00) n o r m o r e t h a n F i v e h u n d r e d t h o u s a n d pesos
(P500,000.00).
( b ) T h e penalty of life i m p r i s o n m e n t a n d a fine of not

less t h a n F i v e h u n d r e d t h o u s a n d pesos (P500,000.00) n o r
m o r e t h a n O n e million pesos (Pl,000,000.00) shall b e i m p o s e d
if illegal r e c r u i t m e n t constitutes e c o n o m i c s a b o t a g e as
928
defined herein.
Provided, however, T h a t the m a x i m u m penalty shall be
imposed if the p e r s o n illegally r e c r u i t e d is less t h a n eighteen
(18) y e a r s of a g e or committed by a non-licensee or non-
h o l d e r of authority.
Sec. 8. Prohibition on Officials and Employees. — It shall
be u n l a w f u l for a n y official or e m p l o y e e of the D e p a r t m e n t of
L a b o r a n d E m p l o y m e n t , the P h i l i p p i n e O v e r s e a s E m p l o y m e n t
A d m i n i s t r a t i o n ( P O E A ) , o r the O v e r s e a s W o r k e r s W e l f a r e
A d m i n i s t r a t i o n , o r the D e p a r t m e n t o f F o r e i g n A f f a i r s , o r
other g o v e r n m e n t a g e n c i e s i n v o l v e d in the implementation
of this A c t , or t h e i r relatives w i t h i n the f o u r t h civil d e g r e e
of c o n s a n g u i n i t y or affinity, to e n g a g e directly or indirectly,
in the b u s i n e s s of r e c r u i t i n g m i g r a n t w o r k e r s as d e n n e d in
this Act. T h e penalties p r o v i d e d in the i m m e d i a t e p r e c e d i n g
p a r a g r a p h shall b e i m p o s e d u p o n them.
Sec. 9. Venue. — A c r i m i n a l action a r i s i n g f r o m illegal

r e c r u i t m e n t as defined h e r e i n shall be filed w i t h the R e g i o n a l
T r i a l C o u r t of the p r o v i n c e or city w h e r e the offense w a s
committed or w h e r e the offended p a r t y actually resides at
the time of the commission of the offense: Provided, T h a t the
court w h e r e the c r i m i n a l action is first filed shall a c q u i r e
jurisdiction to the exclusion of other courts: Provided,
however, T h a t the aforestated p r o v i s i o n s shall a p p l y to those
criminal actions that h a v e a l r e a d y b e e n filed in court at the
time of the effectivity of this A c t .
xxx xxx xxx
Sec. 11. Mandatory Periods for Resolution of Illegal
Recruitment Cases. — T h e p r e l i m i n a r y investigations of
cases u n d e r this A c t shall be t e r m i n a t e d within a period
of thirty (30) c a l e n d a r d a y s f r o m the date of their filing.
W h e r e the p r e l i m i n a r y investigation is conducted by a
prosecution officer a n d a prima facie case is established,
the c o r r e s p o n d i n g information shall be filed in court
within twenty-four (24) h o u r s f r o m the termination of the
investigation. If the p r e l i m i n a r y investigation is conducted
by a j u d g e a n d a prima facie case is found to exist, the
c o r r e s p o n d i n g information shall be filed by the p r o p e r
prosecution officer w i t h i n forty-eight (48) hours from the
date of receipt of the records of the case.
929
Sec. 12. Prescriptive periods. — Illegal recruitment cases

u n d e r this Act shall p r e s c r i b e in five ( 5 ) years: Provided,
however, T h a t illegal recruitment cases involving economic
sabotage as d e n n e d herein shall p r e s c r i b e in twenty ( 2 0 )
years.
• What are the kinds of illegal recruitment under the Labor Code?
There are at least four kinds of illegal recruitment under
the law:
a. Simple illegal recruitment committed by a licensee or
holder of authority.
b. Recruitment by any person who is neither a licensee nor
a holder of authority.
c. That committed by offender alone or with another person
against three or more persons individually or as a group.
d. That committed by a syndicate or a group of three or more
persons conspiring and confederating with one another in
carrying out the act circumscribed by the law.
• How are the different forms of illegal recruitment committed?
Illegal recruitment is committed when two elements

concur:
1. T h e offender has no valid license or authority required by
law to enable one to lawfully engage in recruitment and
placement of workers; and
2. T h e offender undertakes either activity within the
meaning of recruitment and placement under Article
13(b), or any prohibited practices enumerated under
Article 34.
T h e elements of the crime of illegal recruitment in large
scale are:
1. T h e offender is a non-licensee or non-holder of authority
to engage in recruitment and placement activity;
2. T h e offender undertakes recruitment and placement
activity defined under Article 13(b) or any prohibited
practices enumerated under Article 34; and
3. Illegal recruitment is committed against three or more
persons individually or as a group.
930
Article 38(b) of the Labor Code provides that any

recruitment activity, including the prohibited practices
encountered in A r t i c l e 34 of said Code, undertaken by a non-
licensee or non-holders of authority shall be deemed illegal
and punishable under Article 39 thereof. T h e same article
further provides that illegal recruitment shall be considered
an offense involving economic sabotage if any of the qualifying
circumstances exist, namely:
a) W h e n committed by a syndicate, that is, carried out by a

group of three or more persons conspiring or confederating
with one another.
b) W h e n in large scale, that is, if committed against three or

more persons individually or as a group. (People v. Diaz,
G.R. No. 112175, July 26, 1996)
M a y offender be charged separately for illegal recruitment and

for estafa under Article 315?
Y e s . Illegal recruitment is malum prohibitum where the

criminal intent of the accused is not necessary for conviction,
while estafa is malum in se where the criminal intent of the
accused is necessary for conviction.
A person convicted under the Labor Code may be

convicted of offenses punishable under other laws. However,
any person or entity which in any manner offers or promises
for a fee employment to two or more persons shall be deemed
to be engaged in recruitment and placement. When the
persons recruited are three or more, the crime becomes illegal
recruitment in large scale under Article 38(b) of the Labor
Code. In both cases, it is the lack of the necessary permit or
license that renders such recruitment activities unlawful and
criminal. T h e accused may be validly charged separately with
estafa under the same set of facts in the illegal recruitment.
Under Article 315 (2)(a), the elements of estafa are that:

(1) the accused has defrauded another by abuse of confidence
or by means of deceit, and (2) damage or prejudice capable of
pecuniary estimation is caused to the offended party or third
person. Estafa and illegal recruitment are entirely different
offenses and neither one necessarily includes or is necessarily
931
included in the other. (People v. Billaber, G.R. No. 114967-68,

January 26, 2004)
• What is the relationship of the Revised Penal Code to the law on

illegal recruitment?
The R P C supplements the law on illegal recruitment. The
last sentence of Section 6 of R . A . 8042 states that the persons
who may be held liable for illegal recruitment are the principals,
accomplices and accessories. Hence, the definition of the R P C
on who are the principals, accomplices and accessories shall
apply. (People v. Chowdury, G.R. Nos. 129577-80, February 15,
2000)
• How is the participation of the employees of a corporation in

the illegal recruitment determined?
An employee of a company engaged in illegal recruitment

may be held as principal, together with his employer, if it is
shown that he actively and consciously participated in illegal
recruitment. T h e existence of the corporate entity does not
shield from prosecution the corporate agent who knowingly
and intentionally causes the corporation to commit a crime.
T h e corporation acts, and can act, only by and through its
human agents and it is their conduct which the l a w must deter.
The employee or agent of a corporation engaged in unlawful
business naturally aids and abets in the carrying on of such
business and will be prosecuted as principal if, with knowledge
of the business, its purpose and effect, he consciously
contributes his efforts to its conduct and promotion, however
slight his contribution may be.
T h e corporation also incurs criminal liability for the act of

its employee or agent if: (1) the employee or agent committed
the offense while acting within the scope of his employment;
and (2) the offense was committed with at least some intent to
benefit the employer. T h e liability is imputed to the corporation
not because it actively participated in the malice or fraud
but because the act is done for the benefit of the corporation
while the employee or agent was acting within the scope of
his employment in the business of the corporation, and justice
932
requires that the latter shall be held responsible for damages

to the individual who suffered by such conduct. (People v.
Chowdury)
• Is the law on agency applicable to criminal case?
N o . T h e law on agency has no application in criminal cas-

es, and no man can escape punishment when he participates
in the commission of a crime upon the ground that he simply
acted as an agent of any party. T h e culpability of the employee
hinges on his knowledge of the offense and his active participa-
tion in its commission. W h e r e it is shown that the employee
was merely acting under the direction of his superiors and was
unaware that his acts constituted a crime, he cannot be held
criminally liable for an act done for and in behalf of his em-
ployer.
Agents or representatives appointed by a licensed

recruitment agency whose appointments are not previously
approved by the P O E A are considered "non-licensee" or "non-
holder of authority" and therefore not authorized to engage in
recruitment activity, (id.)
A r t . 316. Other forms of swindling. — T h e penalty o f a r r e s t o

mayor in its m i n i m u m a n d m e d i u m p e r i o d s a n d a fine of not
less t h a n the v a l u e of the d a m a g e c a u s e d a n d not m o r e than
three times such v a l u e , shall be i m p o s e d upon:
1. A n y p e r s o n w h o , p r e t e n d i n g to be the o w n e r of
a n y r e a l p r o p e r t y , shall convey, sell, e n c u m b e r , or
m o r t g a g e the same;
2. A n y p e r s o n w h o , k n o w i n g that r e a l p r o p e r t y is
e n c u m b e r e d , shall dispose of the same, although
such e n c u m b r a n c e be not r e c o r d e d ;
3. T h e o w n e r of a n y p e r s o n a l p r o p e r t y w h o shall
w r o n g f u l l y take it f r o m its l a w f u l possessor, to the
prejudice of the latter or a n y third person;
4. A n y person w h o , to the prejudice of another, shall
execute any fictitious contract;
5. A n y p e r s o n w h o shall accept any compensation
given h i m u n d e r the belief that it w a s in payment of
services r e n d e r e d or l a b o r performed by him, w h e n
933
in fact he did not actually p e r f o r m such services or

labor;
6. A n y person w h o , w h i l e b e i n g a surety in a b o n d
given in a criminal or civil action, w i t h o u t express
authority from the court or b e f o r e the cancellation
of his b o n d or before b e i n g relieved f r o m the
obligation contracted by him, shall sell, m o r t g a g e ,
or, in any other m a n n e r e n c u m b e r the r e a l
property or properties with which he guaranteed
the fulfillment of such obligation.
How is estafa committed in case of selling of encumbered

property?
M e r e selling without disclosing the encumbrance will
not give rise to estafa there is no law prohibiting the sale
of encumbered property. Selling of mortgaged property is
common practice. W h a t brings about criminal liability is the
deceit in selling the property. A n d there is no deceit if the seller
did not make any warranty in the deed that the property is free
from encumbrance. T h e deed must have a statement of false
warranty for estafa to be committed.
May the owner of property commit estafa involving his own

property?
Y e s . Article 316(3) provides that the owner of any personal

property who shall wrongfully take it from its lawful possessor,
to the prejudice of the latter or any third person shall be guilty of
this crime. In the contract of pledge for instance, the possession
of the article pledged by the borrower is transferred to the
creditor. If the former through deceit borrowed the article for
instance a ring to be used on a special occasion and the debtor
owner of the ring did not return the same and did not pay the
debt, he is guilty of estafa involving his own property. T h e
creditor has juridical possession over the ring and when it was
taken through deceit he was unlawfully deprived of possession
thereof.
934
INCREASING THE PENALTY FOR CERTAIN

FORMS OF SWINDLING OR ESTAFA
W H E R E A S , t h e r e i s a n u p s u r g e i n the commission
of swindling and other forms of frauds in rural banks,
cooperatives, " s a m a h a n g n a y o n ( s ) , " a n d f a r m e r s ' associations
or c o r p o r a t i o n s / a s s o c i a t i o n s o p e r a t i n g on f u n d s solicited
f r o m the g e n e r a l p u b l i c ;
W H E R E A S , such d e f r a u d a t i o n o r m i s a p p r o p r i a t i o n
of funds contributed by stockholders or members of
such r u r a l b a n k s , c o o p e r a t i v e s , " s a m a h a n g nayon(s)," o r
f a r m e r s ' associations, or of f u n d s solicited by corporations/
associations f r o m the g e n e r a l p u b l i c , e r o d e s the confidence
of the p u b l i c in the b a n k i n g a n d c o o p e r a t i v e system,
c o n t r a v e n e s the interest, a n d constitutes economic s a b o t a g e
that t h r e a t e n s the stability of the nation;
W H E R E A S , it is i m p e r a t i v e that the r e s u r g e n c e of said

crimes be checked, or at least m i n i m i z e d by i m p o s i n g capital
p u n i s h m e n t o n c e r t a i n f o r m s o f s w i n d l i n g a n d other f r a u d s
i n v o l v i n g r u r a l b a n k s , c o o p e r a t i v e s , " s a m a h a n g nayon(s),"
f a r m e r s ' associations or corporations/associations o p e r a t i n g
on funds solicited f r o m the g e n e r a l public;
xxx xxx xxx

Section 1. A n y p e r s o n or p e r s o n s w h o shall commit
estafa or other forms of s w i n d l i n g as d e n n e d in Articles
315 a n d 316 of the R e v i s e d P e n a l C o d e , as a m e n d e d , shall
be p u n i s h e d by life i m p r i s o n m e n t to death if the s w i n d l i n g
(estafa) is committed by a syndicate consisting of five or
m o r e persons f o r m e d w i t h the intention of c a r r y i n g out the
u n l a w f u l or illegal act, transaction, enterprise or scheme,
a n d the d e f r a u d a t i o n results in the m i s a p p r o p r i a t i o n of
moneys c o n t r i b u t e d by stockholders or m e m b e r s of r u r a l
b a n k s , cooperatives, " s a m a h a n g nayon(s)," or farmers'
associations, or funds solicited by corporations/associations
from the g e n e r a l public.
W h e n not committed by a syndicate as above denned, the
penalty i m p o s a b l e shall be reclusion temporal to reclusion
perpetua if the a m o u n t of the f r a u d exceeds 100,000 pesos.
935
xxx xxx xxx
• What are the elements of syndicated estafa under P.D. 1689?

Under this law, the elements of the crime are: (a) estafa
or other forms of swindling as defined in Articles 315 and
316 of the R P C is committed; (b) the estafa or swindling is
committed by a syndicate; and (c) defraudation results in the
misappropriation of moneys contributed by stockholders, or
members of rural banks, cooperatives, "samahang nayon(s),"
or farmers associations, or of funds solicited by corporations/
associations from the general public.
Its third "whereas clause" states that it also applies to
other "corporations/associations operating on funds solicited
from the general public." T h e foundation fits into this category
as it "operated on funds solicited from the general public." To
construe the law otherwise would sanction the proliferation
of minor-league schemes that operate in the countryside. To
allow these crimes to go unabated could spell disaster for
people from the lower income bracket, the primary target of
swindlers. (People v. Balasa, September 1998)
• May this crime be committed by only one offender?
Y e s , for the last paragraph of states that, "When not

committed by a syndicate as above defined, the penalty
imposable shall be reclusion temporal to reclusion perpetua if
the amount of the fraud exceeds 100,000 pesos."
A r t . 317. Swindling a minor. — A n y p e r s o n w h o , t a k i n g

a d v a n t a g e o f the i n e x p e r i e n c e o r e m o t i o n s o r feelings o f
a m i n o r to his d e t r i m e n t , shall i n d u c e h i m to a s s u m e a n y
o b l i g a t i o n or to give a n y r e l e a s e or execute a t r a n s f e r of a n y
p r o p e r t y r i g h t i n c o n s i d e r a t i o n o f some l o a n o f m o n e y , credit,
o r other p e r s o n a l p r o p e r t y , w h e t h e r the l o a n c l e a r l y a p p e a r s
in the d o c u m e n t or is s h o w n in a n y o t h e r f o r m , shall suffer
the p e n a l t y of arresto mayor a n d a fine of a s u m r a n g i n g f r o m
10 to 50 p e r c e n t of the v a l u e of the o b l i g a t i o n c o n t r a c t e d by
the m i n o r .
A r t . 318. Other deceits. — T h e p e n a l t y of arresto mayor

a n d a fine of not less t h a n the a m o u n t of the d a m a g e c a u s e d
936
and not more than twice such amount shall be imposed upon
any person who shall defraud or damage another by any
other deceit not mentioned in the preceding articles of this
chapter.
Any person who, for profit or gain, shall interpret
dreams, make forecasts, tell fortunes, or take advantage of
the credulity of the public in any other similar manner, shall
suffer the penalty of arresto menor or a fine not exceeding
200 pesos.
(This article is an example of notorious daily violations of the
penal laws by fortune tellers who are even glorified in the television,
popular magazines, and newspapers.)
An example of the first paragraph is the double sale of property

by its owner or possessor to the damage and prejudice of the buyer
who did not register the property or first took possession thereof.
937
Chapter Seven
CHATTEL MORTGAGE
A r t . 319. Removal, sale or pledge of mortgaged property. —
T h e penalty of arresto mayor or a fine a m o u n t i n g to twice
the value of the p r o p e r t y shall be i m p o s e d u p o n :
1. A n y p e r s o n w h o shall k n o w i n g l y r e m o v e any
p e r s o n a l p r o p e r t y m o r t g a g e d u n d e r the Chattel
M o r t g a g e L a w t o a n y p r o v i n c e o r city other
than the one in w h i c h it w a s located at the time
of the execution of the m o r t g a g e , w i t h o u t the
w r i t t e n consent of the m o r t g a g e e or his executors,
a d m i n i s t r a t o r s , or assigns.
2. A n y m o r t g a g o r w h o shall sell or p l e d g e p e r s o n a l
p r o p e r t y a l r e a d y p l e d g e d , o r a n y p a r t thereof,
u n d e r the t e r m s o f the Chattel M o r t g a g e L a w ,
w i t h o u t the consent of the m o r t g a g e e w r i t t e n on
the b a c k o f the m o r t g a g e a n d noted o n the r e c o r d
t h e r e o f in the office of the r e g i s t e r of d e e d s of the
p r o v i n c e w h e r e such p r o p e r t y i s located.
• What is penalized under Article 319?
1. Paragraph 1 penalizes mere removal of property from the

place where the chattel mortgage was constituted. This
constitutes fraud upon the mortgagee because foreclosure
can only be made in the place where the mortgage is
recorded. Removal will make the process difficult. T h e
debtor must secure the consent of the creditor to escape
liability.
Intent to defraud will not be present if the debtor
has transferred residence because he has to move his
property.
2. Before the mortgagor can sell or further encumber the
personal property, the consent on the deed itself and on
the registry thereof in the register is needed to protect the
mortgagee and the buyer or further mortgagee. Failure to
secure such consent violates paragraph 2 of this article.
Chapter Eight
A R S O N A N D OTHER CRIMES I N V O L V I N G
DESTRUCTION
A r t . 320. Destructive arson. — T h e p e n a l t y of reclusion
perpetua to d e a t h shall be i m p o s e d u p o n a n y p e r s o n w h o
shall b u r n :
1. O n e or m o r e b u i l d i n g s or edifices, c o n s e q u e n t to one
single act of b u r n i n g , or as a result of simultaneous
b u r n i n g s , o r committed o n s e v e r a l o r different
occasions;
2. A n y b u i l d i n g of p u b l i c or p r i v a t e o w n e r s h i p , devoted
to the p u b l i c in g e n e r a l or w h e r e people usually
g a t h e r or c o n g r e g a t e fov a definite p u r p o s e such as,
b u t not limited to official g o v e r n m e n t a l function
o r business, p r i v a t e transaction, c o m m e r c e , t r a d e
w o r k s h o p , m e e t i n g s a n d conferences, o r merely
incidental to a definite p u r p o s e such as b u t not
limited to hotels, motels, transient d w e l l i n g s , p u b l i c
c o n v e y a n c e s or stops or terminals, r e g a r d l e s s of
w h e t h e r the o f f e n d e r h a d k n o w l e d g e that there
a r e persons in s a i d b u i l d i n g or edifice at the time
it is set on fire a n d r e g a r d l e s s also of w h e t h e r the
b u i l d i n g is actually i n h a b i t e d or not;
3. A n y t r a i n or locomotive, ship or vessel, airship or
a i r p l a n e devoted to t r a n s p o r t a t i o n or conveyance,
or for p u b l i c use, entertainment or leisure;
4. A n y b u i l d i n g , factory, w a r e h o u s e installation and
any a p p u r t e n a n c e s thereto, w h i c h a r e devoted to
the service of p u b l i c utilities;
5. A n y b u i l d i n g , the b u r n i n g of w h i c h is for the
p u r p o s e of concealing or destroying evidence
of another violation of l a w , or for the purpose of
concealing b a n k r u p t c y or d e f r a u d i n g creditors or
to collect from insurance.
939
Irrespective of the application of the above

enumerated qualifying circumstances, the penalty
of reclusion perpetua to death shall likewise
be imposed w h e n the a r s o n is p e r p e t r a t e d or
committed by t w o or m o r e persons or by a g r o u p
of persons, r e g a r d l e s s of w h e t h e r their p u r p o s e
is merely to b u r n or destroy the b u i l d i n g or the
b u r n i n g merely constitutes an overt act in the
commission or a n o t h e r violation of l a w .
T h e penalty of reclusion perpetua to d e a t h shall also be

imposed u p o n any p e r s o n w h o shall b u r n :
1. A n y a r s e n a l , s h i p y a r d , storehouse or military
p o w e r o r f i r e w o r k s factory, o r d i n a n c e , storehouse,
archives o r g e n e r a l m u s e u m o f the G o v e r n m e n t .
2. In an i n h a b i t e d p l a c e , a n y s t o r e h o u s e or factory of
inflammable or explosive m a t e r i a l s .
If as a c o n s e q u e n c e of the c o m m i s s i o n of a n y of the acts

penalized u n d e r this article, d e a t h results, the m a n d a t o r y
penalty of d e a t h shall be i m p o s e d . (As amended by Section 10,
R.A. No. 7659.)
P . D . 1613 - A M E N D I N G T H E L A W O N A R S O N
Section 1. Arson. — A n y p e r s o n w h o b u r n s or sets fire to
the p r o p e r t y of a n o t h e r shall be p u n i s h e d by prision mayor.
T h e same p e n a l t y shall be i m p o s e d w h e n a p e r s o n sets

fire t o his o w n p r o p e r t y u n d e r c i r c u m s t a n c e s w h i c h e x p o s e
to d a n g e r the life or p r o p e r t y of a n o t h e r .
Section 2. Destructive Arson. — T h e p e n a l t y of Reclusion

Temporal in its m a x i m u m p e r i o d to Reclusion Perpetua shall
be i m p o s e d if the p r o p e r t y b u r n e d is a n y of the f o l l o w i n g :
1. A n y ammunition factory a n d other establishment

w h e r e explosives, i n f l a m m a b l e o r c o m b u s t i b l e
m a t e r i a l s a r e stored.
2. A n y archive, museum, whether public or private, or

a n y edifice d e v o t e d to c u l t u r e , e d u c a t i o n , or social
services.
940
A R S O N A N D OTHER C R I M E S INVOLVING DESTRUCTION
3. A n y c h u r c h o r p l a c e o f w o r s h i p o r other b u i l d i n g
w h e r e people usually assemble.
4. A n y t r a i n , a i r p l a n e or a n y aircraft, vessel or
w a t e r c r a f t , or c o n v e y a n c e for t r a n s p o r t a t i o n of
persons or property.
5. A n y b u i l d i n g w h e r e e v i d e n c e is k e p t for use in any
legislative, j u d i c i a l , a d m i n i s t r a t i v e or other official
proceedings.
6. A n y hospital, hotel, d o r m i t o r y , l o d g i n g house,
h o u s i n g tenement, s h o p p i n g center, p u b l i c o r
p r i v a t e m a r k e t , t h e a t e r o r m o v i e house o r any
similar place or building.
7. A n y b u i l d i n g , w h e t h e r u s e d as a d w e l l i n g or not,
situated in a p o p u l a t e d or congested a r e a .
Sec. 3. Other Cases of Arson. — T h e penalty of Reclusion
Temporal to Reclusion Perpetua shall be imposed if the
p r o p e r t y b u r n e d i s a n y o f the following:
1. A n y b u i l d i n g u s e d as offices of the g o v e r n m e n t or
any of its agencies;
2. A n y i n h a b i t e d h o u s e or d w e l l i n g ;
3. A n y i n d u s t r i a l establishment, s h i p y a r d , oil w e l l or
m i n e shaft, p l a t f o r m or tunnel;
4. A n y plantation, f a r m , p a s t e u r l a n d , g r o w i n g crop,
g r a i n field, o r c h a r d , b a m b o o g r o v e o r forest;
5. A n y rice mill, s u g a r mill, cane mill, or mill central;
and
6. A n y r a i l w a y or b u s station, a i r p o r t , w h a r f or
warehouse.
Sec. 4. Special Aggravating Circumstances in Arson. — T h e
penalty in any case shall be imposed in its m a x i m u m period:
1. If committed w i t h the intent to gain;
2. If committed for the benefit of another;
3. If the offender is motivated by spite or hatred
t o w a r d s the o w n e r or occupant of the property
burned;
941
4. If committed by a syndicate.
The offense is committed by a syndicate if it is p l a n n e d
or c a r r i e d out by a g r o u p of three or m o r e persons.
Sec. 5. Where Death Result from Arson. — If by r e a s o n of
or on the occasion of a r s o n death results, the penalty of
Reclusion Perpetua to D e a t h shall be imposed.
Sec. 6. Prima Facie Evidence of Arson. — A n y of the following
circumstances shall constitute prima facie evidence of arson:
1. If the fire started simultaneously in m o r e t h a n one
p a r t of the b u i l d i n g or establishment.
2. If the substantial a m o u n t of f l a m m a b l e substances

or materials a r e stored w i t h i n the b u i l d i n g not
necessary in the b u s i n e s s of the o f f e n d e r n o r for
h o u s e h o l d use.
3. If gasoline, k e r o s e n e , p e t r o l e u m or o t h e r f l a m m a b l e
substances o r m a t e r i a l s s o a k e d t h e r e w i t h o r
containers thereof, or a n y m e c h a n i c a l , electrical,
chemical, or electronic c o n t r i v a n c e d e s i g n e d to
start a fire, or ashes or traces of a n y of the f o r e g o i n g
a r e f o u n d i n the r u i n s o r p r e m i s e s o f the b u r n e d
building or property.
4. If the b u i l d i n g or p r o p e r t y is i n s u r e d for
substantially m o r e t h a n its a c t u a l v a l u e at the time
of the issuance of the policy.
5. If d u r i n g the lifetime of the c o r r e s p o n d i n g fire

insurance policy m o r e t h a n t w o f i r e s h a v e o c c u r r e d
in the same or other premises o w n e d or u n d e r the
control of the offender a n d / o r the i n s u r e d .
6. If shortly b e f o r e the fire, a s u b s t a n t i a l p o r t i o n of the

effects i n s u r e d a n d s t o r e d in a b u i l d i n g or p r o p e r t y
h a d b e e n w i t h d r a w n f r o m the p r e m i s e s except i n
the o r d i n a r y c o u r s e o f b u s i n e s s .
7. If a d e m a n d for m o n e y or other v a l u a b l e
consideration w a s m a d e b e f o r e the f i r e i n e x c h a n g e
for the desistance of the offender or for the safety of
the p e r s o n or p r o p e r t y of the victim.
942
Sec. 7. Conspiracy to Commit Arson. — C o n s p i r a c y to

commit a r s o n shall be p u n i s h e d by prision mayor in its
minimum period.
Sec. 8. Confiscation of Object of Arson. — T h e b u i l d i n g

w h i c h is the o b j e c t of the a r s o n i n c l u d i n g the l a n d on
w h i c h it is situated shall be confiscated a n d escheated to
the State, unless the o w n e r t h e r e o f c a n p r o v e that he has
no p a r t i c i p a t i o n in n o r k n o w l e d g e of such a r s o n despite the
exercise of d u e d i l i g e n c e on his p a r t .
xxx xxx xxx
A p p r o v e d : M a r c h 7, 1979.
[Articles 320-326-B w e r e expressly repealed by P . D . 1613;

thereafter Article 320 was restored by R . A . 7659.]
• What is arson and how is it committed?
Arson is the destruction of property by fire. As long as

fire is used, arson is committed for P . D . 1613 repealed Article
323 which regarded burning of property less than P25 as
malicious mischief. This will affect Article 332 because burning
of property of minimal value being arson, Article 332 will not
apply for that article covers malicious mischief, not arson.
T h e corpus delicti rule in arson is satisfied by proof of the

bare occurrence of the fire and of its having been intentionally
caused. Even if the whole house was not completely gutted by
the fire, the crime is consummated arson. It is enough that
a portion has been destroyed (People v. Gutierrez, G.R. No.
100699, July 5, 1996). Where the evidence establishes (1) the
occurrence of a fire because of criminal agency; and (2) the
identity of the defendants as the one responsible for the crime,
proof of the crime charged is complete. Even the uncorroborated
testimony of a single witness, if credible, may be enough to
warrant conviction.
• Can arson be committed through negligence?

Y e s . Where a person burns trash disregarding the strong
wind blowing and the cinders landed on the property of another,
the crime is reckless imprudence resulting to arson or simple
943
imprudence, depending upon the circumstance, place and how

strong the wind is blowing.
What is the basis for the penalty for arson?

The enormity of the offense is not measured by the value
of the property that may be destroyed but rather by the human
lives exposed to destruction. It is indeed a heinous crime
that the law seeks to suppress with the most serious penalty
because of its grave anti-social character, (id.)
Is there frustrated arson?

None, because arson is defined as burning of property. If
no burning resulted but offender commenced the commission of
the felony directly by overt acts but was not able to produce the
felony because of causes other than his spontaneous desistance,
attempted arson is committed.
Although the whole wood and galvanized iron house has

not been completely gutted by the fire, the crime committed
is still consummated arson. It is enough that a portion of the
house had been destroyed. (People v. Gutierrez)
What are the elements of arson under Section 3(2) of P.D. 1613?
a. There is intentional burning; and
b. W h a t is intentionally burned is an inhabited house or

dwelling. (People v. Agguihao, G.R. No. L- 104725, March
10, 1994)
Is conviction for arson proper when the evidence is

circumstantial?
T h e applicability of PD 1613 is beyond cavil. T h e crime

was committed in a placed w h e r e bakeries, barber shops,
tailoring shops and other commercial and residential buildings
were situated. In fact, other structures were razed by the fire
that originated from petitioner's establishment. It is clear that
the place was a residential and commercial building located
in an urban and populate area. This qualifying circumstance
places the offense within Sec. 2(7) of PD 1613, and converts
it to destructive arson committed when what is burned is
any building, whether used as a dwelling or not, situated in a

populated or congested area.
T h e subject building was insured against fire for an
amount substantially more than its market value, a fact that
has given rise to the unrebutted prima facie evidence of arson,
in Section 6 of PD 1613.
Direct evidence is not the sole means of establishing
guilt beyond reasonable doubt. Established facts that form
a chain of circumstances can lead the mind intuitively or
impel a conscious process of reasoning towards a conviction.
Indeed, rules on evidence and principles in jurisprudence have
long recognized that the accused may be convicted through
circumstantial evidence.
Circumstantial evidence is such evidence which goes to
prove a fact or series of facts, other than the facts in issue,
which, if proved, may tend by inference to establish the fact
in issue. Circumstantial evidence may be resorted to when
to insist on direct testimony would ultimately lead to setting
felons free. But for circumstantial evidence to be sufficient
for a convictions, the following requisites must be present:
(a) there is more than one circumstance; (b) the facts from
which the inferences are derived have been proven; and (c)
the combination of all the circumstances results in a moral
certainty that the accused, to the exclusion of all others, in the
one who has committed the crime.
T h e penalty prescribed fro the offense is reclusion
temporal in its maximum period to reclusion perpetua. As
no mitigating nor aggravating circumstance attended its
commission, the proper imposable penalty, and thus the
maximum term of the indeterminate penalty, is 18 years, 8
months and 1 day to 20 years. In determining the penalty next
lower, Article 61(3) applies, when the penalty prescribed is
composed of one or two indivisible penalties and the maximum
period of another divisible penalty, the penalty next lower
is the medium and minimum periods of the proper divisible
penalty and the maximum period of that immediately following
in said respective graduated scale. In the instant case, the
penalty lower indegree is prision mayor maximum to reclusion
temporal medium. (Amera v. People, G.R. No. 154466, January
28, 2008)
945
While it is true that "evidence that one did or did not do a

certain thing at one time is not admissible to prove that he did
or did not do the same or similar thing at another time," it may
be received "to prove a specific intent or knowledge, identity,
plan, system, scheme, habit, custom or usage, and the like."
(id.)
Who should be the owner of the property burned?

It does not matter who may be the owner. Arson is
committed even if offender burned his own property if it was
made under circumstances which exposed the property or life
of another to danger (Section 1, paragraph 2, P . D . 1613). Even
if the owners of the properties burned are different, there is
only one crime of arson. Under Article 320 and P . D . 1613,
a person who acts under one criminal impulse and burned
several buildings commits not distinct arsons but one crime of
destructive arson.
What is the nature of the crime arson results to death?
It is a composite crime or special complex crime because

Article 320 specifies that when in arson, a person dies, death
(now reclusion perpetua, per R . A . 9346) shall be imposed. It
is not a complex crime of arson with homicide under Article
48 but one crime of destructive arson because there is one
specific provision defining the combination of crimes to form
this composite crime and specifying its penalty.
When is the crime murder, arson, or composite crime of arson

with homicide?
1. Murder — the use of fire was chosen primarily to kill. If

the house or even several houses are burned because of the
use of fire to kill, this w i l l be an aggravating circumstance
of "great waste and ruin." T o o , murder is committed when
the crime is homicide but the body was burned to scoff the
corpse.
2. Arson and murder/homicide — when the murder/

homicide has already been consummated and the house
was burned to conceal the killing. Fire is not anymore the
means to commit the crime. Neither is there a complex
crime under Article 48 because the crime is not a product

of a single act.
3. Arson with homicide — W h e n a house was burned but

there was a person inside who was killed, the killing is a
qualifying circumstance.
When the accused is charged with "violation of P.D. No. 1613"

without specifying the particular provision thereof, what crime
is committed?
It is plain arson. Accused was charged with "violation

of P . D . N o . 1613" without specifying the particular provision
breached, and the information failed to allege whether the
house is inhabited or not, and it has not been established that
the house is situated in a populated or congested area, offender
should be deemed to have been charged only with plain arson
under Section 1 thereof. Kalookan City might be a densely
populated area but its entire territory cannot be said to be
congested. (People v. Gutierrez)
When will the special aggravating circumstance of spite not be

appreciated?
The circumstance under Section 4(3) of the decree of the

offender having been motivated by spite or hatred towards the
owner or occupant of the property should not be appreciated
where it appears to be more of impulse, heat of anger or risen
temper rather than real spite or hatred that impelled the
accused to give vent to his wounded ego. (People v. Gutierrez)
947
Chapter Nine
MALICIOUS MISCHIEF
A r t . 327. Who are liable for malicious mischief. — A n y p e r s o n
w h o shall deliberately cause to the p r o p e r t y of a n o t h e r any
d a m a g e not falling w i t h i n the terms of the next p r e c e d i n g
chapter, shall be guilty of malicious mischief.
A r t . 328. Special cases of malicious mischief. — A n y p e r s o n
w h o shall cause d a m a g e to obstruct the p e r f o r m a n c e of p u b l i c
functions, or u s i n g a n y p o i s o n o u s or c o r r o s i v e substance; or
s p r e a d i n g any infection o r c o n t a g i o n a m o n g cattle; o r w h o
causes d a m a g e to the p r o p e r t y of the N a t i o n a l M u s e u m or
N a t i o n a l L i b r a r y , o r t o a n y a r c h i v e o r registry, w a t e r w o r k s ,
r o a d , p r o m e n a d e , o r a n y other t h i n g u s e d i n c o m m o n b y the
public shall be p u n i s h e d :
1. By prision correccional in its m i n i m u m a n d m e d i u m
p e r i o d s , if the v a l u e of the d a m a g e c a u s e d exceeds
1,000 pesos;
2. By arresto mayor, if such v a l u e does not e x c e e d the
a b o v e - m e n t i o n e d a m o u n t b u t is o v e r 200 pesos; a n d
3. By arresto menor, if s u c h v a l u e d o e s not e x c e e d 200
pesos.
A r t . 329. Other mischiefs. — T h e mischiefs not i n c l u d e d in

the next p r e c e d i n g article shall be p u n i s h e d :
1. By arresto mayor in its m e d i u m a n d m a x i m u m
p e r i o d s , if the v a l u e of the d a m a g e c a u s e d exceeds
1,000 pesos.
2. By arresto mayor in its m i n i m u m a n d m e d i u m
p e r i o d s , if such v a l u e is o v e r 200 pesos b u t d o e s not
exceed 1,000 pesos; a n d
3. By arresto menor or fine of not less t h a n the v a l u e
of the d a m a g e c a u s e d a n d not m o r e t h a n 200 pesos,
if the a m o u n t i n v o l v e d does not e x c e e d 200 pesos or
c a n n o t be estimated. (As amended by Com. Act No.
3999.)
MALICIOUS MISCHIEF
A r t . 330. Damage and obstruction to means of communication.

— T h e p e n a l t y of prision correccional in its m e d i u m a n d
m a x i m u m p e r i o d s shall b e i m p o s e d u p o n any p e r s o n w h o
shall d a m a g e a n y r a i l w a y , t e l e g r a p h o r telephone lines.
If the d a m a g e shall result in any derailment of cars,

collision or other accident, the penalty of prision mayor shall
be imposed, without prejudice to the criminal liability of the
offender for the consequences of his criminal act.
F o r the p u r p o s e of the p r o v i s i o n s of this article, the

electric w i r e s , traction cables, s i g n a l system, a n d other
things p e r t a i n i n g to r a i l w a y s , shall be d e e m e d to constitute
an integral p a r t of a r a i l w a y system.
A r t . 331. Destroying or damaging statues, public monuments,

or paintings. — A n y p e r s o n w h o shall destroy or d a m a g e
statues o r a n y o t h e r useful o r o r n a m e n t a l p u b l i c m o n u m e n t ,
shall suffer the p e n a l t y of arresto mayor in its m e d i u m p e r i o d
to prision correccional in its m i n i m u m p e r i o d .
A n y p e r s o n w h o shall d e s t r o y o r d a m a g e any useful

or o r n a m e n t a l p a i n t i n g of a p u b l i c n a t u r e shall suffer the
penalty of arresto menor or a fine not e x c e e d i n g 200 pesos,
or both such fine a n d i m p r i s o n m e n t , in the discretion of the
court.
• How is malicious mischief committed?
Malicious mischief is the act of intentionally causing

damage to the property of another without the use of fire. There
must be specific intent to destroy the property of another.
Malicious mischief is committed only by dolo and never by
culpa because malice is inherent being an element.
• Compare malicious mischief and cattle rustling.

If the subject of destruction is large cattle, whether the
offender took the large cattle or not, it is cattle rustling (P.D.
533) and not malicious mischief. Cattle rustling include the
taking or deliberate killing of large cattle without the consent
of the owner or possessor. If the cattle was not killed or taken
but merely injured to render it useless to its owner, malicious
mischief is committed.
949
• Distinguish malicious mischief from unjust vexation.

Unjust vexation is committed by causing annoyance
to another. But if the means used to annoy is by destroying
another's property, it is malicious mischief. Malicious mischief
is against property; unjust vexation is against personal liberty
and security.
• Distinguish malicious mischief from theft.

Malicious mischief is without intent to gain whereas,
theft under Article 308, N o . 2 requires intent to gain.
Illustration: Juan killed the goat of Pedro because the
latter allows it to wander and destroy Juan's plants. W h a t
crime was committed?
1. Malicious mischief if the neighbor did not remove or take
the carcass for himself. It is not cattle rustling because
goat is small cattle.
2. If the animal were not a goat but large cattle like cow or
carabao, the crime is cattle rustling.
3. Simple arson, if the neighbor used fire to kill the goat
(Section 1, P . D . 1613).
4. Theft if he "removed or made use of the object of the
damage caused by him." (Article 308, N o . 2)
» Distinguish malicious mischief from arson.
1. In malicious mischief the cause of destruction should not

be by fire; the moment fire is used to destroy property, it
is arson.
2. Malicious mischief is only by dolo; arson is by dolo or
culpa.
3. Malicious mischief by causing damage and obstruction
to means of communication is without prejudice to the
criminal liability for the consequences of offender's
criminal act such as homicide, murder, mutilation and
physical injuries; separate crimes are committed with
separate penalties (Article 330). W h e n death results in
arson, the crime is the special complex crime of arson
with homicide and the penalty is death (now, reclusion
perpetua under R . A . 9346).
950
MALICIOUS MISCHIEF
• If in the course of the commission of malicious mischief death

and injuries resulted, what crimes are committed?
Article 330 provides that if the damage results in

derailment of cars, collision or other accident, the penalty
of prision mayor shall be imposed, without prejudice to the
criminal liability for the consequences of offender's criminal
act. Thus, bombings of means of transportation such as metro
rails which result in wholesale killings and injuries should
make the offender liable for separate crimes of malicious
mischief for the damage caused and the complex crime of
multiple murders and physical injuries under Article 48. This
is because Article 330 provides that the penalty for the damage
is without prejudice to the penalty for the result of the damage
committed. T h e killings and injuries result to the compound
crime under Article 48 because it is a result of a single act of
bombing. It is not a special complex crime for the article did not
provide a specific penalty for such combination of crimes.
951
Chapter Ten
EXEMPTION FROM CRIMINAL LIABILITY

IN CRIMES AGAINST PROPERTY
A r t . 332. Persons exempt from criminal liability. — No
criminal, b u t only civil liability, shall result f r o m the
commission of the crime of theft, s w i n d l i n g , or malicious
mischief committed o r c a u s e d m u t u a l l y b y the f o l l o w i n g
persons:
1. Spouses, a s c e n d a n t s a n d d e s c e n d a n t s , or relatives
by affinity in the s a m e line;
2. T h e w i d o w e d s p o u s e w i t h r e s p e c t to the p r o p e r t y
w h i c h b e l o n g e d t o the d e c e a s e d s p o u s e b e f o r e
the same shall h a v e p a s s e d into the possession of
another; a n d
3. B r o t h e r s a n d sisters a n d b r o t h e r s - i n - l a w and
sisters-in-law, if l i v i n g t o g e t h e r .
T h e e x e m p t i o n e s t a b l i s h e d i n this article shall not b e

a p p l i c a b l e to s t r a n g e r s p a r t i c i p a t i n g in the c o m m i s s i o n of
the crime.
• Who are the relatives benefited by Article 332?

1. Spouses. In relation to Articles 147 and 148, Family Code,
common law spouses are co-owners of the property. As
such exemption should be construed in favor of common
law spouses.
2. Ascendants and descendants and relatives by affinity
in the same degree such as son- and daughter-in-
law, mother- and father-in-law. This should include
stepparents and stepchildren because they are ascendants
and descendants by legitimate affinity.
3. Brothers/sisters who must be living in the same house
because the law specified "living together." If living in
the same compound but different houses, there is no
952
E X E M P T I O N F R O M C R I M I N A L LIABILITY
IN C R I M E S A G A I N S T PROPERTY
exemption because then, they are living separately. This

should include legitimate and illegitimate half-brothers/-
sisters for the law did not limit the term to legitimate and
adopted full brothers and sisters. However, stepbrothers
and stepsisters should be excluded for they are not
relatives either by affinity or blood. In fact they can
validly get married, not being among the void marriages
under Article 38 of the Family Code.
4. W i d o w if the property is not yet divided for then she is a

co-owner.
T h e list is exclusive. N o t e that the last paragraph prohibits

application of its benefit to strangers.
• For what crimes are they exempted?
1. Theft including qualified theft but not robbery.
2. Estafa but if complexed with other crimes, e.g., falsification

of commercial documents, there is no exemption.
3. Malicious mischief. T h e destruction must not be by means

of fire because burning of property of whatever value is
arson, hence, the exemption will not lie.
953
TITLE ELEVEN
C R I M E S A G A I N S T CHASTITY
Chapter One
ADULTERY A N D CONCUBINAGE
A r t . 333. Who are guilty of adultery. — A d u l t e r y is committed

b y any m a r r i e d w o m a n w h o shall h a v e s e x u a l i n t e r c o u r s e
with a m a n not h e r h u s b a n d a n d b y the m a n w h o h a s c a r n a l
k n o w l e d g e o f h e r , k n o w i n g h e r t o b e m a r r i e d , e v e n i f the
marriage be subsequently declared void.
A d u l t e r y shall be p u n i s h e d by prision correccional in its

If the p e r s o n guilty of a d u l t e r y c o m m i t t e d this offense

w h i l e b e i n g a b a n d o n e d w i t h o u t justification b y the offended
spouse, the penalty next l o w e r i n d e g r e e t h a n that p r o v i d e d
i n the next p r e c e d i n g p a r a g r a p h shall b e i m p o s e d .
A r t . 334. Concubinage. — A n y h u s b a n d w h o shall k e e p

a mistress in the c o n j u g a l d w e l l i n g , o r , shall h a v e s e x u a l
intercourse, u n d e r s c a n d a l o u s c i r c u m s t a n c e s , w i t h a w o m a n
w h o is not his w i f e , or shall c o h a b i t w i t h h e r in a n y other
place, shall be p u n i s h e d by prision correccional in its
minimum and medium periods.
T h e c o n c u b i n e shall suffer the p e n a l t y of destierro.
• Will the doctrine of pari delicto be applicable in adultery?
N o . T h e concept of pari delicto is not found in the R P C

but in Article 1411 of the N C C . Said article relates to contracts
with illegal consideration.
In Guinucud, the complaining husband, by entering into

an agreement with his wife that each of them w e r e to live
separately and could marry another, and by filing complaint
954
ADULTERY A N D C O N C U B I N A G E
only about a year after discovering his wife's infidelity, had

"consented to, and acquiesced in, the adulterous relations
existing between the accused, and he is therefore, not
authorized by law to institute the criminal proceedings." That
case refers not to the notion of pari delicto but to consent as a
bar to the institution of the criminal proceedings. In this case,
no such acquiescence can be implied: the accused did not enter
into any agreement with the offended spouse allowing each
other to marry or cohabit with other persons and he promptly
filed this complaint after discovering the illicit affair. (Arroyo,
Jr. v. CA, G.R. No. 96602, November 19, 1991)
• Is there frustrated adultery?
As in rape, adultery cannot be in the frustrated stage.

It can only be attempted or consummated for the essence of
adultery is sexual intercourse. Each instance is one count of
adultery. T h e r e will be as many counts of adultery as there are
sexual intercourse.
• Distinguish pardon from consent. How will either benefit the

accused?
T h e rule on pardon is found on Article 344 which
provides that the crime of adultery and concubinage shall
not be prosecuted except upon a complaint filed by the
offended spouse. T h e offended party cannot institute criminal
prosecution without impleading both parties, if they are both
alive, nor in any case, if he shall have consented or pardoned
the offenders. W h i l e there is a conceptual difference between
consent and pardon in the sense that consent is granted prior
to the adulterous act while pardon is given after the illicit
affair, nevertheless, for either consent or pardon to benefit
the accused, it must be given prior to the filing of a criminal
complaint, (id.)
• How is concubinage committed?

Concubinage is committed in any of three ways:
1. By the husband's keeping a mistress in the conjugal
dwelling,
2. By having sexual intercourse, under scandalous circum-
stances, with a woman who is not his wife, or
955
3. By cohabiting with her in any other place.
• What is the penalty for and consequently which court has

jurisdiction over the crime of concubinage?
The penalty imposable on the husband who commits
concubinage is prision correccional in its minimum and medium
periods, which ranges from 6 months and 1 day to 4 years and
2 months. Hence, as regards the husband, there is no question
that concubinage is within the exclusive original jurisdiction of
the inferior courts. T h e problem concerns the concubine upon
whom the imposable penalty is destierro. (People v. Eduarte,
G.R. No. 88232, February 26, 1990)
Uy Chin Hua v. Dinglasan, 86 Phil. 617 and Santos, 87

Phil. 687 held that a crime punishable with destierro is within
the jurisdiction of the inferior courts. This is so because in the
scale of penalties in Article 71, destierro comes after arresto
mayor. A n d since under the Judiciary A c t of 1948 [ R . A . 296],
crimes punishable with arresto mayor are within the jurisdiction
of the inferior courts, it follows that crimes punishable with
destierro are also within the jurisdiction of such courts.
Concubinage has two penalties, one for the husband and

another for the concubine. T h e penalty for the husband, prision
correccional in its minimum and medium periods, is within the
jurisdiction of the inferior courts. Considering that Article 344
states that the offended party in concubinage cannot institute
criminal prosecution without including both the offenders, it is
clearly in the interest of the orderly administration of justice
that the concubine be tried with the erring husband before the
inferior courts. T h e legislature could not have intended to allow
the absurd situation wherein the inferior court has jurisdiction
over concubinage only as regards the husband while the
R T C has jurisdiction over the same crime with respect to the
concubine, (id.)
> W h o can initiate the action for adultery or concubinage?
Complaint from the offended spouse is necessary. Only

the offended spouse can initiate the action.
T h e complainant must be a spouse at the time of the

complaint. Otherwise, it is as if no complaint has been filed.
956
ADULTERY A N D C O N C U B I N A G E
Thus, where at the time of the filing of the complaint, an

American husband had obtained a divorce abroad against his
Filipino wife, although not valid here, he has no standing to file
the complaint because he is no longer her husband.
Although the paramour is not aware that the other party

is married, for the purpose of filing the complaint, the paramour
must be included in the complaint/information.
M a y a husband be liable for concubinage and adultery for the

same act of illicit intercourse with the wife of another man?
W h e n a married man commits infidelity with a married

woman, he offends his wife and the husband of the other
woman. He also violates two provisions of law. Hence, he
can be liable for adultery and concubinage for the same act
of illicit intercourse if his wife and the offended husband of
his paramour files a separate complaint against him and the
offending wife.
957
Chapter Two
RAPE A N D ACTS OF LASCTVIOUSNESS
(Art. 335. Repealed by R.A. 8353)
A r t . 336. Acts of lasciviousness. — A n y p e r s o n w h o shall
commit any act of lasciviousness u p o n other p e r s o n s of
either sex, u n d e r any of the circumstances m e n t i o n e d on the
p r e c e d i n g article, shall be p u n i s h e d by prision correccional.
( A r t . 339. Acts of lasciviousness with the consent of the offended

party. — T h e penalty of arresto mayor shall be i m p o s e d to
punish a n y other acts of lasciviousness committed by the
same p e r s o n s a n d the s a m e c i r c u m s t a n c e s a s those p r o v i d e d
in Articles 337 a n d 338.)
• Compare Article 336 with Article 339.
Acts of lasciviousness under A r t i c l e 336:
1. Committed under circumstances of rape, i.e., without

consent, there is force or intimidation, the woman is
unconscious or deprived of reason, or under 12.
2. The victim is a male or a female. This is one exception to

the rule that the victim in crimes against chastity must be
a female for they have chastity which must be protected.
3. T h e female victim need not be a minor or a virgin. There

is no age requirement because this is committed without
consent.
Consented acts of lasciviousness under A r t i c l e 339:
1. Committed under circumstances of seduction, hence with

consent secured by means of deceit;
2. T h e victim must be a female;
3. T h e female victim must be a minor over 12 or under 18

years of age and a virgin or at least of good reputation.
A minor cannot give valid consist to sexual act under
958
RAPE A N D ACTS OF L A S C I V I O U S N E S S
the R P C . Acts of lasciviousness with consent of an adult

female cannot be prosecuted because a woman of age can
give valid consent to the act.
T h e "preceding article" referred to in Article 336 is

the original Article 335 unaffected by R . A . 7659 for when
that amendatory law was passed, it did not touch Article
336. Considering that R . A . 7659 introduced qualifying
circumstances to Article 335, such circumstances should not
prejudice the offender in Article 336.
• Compare acts of lasciviousness under the RPC and R.A. 7610.
R . A . 7610 penalizes acts of lasciviousness with a minor

as child abuse. For prosecution under the special law, the
elements of acts of lasciviousness under the Code must be
proved as w e l l as the elements of sexual abuse under Section 5
of R. A. 7610. T h e victim in R . A . 7610 must be a child exploited
in prostitution or subjected to other sexual abuse. W h e r e the
child is under 12, the offender shall be prosecuted under the
R P C but the penalty shall be reclusion temporal instead of
prision correccional.
959
Chapter Three
SEDUCTION, CORRUPTION OF MINORS

A N D WHITE SLAVE TRADE
A r t . 337. Qualified seduction. — T h e seduction of a v i r g i n

over t w e l v e years a n d u n d e r eighteen y e a r s o f a g e , committed
by any person in authority, priest, home-servant, domestic,
g u a r d i a n , teacher, o r a n y p e r s o n w h o , i n a n y capacity, shall
be entrusted w i t h the e d u c a t i o n or custody of the w o m a n
seduced, shall be p u n i s h e d by prision correccional in its
minimum and medium periods.
T h e penalty next h i g h e r i n d e g r e e shall b e i m p o s e d

u p o n a n y p e r s o n w h o shall s e d u c e his sister o r d e s c e n d a n t ,
w h e t h e r or not she be a v i r g i n or o v e r e i g h t e e n y e a r s of a g e .
U n d e r the p r o v i s i o n s of this C h a p t e r s e d u c t i o n is
committed w h e n the o f f e n d e r h a s c a r n a l k n o w l e d g e o f a n y o f
the persons a n d u n d e r the c i r c u m s t a n c e s d e s c r i b e d h e r e i n .
A r t . 338. Simple seduction. — T h e s e d u c t i o n of a w o m a n

w h o is single or a w i d o w of g o o d r e p u t a t i o n , o v e r t w e l v e b u t
u n d e r e i g h t e e n y e a r s o f a g e , c o m m i t t e d b y m e a n s o f deceit,
shall be p u n i s h e d by arresto mayor.
A r t . 339. Acts of lasciviousness with the consent of the offended

party. — T h e penalty of arresto mayor shall be i m p o s e d to
p u n i s h a n y other acts of l a s c i v i o u s n e s s c o m m i t t e d by the
same p e r s o n s a n d the s a m e c i r c u m s t a n c e s a s those p r o v i d e d
in A r t i c l e s 337 a n d 338.
• What are the elements of qualified seduction?
Qualified seduction requires that:
1. T h e offended party is a virgin, which is presumed if she is

unmarried and of good reputation;
2. She must be over 12 and under 18 years of age;
3. T h e offender has sexual intercourse with her; and

S E D U C T I O N , C O R R U P T I O N O F M I N O R S A N D WHITE SLAVE TRADE
4. There is abuse of authority, confidence, or relationship on

the part of the offender. (Gonzales v. CA, 51 SCAD)
"Virginity" is not physical but moral, i.e., that the woman
does not have sexual experience. Seduction requires that the
age must be over 12 because if the victim is under 12, it is
always rape.
If, however, the victim is exactly 12 years old, and there is
consent thru cajolery or deceit, it is neither qualified nor simple
seduction nor statutory rape. Offender could be prosecuted
under the Child Abuse L a w . If there is no allegation that she
was exploited in prostitution, subjected to other sexual abuse,
or induced, forced, intimidated or moral ascendancy exerted
and there is consent and the girl is 12 or over, no crime is
committed.
• Compare rape and qualified seduction.
In rape, the age can be less than 12 which is always rape;

if 12 but less than 18, there should be force or intimidation.
Virginity is not material.
In qualified seduction, the girl must be more than 12 but
less than 18 and the crime is by means of cajolery. Virginity is
an element.
There must be an age limitation in seduction for consent
is an element and intimacy between consenting adults is not a
punishable crime unless it constitutes adultery or concubinage.
• What are the distinctions between simple (SS) and qualified

seduction (QS)?
1. SS — the woman is single or a widow of good reputation
QS — she is a virgin (morally)
2. SS — offender may be any person
QS — offender is public authority, priest, house servant,
domestic, guardian, teacher or any person entrusted with
the education or custody of the woman seduced
3. SS — the victim cannot be 18 or over
QS — when the offender is the brother or an ascendant,
the victim may be over 18.
961
If the offender is a brother or an ascendant, the age and

moral reputation of the girl is not material — the crime is
qualified seduction. It may be asked, however, if the father
is 65 and the daughter is 45, can qualified seduction still be
committed? At 45 years of age, can a woman still be considered
gullible as to be deceived by the father or brother?
If the offender is an older brother or an ascendant,
jurisprudence states that moral ascendancy substitutes for
the force or intimidation. In other words, it need not be proved
that there was force or intimidation for the moral ascendancy
over the victim constitutes the force or intimidation. T h e issue
now is where does seduction end and rape begin since force or
intimidation is not required in incestuous rape of this sort?
In simple seduction, the woman may no longer be a virgin
or may be a widow. Deceit employed is the very factor that
persuaded the woman to yield. T h e woman may be single
or widow of good reputation and is over 12 but less than 18.
(Under the Family Code, a woman less than 18 cannot marry,
hence, cannot become a w i d o w . )
• What is the effect of carnal knowledge in certain crimes against

chastity?
The crimes of rape and seduction as well as adultery

and concubinage carry the element of sexual intercourse. In
forcible abduction, when sexual intercourse occurs, the crime
is forcible abduction with rape (complex under Article 48)
because forcible abduction does not involve sexual intercourse
as an element and it is the means to commit the other.
A r t . 340. Corruption of minors. — A n y p e r s o n w h o shall

p r o m o t e o r facilitate the p r o s t i t u t i o n o r c o r r u p t i o n o f
persons u n d e r a g e to satisfy the lust of a n o t h e r , shall be
p u n i s h e d by prision mayor, a n d if the c u l p r i t is a p u b l i c
officer or e m p l o y e e , i n c l u d i n g those in g o v e r n m e n t - o w n e d
or controlled c o r p o r a t i o n s , he shall also suffer the p e n a l t y
of t e m p o r a r y a b s o l u t e disqualification. (As amended by B.P.
Big. 92, December 24, 1980.)
A r t . 341. White slave trade. — T h e p e n a l t y of prision mayor

i n its m e d i u m a n d m a x i m u m p e r i o d s shall b e i m p o s e d u p o n
any p e r s o n w h o , i n a n y m a n n e r , o r u n d e r a n y pretext, shall
962
S E D U C T I O N , C O R R U P T I O N O F M I N O R S A N D WHITE SLAVE TRADE
e n g a g e in the b u s i n e s s or shall profit by prostitution or shall

enlist the services of a n y other p e r s o n for the p u r p o s e of
prostitution. (As amended by B.P. Big. 186, March 16, 1982)
• How is corruption of minors committed?
Corruption of minor is committed only if a minor is used

to satisfy the lust of another and not the corruptor's own lust.
Under R . A . 7610, the penalty is higher.
• What is involved in white slave trade?
As in corruption of minor, white slave trade does not

require offender to have carnal knowledge with the persons
under his control. But unlike in corruption, the offender here is
engaged in an industry; the crime is committed for profit, and
the persons used need not be minors.
963
Chapter Four
ABDUCTION
A r t . 342. Forcible abduction. — T h e a b d u c t i o n of any

w o m a n against h e r will a n d w i t h l e w d designs shall b e
p u n i s h e d by reclusion temporal.
T h e same penalty shall be i m p o s e d in e v e r y case, if the
female a b d u c t e d b e u n d e r t w e l v e y e a r s o f a g e .
A r t . 343. Consented abduction. — T h e a b d u c t i o n of a v i r g i n
o v e r t w e l v e a n d u n d e r eighteen y e a r s o f a g e , c a r r i e d out
w i t h h e r consent a n d w i t h l e w d designs, shall b e p u n i s h e d
by the penalty of prision correccional in its m i n i m u m a n d
medium periods.
• What are the elements of forcible abduction?
The elements of forcible abduction are:
1. the victim is any woman, regardless of age, civil status, or

reputation;
2. the abduction is against her will; and
3. the abduction is with l e w d designs.
Victim was forcibly taken at knifepoint from Cebu by

appellant and through threats and intimidation brought to
various towns in Masbate, where he passed her off as his "wife."
That appellant was moved by lewd designs was shown in regard
to rape by his having carnal knowledge with complainant against
her will. Forcible abduction was committed but appellant cannot
be convicted of the complex crime of forcible abduction with rape,
for while the information sufficiently alleges the forcible taking
of complainant, the same fails to allege "lewd designs." When
a complex crime under Article 48 is charged, such as forcible
abduction with rape, the prosecution must allege and prove the
presence of all the elements of forcible abduction, as well as all
the elements of rape. When appellant, using a blade, forcibly took
ABDUCTION
away complainant for the purpose of sexually assaulting her,

the rape may then absorb forcible abduction. Hence, the crime
committed by appellant is simple rape only. (People v. Sabredo,
G.R. No. 126114, May 11, 2000)
• When is forcible abduction complexed with rape?
Forcible abduction w i t h rape is a complex crime that

occurs when there is carnal knowledge with the abducted
woman under the following circumstances: (1) by using force
or intimidation; (2) w h e n the woman is deprived of reason or
otherwise unconscious; and (3) when the woman is under 12
years of age or is demented. (People v. Magat, 332 SCRA)
Forcible abduction is the taking of a woman against

her will and with lewd designs, or of a girl below 12 years
old. W h e n the accused forcibly took away the victim, for the
purpose of raping her, l e w d and unchaste designs existed since
the commencement of the crime. W h e n the accused raped
the complainant, he committed the complex crime of forcible
abduction with rape. (People v. Espiritu, G.R. No. 128870,
October 27, 1999)
Forcible abduction with rape is complex crime if the
taking of the woman amounts to forcible abduction and
thereafter she was abused. A n d in case of multiple rapes,
Garcia, reiterating Jose, declared that only one rape shall be
complexed with forcible abduction. T h e other rapes are to be
charged separately as one count each.
In contrast, kidnapping and serious illegal detention with
rape is not a complex crime. W h e n the taking of the woman
amounts to kidnapping and thereafter raped, the rape is a
qualifying circumstance resulting to a special complex crime of
kidnapping with rape.
• Is there a crime of forcible abduction with attempted rape or

with acts of lasciviousness?
The rape must be consummated for the complex crime of
forcible abduction with rape. There is no complex crime of forc-
ible abduction with acts of lasciviousness or with attempted
rape because these are manifestations of lewd designs which is
an element thereof; the crime then is simple forcible abduction.
965
What is "lewd design"?

" L e w d " means obscene, lustful, indecent, lascivious,
lecherous. It signifies that form of i m m o r a l i t y which has
relation to moral impurity; or that which is carried on in a
wanton manner. (People v. Grefiel, G.R. No. 77228, Novem-
ber 13, 1992)
What will lead to the presumption of lewd designs?

Since the victim was only 15 years old when she agreed
to leave her employer's house to go with the accused and his
mother, the crime committed was forcible abduction. T h e
victim's virginity may be presumed from the fact that she was
an unmarried barrio girl when the crime was committed. T h e
element of lewd design on the part of the accused may also be
inferred from the fact that while the victim was then a naive
15 year old, the accused was 10 years her senior and although
unmarried, was much wiser in the ways of the world than she
was. The accused's alleged desire to marry the victim is not
a defense considering that no marriage license was presented
and parental consent was wanting. (People v. Villorente, July
1992)
Where the girl is under 12, what is the nature of abduction?
Where the girl is under 12, the crime is always forcible

abduction even if with consent of the girl and more so if without
her consent. T h e law presumes that the abduction is against
her will for a girl less than 12 cannot give a valid consent.
Sexual intercourse is not an element of abduction. It is
enough that the woman is taken against her will with lewd
designs.
When will the abduction be absorbed in the crime of rape?

T h e forcible abduction is absorbed in rape if the main
objective is to rape the victim. T h e offender held the victim by
the arm, pushed her inside a waiting tricycle, and brought her
to his house, where she was padlocked in a room to prevent her
from escaping. T h e subsequent rapes on the victim who was
released only on the tenth day of her abduction constitute as
many counts of rape. (People v. Shariff Ali El Akhtar, G.R. No.
130640, June 21, 1999)
ABDUCTION
• What various crimes can be committed with forcible taking of a

woman?
1. Forcible abduction if the taking is with lewd designs;
forcible abduction with rape if she was raped thereafter;
2. Kidnapping if the purpose is to deprive the woman of her
liberty; kidnapping with rape if the woman was raped
thereafter;
3. Rape only and taking is absorbed if the taking is the
means to carry out the intent to rape.
T h e information sufficiently alleged the elements of forc-
ible abduction: the taking of complainant against her will and
with lewd design. Accused is guilty of the complex crime of forc-
ible abduction with rape and for the three counts of rape com-
mitted by his three co-accused, considering the clear conspira-
cy among them shown by their concerted efforts to perpetrate,
one after the other, the crime. Each of them is responsible not
only for the rape committed personally by him but for the rape
committed by the others as well. However, there can only be
one complex crime of forcible abduction with rape for forcible
abduction was only necessary for the first rape. Thus, the sub-
sequent acts of rape can no longer be considered as separate
complex crimes of forcible abduction with rape. They should be
detached from and considered independently of the forcible ab-
duction. Therefore, accused should be convicted of one complex
crime of forcible abduction with rape and three separate acts
of rape. (People v. Garcia, G.R. No. 141125, February 28, 2002)
(Now, reclusion perpetua only.)
• Can there be consented abduction with simple seduction?

If the original intent was to induce the woman to sexual
intercourse, the crime is simple seduction only, the taking is
absorbed in simple seduction. There must be a significant time
interval between the consented abduction and the seduction
for both crimes to be committed.
• Compare consented abduction and seduction.

In consented abduction, the gravamen is the alarm and
disturbance to the parents and the family of the victim and
the infringement of their rights. In seduction, the gravamen
is the wrong done to the woman. Seduction may be committed
without the taking of the woman unlike in consented abduction.
967
Chapter Five
PROVISIONS RELATIVE TO THE

PRECEDING CHAPTERS OF TITLE ELEVEN
A r t . 344. Prosecution of the crimes of adultery, concubinage,

seduction, abduction, rape and acts of lasciviousness. — T h e crimes
of adultery a n d c o n c u b i n a g e shall not be p r o s e c u t e d except
u p o n a complaint filed by the offended spouse.
T h e offended p a r t y c a n n o t institute c r i m i n a l prosecution

without i n c l u d i n g b o t h the guilty parties, if they a r e b o t h
alive, nor, in any case, if he shall h a v e consented or p a r d o n e d
the offenders.
T h e offenses of seduction, a b d u c t i o n , r a p e , or acts
of lasciviousness, shall not be p r o s e c u t e d except u p o n
a complaint filed by the o f f e n d e d p a r t y or h e r p a r e n t s ,
g r a n d p a r e n t s , or g u a r d i a n , n o r , in a n y case, if the offender
has b e e n expressly p a r d o n e d b y the a b o v e - n a m e d persons,
as the case m a y b e .
In cases of seduction, a b d u c t i o n , acts of lasciviousness,

a n d r a p e , the m a r r i a g e o f the o f f e n d e r w i t h the offended
party shall e x t i n g u i s h the c r i m i n a l action or r e m i t the
penalty a l r e a d y i m p o s e d u p o n h i m . T h e p r o v i s i o n s o f this
p a r a g r a p h shall also b e a p p l i c a b l e t o the co-principals,
accomplices, a n d accessories after the fact of the a b o v e -
m e n t i o n e d crimes.
A r t . 345. Civil liability of persons guilty of crimes against

chastity. — P e r s o n s guilty of r a p e , seduction, or a b d u c t i o n ,
shall also be sentenced:
1. To indemnify the o f f e n d e d w o m a n ;
2. To a c k n o w l e d g e the o f f s p r i n g , unless the law

should prevent him from so doing;
3. In e v e r y case to s u p p o r t the offspring.

R O V I S I O N S RELATIVE TO THE P R E C E D I N G CHAPTERS OF TITLE ELEVEN
T h e a d u l t e r e r a n d the c o n c u b i n a g e in the case p r o v i d e d

for in A r t i c l e s 333 a n d 334 m a y also be sentenced, in the same
p r o c e e d i n g or in a s e p a r a t e civil p r o c e e d i n g , to indemnify
for d a m a g e s c a u s e d to the offended spouse.
A r t . 346. Liability of ascendants, guardians, teachers, or other

persons entrusted with the custody of the offended party. — T h e
ascendants, g u a r d i a n s , c u r a t o r s , t e a c h e r s , a n d any p e r s o n
w h o b y a b u s e o f a u t h o r i t y o r confidential relationships, shall
c o o p e r a t e as a c c o m p l i c e s in the p e r p e t r a t i o n of the crimes
e m b r a c e d in c h a p t e r s second, t h i r d a n d fourth of this title,
shall b e p u n i s h e d a s p r i n c i p a l s .
T e a c h e r s o r o t h e r p e r s o n s i n a n y other capacity
e n t r u s t e d w i t h the e d u c a t i o n a n d g u i d a n c e of the youth, shall
also suffer the p e n a l t y of t e m p o r a r y special disqualification
in its m a x i m u m p e r i o d to p e r p e t u a l special disqualification.
A n y p e r s o n f a l l i n g w i t h i n the t e r m s o f this article, a n d

a n y other p e r s o n guilty of c o r r u p t i o n of m i n o r s for the benefit
o f a n o t h e r , shall b e p u n i s h e d b y special disqualification from
filling the office of g u a r d i a n .
• What is the nature of the indemnity awarded under Article 345?
T h e indemnity under Article 345, paragraph 1 is absolute

and is never conditioned upon the financial capacity of the
accused. (People v. Saluna)
• When should the pardon be given by the offended party?

To be effective, pardon must be given before the
prosecution of the crime. This does not apply to rape however
because it is now a crime against person and R . A . 8353 states
that the penalty imposed shall be remitted. Therefore, pardon
is effective even if judgment had been rendered on the case.
• What are the effects of pardon by the offended party?

It does not extinguish criminal liability. The only
exception are Articles 266-C and 344 which requires a valid
marriage between the offender and the victim to effect an
extinguishment of criminal liability. But civil liability is
extinguished by express waiver of the offended.
969
• In rape cases, will the pardon of the parents of the victim

without the concurrence of the minor victim be effective?
N o . Pardon must be granted not only by the parents of
an offended minor but also by the minor herself to be effective
as an express pardon under Article 344 (Article 266-C, R . A .
8353). Thus, Lacson, Jr., (CA) 55 OG 9460: 'Neither must
we be understood as supporting the v i e w that the parents
alone can extend a valid pardon. Far from it, for we too are
of the belief that the pardon by the parents, standing alone,
is inefficacious.' It was also held in another case that: 'The
express pardon of a person guilty of attempted abduction of
a minor, granted by the latter's parents, is not sufficient to
remove criminal responsibility, but must be accompanied by
the express pardon of the girl herself.' (US v. Luna, 1 Phil.)
T h e supposed pardon of the accused was granted by the mother
without the concurrence of the offended minor. Hence, even if
it be assumed that the initial desistance of the mother from
taking any action against the accused constitutes pardon such
is ineffective without the express concurrence of the minor
herself. (People v. Tadulan, G.R. No. 117407, April 15, 1997)
• Is an affidavit of desistance effective?

An affidavit of desistance is merely an additional ground
to buttress the accused's defenses, not the sole consideration
that can result in acquittal. T h e r e must be other circumstances
which, when coupled with the retraction or desistance, create
doubts as to the truth of the testimony given by the witnesses
at the trial and accepted by the judge. (People v. Ballabare,
G.R. No. 108871, November 19, 1996). A l l that the accused
offered as defenses mainly consisted of denial and alibi which
cannot outweigh the positive identification and convincing
testimonies given by the prosecution. Hence, the affidavit
of desistance which the victim herself intended to disregard
must have no bearing on the criminal prosecution against the
accused particularly on the trial court's jurisdiction over the
case. (People v. Echegaray, G.R. No. 117472, February 7, 1997)
• What is the civil liability of a person convicted of the crime of

rape when an offspring result from the rape?
Article 345 provides that persons guilty of rape, seduction
or abduction, shall be sentenced to: ( a ) indemnify the offended
woman; (b) acknowledge the offspring, unless the law should
970
R O V I S I O N S RELATIVE TO THE P R E C E D I N G CHAPTERS OF TITLE ELEVEN
prevent him from doing so; and (c) in every case to support
the offspring. Under Article 283 of the Civil Code, the father
is obliged to recognize the child as his natural child in cases of
rape, abduction, and seduction when the period of the offense
coincides, more or less, with the period of conception. However,
acknowledgment was disallowed if the offender is a married
man, with only support for the offspring as part of the sentence.
Article 176 of the Family Code confers parental authority

over illegitimate children on the mother and likewise provides
for their entitlement to support in conformity therewith.
As such, there is no more need for the prohibition against
acknowledgment of the offspring of the offender who is a
married man which would vest parental authority in him.
Therefore, under Article 345, the offender in a rape case who
is married can only be sentenced to indemnify the victim and
support the offspring, if there be any. In the instant case, the
accused should also be ordered to support his illegitimate
offspring but in the light of Article 201 of the Family Code, the
amount and terms thereof are to be determined by the trial
court only after due notice and hearing. (People v. Bayani, G.R.
No. 120894, October 3, 1996)
(Article 176 was amended by R . A . 9255 allowing

illegitimate children to use the surname of their father if their
filiation has been expressly recognized by the father through
the record of birth appearing in the civil register, or when
an admission in a public document or private handwritten
instrument is made by the father.)
• When is compulsory acknowledgment of the offspring of rape

proper?
Compulsory acknowledgment as well as the support of
the child is indeed proper if there is no legal impediment in
doing so as when complainant and appellant are both single.
The crime of rape committed by the accused carries with it,
among others the obligation to acknowledge the offspring if the
character of its origin does not prevent it and to support the
same. (People v. Namayan, G.R. No. 106539, July 18, 1995)
The order of the trial court requiring accused to pay
support to complainant's child should be set aside. Under Article
345, those guilty of rape should be ordered to acknowledge and
971
support the child born as a consequence of the rape. Here,

however, accused is married, and, thus, cannot be made to
acknowledge the child of complainant. T h e question is whether
accused should be ordered to support the child. In Bayani, for an
accused to be made to pay such support, it must be shown that
the period of the commission of the rape coincides, more or less,
with the period of conception of the child. In Malapo, G.R. No.
123115, August 25, 1998, the period of pregnancy is 37 weeks
or roughly 9.3 months. In these cases complainant underwent
the full term of her pregnancy and gave birth to a baby girl on
July 9, 1983. She is thus estimated to have conceived the child
sometime in October 1982. Accused, however, stands accused
of three counts of rape, the last of which was committed on
July 12, 1982. In v i e w of the difference of about three months
between the date of the rape on July 12, 1982 and the date of
birth of complainant's child on July 9, 1983, accused cannot be
ordered to support the child.
This, however, does not affect the findings on the guilt of

the accused with regard to the three counts of rape filed against
him. N o t only is the impregnation of the rape victim not an
element of rape but complainant stated that accused continued
to rape her even after July 12, 1982. Although accused cannot
be held liable for such rapes because these cases do not cover
other incidents of rape after July 12, 1982, complainant's
testimony on this point provides a possible explanation for
her childbirth on July 9, 1983. (People v. Dichoson, G.R. No.
118986-89, February 19, 2001)
TITLE TWELVE
CRIMES AGAINST THE CIVIL STATUS
OF PERSONS
Chapter One
S I M U L A T I O N O F BIRTHS A N D
U S U R P A T I O N OF CDTIL STATUS
A r t . 347. Simulation of births, substitution of one child for
another and concealment or abandonment of a legitimate child. —
T h e s i m u l a t i o n of b i r t h s a n d the substitution of one child for
a n o t h e r shall be p u n i s h e d by prision mayor a n d a fine of not
T h e s a m e p e n a l t i e s shall b e i m p o s e d u p o n any p e r s o n
w h o shall conceal o r a b a n d o n a n y legitimate child with
intent to c a u s e s u c h child to lose its civil status.
A n y p h y s i c i a n o r s u r g e o n o r p u b l i c officer w h o , i n
violation of the duties of his profession or office, shall
c o o p e r a t e in the execution of a n y of the crimes mentioned in
the t w o next p r e c e d i n g p a r a g r a p h s , shall suffer the penalties
t h e r e i n p r e s c r i b e d a n d also the p e n a l t y o f t e m p o r a r y special
disqualification.
A r t . 348. Usurpation of civil status. — T h e penalty of prision

mayor shall be i m p o s e d u p o n a n y p e r s o n w h o shall u s u r p the
civil status of a n o t h e r , s h o u l d he do so for the p u r p o s e of
d e f r a u d i n g the offended p a r t y or his heirs; o t h e r w i s e , the
penalty of prision correccional in its m e d i u m a n d m a x i m u m
p e r i o d s shall be imposed.
• Where should the simulation of birth be made?

Simulation of birth must be made in the record of birth;
if in another document the crime is falsification. Likewise, if
the record of birth reflects the true parents but simulation is in
other documents, Article 347 is not violated.
Under R . A . 7610, child trafficking is the crime committed
if the parents should agree to the adoption of their child for a
consideration; or when the physician falsely made it appear in
the record of birth that the supposed parents are the natural
parents.
973
C h a p t e r Two
ILLEGAL MARRIAGES
A r t . 349. Bigamy. — T h e penalty of prision mayor shall
be imposed u p o n any p e r s o n w h o shall contract a second
o r subsequent m a r r i a g e b e f o r e the f o r m e r m a r r i a g e has
b e e n legally dissolved, or b e f o r e the a b s e n t spouse has
been d e c l a r e d p r e s u m p t i v e l y d e a d by m e a n s of a j u d g m e n t
r e n d e r e d in the p r o p e r p r o c e e d i n g s .
A r t . 350. Marriage contracted against provisions of laws.

— T h e penalty of prision correccional in its m e d i u m a n d
m a x i m u m p e r i o d s shall b e i m p o s e d u p o n a n y p e r s o n
w h o , w i t h o u t b e i n g i n c l u d e d in the p r o v i s i o n s of the next
p r e c e d i n g article, shall contract m a r r i a g e k n o w i n g that the
r e q u i r e m e n t s o f the l a w h a v e not b e e n c o m p l i e d w i t h o r that
the m a r r i a g e is in d i s r e g a r d of a l e g a l i m p e d i m e n t .
If either of the c o n t r a c t i n g p a r t i e s shall o b t a i n the

consent of the other by m e a n s of violence, intimidation, or
f r a u d , h e shall b e p u n i s h e d b y the m a x i m u m p e r i o d o f the
penalty p r o v i d e d i n the next p r e c e d i n g p a r a g r a p h .
• What are the elements of bigamy?
1. Offender has been legally married.

2. The marriage has not been legally dissolved or, in case his
or her spouse is absent, the absent spouse could not yet be
presumed dead according to the N C C .
3. Offender contracts a second or subsequent marriage.
4. Such second or subsequent marriage has all the essential
requisites for validity.
W h e n the information was filed on January 22, 1993, all
the elements of bigamy w e r e present. Petitioner married T H
on A p r i l 10, 1976 in Cebu City. W h i l e that marriage was still
subsisting, he contracted a second marriage, this time with
respondent who subsequently filed the complaint for bigamy.
974
ILLEGAL M A R R I A G E S
A judicial declaration of nullity of a previous marriage is

necessary before a subsequent one can be legally contracted.
One who enters into a subsequent marriage without first
obtaining such judicial declaration is guilty of bigamy. This
principle applies even if the earlier union is characterized by
statute as void. (Mercado v. Tan, August 2000). [This decision
finally settled the "conflicting" decisions on the issue of
whether or not it is still necessary for a judicial declaration of
a subsisting marriage before contracting another one to avoid
prosecution for bigamy: Mendoza, 95 Phil. 845; Aragon, 100
Phil. 1033; Vda. de Consuegra v. GSIS, 37 SCRA 315; Tolentino
v. Paras, 122 SCRA 525; Wiegel v. Sempio-Diy, 143 SCRA 499;
Yap, 145 SCRA 229; Domingo, 226 SCRA 572]
• Is the lack of judicial declaration of nullity of a void marriage a

cause for conviction for bigamy?
Y e s . In Domingo, G.R. No. 104818, September 17, 1993,
the issue raised was whether a judicial declaration of nullity
was still necessary for the recovery and the separation of
properties of erstwhile spouses. Ruling in the affirmative, the
Court declared: "The Family Code has settled once and for all
the conflicting jurisprudence on the matter. A declaration of
the absolute nullity of a marriage is now explicitly required
either as a cause of action or a ground for defense; in fact, the
requirement for a declaration of absolute nullity of a marriage
is also for the protection of the spouse who, believing that his
or her marriage is illegal and void, marries again. With the
judicial declaration of the nullity of his or her first marriage,
the person who marries again cannot be charged with bigamy."
Such declaration is necessary before one can contract a

second marriage. Absent that declaration, one may be charged
with and convicted of bigamy. (Mercado v. Tan, G.R. No. 137110,
August 1, 2000)
• Distinguish bigamy from illegal marriage.

If the second marriage is not perfectly valid for causes
other than the existence of the first marriage, the crime is illegal
marriage under Article 350. In bigamy, the second marriage
would have been valid except that there is a subsisting previous
marriage.
975
In bigamy:
1. Subsequent marriage must be perfectly valid except that
it is bigamous;
2. It refers only to the contracting of a second marriage
before the former marriage has been legally dissolved or
before the absent spouse has been declared presumptively
dead.
In illegal marriage:
1. Subsequent marriage is annullable or void even if there is
no first marriage;
2. It covers all marriages which are otherwise voidable or
void for causes other than bigamous marriage.
• The judicial declaration of absolute nullity of a previous marriage

is necessary for what purposes?
There is a necessity for a judicial declaration of absolute

nullity of marriage before contracting another. T h e requirement
is also for the protection of the spouse who, believing that his
marriage is illegal and void, marries again. W i t h the judicial
declaration of the nullity of the first marriage, the person who
marries again cannot be charged with bigamy. (Domingo v.
CA)
• M a y the nullity of the marriage be presumed by the parties?
N o . W h e r e the absolute nullity of a previous marriage

is sought to be invoked for purposes of contracting a second
marriage, the sole basis acceptable in law for said projected
marriage to be free from legal infirmity is a final judgment
declaring the previous marriage void (Section 40). Parties to a
marriage should not be allowed to assume that their marriage
is void even if such be the fact but must first secure a judicial
declaration of its nullity before they can be allowed to remarry.
Such final judgment declaring the previous marriage void

need not be obtained only for purposes of remarriage. T h e r e are
instances where a party might well invoke the absolute nullity
of a previous marriage for purposes other than remarriage,
such as in an action for separation of property or for custody
and support of common children and the delivery of the latter's
976
presumptive legitimes. In such cases, evidence must be adduced

to prove the existence of grounds rendering such a previous
marriage an absolute nullity. These need not be limited solely
to an earlier final judgment of a court declaring such previous
marriage void. H o w e v e r , for purposes of remarriage, he may
prove that the previous one was absolutely void based solely on
a final judgment declaring such previous marriage void.
W h y the distinction? Because marriage is a sacrosanct

institution, declared by the Constitution as an inviolable social
institution, the foundation of the family; as such, it shall be
protected by the State. So crucial are marriage and family
to the stability and peace of the nation that their nature,
consequences, and incidents are governed by law and not
subject to stipulation. As a matter of policy, therefore, the
nullification of a marriage for the purpose of contracting
another cannot be accomplished merely on the basis of the
perception of either or both parties that their union is so
defective as to render it void ipso jure — and nothing more.
For such a socially significant institution, an official State
pronouncement through the courts and nothing less, will
satisfy the exacting norms of society, (id.)
• Will the declaration of nullity of the first marriage after the

celebration of the second free the offender from the charge of
bigamy?
N o . T h e subsequent judicial declaration of nullity

of marriage does not retroact to the date of celebration of
marriage insofar as penal laws are concerned. One who
contracts a subsequent marriage during the subsistence of a
valid marriage is criminally liable for bigamy, notwithstanding
the subsequent judicial declaration that the second marriage is
void ab initio. To hold otherwise would render nugatory penal
laws on bigamy as it would allow individuals to deliberately
ensure that marital contract be flawed and thus escape the
consequences of contracting multiple marriage.
Article 349 penalizes the mere act of contracting a

subsequent marriage during the subsistence of a previous
marriage. As soon as the second marriage is celebrated bigamy
is consummated. (Tenebro v. CA, G.R. No. 150758, February
18, 2004)
977
• If a marriage ceremony was not held before a solemnizing

officer the parties thereto merely signed a marriage contract,
would such signing operate to give validity to the marriage?
No and therefore the first element of bigamy, that the
accused must have been legally married, is not attendant.
The mere private act of signing a marriage contract bears no
semblance to a valid or ostensibly valid marriage and thus
needs no declaration of nullity. W h a t A r t i c l e 40 of the Family
Code contemplates as the void marriage which must first be
declared a nullity before a party can remarry is one which
must exist although it is void. For, even if it is void, it is a legal
impediment to marry such that if there is no prior declaration
of its nullity, one cannot contract a subsequent marriage.
Mercado v. Tan involves at least a first marriage which

appeared to have been entered into although later declared
void ab initio. (Morigo v. People, G.R. No. 145226, February 6,
2004)
> Will the principle of constructive notice by registration be

applicable to the crime of bigamy?
The principle of constructive notice should not be applied

in regard to the crime of bigamy as judicial notice may be taken
of the fact that a bigamous marriage is generally entered into
by the offender in secrecy from the spouse of the previous
subsisting marriage. Also, a bigamous marriage is generally
entered into in a place where the offender is not known to be
still a married person, in order to conceal his legal impediment
to contract another marriage. (People v. Reyes, G.R. Nos. 74226-
27, July 27, 1989)
In the case of real property, the registration of any

transaction involving any right or interest therein is made
in the Register of Deeds of the place where the said property
is located. Verification in the office of the Register of Deeds
concerned of the transactions involving the said property
can easily be made by any interested party. In the case of a
bigamous marriage, verification by the offended person or the
authorities of the same would indeed be quite difficult as such
a marriage may be entered into in a place where the offender is
not known to be still a married person.
978
Constructive notice has been consistently applied to land

or property disputes and certainly, marriage is not property
(id.)
Prescriptive period is 15 years from the time of discovery
of the second marriage.
A r t . 351. Premature marriages. — A n y w i d o w w h o shall
m a r r y w i t h i n t h r e e h u n d r e d a n d one d a y f r o m the date o f
the d e a t h of h e r h u s b a n d , or b e f o r e h a v i n g d e l i v e r e d if she
shall h a v e b e e n p r e g n a n t at the time of his death, shall be
p u n i s h e d by arresto mayor a n d fine not e x c e e d i n g 500 pesos.
T h e s a m e penalties shall b e i m p o s e d u p o n any w o m a n
w h o s e m a r r i a g e shall h a v e b e e n a n n u l l e d o r dissolved, i f
she shall m a r r y b e f o r e h e r d e l i v e r y o r b e f o r e the expiration
of the p e r i o d of t h r e e h u n d r e d a n d one d a y after the legal
separation.
• What is the reason for the law in premature marriage?
T h e ratio legis for Article 351 is to prevent confusion as

to the filiation of the child. Thus, the belief of the woman that
she is not pregnant by the former husband, constitutes good
faith; since this is dolo, there is no criminal liability. Absent
the reason for the law, the law does not apply. If the woman is
barren, the same principle holds true.
A r t . 352. Performance of illegal marriage ceremony. — Priests

or ministers of a n y r e l i g i o u s d e n o m i n a t i o n or sect, or civil
authorities w h o shall p e r f o r m o r a u t h o r i z e any illegal
m a r r i a g e c e r e m o n y shall b e p u n i s h e d i n a c c o r d a n c e with
the provisions o f the M a r r i a g e L a w .
• If a priest or minister who (a) has lapsed authority; or (b) is

merely pretending to be one, officiated a marriage, what crime
is committed?
If the priest's authority (three years) to conduct marriage
has lapsed, he may be prosecuted for illegal marriage. Any of
the contracting parties aware of that fact will also be criminally
liable. This is aside from the fact that the authority of the
solemnizing person is an element of a valid marriage. A priest
or minister can be authorized to officiate a marriage hence his
liability is not for usurpation of function.
979
Persons who pretend to be priests will be liable not for

illegal marriage but for usurpation of official function. The
"priest" must really be a priest or an officer duly commissioned
by the government. If the man connived with such person
to be able to deceive the woman who did not know of such
arrangement for the man to be able to have carnal knowledge
with her, it is fraudulent machination. The person officiating
the marriage is a co-principal by indispensable cooperation.
TITLE THIRTEEN
C R I M E S AGAINST HONOR
• What are the different crimes of defamation?
T h e y are oral defamation or slander; written defamation
or libel; and defamation by overt acts or slander by deed.
Chapter One
LIBEL
Section O n e . — Definition, forms and punishment
of this crime
A r t . 353. Definition of libel. — A libel is a p u b l i c a n d

malicious i m p u t a t i o n of a c r i m e , or of a vice or defect, real
or i m a g i n a r y , or a n y act, omission, condition, status, or
circumstance t e n d i n g to c a u s e the d i s h o n o r , discredit, or
contempt of a n a t u r a l or j u r i d i c a l p e r s o n , or to b l a c k e n the
m e m o r y o f one w h o i s d e a d .
• To find a person guilty of libel, what elements must be proved?

T o be liablefor libel under Article353,thefollowingelements
must be shown to exist: (a) the allegation of a discreditable act
or condition concerning another; (b) publication of the charge;
(c) identity of the person defamed; and (d) existence of malice
(Brillantes v. CA, 440 SCRA 541). Publication, in the law of
libel, means the making of the defamatory matter, after it has
been written, known to someone other than the person to whom
it has been written. If the statement is sent straight to a person
for whom it is written there is no publication of it (Alonzo v.
CA, 441 SCRA 51). T h e reason for this is that a communication
of the defamatory matter to the person defamed cannot injure
his reputation though it may wound his self-esteem. A man's
reputation is not the good opinion he has of himself, but the
estimation in which others hold him. (Magno v. People, G.R.
No. 133896, January 27, 2006)
981
An allegation is considered defamatory if it ascribes to

a person the commission of a crime, the possession of a vice
or defect, real or imaginary, or any act, omission, condition,
status or circumstance which tends to dishonor or discredit or
put him in contempt, or which tends to blacken the memory of
one who is dead. (Vasquez v. CA, G.R. No. 118971, September
15, 1999)
• How should the defamatory words in a publication be construed?

For the purpose of determining the meaning of any
publication alleged to be libelous that construction must be
adopted which will give to the matter such a meaning as is
natural and obvious in the plain and ordinary sense in which
the public would naturally understand what was uttered. T h e
published matter alleged to be libelous must be construed
as a whole. In applying these rules to the language of an
alleged libel, the court will disregard any subtle or ingenious
explanation offered by the publisher on being called to account.
The whole question being the effect the publication had upon
the minds of the readers, and they not having been assisted by
the offered explanation in reading the article, it comes too late
to have the effect of removing the sting, if any there be, from
the words used in the publication, (id.)
A r t . 354. Requirement of publicity. — E v e r y d e f a m a t o r y

i m p u t a t i o n is p r e s u m e d to be m a l i c i o u s , e v e n if it be t r u e ,
if no g o o d i n t e n t i o n a n d j u s t i f i a b l e m o t i v e f o r m a k i n g it is
s h o w n , e x c e p t i n the f o l l o w i n g cases:
1. A p r i v a t e c o m m u n i c a t i o n m a d e by a n y p e r s o n to
a n o t h e r in the p e r f o r m a n c e of a n y l e g a l , m o r a l , or social
duty; a n d
2. A fair a n d t r u e r e p o r t , m a d e in g o o d faith, w i t h o u t
a n y comments o r r e m a r k s , o f a n y j u d i c i a l , legislative, o r
other official p r o c e e d i n g s w h i c h a r e not of confidential
n a t u r e , o r o f a n y statement, r e p o r t , o r s p e e c h d e l i v e r e d i n
said p r o c e e d i n g s , o r o f a n y o t h e r act p e r f o r m e d b y p u b l i c
officers in the exercise of t h e i r functions.
• How are the elements of publication and identification satisfied?
There is publication if the material is communicated to

a third person. It is not required that the person defamed has
982
LIBEL
read or heard about the libelous remark. W h a t is material is

that a third person has read or heard the libelous statement,
for a man's reputation is the estimate in which others hold
him, not the good opinion which he has of himself.
On the other hand, to satisfy the element of identifiability,

it must be shown that at least a third person or a stranger was
able to identify him as the object of the defamatory statement.
(Vasquez v. CA)
In Silvela, 103 Phil. 773, sending an unsealed libelous

letter to the offended party constitutes publication. In the
present case, there is no dispute that the unsealed envelope
containing the libelous letter was handed by DD to EE.
Contextually, there was a reasonable probability that the
contents of the unsealed envelope, particularly the libelous
letter, could h a v e been exposed to be read by EE before
delivering the same to C C . H o w e v e r , EE categorically
admitted not reading the letter at the first instance, reading
it only after securing CC's permission. In as much as CC
voluntarily disclosed the contents of D D ' libelous letter to
EE, the act of publication cannot be ascribed to DD insofar
as EE is concerned. H o w e v e r , it could not be said that there
was no publication w i t h respect to Cerelito's wife, FF. W h i l e
the letter in question was addressed to "Mr. Cerelito & Fe
Alejandro," the invectives contained therein were directed
against CC only.
W r i t i n g to a person other than the person defamed is

sufficient to constitute publication, for the person to whom the
letter is addressed is a third person in relation to its writer and
the person defamed therein. FF, the wife, is, in context, a third
person to whom the publication was made. (Magno v. People,
G.R. No. 133896, January 27, 2006)
Does the issuance of an inter-office memorandum satisfy the

element of publicity in libel?
The key element of publicity found in the definition
of libel in Article 353 is absent. Firstly, the assailed letter
was part of the initial investigation surrounding the non-
remittance of collections by Fortich. The phrase "Inter-
office Memorandum," implies confidentiality. Secondly, the
983
letter was not publicized, much less read by officers of the

corporation other than those involved in the investigation or
those directly supervising Fortich's work. W h i l e imputation
of a vice or defect on Fortich's character might have been
apparent from the second to the last paragraph of the
memorandum, the imputation was never really made publicly.
(Fortich v. CA, G.R. No. 120769, February 12, 1997)
A r t . 355. Libel by means of writings or similar means. — A

libel committed by m e a n s of w r i t i n g , p r i n t i n g , l i t h o g r a p h y ,
engraving, radio, phonograph, painting, theatrical
exhibition, c i n e m a t o g r a p h i c exhibition or a n y similar m e a n s ,
shall be p u n i s h e d by prision correccional in its m i n i m u m or
m e d i u m p e r i o d s or a fine r a n g i n g f r o m 200 to 6,000 pesos, or
both, in addition to the civil action w h i c h m a y be b r o u g h t by
the offended party.
• What kind of defamation are utterances made in broadcast

media?
Pursuant to Article 355, these are libel, not oral
defamation. For practical purposes, before such case can be
filed in court, the offended must secure a written transcript of
broadcast for presentation of the defamatory statement, hence
it is libel, not oral defamation.
• Can the court impose fine instead of imprisonment?

Y e s . Evidently, Article 355 gives court the discretion
to impose the penalty of imprisonment or fine or both. For
humanitarian reasons and in the exercise of its sound judicial
discretion the penalty imposed was changed because petitioner
is a radio commentator who delivers commentaries affecting
public interest. He has thus made some contributions to the
cause of good government and is in effect rendering public
service in his own way. Also, he has five children, four of whom
are still minors fully dependent upon him for support and who
would one w a y or another bear the grudge of incarceration
should the prison sentence be carried out. As the court is not
only a court of law but of justice and compassion, instead of
a prison term, petitioner was ordered to pay fine of P3.000.
(Torralba v. CA, October 1996)
984
LIBEL
A r t . 356. Threatening to publish and offer to prevent such

publication for a compensation. — T h e p e n a l t y of arresto mayor
or a fine of f r o m 200 to 2,000 pesos, or b o t h , shall be imposed
u p o n a n y p e r s o n w h o t h r e a t e n s a n o t h e r t o p u b l i s h a libel
c o n c e r n i n g h i m o r the p a r e n t s , spouse, child, o r other
m e m b e r s o f the f a m i l y o f the latter, o r u p o n a n y o n e w h o
shall offer to p r e v e n t the p u b l i c a t i o n of such libel for a
compensation or money consideration.
I f the r e m a r k s t h r e a t e n e d a r e d e f a m a t o r y , the crime
is u n d e r this article; if o t h e r w i s e , the c r i m e is light threats
defined in A r t i c l e 283.
A r t . 357. Prohibited publication of acts referred to in the
course of official proceedings. — T h e p e n a l t y of arresto mayor
or a fine f r o m 200 to 2,000 pesos, or b o t h , shall be imposed
u p o n a n y r e p o r t e r , e d i t o r o r m a n a g e r o f a n e w s p a p e r , daily
o r m a g a z i n e , w h o shall p u b l i s h facts connected w i t h the
p r i v a t e life of a n o t h e r a n d offensive to the honor, virtue
a n d r e p u t a t i o n o f s a i d p e r s o n , even t h o u g h said publication
be m a d e in c o n n e c t i o n w i t h or u n d e r the pretext that it is
necessary in the n a r r a t i o n of a n y j u d i c i a l or administrative
p r o c e e d i n g s w h e r e i n such facts h a v e b e e n mentioned.
A r t . 358. Slander. — O r a l d e f a m a t i o n shall be p u n i s h e d by
in its m i n i m u m p e r i o d if it is of a serious a n d insulting
nature; o t h e r w i s e , the penalty shall be arresto menor or a
fine not e x c e e d i n g 200 pesos.
• When is a defamatory remark serious and when slight?

A doctrine of ancient respectability held that defamatory
words will fall under serious or slight depending not only upon
their sense, grammatical significance, and accepted ordinary
meaning judging them separately, but also upon the special
circumstances of the case, antecedents or relationships between
the offended party and the offender, which might tend to prove
the intention of the offender at the time. Considering the fact
that the parties were also neighbors; that petitioner was drunk
at the time he uttered the defamatory words; and the fact that
petitioner's anger was instigated by what Atty. EE did when
petitioner's father died, the oral defamation was not of serious
or insulting nature.
985
Whether the offense committed is serious or slight

oral defamation depends not only upon the sense and
grammatical meaning of the utterances but also upon the
special circumstances of the case, like the social standing or
the advanced age of the offended party. When the offense has
been qualified to grave oral defamation, it cannot be reduced
to simple oral defamation by the claim that the slanderous
words were said in the heat of anger. Besides, the slanderous
words were uttered with evident intent to strike deep into the
character of the victim. (Larobis v. CA, G.R. No. 104189, March
30, 1993)
• Is the expression "p... i.. mo" defamatory?

N o . In Reyes v. People, 137 Phil., the expression "p... i..
mo" is a common enough utterance in the dialect that is often
employed, not really to slander but rather to express anger
or displeasure. In fact, more often, it is just an expletive that
punctuates one's expression of profanity. (Pader v. People, G.R.
No. 139157, February 8, 2000)
• Is there frustrated or attempted defamation?
None, because the acts constituting defamation cannot be

performed without consummating the offense. It is a formal
crime.
A r t . 359. Slander by deed. — T h e p e n a l t y of arresto

mayor in its m a x i m u m p e r i o d to prision correccional in its
m i n i m u m p e r i o d or a fine r a n g i n g f r o m 200 to 1,000 pesos
shall b e i m p o s e d u p o n a n y p e r s o n w h o shall p e r f o r m a n y
act not i n c l u d e d a n d p u n i s h e d in this title, w h i c h shall cast
d i s h o n o r , discredit o r c o n t e m p t u p o n a n o t h e r p e r s o n . I f s a i d
act is not of a serious n a t u r e , the p e n a l t y shall be arresto
menor or a fine not e x c e e d i n g 200 pesos.
Section T w o . — General Provisions
A r t . 360. Persons responsible. — A n y p e r s o n w h o shall

p u b l i s h , exhibit, o r c a u s e the p u b l i c a t i o n o r e x h i b i t i o n o f
a n y d e f a m a t i o n i n w r i t i n g o r b y s i m i l a r m e a n s , shall b e
r e s p o n s i b l e for the same.
LIBEL
T h e a u t h o r or editor of a b o o k or p a m p h l e t , or the editor

or b u s i n e s s m a n a g e r of a d a i l y n e w s p a p e r , m a g a z i n e or
serial p u b l i c a t i o n , shall be r e s p o n s i b l e for the defamations
contained therein to the s a m e extent as if he w e r e the a u t h o r
thereof.
T h e c r i m i n a l a n d civil action for d a m a g e s in cases of

w r i t t e n d e f a m a t i o n s as p r o v i d e d for in this chapter, shall
b e f i l e d s i m u l t a n e o u s l y o r s e p a r a t e l y w i t h the C o u r t o f First
Instance of the p r o v i n c e or city w h e r e the libelous article
is p r i n t e d a n d first p u b l i s h e d or w h e r e a n y of the offended
parties actually r e s i d e s at the time of the commission of the
offense; Provided, however, T h a t w h e r e one of the offended
parties is a p u b l i c officer w h o s e office is in the City of M a n i l a
at the time of the c o m m i s s i o n of the offense, the action shall
be filed in the C o u r t of F i r s t I n s t a n c e of the City of M a n i l a or
of the city or p r o v i n c e w h e r e the l i b e l o u s article is printed
a n d first p u b l i s h e d , a n d in case such p u b l i c officer does not
h o l d office in the City of M a n i l a , the action shall be filed in the
C o u r t of First I n s t a n c e of the p r o v i n c e or city w h e r e he held
office at the time of the c o m m i s s i o n of the offense or w h e r e
the libelous article is p r i n t e d a n d first p u b l i s h e d a n d in case
one of the offended p a r t i e s is a p r i v a t e i n d i v i d u a l , the action
shall be filed in the C o u r t of F i r s t Instance of the p r o v i n c e or
city w h e r e he actually resides at the time of the commission
of the offense or w h e r e the libelous matter is printed a n d
first p u b l i s h e d : Provided, further, T h a t the civil action shall
be filed in the same c o u r t w h e r e the c r i m i n a l action is filed
a n d vice versa: Provided, furthermore, T h a t the court w h e r e
the c r i m i n a l action or civil action for d a m a g e s is first filed,
shall a c q u i r e j u r i s d i c t i o n to the exclusion of other courts:
And provided, finally, T h a t this a m e n d m e n t shall not apply
to cases of w r i t t e n defamations, the civil and/or criminal
actions to w h i c h h a v e b e e n filed in court at the time of the
effectivity of this l a w .
P r e l i m i n a r y investigation of criminal actions for

written defamations as p r o v i d e d for in the chapter shall be
conducted by the p r o v i n c i a l or city fiscal of the province or
city, or by the m u n i c i p a l court of the city or capital of the
province w h e r e such actions m a y be instituted in accordance
w i t h the provisions of this article.
987
No criminal action for defamation w h i c h consists in

the imputation of a crime w h i c h cannot be prosecuted de of-
ficio shall b r o u g h t except at the instance of a n d u p o n com-
plaint expressly filed by the offended party. (As amended by
R.A. No. 1289, June 15, 1955; andR.A. No. 4363, June 19, 1965.)
• Who are the persons responsible for defamatory publications?

Article 360 enumerates the persons responsible:
1. A n y person who shall publish, exhibit, or cause the
publication or exhibition of any defamation in writing or
by similar means; and
2. The author or editor of a book or pamphlet, or the editor
or business manager of a daily newspaper, magazine or
serial publication, shall be responsible for the defamations
contained therein to the same extent as if he were the
author thereof.
It is curious that the ones most obviously responsible
for the publication of the a l l e g e d l y offensive news report
— the editorial staff and the periodical itself — w e r e not
impleaded. T h e charge w a s l e v e l e d against the petitioner
and, "curiouser" still, his clients w h o h a v e nothing to do w i t h
the editorial policies of the newspaper. T h e non-inclusion of
the periodicals w a s not at all convincing pretense of respect
for freedom of expression. (Vasquez v. CA, supra)
What court has jurisdiction in libel case?
W h i l e libel is punishable by imprisonment of 6 months

and 1 day to 4 years and 2 months which imposable penalty is
lodged within the Municipal T r i a l Courts' jurisdiction under
R . A . 7691, said law, however, excludes therefrom "cases falling
within the exclusive original jurisdiction of the Regional Trial
Court." R T C s have the exclusive jurisdiction over libel cases,
hence, the expanded jurisdiction conferred by R . A . 7691 to
inferior courts cannot be applied to libel cases.
Administrative Order N o . 104-96 " D E S I G N A T I O N

OF SPECIAL COURTS FOR K I D N A P P I N G , ROBBERY,
C A R N A P P I N G , DANGEROUS DRUGS CASES A N D OTHER
HEINOUS CRIMES; I N T E L L E C T U A L P R O P E R T Y RIGHTS
V I O L A T I O N S A N D J U R I S D I C T I O N I N L I B E L CASES,"
LIBEL
October 21, 1996 by the Chief Justice upon the advice and
consent of the Court En Banc, provides, that "Libel cases
shall be tried by the Regional T r i a l Courts having jurisdiction
over them to the exclusion of the metropolitan Trial Courts,
Municipal T r i a l Courts in Cities, Municipal Trial Courts
and Municipal Circuit T r i a l Courts." (People v. MTC of QC,
December 1996)
What is the effect of R.A. 7691 on the jurisdiction of the courts

over libel cases?
N o n e . T h e applicable law is still Article 360 which

categorically provides that jurisdiction over libel cases are
lodged w i t h the Courts of First Instance, now R T C . For,
although R . A . 7691 was enacted to decongest the clogged
dockets of the R T C by expanding the jurisdiction of first level
courts, said l a w is of a general character. Even if it is a later
enactment, it does not alter the provision of Article 360, a law
of a special nature. " L a w s vesting jurisdiction exclusively with
a particular court, are special in character, and should prevail
over the Judiciary A c t defining the jurisdiction of other courts
(such as the Court of First Instance) which is a general law." A
later enactment like R . A . 7691 does not automatically override
an existing law, because in case of conflict between a general
law and a special law, the latter must prevail regardless of the
dates of their enactment. Jurisdiction conferred by a special
law on the R T C must therefore prevail over that granted by a
general law on the M T C . (Manzano v. Valera, G.R. No. 122068,
July 8, 1998)
Moreover, from the provisions of R . A . 7691, there seems

to be no manifest intent to repeal or alter the juris-diction in
libel cases. If there was such intent, then the amending law
should have clearly so indicated because implied repeals
are not favored. As much as possible, effect must be given
to all enactments of the legislature. A special law cannot be
repealed, amended or altered by a subsequent general law
by mere implication. Furthermore, for an implied repeal, a
pre-condition must be found, that is, a substantial conflict
should exist between the new and prior laws. Absent an
express repeal, a subsequent law cannot be construed as
repealing a prior one unless an irreconcilable inconsistency
989
or repugnancy exists in the terms of the new and the old laws.
The two laws, in brief, must be absolutely incompatible. In
the law which broadened the jurisdiction of the first level
courts, there is no absolute prohibition barring R T C s from
taking cognizance of certain cases over which they have been
priorly granted special and exclusive jurisdiction. Such grant
to the R T C was categorically contained in the first sentence
of the amended Section 32 of B.P. Big. 129. T h e inconsistency
referred to in Section 6 of R . A . 7691, therefore, does not apply
to cases of criminal libel, (id.)
Supreme Court Administrative Order N o . 104-96 issued

21 October 1996 settled the matter with finality, (id.)
Where is the venue of libel cases?

T h e possible venues for the institution of the criminal and
the civil aspects of libel cases are concisely outlined in Article
360 as amended by R . A . 4363. (Macasaet v. People, G.R. No.
156747, February 23, 2005)
Agbayani v. Sayo, G.R. No. L-47880, April 30, 1979,

summarized the rules as follows:
1. Whether the offended party is a public official or a private
person, the criminal action may be filed in the Court of
First Instance (now R T C ) of the province or city where the
libelous article is printed and first published.
2. If the offended party is a private individual, the criminal
action may also be filed in the R T C of the province where
he actually resided at the time of the commission of the
offense.
3. If the offended party is a public officer whose office is in
Manila at the time of the commission of the offense, the
action may be filed in the R T C of Manila.
4. If the offended party is a public officer holding office
outside of Manila, the action may be filed in the R T C of
the province or city where he held office at the time of the
In the case at bar, private respondent was a private
citizen at the time of the publication of the alleged libelous
article, hence, he could only file his libel suit in the City of
Manila where Abante was first published or in the province
990
LIBEL
or city where he actually resided at the time the purported

libelous article was printed.
T h e allegations contained in the information are utterly

insufficient to vest jurisdiction on the Quezon City court. Other
than perfunctorily stating "Quezon City" at the beginning of
the information, the information did not indicate whether or
not the jurisdiction of R T C Quezon City was invoked either
because Abante was printed in that place or private respondent
was a resident of said city at the time the claimed libelous
article came out. As these matters deal with the fundamental
issue of the court's jurisdiction, either one of these statements
must be alleged in the information itself and the absence of
both from the very face of the information renders the latter
fatally defective. (Macasaet v. People, supra)
• What should the information contain to vest jurisdiction on a

particular court?
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:
1. at the time the offense was committed, the offended party

was a public officer or a private individual; and
2. 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, (id.)
W h i l e the general rule is that the information must set
out the particular defamatory words verbatim and as published
and that a statement of their substance is insufficient, Eguia,
38 Phil. 857, held that a defect in this regard may be cured by
evidence. In this case, the article was presented in evidence,
but petitioner failed to object to its introduction. Instead,
he engaged in the trial of the entire article, not only of the
portions quoted in the information, and sought to prove it to be
true. In doing so, he waived objection based on the defect in the
991
information. Consequently, he cannot raise this issue at this

late stage. (Vasquez, supra)
A r t . 361. Proof of the truth. — In every criminal prosecution
for libel, the truth m a y be given in evidence to the court a n d
if it a p p e a r s that the matter c h a r g e d as libelous is true, a n d ,
moreover, that it w a s p u b l i s h e d w i t h g o o d motives a n d for
justifiable ends, the defendants shall be acquitted.
P r o o f of the truth of an i m p u t a t i o n of an act or omission
not constituting a crime shall not be admitted, unless the
imputation shall h a v e b e e n m a d e a g a i n s t G o v e r n m e n t
employees w i t h respect to facts r e l a t e d to the d i s c h a r g e of
their official duties.
In such cases if the d e f e n d a n t p r o v e s the truth of the

imputation m a d e b y h i m , h e shall b e acquitted.
• When is the truth of a defamatory statement a defense?
Article 354 provides:

Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for
making it is shown, except in the following cases:
1. A private communication made by any person to another
in the performance of any legal, moral or security duty;
and
2. A fair and true report, made in good faith, without any

comments or remarks, of any judicial, legislative or other
official proceedings which are not of confidential nature,
or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public
officers in the exercise of their functions.
and the Constitution allows:
3. Fair commentaries on matters of public interest. (Flor v.
People, G.R. No. 139987, March 31, 2005).
These exceptions are qualifiedly privileged
statements. T h e 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 Article 361, if the defamatory
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LIBEL
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.
In denouncing the barangay chairman, petitioner and

the other residents of the Tondo Foreshore A r e a were not only
acting in their self-interest but engaging in the performance
of a civic duty to see to it that public duty is discharged
faithfully and well by those on whom such duty is incumbent.
The recognition of this right and duty of every citizen in a
democracy is inconsistent with any requirement placing on
him the burden of proving that he acted with good motives and
for justifiable ends. (Vasquez v. CA)
The interest of society and the maintenance of good

government demand a full discussion of public affairs. Complete
liberty to comment on the conduct of public men is a scalpel in
the case of free speech. T h e sharp incision of its probe relieves
the abscesses of officialdom. M e n in public life may suffer under
a hostile and an unjust accusation; the wound can be assuaged
with the balm of a clear conscience. A public officer must not be
too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and the dignity of the individual
be exalted. Of course, criticism does not authorize defamation.
Nevertheless, as the individual is less than the State, so must
expected criticism be borne for the common good. Rising superior
to any official or set of officials, to the Chief Executive, to the
Legislature, to the Judiciary — to any or all the agencies of
Government — public opinion should be the constant source of
liberty and democracy. (Jalandoni v. Drilon, G.R. No. 115239-
40, March 2, 2000)
May evidence proving the truthfulness of the imputation be

received?
N o . Evidence proving the imputation is objectionable
because such is inadmissible. The exceptions are only in two
cases:
993
1. Imputation against a public officer and the same relates

to his public function. (Article 361, paragraph 2[b]).
The offender may adduce evidence of the truth of such
imputation; and
2. Imputation of a crime against any person, (id., par. 2[a].)
But the mere fact that the truth is proved, the accused
must further show that he acted out of good motives and
justifiable end. Truth alone is not enough. In all other cases,
truth is not a defense at all. (Article 361, N o . 1; Article 354)
• What is the nature of fair commentaries on matters of public

interest?
They are privileged and constitute a valid defense in an
action for libel or slander. T h e doctrine of fair comment means
that while in general every discernible imputation publicly
made is deemed false, because every man is presumed innocent
until his guilt is judicially proved, and every false imputation
is deemed malicious, nevertheless, when the discreditable
imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such
discreditable imputation to a public official may be actionable,
it must either be a false allegation of fact or a comment based
on a false supposition. If the comment is an expression of
an opinion, based on established facts, then it is immaterial
that the opinion happens to be mistaken, as long as it might
reasonably be inferred from the facts. (People v. Velasco, 40
O.G.)
• W h o is a public figure?
He is 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.' He is in other words
a celebrity. To be included in this category are those who
have achieved some degree of reputation by appearing before
the public, as in the case of an actor, a professional baseball
player, a pugilist, or any other entertainer. T h e list is however
broader than this. It includes public officers, famous inventors
and explorers, war heroes and even ordinary soldiers, infant
LIBEL
prodigy, and no less a personage than the Great Exalted Ruler

of the lodge. It includes, in short, anyone who has arrived at a
position where the public attention is focused upon him as a
person. (Ayers Production v. Capulong, G.R. Nos. 82380 and
82396, April 29, 1988)
The F N L C T was an undertaking infused with public

interest. It was promoted as a joint project of the government
and the private sector, and organized by top government officials
and prominent businessmen. For this reason, it attracts media
mileage and drew public attention not only to the conference
itself but to the personalities behind as well. As its Executive
Director and spokesman, private respondent consequently
assumed the status of a public figure. But assuming that he
would not qualify as a public figure, it does not follow that he
could not validly be the subject of a public comment even if he
was not a public official or at least a public figure for he could
be, as long as he was involved in a public issue. If a matter
is a subject of public or general interest, it cannot suddenly
become less so merely because a private individual is involved
or because in some sense the individual does not voluntarily
choose to become involved. T h e public's primary interest is in
the event; the public focus is on the conduct of the participant
and the content, effect and significance of the conduct, not the
participant's prior anonymity or notoriety. (Borjal v. CA, G.R.
No. 126466, January 14, 1999)
A r t . 362. Libelous remarks. — L i b e l o u s r e m a r k s or

comments connected w i t h the m a t t e r p r i v i l e g e d u n d e r the
provisions of A r t i c l e 354, if m a d e w i t h malice, shall not
exempt the a u t h o r thereof n o r the editor or m a n a g i n g editor
of a n e w s p a p e r f r o m c r i m i n a l liability.
• What is malice in law?

It is malice which the law presumes to be present where
the offender cannot establish justifiable reasons or good
motives therefor. Hence, the complainant here does not have
to prove the existence because it is presumed by law.
• When is malice presumed?

An imputation is legally malicious if done without any
reason that would justify a normally conscientious man in
995
so making the imputation. While the law presumes every

defamatory imputation to be malicious, there are exceptions to
this rule. For instance, respondent's inter-office memorandum
falls within the ambit of privileged communication rule.
Carreon was Fortich's immediate supervisor. He was charged
to enforce company rules and policies, including the duty to
undertake initial investigation of possible irregularities in
customer accounts. (Fortich v. CA, February 1997)
• What is malice in fact?

It is malice which the complainant has to prove to
exist. T h e offended must prove, w h e r e malice in l a w does
not exist, the existence of malice in order to hold the
offender criminally and c i v i l l y liable. T h i s malice is r e l e v a n t
in qualified p r i v i l e g e d statements. E v e n if malice in fact
actually exists and is proved, no criminal liability is incurred
if the statements are absolutely p r i v i l e g e d in character.
• What are privileged statements?
Absolutely privileged statements are not actionable at

all; qualified privileged statements require that the offended
establish malice in fact.
Absolutely privileged statements are those which in

law is totally not actionable whether civilly or criminally.
Statements by lawyers in pleadings which are defamatory may
be absolutely privileged in character once he established that
such statements are relevant to the case.
Qualifiedly privileged statement allows proof of malice in

fact. Even if malice in fact exists such can be adduced only if
the privileged character of the statement is qualified.
Defamatory statements must be quoted verbatim and the

publication thereof alleged in the information. Motion to quash
is proper since it will be a mere waste of time to go through
the trial if on the face of the instrument, it is clear that the
statement is relevant to the case. For instance — allegation of
loose morals of the mother and sisters in a child custody case
filed by the father. (Espiritu v. CA, G.R. No. 115640, March 15,
1995)
LIBEL
• What is the purpose of the doctrine of privileged communication?
T h e doctrine has a practical purpose. As enunciated in

Deles v. Aragona, Jr., March 28, 1969, the privilege is not
intended so much for the protection of those engaged in the
public service and in the enactment and administration of
law, as for the promotion of public welfare, the purpose being
that members of the legislature, judges of courts, jurors,
lawyers and witnesses may speak their minds freely and
exercise their respective functions without incurring the risk
of criminal prosecution or an action for damages. (Navarette
v. CA, G.R. No. 124245, February 2000, 325 SCRA)
• In determining the issue of relevancy, what has been the attitude

of the courts?
In determining the issue of relevancy of statements

made in judicial proceedings, courts have adopted a liberal
attitude by resolving all doubts in favor of relevancy. People v.
Aquino emphasized that "it is the rule that what is relevant or
pertinent should be liberally considered to favor the writer and
the words are not to be scrutinized with microscopic intensity."
In this case, the allegations made by private respondent in

her Amended Complaint stand the test of relevancy. T h e words
"forging," "malicious and fraudulent" and "falsified" are clearly
pertinent to the cause of action of private respondent which is
to annul the Deed of Sale with Right of Repurchase wherein
private respondent's signature was forged by an impostor, and
to recover damages resulting from such forgery. The words
"stupid," "bastards," "swindlers," and "plunderers" uttered by
private respondent did not specifically pertain to petitioner
to sufficiently identify him as the object of defamation, such
identifiability being an element of a libelous imputation, (id.)
• What is the "rule of actual malice"?

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 — that is, with knowledge that it was false or
with reckless disregard of whether it was false or not. This
997
rule of actual malice was announced in the landmark case

of New York Times v. Sullivan. In this case, the prosecution
failed to prove not only that the charges made by petitioner
were false but also that petitioner made them with knowledge
of their falsity or with reckless disregard of whether they
were false or not.
A rule placing on the accused the burden of showing the
truth of allegations of official misconduct and/or good motives
and justifiable ends for making such allegations would not
only be contrary to Article 361. It would, above all, infringe
on the constitutionally guaranteed freedom of expression. Such
a rule would deter citizens from performing their duties as
members of a self-governing community. Without free speech
and assembly, discussions of our most abiding concerns as a
nation would be stifled. As Justice Brandeis has said, "public
discussion is a political duty" and the "greatest menace to
freedom is an inert people." (Vasquez, supra)
What is the nature of statements made in judicial proceedings?
It is a settled that statements made in the course of judicial

proceedings are absolutely privileged. This absolute privilege
remains regardless of the defamatory tenor and the presence
of malice if the same are relevant, pertinent or material to the
cause in hand or subject of the inquiry. Thus, the person who
made these statements such as the judge, l a w y e r or witness
does not thereby incur the risk of being found liable thereon in
a criminal prosecution or an action for the recovery of damages.
Sarcastic, pungent, and harsh allegations in a pleading

although tending to detract from the dignity that should
characterize proceedings in courts of justice, are absolutely
privileged, if relevant to the issue. (Navarette v. CA, supra)
Does an inter-office memo partake of the nature of privileged

communication?
Y e s . Such memorandum report was an official act done in

good faith, an honest innocent statement arising from a moral
and legal obligation which respondent owed to the company
in the performance of his duties. T h e rule on privileged
LIBEL
communications allows the latitude of expression embodied in

the respondent's second memorandum (Fortich v. CA, February
1997).
• When a communication is privileged, what happens to the

presumption of malice in defamatory imputations?
W h i l e generally malice can be presumed from defamatory

words, the privileged character of a communication destroys
the presumption of malice. T h e onus of proving actual malice
lies on plaintiff. He must bring home to the defendant the
existence of malice as the true motive of his conduct.
Furthermore, to be considered malicious, the libelous
statement must be shown to have been written or published
with the knowledge that they are false or in reckless disregard
or whether they are false or not. "Reckless disregard of what
is false or not" means that 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. (Borjal v.
CA)
• How should imputations against public figures be treated?
Even assuming that the contents of the articles are false,

mere error, inaccuracy, or even falsity does not prove actual
malice. Errors or misstatements are inevitable in any scheme
of truly free expression and debate. Consistent with good faith
and reasonable care, the press should not be held to account,
to a point of suppression, for honest mistakes or imperfections
in the choice of the language. There must be some room for
misstatement of facts as well as for misjudgment. Only by
giving them much leeway and tolerance can they courageously
and effectively function as critical agencies in our democracy.
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. It is
for the same reason that the N e w York Times doctrine requires
that liability for defamation of a public official or public figure
may not be imposed in the absence of proof of "actual malice"
on the part of the person making the libelous statement, (id)
999
What is the requirement before public officers can demand

damages from members of the press?
It must be shown that the statement was made with actual
malice — with knowledge that it was false or with reckless
disregard of whether it was false or not. (Rule of actual malice
or New York Times Test) (Flor v. People, supra)
How is reckless conduct measured?

Reckless conduct is not measured by whether a prudent
man would have published or would have investigated
before publishing. There must be sufficient evidence that the
defendant in fact entertained serious doubts as to the truth
of his publication. False statements alone are not actionable.
Maliciousness may be shown only through knowledge of falsity
or reckless disregard of truth or falsity, (id.)
W h o has the burden of showing the truth of allegations of

official misconduct and/or good motives and justifiable ends for
making such allegations?
It cannot be placed on the accused as it would be contrary

to Article 361 and more importantly it would infringe on the
constitutional freedom of expression, (id.)
Can the headline alone of the newspaper be libelous?
N o . It must be read and construed with the language that

follows. T h e wording of the headline may contain exaggeration
but the same represents a fair index of the contents of the news
story accompanying it. (id.)
1000
Chapter Two
INCRIMINATORY MACHINATIONS
A r t . 363. Incriminating innocent person. — A n y p e r s o n
w h o , b y a n y act not c o n s t i t u t i n g p e r j u r y , shall directly
i n c r i m i n a t e o r i m p u t e t o a n i n n o c e n t p e r s o n the c o m m i s s i o n
of a c r i m e , s h a l l be p u n i s h e d by arresto mayor.
A r t . 364. Intriguing against honor. — T h e p e n a l t y of arresto

menor or fine not e x c e e d i n g 200 p e s o s s h a l l be i m p o s e d for
a n y i n t r i g u e w h i c h h a s f o r its p r i n c i p a l p u r p o s e , t o b l e m i s h
the h o n o r or r e p u t a t i o n of a p e r s o n .
• What is intriguing against honor?
Intriguing against honor is also known as tsismis. The

author is unknown, the offender appears to be repeating only
what he heard others say. The offender does not really want
to assume responsibility for the statement but imputes it to
another from whom he learned the statement ('They said . .
."). Otherwise, the crime is slander where the source of the
statement is known.
• What is incriminating innocent person?
It is incriminating or imputing to an innocent person
the commission of a crime. This is committed, for instance, by
planting evidence on the subject innocent person. This practice
is resorted to enable peace officers to arrest the subject, in
which case the arrest is unlawful. In Morales v. Enrile, G.R.
No. L-61016, April 26, 1983: "Where there is no justification
for the arrest, the Public Officer can be liable for arbitrary
detention or unlawful arrest."
Planting of evidence or incriminating innocent person is
committed by performing an act by which the offender directly
incriminates or imputes to an innocent person the commission
of a crime. (Huggland v. Lantin, A.M. No. MTJ-98-1153,
February 29, 2000)
1001
Illustrations:
1. Jaime took the wallet from the pants of Rogelio and put it
into the pocket of Mario. Thereby, Jaime is imputing that
the latter committed theft.
2. S P O l saw Joey on his way home. He stopped and frisked
him. While doing so, he planted a marijuana stick and on
that basis arrested him.
TITLE FOURTEEN
QUASI-OFFENSES
Sole Chapter
CRIMINAL N E G L I G E N C E
A r t . 365. Imprudence and negligence. — A n y p e r s o n w h o ,
b y reckless i m p r u d e n c e , shall commit a n y act w h i c h , h a d
it b e e n intentional, w o u l d constitute a g r a v e felony, shall
suffer the p e n a l t y of arresto mayor in its m a x i m u m p e r i o d
to prision correccional in its m e d i u m p e r i o d ; if it w o u l d h a v e
constituted a less g r a v e felony, the penalty of arresto mayor
in its m i n i m u m a n d m e d i u m p e r i o d s shall be imposed; if it
w o u l d h a v e constituted a light felony, the penalty of arresto
m e n o r in its m a x i m u m p e r i o d shall be imposed.
A n y p e r s o n w h o , b y simple i m p r u d e n c e o r negligence,
shall commit an act w h i c h w o u l d , o t h e r w i s e , constitute a
g r a v e felony, shall suffer the penalty of arresto mayor in its
m e d i u m a n d m a x i m u m p e r i o d s ; if it w o u l d h a v e constituted
a less serious felony, the p e n a l t y of arresto mayor in its
m i n i m u m p e r i o d shall b e imposed.
W h e n the execution of the act c o v e r e d by this article
shall h a v e only resulted in d a m a g e to the p r o p e r t y of anoth-
er, the offender shall be p u n i s h e d by a fine r a n g i n g from an
a m o u n t e q u a l to the value of such d a m a g e s to three times
such v a l u e , b u t w h i c h shall in no case be less than 25 pesos.
A fine not exceeding 200 pesos a n d censure shall be
imposed u p o n any p e r s o n w h o , b y simple imprudence
or negligence, shall cause some w r o n g which, if done
maliciously, w o u l d h a v e constituted a light felony.
In the imposition of these penalties, the courts shall
exercise their sound discretion, without r e g a r d to the rules
p r e s c r i b e d in Article 64.
T h e provisions contained in this article shall not be
applicable:
1003
1. W h e n the penalty p r o v i d e d for the offense is equal

to or l o w e r than those p r o v i d e d in the first t w o
p a r a g r a p h s of this article, in w h i c h case the courts
shall impose the penalty next l o w e r in d e g r e e than
that w h i c h should be imposed, in the p e r i o d w h i c h
they may d e e m p r o p e r to a p p l y .
2. W h e n , b y i m p r u d e n c e o r negligence a n d w i t h
violation of the A u t o m o b i l e L a w (Act No. 3992), the
death of a p e r s o n shall be c a u s e d , in w h i c h case the
defendant shall be p u n i s h e d by prision correccional
i n its m e d i u m a n d m a x i m u m p e r i o d s .
Reckless i m p r u d e n c e consists in v o l u n t a r i l y , b u t
without malice, d o i n g o r failing t o d o a n act f r o m w h i c h
material d a m a g e results b y r e a s o n o f i n e x c u s a b l e l a c k o f
precaution on the p a r t of the p e r s o n p e r f o r m i n g or failing to
p e r f o r m such act, t a k i n g into c o n s i d e r a t i o n his e m p l o y m e n t
or occupation, d e g r e e of intelligence, p h y s i c a l conditions
a n d other circumstances r e g a r d i n g p e r s o n s , time a n d place.
S i m p l e i m p r u d e n c e consists in the l a c k of p r e c a u t i o n
d i s p l a y e d in those cases in w h i c h the d a m a g e i m p e n d i n g to
be c a u s e d is not i m m e d i a t e n o r the d a n g e r c l e a r l y manifest.
T h e penalty next h i g h e r i n d e g r e e t o those p r o v i d e d for

i n this article shall b e i m p o s e d u p o n the o f f e n d e r w h o fails
to lend on the spot to the i n j u r e d p a r t i e s such h e l p as m a y
be in his h a n d s to give. (As amended by Rep. Act No. 1790,
approved June 21, 1957).
• What is reckless imprudence? Compare it with simple

imprudence.
Reckless imprudence is the inexcusable lack of precaution

of a person taking into consideration his ( a ) employment or
occupation, (b) degree of intelligence, (c) physical condition and
(d) other circumstances regarding time, person, and place. Such
inexcusable negligence results in material damage to another.
(Pangonorom v. People, G.R. No. 143380, April 11, 2005)
T h e gravamen of the offense of simple negligence is the

failure to exercise the diligence necessitated or called for by
situation which was not immediately life-destructive but which
1004
C R I M I N A L NEGLIGENCE
culminated, as in the present case, in the death of a person

three days later. Simple negligence penalized under Article
365 is denned as a mere lack of prevision in a situation where
either the threatened harm is not immediate or the danger not
openly visible. (Carillo v. People, 47 SCAD)
Simple imprudence consists in the lack of precaution

displayed in those cases in which the damage impending to
be caused is not immediate or the danger clearly manifest. In
reckless imprudence, the impending damage is immediate and
the danger manifest.
T h e issue of whether or not a person is negligent is a

question of fact. (Pangonorom v. People)
• What are the elements of reckless imprudence?
T h e elements of reckless imprudence are:

(1) T h e offender does or fails to do an act;
(2) T h e doing or the failure to do that act is voluntary;
(3) Such is without malice;
(4) Material damage results from the reckless imprudence;
and
(5) There is inexcusable lack of precaution on the part of the
offender, taking into consideration his employment or
occupation, degree of intelligence, physical condition, and
other circumstances regarding persons, time and place.
(People v. Agliday, G.R. No. 140794, October 16, 2001)
• Discuss the nature of culpa or imprudence.

Culpa here is itself a crime whereas under Article 3, it is
merely a modality of committing a crime. In the former, it is
the imprudence or criminal negligence that is punished and
the penalty is based on the result of that imprudence, whether
grave, less grave or light and whether resulting in damage to
property only.
Regardless of what consequences resulted in reckless

imprudence or simple negligence, only one information
should be prepared because all the crimes will be included,
1005
the grave or less grave will be complexed while the slight

will be subject of separate allegation. Reason: T h e r e is just
one negligence, and the filing of several informations for a
single negligence will amount to splitting the negligence.
(Reodica v. CA, G.R. No. 125066, July 8, 1998)
• Does the principle of complex crimes apply to imprudence?

Yes. If a reckless, imprudent or negligent act results in
two or more grave or less grave felonies, a complex crime is
committed. But where one of the resulting offenses in criminal
negligence constitutes a light felony, there is no complex
crime, thus: "Applying Article 48, it follows that if one offense
is light, there is no complex crime. T h e resulting offenses may
be treated as separate or the light felony may be absorbed by
the grave felony. Thus, the light felonies of damage to property
and slight physical injuries, both resulting from a single act of
imprudence, do not constitute a complex crime. T h e y cannot be
charged in one information. They are separate offenses subject
to distinct penalties."
"Where the single act of imprudence resulted in double

less serious physical injuries, damage to property amounting
to P10,000 and slight physical injuries, a chief of police did
not err in filing a separate complaint for the slight physical
injuries and another complaint for the lesiones menos graves
and damage to property." (id.)
* What is the proper penalty for imprudence resulting to slight

physical injuries?
According to the first paragraph of the A r t i c l e 365, the

penalty for reckless imprudence resulting in slight physical
injuries, a light felony, is arresto menor in its maximum period,
with a duration of 21 to 30 days. If the offense of slight physical
injuries is, however, committed deliberately or with malice,
it is penalized under Article 266 with arresto menor with a
duration of 1 day to 30 days. Plainly, the penalty under Article
266 may be either lower than or equal to the penalty prescribed
under the first paragraph of Article 365. This being the case,
the exception in the sixth paragraph of Article 365 applies.
Hence, the proper penalty for reckless imprudence resulting in
slight physical injuries is public censure, this being the penalty
next lower in degree to arresto menor. (id.)
1006
• What is the proper penalty for imprudence resulting to damage

to property only?
As to reckless imprudence resulting in damage to property

in the amount of P8,542, the third paragraph of Article 365,
which provides for the penalty of fine, does not apply since
the reckless imprudence did not result in damage to property
only. W h a t applies is the first paragraph of Article 365, which
provides for arresto mayor in its minimum and medium periods
for an act committed through reckless imprudence which, had
it been intentional, would have constituted a less grave felony.
If the damage to the extent of P8,542 w e r e caused deliberately,
the crime would have been malicious mischief under Article
329, and the penalty would then be arresto mayor in its medium
and maximum periods which is higher than that prescribed
in the first paragraph of Article 365. If the penalty under
Article 329 w e r e equal to or lower than that provided for in
the first paragraph, then the sixth paragraph of Article 365
would apply, i.e., the penalty next lower in degree, which is
arresto menor in its maximum period to arresto mayor in its
minimum period or imprisonment from 21 days to 2 months.
Accordingly, the imposable penalty for reckless imprudence
resulting in damage to property to the extent of P8,542 would
be arresto mayor in its minimum and medium periods, which
could be anywhere from a minimum of one month and one day
to a maximum of four months, at the discretion of the court,
since the fifth paragraph of Article 365 provides that in the
imposition of the penalties therein provided "the courts shall
exercise their sound discretion without regard to the rules
prescribed in Article 64." (id.)
• Does subsidiary penalty apply to reckless imprudence?

Y e s . If the offender cannot pay the fine for damage to
property resulting from the negligence, he will suffer subsidiary
imprisonment provided that the same is expressed in the
sentence. Under Article 39, if the offense is grave or less grave,
subsidiary imprisonment should not be more than 6 months; if
light felony, not more than 15 days.
1007
In cases of abandonment of the victim, what provision of the

Code shall govern?
The qualifying circumstance in the last paragraph
(abandonment) resulting to a penalty next higher in degree
applies in cases of imprudence resulting to injuries. If the
predicate of the mishap is accident, abandonment is a crime
under Article 275(2).
Relate reckless imprudence to malice.

Reckless imprudence consists of voluntarily doing or
failing to do, without malice, an act from which material
damage results by reason of an inexcusable lack of precaution
on the part of the person performing or failing to perform such
act. Malice is the antithesis of reckless imprudence. Once
malice is proved, recklessness disappears.
W h e r e the accused took his gun and shot his son,

imprudence is out of the question. A deliberate intent to do
an unlawful act is inconsistent w i t h reckless imprudence.
(People v. Agliday)
Give examples of reckless acts which result to homicide.
1. Exhibiting a loaded revolver to a friend, w h o got killed by

the accidental discharge arising from negligent handling;
2. Discharging a firearm from the window of one's house and

killing a neighbor who, at just that moment, leaned over a
balcony front; and
3. Firing a .45 caliber pistol twice in the air to stop a fist

fight; and, as the fight continued, firing another shot at
the ground but, after the bullet ricocheted, hit a bystander
who died thereafter, (id.)
Belbes, G.R. No. 124670, June 21, 2000, found no

reckless imprudence in the shooting of a student who, in the
act of destroying the school's bamboo w a l l , had been caught
by a policeman who was responding to a report that somebody
was causing trouble in a school affair. T h e policeman's action
cannot be characterized as reckless imprudence, because the
shooting was intentional. T h e accused had intended to fire at
the victim and in fact hit the latter, (id.)
1008
To convict for medical malpractice, what evidence is required?
In accepting a case, a doctor in effect represents that,

having the needed training and skill possessed by physicians
and surgeons practicing in his patients, he has a duty to use
at least the same l e v e l of care that any other reasonably
competent doctor would use to treat a condition under the
same circumstances. Inasmuch as the causes of the injuries
involved in malpractice actions are determinable only in the
light of scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to
causation. (Cruz v. CA, November 1997)
Medical malpractice is a particular form of negligence

which 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. In order to
successfully pursue such a claim, a patient must prove that
the physician or surgeon either failed to do something which
a reasonably prudent physician or surgeon would have done,
or that he did something that a reasonably prudent physician
or surgeon would not have done, and that the failure or action
caused injury to the patient. (Garcia-Rueda v. Pascasio, 278
SCRA).
There are thus four elements involved in medical

negligence cases, namely: duty, breach, injury, and proximate
causation. (Reyes v. Sis. of Mercy Hospital, October 2000)
What is the exception to the requirement of expert witness for

medical negligence?
Expert testimony may be dispensed with under the
doctrine of res ipsa loquitur. Ramos, G.R. No. 124354, December
29, 1999 said: although generally, expert medical testimony is
relied upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the standard
medical procedure, when the doctrine of res ipsa loquitor is
availed by the plaintiff, the need for expert medical testimony
is dispensed with because the injury itself provides the proof of
negligence. The reason is that the general rule on the necessity
of expert testimony applies only to such matters clearly within
1009
the domain of medical science, and not to matters that are within
the common knowledge of mankind which may be testified to
by anyone familiar with the facts. 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.
Hence, in cases where the res ipsa loquitor is applicable,

the court is permitted to find a physician negligent upon
proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge
can determine the proper standard of care. W h e r e common
knowledge and experience teach that a resulting injury would
not have occurred to the patient if due care had been exercised,
an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what
occurred but how and why it occurred.
W h e n the doctrine is appropriate, all that the patient

must do is prove a nexus b e t w e e n the particular act or
omission complained of and the injury sustained w h i l e under
the custody and m a n a g e m e n t of the defendant without need
to produce expert medical testimony to establish the standard
of care. Resort to res ipsa loquitur is a l l o w e d because there is
no other w a y , under usual and ordinary conditions, by which
the patient can obtain redress for injury suffered by him.
(id)
Cite examples when the res ipsa loquitur rule was applied.
1. L e a v i n g of a foreign object in the body of the patient after

an operation;
2. Injuries sustained on a healthy part of the body which

was not under, or in the area, of treatment;
3. Removal of the wrong part of the body when another part

was intended;
1010
4. Knocking out a tooth while a patient's jaw was under

anesthetic for the removal of his tonsils; and
5. Loss of an eye while the patient was under the influence

of anesthetic, during or following an operation for
appendicitis.
» What are the requisites for the application of res ipsa loquitur?
(1) T h e accident was of kind which does not ordinarily occur

unless someone is negligent;
(2) T h e instrumentality or agency which caused the injury

was under the exclusive control of the person in charge;
and
(3) T h e injury suffered must not have been due to any

voluntary action or contribution of the person injured.
Res ipsa loquitur is not rigid or ordinary doctrine to be

perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted
to situations in malpractice cases where a layman is able to
say, as a matter of common knowledge and observation, that
the consequences of professional care were not such as would
ordinarily have been followed if due care had been exercised.
A distinction must be made between the failure to secure

results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed
the usual procedure of those skilled in that particular practice.
It must be conceded that the doctrine of res ipsa loquitur can
have no application in a suit against a physician or a surgeon
which involves the merits of a diagnosis or of a scientific
treatment. T h e physician or surgeon is not required at his peril
to explain why any particular diagnosis was not correct, or why
any particular scientific treatment did not produce the desired
result.
• Is there Double Homicide through Reckless Imprudence with

violation of the Motor Vehicle Law (R.A. 4136)?
There is no such offense. The trial court was misled to
sentence the accused to suffer two indeterminate penalties
of four months and one day of arresto mayor, as minimum to
1011
three years, six months and 20 days of prision correccional, as

maximum. This is erroneous because in reckless imprudence
cases, the actual penalty for criminal negligence bears no
relation to the individual willful crime or crimes committed,
but is set in relation to a whole class or series of crimes. (Rafael
Reyes Trucking v. People, G.R. No. 129029, April 3, 2000)
• What is the rule on double recovery in negligence cases?

In negligence cases, the aggrieved party has the choice
between (1) an action to enforce civil liability arising from
crime under Article 100 of the R P C ; and (2) a separate action
for quasi-delict under Article 2176 of the CC. Once the choice
is made, the injured party cannot avail himself of any other
remedy because he may not recover damages twice for the same
negligent act or omission of the accused. This is the rule against
double recovery. In other words, "the same act or omission can
create two kinds of liability on the part of the offender; that is,
civil liability ex delicto, and civil liability quasi delicto" either
of which may be enforced against the culprit, subject to the
caveat under Article 2177 of the Civil Code that the offended
party cannot recover damages under both types of liability."
Private respondents sued Rafael Reyes Trucking

Corporation to be vicariously liable for the fault or negligence
of the driver. Under the law, this vicarious liability of the
employer is founded on at least t w o specific provisions, the first
is expressed in Article 2176 in relation to Article 2180 of the
CC, which would allow an action predicated on quasi-delict to
be instituted by the injured party against the employer for an
act or omission of the employee and would necessitate only a
preponderance of evidence to prevail. H e r e , the liability of the
employer for the negligent conduct of the subordinate is direct
and primary, subject to the defense of due diligence in the
selection and supervision of the employee. T h e enforcement
of the judgment against the employer in an action based on
Article 2176 does not require the employee to be insolvent
since the nature of the liability of the employer with that of the
employee, the two being statutorily considered joint tortfeasors,
is solidary.
T h e second, predicated on Article 103 of the R P C , provides
that an employer may be held subsidiarily civilly liable for a
1012
felony committed by his employee in the discharge of his duty.

This liability attaches when the employee is convicted of a
crime done in the performance of his work and is found to be
insolvent that renders him unable to properly respond to the
civil liability adjudged. (Rafael Reyes Trucking Corp. v. People,
G.R. No. 129029, April 3, 2000)
• Should the offender whose single reckless act resulted to

multiple offenses be charged with only one offense pursuant to
the prohibition against multiplicity or duplicity of charges?
N o . Duplicity or multiplicity of charges means a single

complaint or information charges more than one offense. The
Rules prohibit the filing of such information to avoid confusing
the accused in preparing his defense. Here, however, the
prosecution charged each petitioner with four offenses, with
e a c h I n f o r m a t i o n c h a r g i n g o n l y o n e o f f e n s e . Thus,
petitioners erroneously invoke duplicity of charges as a ground
to quash the informations, (honey v. People, G.R. No. 152644,
February 10, 2006)
• What is the limitation to the rule that a single act or incident

offending against two or more unrelated provisions of law
justify prosecution for more than one offense?
A single act or incident might offend against two or more

entirely distinct and unrelated provisions of law thus justifying
the prosecution of the accused for more than one offense
(Nierras v. Dacuycuy, January 11, 1990, G.R. No. 595668). The
only limit to this rule is the Constitutional prohibition that no
person shall be twice put in jeopardy of punishment for "the
s a m e o f f e n s e . " Doriquez (133 Phil. 295) held that two (or
more) offenses arising from the same act are not "the same" —
xxx if one provision [of law] requires proof of an additional fact
or element which the other does not, xxx. Phrased elsewise,
where two different laws (or articles of the same code) define
two crimes, prior jeopardy as to one of them is no obstacle to
a prosecution of the other, although both offenses arise from
the same facts, if each crime involves some important act
which is not an essential element of the other.
In the instant case, double jeopardy is not at issue
because not all of its elements are present. P.D. 1067, P.D.
1013
984, R . A . 7942, and Article 365 of the R P C show that in each

of these laws on which petitioners were charged, there is one
essential element not required of the others, thus: In P . D .
1067 (Philippines Water Code), the gravamen of the offense is
the absence of the proper permit to dump said mine tailings.
P.D. 984 (Anti-Pollution L a w ) punishes the pollution itself.
R . A . 7942 (Philippine Mining A c t ) , requires willful violation
and gross neglect to abide by the terms and conditions of
the Environmental Compliance Certificate. On the other
hand, Article 365 penalizes the lack of necessary or adequate
precaution, negligence, recklessness and imprudence to
prevent damage to property.
Consequently, the filing of the multiple charges against
petitioners, although based on the same incident, is consistent
with settled doctrine. (Loney v. People)
• Does a felony {malum in se) "absorb" an offense [malum

prohibitum)?
On petitioners' claim that the charge for violation of
Article 365 "absorbs" the charges for violation of P . D . 1067,
P . D . 984, and R . A . 7942, suffice it to say that a malum in se
felony (such as reckless imprudence resulting in damage to
property) cannot absorb mala prohibita crimes (such as those
violating P . D . 1067, P . D . 984, and R . A . 7942). W h a t makes the
former a felony is criminal intent (dolo) or negligence (culpa);
what makes the latter crimes are the special laws enacting
them. (Loney v. People)
Petitioners erroneously contend that their prosecution
contravenes the pronouncement in Relova that the law seeks to
prevent harassment of the accused by "multiple prosecutions
for offenses which though different from one another are
nonetheless each constituted by a common set or overlapping
sets of technical elements."
T h e issue in Relova is whether the charging with theft of
electric power under the R P C after accused had been acquitted
of violating a City Ordinance penalizing the unauthorized
installation of electrical wiring, violated his right against
double jeopardy. It did, not because the offenses punished by
those two laws were the same but because the act giving rise
to the charges was punished by an ordinance and a national
1014
statute, thus falling within the Constitutional proscription

against multiple prosecutions for the same act, thus:
"The u n a u t h o r i z e d installation p u n i s h e d by
the o r d i n a n c e [of B a t a n g a s City] is not the same as
theft of electricity [ u n d e r the R e v i s e d P e n a l C o d e ] ;
that the second offense is not an attempt to commit the
first or a frustration thereof and that the second offense is
not necessarily included in the offense charged in the first
information."
T h e b a s i c difficulty w i t h the petitioner's po-
sition is that it m u s t be e x a m i n e d , not u n d e r the
t e r m s of the first sentence of A r t i c l e IV(22) of the
1973 Constitution, b u t r a t h e r under the second sen-
tence of the same section. T h e first sentence of Article
rV(22) sets forth the general rule: the constitutional pro-
tection against double jeopardy is not available where the
second prosecution is for an offense that is different from
the offense charged in the first or prior prosecution, al-
though both the first and second offenses may be based
upon the same act or set of acts. T h e second sentence
of A r t i c l e I V ( 2 2 ) e m b o d i e s as exception to the gen-
e r a l proposition: the constitutional protection,
a g a i n s t d o u b l e j e o p a r d y is a v a i l a b l e a l t h o u g h the
p r i o r offense c h a r g e d u n d e r an o r d i n a n c e be dif-
ferent f r o m the offense c h a r g e d subsequently un-
d e r a national statute such as the Revised P e n a l
C o d e , provided that both offenses s p r i n g f r o m the
same act or set of acts.
Thus, Relova is no authority for petitioners' claim against
multiple prosecutions based on a single act not only because
the question of double jeopardy is not at issue here, but also
because, petitioners are being prosecuted for an act or incident
punished by four national statutes and not by an ordinance and
a national statute. In short, petitioners, if ever, fall under the
first sentence of Section 21, Article I I I which prohibits multiple
prosecution for the same offense, and not, as in Relova, for
offenses arising from the same incident.
1015
N O T E S A N D CASES
ON THE
REVISED PENAL CODE
Act No. 3815, as amended
LEONOR D. BOADO
(Books 1 a n d 2)
and
Special Penal L a w s
Author: Comprehensive Reviewer in Criminal Law;
Compact Reviewer in Criminal Law; and
Notes and Cases on Special Penal Laws
2012 E D I T I O N
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PREFACE
In an attempt to make this book as compact as possible

without sacrificing substance, syntax and user-friendliness, I utilized
abbreviations and paraphrased some rulings. Students will find the
language of the book simple and comprehensible but still "legalese."
A n d handy so they can carry the book anytime, anywhere for ease of
reference.
A g a i n , my best wishes to all students and reviewees in attain-

ing their dream to become worthy members of the august profession of
lawyers. A n d to professionals whom I urge to make the law serve not
shackle justice.
L.D.B.
iii
PREFACE
This book is dedicated to all students of criminal law and to
bar reviewees. The book is very simple and concise purposely to aid
students to have a clear grasp of the law. This is not however intended
to be a substitute for reading the Code itself and very importantly, the
original cases decided by the Supreme Court. There is no substitute
for that.
Special thanks to Judge Ed Vincent Albano who encouraged
me to go ahead with the publication of this work, to Former Justice
Secretary Artemio G. Tuquero and to Vice-President for Legal Affairs
of UE, Atty. Carlos M. Ortega for having influenced so much my legal
education/profession, and to Mesdames Raquel Belandres, Olivia
Vinas and Jennifer Boado who helped in the encoding.
My best wishes to all students and reviewees in attaining their

dream to become worthy members of the august profession of lawyers.
L.D.B.
This textbook was written under the auspices of the Profes-

sorial Chair program of the "Supreme Court Senior Associate Justice
(now Chief Justice) Reynato S. Puno Library," College of L a w , Univer-
sity of the East.
The funds for research and syllabus of this book were provided
by the UE Foundation for Research and Advanced Studies, Inc. ( U E -
FRASI).
November 2004.
Antonio R. Tupaz
Dean
U.E. College of Law
iv
CONTENTS
Preface
Fundamental Principles
1. What is criminal law?
2. What are the constitutional limitations on penal laws?....
3. Describe due process as applied to penal laws
4. Who are entitled to the mantle of due process of law?
5. What is the effect of violation of the due process clause? ..
6. What makes a penalty cruel and unusual?
7. What is an ex post facto law? 3
8. Give examples of ex post facto law 4
9. Give examples of laws not covered
by the ex post facto clause? 5
10. What is a bill of attainder? Why is it constitutionally
proscribed? 5
11. What are the characteristics of penal law? 6
12. What is the generality characteristic of penal law? 6
13. Describe the territoriality characteristic of penal law 7
14. What does prospectivity rule mean? 7
15. Does the prospectivity rule cover only laws? 7
16. What effect does the court's interpretation upon
a written law have? 8
17. What is the rationale against retroactivity of laws? 8
18. Enumerate the different philosophies underlying
the criminal law system 8
19. Distinguish the classical (juristic) from
the positivist (realistic) 9
20. What is meant by the ecclectic (or mixed) philosophy? 11
21. What does the utilitarian theory believe on the
function of punishment? 11
22. When an act is perverse, but there is no law that
punishes it, is there a crime committed? H
23. What is the rule in the interpretation of penal laws
in relation to the accused's culpability? 12
24. w n a i is t n e e q u i p o i s e r u i e : 1^
25. What is the relationship of presumption of law and
prima facie evidence on the constitutional
presumption of innocence? 13
26. Cite some provisions of the Revised Penal Code
which apply the liberality of the law on the accused... 14
27. What does actus non facit reum, nisi mens
sit rea mean? 14
28. How are crimes variously classified? 15
29. What are crimes mala in set 16
30. What are crimes mala prohibita? 16
31. If a special law uses the nomenclatures of
penalties in the Revised Penal Code, what is
the effect on the nature of the crime
covered by the special law? 17
32. Which between malum in se and malum
prohibitum involves moral turpitude? 17
33. Compare mala in se and mala prohibita 18
34. Can a malum in se absorb or be complexed with
a malum prohibitum? 19
35. Violation of what species of special laws is not
deemed malum prohibitum? 20
36. What is a heinous crime? 20
37. What is the effect of the repeal of penal law
on the accused? 20
38. In case of conflict between the Spanish text and
the English version of the Revised
Penal Code, which should prevail? 21
39. What is the finality-of-acquittal rule? Give its
rationale and legal basis 22
PRELIMINARY TITLE
DATE OF EFFECTIVENESS A N D A P P L I C A T I O N
OF THE PROVISIONS OF THIS CODE
Article 1. Time when Act takes effect 25
Article 2. Application of its provisions 25
How should the Government and the country be
referred to today? 26
What are the two scopes of application of the
Revised Penal Code? 26
What does the phrase "except as provided in treaties
and laws of preferential application," mean? 27
Who comprises the different heads and staff
of diplomatic missions? 27
Who among the heads and staff of diplomatic
missions are entitled to immunity in the
host sovereign and on what basis? 28
What international principle forms the basis for
granting immunity for diplomatic heads? 29
What are the limitations to the immunity
principle? 29
Does immunity from suit of officers of international
bodies include that for defamation? 31
What comprises the Philippine Archipelago? 32
What is a Philippine ship or airship? How is
jurisdiction over crimes committed therein
determined? 32
• What are the two recognized rules on jurisdiction
over merchant vessels? 33
Compare the English Rule and the French Rule
on jurisdiction 33
Who are public officers and employees within the
purview of Art. 2, Revised Penal Code? 33
What are included in the crimes against national
security and the law of nations? 34
TITLE ONE
FELONIES A N D CIRCUMSTANCES WHICH AFFECT
CRIMINAL LIABILITY
Chapter One — F E L O N I E S
Article 3. Definitions 35
3 5
• What are felonies?
How are felonies committed? 35
What are the elements of intentional felonies and of
culpable felonies? 36
vii
To which kind of felony is the principle that "the act
cannot be criminal unless the mind
is criminal" relevant? 36
3 6
• What i s intent?
What is the rule on the existence of intent? 37
How is intent manifested? 37
May a crime be committed without criminal intent? 38
What is motive? Is it determinative of criminal
liability? 38
When is motive material in determining the criminal
agency? 39
What factors affect intent and consequently the
criminal liability of the actor or offender? 39
What is mistake of fact? 40
What is aberratio ictus? How does it affect
criminal liability? 41
May treachery be appreciated in aberratio ictus? 42
Define error in personae. What is its effect on the
liability of the offender? 42
Distinguish mistake of fact from mistake in identity 42
Compare aberratio ictus and error in personae 43
What is praeter intentionem? How does it affect the
offender's liability? 43
What is proximate cause? How does it affect the
intent and consequently, the criminal liability of
the offender? 43
Summarize the effect of the five factors on intent and
criminal liability of the offenders 44
Compare Arts. 3 and 365 on criminal
negligence 45
Relate reckless imprudence to malice 45
When the information charges intentional felony but
what is proved is culpable felony, can accused be
convicted? 45
Can negligence and conspiracy co-exist? 45
Define intelligence within the purview of felonies 46
What is the effect when the intelligence is lacking
or diminished 46
Article 4. Criminal liability 46
Compare Arts. 3 and 4 46
Who are liable for felonies? 46
How many clauses are there in paragraph 1? 47
viii
Does the first clause refer only to intentional felony? 47
What is the rule of proximate cause? 47
What is the rule of proximate cause? 47
What is an impossible crime? 49
What are the two kinds of inherent impossibility? 49
Is impossible crime a crime? 49
If there is no crime committed, why is impossible
crime punished? 50
Is there an impossible crime of rape? 50
Should the offender know of the impossibility of the
crime? 50
Article 5. Duty of the court in connection with acts which
should be repressed but which are not covered
by the law, and in cases of excessive penalties 50
What is the "proper decision" that the court should
render if it tried a case for an act which is not yet
punishable by law 51
What is the duty of the court when the penalty
prescribed for a felony is excessive? 51
May the court prevent the grant of pardon to a
convict when it feels that the crime committed is
so reprehensible? 52
Article 6. Consummated, frustrated, and attempted felonies 53
When is a felony consummated? 53
What are formal crimes? 53
• When is a felony frustrated? 53
What crimes cannot be committed in the frustrated
stage? 54
When is a felony attempted? 55
What are overt acts? Preparatory acts? 55
What is required for the "overt act" to be considered
an attempt of a felony? 55
What is desistance? 56
Compare attempted and frustrated felonies 56
What separates attempted from frustrated homicide/
murder? 58
Compare frustrated and consummated felonies 58
Article 7. When light felonies are punishable 58
What are light felonies? When are they punishable? 58
Who are punishable in light felonies? 58
Article 8. Conspiracy and proposal to commit felony 59
ix
What is conspiracy? How is its existence determined? 59
What quantum of proof is required for conspiracy? 59
Does the finding of conspiracy require direct proof? 60
To be liable for conspiracy, what is necessary to be
done by a conspirator? 61
Can conspiracy co-exist with culpa? 62
What are the two concepts of conspiracy? 62
Compare conspiracy as a crime and as a means of
incurring criminal liability 62
What are the kinds of conspiracy as a means of
committing a crime? 63
In conspiracy by pre-agreement who should be liable
for a second unplanned crime committed by one
or some of the perpetrators? 63
What is implied conspiracy? 65
When conspiracy involves a pre-conceived plan,
what is required of a co-conspirator
to incur liability? 65
Is it necessary for the co-conspirators to perform
equally each and every part of the acts
constituting the offense? 66
May a co-conspirator be acquitted while others
convicted? 67
What are the two structures of multiple conspiracies? 68
Discuss the concept: "The act of one is the act of all." 68
In the absence of a conspiracy, what is the liability of
the offenders? 68
Relate conspiracy and the aggravating circumstances
of evident premeditation and price or reward 69
Is the laxity of a public official in the performance of
his duty supportiveof a finding of conspiracy? 70
When may the head of office be held liable for the
acts of his subordinates? 70
What is the Arias doctrine? 71
Article 9. Grave felonies, less grave felonies and light felonies 71
How are felonies classified as to severity? 72
What is the significance of classifying felonies into
grave, less grave or light? 72
Article 10. Offenses not subject to the provisions of this Code 73
How are the first and second sentences
of Art. 10 reconciled? 73
What are special laws? 73
x
What is the relationship between dolo and special
laws? 73
When is the Revised Penal Code suppletory
to special laws? 74
When is the suppletory effect of the Code not available?... 75
What principles of the Revised Penal Code are
applicable to special penal laws? 75
Chapter T w o — J U S T I F Y I N G C I R C U M S T A N C E S A N D
CIRCUMSTANCES WHICH EXEMPT FROM
CRIMINAL LIABILITY
Why is there a need for modifying circumstances? 77

What are the different modifying circumstances? 77
Is there any distinction between Arts. 14 and 15 78
What other factors affect criminal liability? 78
Give examples of exempting/absolutory circumstances 79
What is entrapment? Instigation? 79
What is a buy-bust operation? 79
How should allegation of frame-up and extortion
be viewed? 80
Can instigation and frame-up be both present in a
case? 80
Distinguish entrapment from instigation 81
Why is Art. 247 on death inflicted during exceptional
circumstances as extenuating? 82
Article 11. Justifying circumstances 83
What are justifying circumstances? 84
What are the requisites of self-defense? 84
What is unlawful aggression? 85
What is the importance of unlawful aggression for
the existence of self-defense? 85
When the accused invokes self-defense, what is the
effect on the burden of proof? 86
What is the rule when aggression ceased to exist? 86
What is the effect of presence of a large number of
wounds on the victim on the claim of self-defense? 87
When is there reasonable necessity of the means
employed? 87
What is "rational equivalence" in the reasonable
necessity of the means employed? 87
xi
What belies the reasonableness of the means
employed? 88
What is the paramount consideration in determining
the reasonableness of the means employed? 88
Discuss the concept of lack of sufficient provocation on
the part of the defender 89
What are the rules when a person is attacked? 89
What is the effect when not all of the
requisites for defense are present? 89
What does defense of honor encompass? 90
Can there be justifying circumstance of defense when
what is involved is property? 90
Who should determine the existence of these
justifying circumstances? 91
What are the elements of defense of relatives? 91
What are the elements of defense of strangers? 91
Characterize a battered woman 92
Define battered woman syndrome 92
What is the effect on the battered woman of this
cycle of violence? 93
What should be proved by the battered woman who
kills/injures her batterer? 93
Is physical assault at the actual time of the killing
indispensable for self-defense invocation to prosper? . 94
In the absence of complete self-defense, what
circumstances could be appreciated in favor of
the battered woman? 95
What are the elements of state of necessity? 95
What is the civil liability of the person acting under a
state of necessity? 96
What are the elements of fulfillment of duty or
exercise of right or office? 96
When is obedience to superior order appreciated? 97
Article 12. Circumstances which exempt from criminal liability.... 98
Is Art. 80 of the Revised Penal Code still
operative? 99
What are exempting circumstances? 99
Distinguish justifying from exempting circumstances 99
Insanity 100
What is insanity? 100
How is insanity manifested? 100
H o w is insanity disproved? 100
W h a t is the rule w h e n insanity is interposed as a
d e f e n s e or a g r o u n d of a m o t i o n to q u a s h ? 101
W h e n s h o u l d insanity occur to be exempting? 102
• R e l a t e A r t . 12(1) to A r t . 79 of the C o d e 102
W h a t q u a n t u m of evidence is required to overthrow
the p r e s u m p t i o n of sanity? 103
• W h a t should be done to an insane or imbecile w h o
h a s c o m m i t t e d a felony? 103
W h a t a r e t h e tests o r criteria for insanity? 104
W h a t is schizophrenia? H o w d o e s it a f f e c t c r i m i n a l
liability? 104
W h a t is r e q u i r e d for imbecility to be accepted as a
defense? 105
H o w should lack of reason a n d failure to use reason
affect c r i m i n a l responsibility? 105
C a n the trial court determine w h e t h e r or not an
accused is insane? 106
Minority 106
H o w are penal l a w s to be construed as to minor
offenders? 106
R e p u b l i c A c t N o . 9344 107
W h o are minors? 133
• W h a t a r e t h e f e a t u r e s o f R . A . 9344? 133
W h e n s h a l l a c h i l d a t conflict w i t h t h e l a w b e s u b j e c t
to preliminary investigation a n d filing
of i n f o r m a t i o n ? 135
W h o a r e the m i n o r s e x e m p t f r o m c r i m i n a l liability? 136
W h o are the minors disqualified from suspension
of sentence? 136
W h a t is the m e a n i n g of "punishable" in the
disqualification f r o m s u s p e n s i o n of sentence? 137
D i d R . A . 9344 on automatic suspension of sentence
r e p e a l t h e g r o u n d s for disqualification
u n d e r P . D . 603? 137
W h e n else c a n s u s p e n s i o n of sentence not be availed? 138
1 3 8
Accident
W h a t is the m e a n i n g of accident? 138
W h a t is r e q u i r e d for accident to be accepted? 139
W h a t i s t h e effect w h e n a c c u s e d c l a i m s t h e
c i r c u m s t a n c e of accident? 139
xiii
What is the basis for exemption from criminal
liability for accident? 139
Relate accident to self-defense 140
What is negligence? 140
What is the presumption when a driver bumps the
rear of another vehicle? 140
Irresistible Force 141
What are the elements of irresistible force? 141
What is essential for duress to be a valid defense? 141
Uncontrollable Fear 142
What are the elements of uncontrollable fear? 142
Insuperable Cause 142
What is insuperable cause? 142
Chapter Three — C I R C U M S T A N C E S W H I C H M I T I G A T E
CRIMINAL LIABILITY
Article 13. Mitigating circumstances 143

What are mitigating circumstances? 144
What is the rationale for mitigating
circumstances? 144
What are the classifications of mitigating
circumstances? 144
Distinguish ordinary from privileged mitigating
circumstances 145
Incomplete Justifying or Exempting
Circumstances 146
What are the requirements for the mitigating
circumstance of incomplete justification/
exemption to be present? 146
When is incomplete defense ordinary mitigating? When
privileged? 146
Is unlawful aggression a mitigating circumstance? 147
Minority 147
What amendment was introduced by P.D. 603 on
Art. 80? 147
What is the nature of minority as a mitigating
circumstance? 147
Praeter Intentionem 148
What is praeter intentionem? 148
xiv
When can praeter intentionem not be invoked? 148
Sufficient Provocation 148
What are the requirements for sufficient provocation? 148
Immediate Vindication of a Grave Offense 149
Must the "offense" in immediate vindication be a crime? . 149
How should the word "immediate" be understood? 149
Passion and Obfuscation 150
What is necessary for passion or obfuscation to be
considered? 150
When is passion and obfuscation not appreciated? 150
Will injury resulting from a quarrel constitute
passion or obfuscation? 150
How further should the act that produces passion or
obfuscation be from the commission of the crime? 151
Compare sufficient provocation, immediate
vindication of a grave offense and passion or
obfuscation 151
Voluntary Surrender 151
What are the elements of voluntary surrender? 151
What determines whether the surrender is voluntary? .... 152
Who should surrender? 153
Voluntary Plea of Guilt 154
What are the elements of voluntary plea of guilt? 154
Why is voluntary plea of guilt mitigating? 154
What is the effect of an improvident plea of guilt? 154
• May voluntary plea of guilt and voluntary surrender
be both considered in one case? 154
Relate voluntary plea of guilt to plea bargaining 154
Physical Defects and Illness 155
What is required for the defect of the offender to be
mitigating? 155
What is necessary for illness to be considered as
mitigating 156
Analogous Circumstances 156
Is being a non-Christian an analogous mitigating
circumstance? 156
Is extreme poverty an analogous mitigating
circumstance? 156
Cite some examples of analogous circumstances 156
xv
Chapter Four — C I R C U M S T A N C E S W H I C H A G G R A V A T E
CRIMINAL LIABILITY
Article 14. Aggravating circumstances 158
Compare aggravating and mitigating circumstances 160
What are the different kinds of aggravating
circumstances? 161
Do qualifying circumstances increase the penalty
to a higher degree? 161
What is the nature of the circumstances in Art. 14? 162
When is the term "aggravating circumstances"
broadly construed to include those in Art. 15? 162
What is the new rule on the allegation of generic
aggravating circumstances in the Information? 163
What is the fundamental requirement before
qualifying circumstances are considered? 164
What is the requirement as to proof of qualifying
circumstances? 165
How many circumstances are required to be used as
qualifying circumstance? 165
What are special aggravating circumstances? 165
Give examples of special aggravating circumstances 165
Is conspiracy an aggravating circumstance? 166
Abuse of Official Position 166
When is abuse or taking advantage of official position
present? 166
Is the offender's being a public officer ipso facto
aggravating? 167
Insult To Public Authorities 167
Who are included by the term "public authority"? 167
Relate this circumstance to the crime of direct assault 168
Age, Sex, Rank, Dwelling 168
• What are the common factors with regard to the
circumstances of "insult or lack of regard due to
the offended party by reason of age, sex, or rank
or the crime is committed in the dwelling of the
offended party?' 168
What is the rationale for these aggravating
circumstances? 169
What is the meaning of the word "rank" as used
in the Article? 169
Give examples of cases where rank aggravated
the crime committed 169
xvi
What consideration affects the appreciation
of rank? 170
Is the mere fact that the victim of the offense is a
female an aggravating circumstance
of disregard of sex? 170
To what crimes do this group of circumstances pertain?... 171
Does age pertain only to old age? 171
What is included in dwelling? 171
Why is dwelling (morada) an aggravating circumstance? .171
To what situations is the circumstance of dwelling
appreciated? 172
Must the offender enter the dwelling of the victim? 172
When is dwelling not aggravating? 173
Abuse of Confidence 173
What are the requisites of abuse of confidence/
obvious ungratefulness? 173
Palace of Chief Executive 173
Is performance of public function necessary in the
appreciation of the aggravating circumstances
in paragraph 5 of Art. 14? 173
Nighttime (Nocturnity) 174
What is nocturnity and when is it aggravating? 174
What time period is covered by nocturnity? 174
Is the commission of the offense at night per se
aggravating? 174
What are the two tests for the appreciation
of nocturnity? 175
What factors will disallow nighttime as aggravating? 175
Is nighttime a qualifying circumstance? 175
Uninhabited Place 175
What determines whether a place is uninhabited? 175
1 7 6
Band
What comprises a band (cuadrilla)? 176
Compare band under Art. 14 and under
7 6
Arts. 295 and 296 I
7 7
When is band not appreciated? I
When conspiracy is proved, can band be appreciated? 177
7 7
Calamity o r Misfortune *
To what does "other calamity or misfortune" refer? 177
Distinguish paragraph 7 from paragraph 12
1 7 8
of Art. 14
xvii
1 / 8
Aid o f Armed Men
What are the elements of aid of armed men? When
is it not appreciated? 178
Compare "band," "aid of armed men," "organized crime
syndicate," "syndicated estafa," and "illegal
recruitment in a large scale." 178
7 9
Habituality I
What are the different forms of habituality? 179
Who is a recidivist? 179
What is the nature of recidivism? 179
What is required for recidivism to be appreciated? 179
What is reiteration? 180
Distinguish between recidivism from reiteration 180
What is habitual delinquency? 181
Distinguish between Recidivism and Habitual
Delinquency 182
What is Quasi-recidivism? 182
Price, Promise, Reward 183
Who are affected by the circumstance of price,
promise, or reward? 183
Inundation, Fire, Etc 183
Relate the circumstances of inundation, fire, poison,
explosion, etc., with paragraph 1 of Art. 62 183
Evident Premeditation 184
What is evident premeditation? What are its
elements? 184
What is the essence of evident premeditation? 184
When is evident premeditation not appreciated? 185
What evidence is required to establish evident
premeditation? 185
What is the relationship between conspiracy and
evident premeditation? 186
Craft, Fraud, Disguise 186
Distinguish among craft, fraud and disguise 186
Abuse of Superior Strength or Means Taken
to Weaken the Defense 187
When is there abuse of superior strength? 187
Cite examples of abuse of superior strength 187
When is abuse of superior strength not appreciated? 188
Treachery (Alevosia) 188
xviii
What is treachery? What are its preconditions? 188
What is the essence of treachery? 189
When is treachery appreciated? 189
When treachery not appreciated? 189
* Can teachery be present in a chance encounter? 190
May treachery be appreciated even if the victim was
warned of the danger? 191
From whom should the "retaliation" in treachery come?... 191
At what stage in the attack must treachery exist? 191
When the manner of the attack is not shown, does
the fact that the wound is at the back show
treachery? 192
When will a frontal attack constitute treachery? 193
What is the nature of treachery as an aggravating
circumstance? 193
What proof is required if treachery is to qualify
homicide to murder? 193
How is the allegation of "minor" in the Information
understood? 194
Ignominy 194
What is involved in the circumstance of ignominy? 194
Unlawful Entry/Breaking of Wall 195
When is there unlawful entry? 195
Aid of Minors/Use of Motor Vehicles 195
How are these circumstances treated? 195
Cruelty 196
What are required to attend the commission of the
cruel acts? 196
Is the presence of multiple wounds on the victim
per se cruelty? 196
In the absence of cruelty, what may be present instead? ..197
Chapter F i v e — A L T E R N A T I V E C I R C U M S T A N C E S
i 9 8
Article 15. Their concept
What are alternative circumstances? 198
What are the three alternative circumstances? 198
Compare the circumstances in Arts. 14 and 15 199
When is relationship aggravating and when mitigating?.. 199
When is relationship neither aggravating
1 9 9
nor mitigating?
xix
What is the effect of the amendments
by R.A. 7659 on rape? 200
When is intoxication mitigating and when
aggravating? 200
What should be the degree of intoxication
to be mitigating? 200
When is degree of instruction or education considered?.... 201
TITLE TWO
PERSONS C R I M I N A L L Y L I A B L E FOR FELONIES
Article 16. Who are criminally liable 202

Who are criminally liable? 202
Article 17. Principals 202
Direct Participator 203
Who are principals by direct participation? 203
Inducer 203
When is an offender a principal by inducement? 203
Must the principal by inducement appear at
the scene of the crime? 204
How does an inducer "induce" another to commit a
crime? 204
Indispensable Cooperator 204
Who is a principal by indispensable cooperation? 204
How does the cooperator participate in the
commission of the offense? 205
When is one an accomplice instead of an
indispensable cooperator? 205
Even if there is conspiracy, can the liability
of the principals differ? 205
Describe the nature of the "cooperation" required to
incur criminal liabiUty 206
Article 18. Accomplices 206
Who are accomplices? 206
Is conspiracy necessary for the liability of an
accomplice? 207
Compare a principal and an accomplice 207
Article 19. Accessories 208
Article 20. Accessories who are exempt from criminal liability 209
xx
Who are accessories? 209
How do accessories profit by the effects of the crime? 210
What is the effect of some special laws
on accessories who profit by the effects
of the crime? 210
When will an accessory be liable as a principal in
another crime? 210
What is corpus delicti?' 210
Who are the two kinds of accessory by concealing or
harboring the offender? 211
For one to be considered accessory whom
should he assist? 211
P.D. 1829 212
Compare an accomplice to an accessory 214
Who are the accessories exempt from criminal liability? ..214
For what acts are they exempt from hability? 215
• Compare Arts. 11, 15, 20, 266-B, 332
on relatives of the offender 215
TITLE THREE
PENALTIES
Chapter One — P E N A L T I E S IN G E N E R A L
Article 21. Penalties that may be imposed 216

What are penalties? 216
Who has the power to prescribe penalties? 216
What penalties may be imposed upon an offender? 216
What is the effect of the judicial decisions on the
power of Congress to enact statutes? 217
Will the favorable judgment on a co-accused be applied
to a convict who did not appeal? 217
Article 22. Retroactive effect of penal laws 217
May the favorable provisions of a law be given
retroactive effect to entitle the offender to a
lesser penalty? 218
Can the court on its own apply Art. 22 when it
was not invoked by the accused? 218
Can a law have both retroactive and prospective
2 1 8
application?
What is the effect of an absolute repeal of penal laws? 219
Article 23. Effect of pardon by the offended party 219
xxi
Article 24. Measures of prevention or safety which are
not considered penalties
Why are the measures not
considered penalties?
What is the nature and rationale of preventive
suspension of public officers pending investigation?
Chapter T w o — C L A S S I F I C A T I O N O F P E N A L T I E S
Article 25. Penalties which may be imposed 222

Characterize the penalties in the Revised Penal Code? .... 223
What are principal and accessory penalties? 223
What are the three scales of penalties in the Code
and their significance? 224
Did the 1987 Constitution abolish the death penalty? 224
When was the death penalty reimposed? 224
• What was the effect on Art. 248 of the 1987
Constitutional proscription on the death penalty? 224
Republic Act No. 9346 225
• When did R.A. 9346 take effect? 226
What provisions of the Revised Penal Code are
affected by the law abolishing the death penalty? 226
Are convicts, whose penalty were reduced to reclusion
perpetua because of R.A. 9346, entitled
to parole? 227
• What is the effect of R.A. 9346 on R.A. 7659? 227
People v. Bon 227
Is reclusion perpetua the same as life imprisonment? 233
Distinguish life imprisonment and reclusion perpetua 233
Is there a penalty denominated "imprisonment for life"? . 234
Why is there a need to employ the proper
terminology of penalties? 234
Does the suspension for the practice of profession
apply to convicted prisoners only? 234
What is the nature of disqualification and
suspension as penalties? 235
What is bond to keep the peace? 235
What is the nature of public censure? 235
In the scheme of penalties in the Revised Penal
Code, cite examples where the lesser offense
absorbs the graver offense 236
xxii
Article 26. Fine — When afflictive, correctional, or light penalty.... 236
Compare Art. 9 and Art. 26 236
How can the two articles be harmonized? 236
Chapter Three — D U R A T I O N A N D E F F E C T O F P E N A L T I E S
Section One — Duration of Penalties
Article 27. Reclusion perpetua 237

Reclusion Perpetua
When the law fixed the duration of reclusion perpetua,
has it become a divisible penalty? 237
What was the reason for fixing the duration
of reclusion perpetua? 238
Is a penalty exceeding 20 years within the range
M a y the convict sentenced to reclusion perpetua
be allowed to remain on bail pending appeal? 239
What is the minimum period of imprisonment
What is the rationale of the penalty of reclusion
perpetua? 239
Reclusion Temporal
Describe the penalty of reclusion temporal 240
Prision Mayor
What is the medium period of prision mayor? 240
Prision Correccional
May the penalty of reclusion temporal for homicide
with no mitigating circumstance be reduced
to prision correccional? 241
Arresto Mayor
What is the duration and prescriptive period
of arresto mayor? 241
Which between destierro and arresto menor
is a more severe penalty? 241
Article 28. Computation of penalties 242
Article 29. Period of preventive imprisonment deducted from
term of imprisonment 242
What is the purpose of preventive imprisonment? 243
xxiii
How will the time spent in prison by the detention
prisoner be credited? 243
What is the remedy when the person has already
served the maximum penalty imposable? 244
Will the convict who was imposed of the penalty
of reclusion perpetua or destierro be credited
of the time of his preventive imprisonment? 244
Can a convict be released on bail or recognizance? 244
In what instance can a convict be allowed to
post bail pending appeal? 245
Section T w o — Effects of the Penalties According to their

Respective N a t u r e
Article 30. Effects of the penalties of perpetual or temporary
absolute disqualification 246
special disqualification 247
special disqualification for the exercise
of the right of suffrage 247
Article 33. Effects of the penalties of suspension from any
public office, profession or calling, or the right
of suffrage 247
Article 34. Civil interdiction 248
What is civil interdiction? What rights does it cover? 248
May a person civilly interdicted appoint an agent? 248
Can the convict prepare his last will and testament? 248
Article 35. Effects of bond to keep the peace 249
Is the penalty of bond to keep the peace enforceable? 249
Article 37. Costs — What are included 249
Article 38. Pecuniary liabilities — Order of payment 249
What are the pecuniary liabilities of the offender?
How are they to be paid? 250
What is a fine?.. 250
If a person is found guilty of several offenses,
how is the order of payment of civil liabilities
observed? 250
xxiv
Article 39. Subsidiary penalty 250
What is subsidiary penalty? 251
How is subsidiary penalty computed? 251
When is subsidiary penalty served? 252
When is subsidiary penalty not proper? 252
How is the gravity of the fine classified? 253
When the culprit who had served subsidiary penalty
became solvent, is he still liable to pay the fine? 253
Is there subsidiary imprisonment in case of failure
to pay the fine in violations of special laws? 253
Does subsidiary penalty apply to criminal
negligence? 253
Section T h r e e — Penalties in which Other Accessory

Penalties are Inherent
Must accessory penalties be expressed in the court's

decision? 253
Article 40. Death — Its accessory penalties 254
Article 41. Reclusion perpetua and reclusion temporal —
Their accessory penalties 254
When reclusion perpetua is imposed as a penalty
next higher than that provided by law, what is to
be the accessory penalty? 254
What are the accessory penalties of reclusion
perpetua imposed as a penalty and reclusion
perpetua imposed as next higher? 254
Article 42. Prision mayor — Its accessory penalties 255
Article 43. Prision correccional — Its accessory penalties 255
Article 44. Arresto — Its accessory penalties 255
Article 45. Confiscation and forfeiture of the proceeds or
instruments of the crime 255
What is required before the proceeds or instruments
of the crime may be confiscated? 256
Chapter Four — A P P L I C A T I O N OF P E N A L T I E S
Section One — Rules for the application of penalties

to the persons criminally liable and for
the graduation of the same
Article 46. Penalty to be imposed upon principals in general 257
XXV
Article 47. In what cases the death penalty shall not be imposed;
Automatic review of death penalty cases 257
Death Penalty
• What is the effect of R.A. 9346 on Art. 47? 258
Is there an automatic review of conviction where
the penalty imposed is reclusion perpetua? 258
Article 48. Penalty for complex crimes 258
What are the two kinds of complex crimes? 258
What are the elements of compound crimes? 259
Give an example of a single act that does not result
to a complex crime 259
Give an example of separate acts that constitute a
complex crime 261
What are complex crimes proper? 262
What are cases where commission of two crimes
will not result to complex crimes proper? 263
What is the procedural requirement for the accused
to be liable for a complex crime? 264
Why is there only one penalty for complex crimes? 264
• What is the effect of R.A. 9346 on the penalty for
complex crimes? 264
What is the effect of complex crimes
on the indeterminate sentence on the convict? 265
Does Article 48 apply to imprudence? 265
Can offenses be complexed with felonies? 266
Besides complex crime and compound crime,
what are the other kinds of plurality of crimes
where a single penalty is imposed? 266
What are composite crimes? 266
Distinguish composite crimes from complex crimes 267
What is the effect when one of the crimes in
the information charging complex crimes
is not proved? 268
• Is arson with homicide a complex crime? 269
What are continued crimes? 270
May the principle of delito continuado be applied to
special laws? 270
What is the "single larceny" doctrine? 271
Give some examples of cases of delito continuado 271
Give examples when the concept of delito continuado
was not applied 271
What is a continuing crime? 272
xxvl
When an act or acts constitute more than one offense,
for what shall the accussed be liable? 273
Article 49. Penalty to be imposed upon the principals when
the crime committed is different from
that intended 273
To what circumstance does Art. 49 apply? 274
Article 50. Penalty to be imposed upon principals of a
frustrated crime 274
Article 51. Penalty to be imposed upon principals of attempted
crime 275
Article 52. Penalty to be imposed upon accomplices in a
consummated crime 275
Article 53. Penalty to be imposed upon accessories to the
commission of a consummated felony 275
Article 54. Penalty to be imposed upon accomplices in a
Article 55. Penalty to be imposed upon accessories of a
Article 56. Penalty to be imposed upon accomplices in an
attempted crime 275
Article 57. Penalty to be imposed upon accessories of an
attempted crime 275
Article 58. Additional penalty to be imposed upon certain
accessories 275
Article 59. Penalty to be imposed in case of failure to commit
the crime because the means employed or
the aims sought are impossible 276
Article 60. Exceptions to the rules established in
Articles 50 to 57 276
Why are the rules in Arts. 50-57 prescribed? 276
How are Arts. 50-57 applied in relation to Art. 61? 276
Article 61. Rules of graduating penalties 277
Why is there a need for the rules in graduating
penalties under Art. 61? 278
Explain the rules in Art. 61 279
When the penalty prescribed is not provided for
in the rules in Art. 61, how should the
court proceed in lowering the penalty? 280
xxvii
Section T w o — Rules for the application of penalties with
regard to the mitigating and aggravating
circumstances, and habitual delinquency
Article 62. Effects of the attendance of mitigating or aggravating

circumstances and of habitual delinquency 280
What are the different kinds of modifying
circumstances in this article? 282
What modifying circumstances were added
by R.A. 7659 in this article? 283
What is the essence of a syndicated or organized
crime group? 284
What are the elements of habitual delinquency
and its effect? 285
Article 63. Rules for the application of indivisible penalties 285
What are the two kinds of penalties in this Article? 286
Why is reclusion perpetua still an indivisible penalty
when it has now a fixed duration? 287
To what kind of mitigating circumstances do
Arts. 63 and 64 refer? 287
Article 64. Rules for the application of penalties which contain
three periods 287
Summary of the rules when the penalty imposed
is divisible 288
What can the courts not do under these rules? 289
What is the relationship between Art. 64 and the
Indeterminate Sentence Law? 289
When there are two or more mitigating, without any
aggravating, what is the proper penalty? 289
Do the rules under Art. 64 apply to quasi-offenses
under Art. 365? 290
Article 65. Rule in cases in which the penalty is not composed
of three periods 290
What is the rule when a divisible penalty is imposed
upon an offender? 290
What is the significance of one day in the beginning
of each penalty? 291
Article 66. Imposition of fines 292
What factors are considered in the imposition of fines
to the culprit? 292
xxviii
Article 67. Penalty to be imposed when not all the requisites
of exemption of the fourth circumstance
of Art. 12 are present 292
Article 68. Penalty to be imposed upon a person under eighteen
years of age 293
Who has the burden of proving the circumstance
of minority? 293
Article 69. Penalty to be imposed when the crime committed
is not wholly excusable 294
• What kind of a mitigating circumstance is lack
of complete requirement to exempt or justify? 295
Article 70. Successive service of sentences 296
What is the rule when a convict is given multiple
sentences? 297
When is simultaneous service of sentence allowed?
What penalties can be served simultaneously? 297
What are the limitations on the service of sentence? 298
How is the three-fold penalty computed 298
What is the significance of the 30-year duration of
penal perpetua in Art. 70? 298
When the penalty is indeterminate, how is
the three-fold penalty computed? 299
Should the judge refrain from imposing the correct
penalties if these would exceed the limitation
of penalties in this article? 299
If the penalties imposed are all equal, how should the
three-fold rule operate? 299
Article 71. Graduated scales 299
• What is the effect of R.A. 9346 as to the scale
of penalty under this article? 300
Compare Arts. 70 and 71
Destierro and Arresto Mayor 301
Article 72. Preference in the payment of the civil liabilities 301
Section Three — Provisions common to the last two

preceding Sections
Article 73. Presumption in regard to the imposition of accessory

penalties
xxix
Should a decision impose necessary penalties 302
Article 74. Penalty higher than reclusion perpetua in certain
cases 302
Article 75. Increasing or reducing the penalty of fine by one or
more degrees 302
How is the penalty of fine increased or reduced? 302
Article 76. Legal period of duration of divisible penalties 303
How are the periods of a divisible penalty computed? 303
Article 77. When the penalty is a complex one composed of
three distinct penalties 303
What is a complex penalty? 304
How is a law, which prescribes four distinct
penalties, construed? 304
What kind of penalty is reclusion temporal in
its maximum period to reclusion perpetua? 304
Indeterminate Sentence Law 305
What is the Indeterminate Sentence Law? 306
What are the objectives of the law? 306
Why is there a need to specify the minimum and
maximum periods? 307
When is the law not applicable [What are the
exceptions to the Indeterminate Sentence L a w ]
[When shall a straight penalty be imposed]
[Who are not covered by the Indeterminate
Sentence Law]? 307
When the penalty imposed is reclusion perpetua, is
the law applicable? 309
Is the requirement to impose an indeterminate
sentence discretionary or mandatory? 309
How does the law operate? 309
What rules govern the computation of the penalty? 310
Where should the penalty next lower than that
prescribed by the R P C for the offense be based? 311
When the penalty is originally exempt from the
Indeterminate Sentence Law, and after
lowering it, the penalty is now within the law,
shall the law apply? 312
When the crime is a complex one, how should
the penalty next lower in degree be determined? 312
Is the Indeterminate Sentence Law applicable
when the penalty imposed resulted from plea-
bargaining? 313
xxx
Does the Indeterminate Sentence Law cover offenses
involving the Dangerous Drugs Law? 313
Compare parole and pardon 314
Probation Law 314
What is the nature of the benefit of probation? 318
What conditions should accompany a grant of
probation? 319
What are the objectives of Probation Law? 319
What is the probationable penalty? 319
Who are the disqualified offenders? 320
May a convict who appealed his conviction still be
qualified for probation? 320
When shall the application for probation be filed? 321
Should multiple terms imposed aginst an accused
in one decision be added up for purposes of
probation? 321
To what does the word "previous" in the Law refer? 321
Does the grant of probation affect the applicability
of Sec. 40(a) on disqualification of the Election
Code 322
Distinguish Probation and Indeterminate
Sentence Law 322
Chapter Five — E X E C U T I O N A N D SERVICE

OF PENALTIES
Section One — General Provisions
Article 78. When and how a penalty is to be executed 323

Article 79. Suspension of the execution and service of the
penalties in case of insanity 323
Article 80. Suspension of sentence of minor delinquents
[Repealed by P.D. No. 603] 323
Section T w o — Execution of Principal Penalties
Article 81. When and how the death penalty is to be executed 324
Article 82. Notification and execution of the sentence and
assistance to the culprit 324
Article 83. Suspension of the execution of the death sentence 325
Article 84. Place of execution and persons who may witness
3 2 5
the same
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Article 85. Provision relative to the corpse of the person
executed and its burial 325
Article 86. Reclusion perpetua, reclusion temporal, prision mayor,
prision correccional and arresto mayor 325
What is the constitutional policy on penalty as a
3 2 6
whole?
3 2 6
Article 87. Destierro
To what does the limitation in the law pertain? 326
If the offender violates the limitation of distance, is
this evasion of service of sentence? 326
Article 88. Arresto menor 327
TITLE FOUR
EXTINCTION OF CRIMINAL LIABILITY
Chapter One — T O T A L E X T I N C T I O N OF C R I M I N A L
LIABILITY
Article 89. How criminal liability is totally extinguished 328

[Article 36. Pardon; its effects 328
Article 23. Effect of pardon by the offended party] 328
What causes the total extinction of criminal liability? 329
Death 329
What is the effect of death of the offender on his
criminal and civil liabilities? 329
• What is the "final judgment" in par. 1 of Art. 89? 329
Does Art. 30 of the Civil Code authorize
the appellate court to continue exercising
jurisdiction over the civil liability ex-delicto
when death occurs during appeal? 330
What is the intendment of Art. 100 on civil
liability? 330
• Relate Art. 30 of the Civil Code to Arts. 89(1)
and 100 of the Revised Penal Code 331
Service of Sentence 331
Should the period of time during which the evader
of sentence was at large be included in the service
of his sentences? 331
In what instances may the sentence be served
outside of prison? 332
Pardon 332
xxxii
What are the effects of pardon by the offended party? 332
Compare pardon by the offended and pardon by the
President 332
What are the limitations on the pardoning power of
the Chief Executive? 333
When does a judgment of conviction become final? 333
What is the effect of an appeal on the power
of the President to extend pardon? 333
What procedure should be followed in the grant of
pardon to a convict who appealed his judgment? 333
In rape cases, does the pardon of the parents,
without the concurrence of the minor victim
herself effective? 334
Amnesty 334
What is amnesty? What are its effects? 334
Distinguish amnesty and absolute pardon 335
Is novation a means of extinguishing criminal
liability? 336
Article 90. Prescription of crimes 336
Article 91. Computation of prescription of offenses 337
What is prescription of crime? 337
What are the laws on prescription of crimes? 337
When does the period of prescription start to run? 338
What causes the interruption and the resumption
of the running of the period? 338
Where should the complaint or information
be filed to cause the interruption of
the running of the period? 338
Relate Sec. 9 of the Rules on Summary Procedure on
commencement of prosecution to the rules
on prescription 339
What is the effect of the delay in the reporting of
crimes to its prosecution? 339
• Who is the offended party in Art. 91? 340
Can brief trips abroad qualify as "absence"
in Art. 91? 340
What rule on prescriptive period applies in reckless
imprudence resulting to variant felonies? 340
Will the principle of constructive notice by registration
apply to the crime of bigamy? 341
Is the non-application to bigamy of the rule
on constructive notice not contrary to the liberal
construction of penal laws? 341
xxxiii
Article 92. When and how penalties prescribe 342
Article 93. Computation of the prescription of penalties 342
What is prescription of penalty? 343
What are the prescriptive periods of felonies? 343
How is the running of the period of prescription of
penalty commenced? Tolled? 343
Compare prescription of crime and of
penalty 343
What are the two kinds of repeal and their effect
on the criminal liability of the accused/convict? 344
Chapter T w o — P A R T I A L E X T I N C T I O N O F C R I M I N A L
LIABILITY
Article 94. Partial extinction of criminal liability 345

What are the causes of partial extinction of
criminal liabilities 345
Article 95. Obligation incurred by a person granted conditional
pardon 345
What are the requisites for conditional pardon? 345
What are the nature and effects of a conditional
pardon? 346
Is the grant of pardon subject to judicial review? 346
Is a petition for writ of habeas corpus the remedy
for a person incarcerated for violation
of conditional pardon? 346
What are the effects of conditional pardon on
civil liability? 347
Who determines if there is violation of
conditional pardon? 347
Article 96. Effect of commutation of sentence 347
Article 97. Allowance for good conduct 348
Article 98. Special time allowance for loyalty 348
Article 99. Who grants time allowances 348
In what instances can a convict be released before
he serves the full term of his sentence? 348
When is special time allowance given? 349
What is the condition precedent for entitlement
to the loyalty time allowance? 349
What calamities are covered in Art. 158? 349
How is evasion committed in Art. 158? 350
Compare the increase/decrease of penalty under
Arts. 158 and 159 350
TITLE FIVE — CIVIL LIABILITY
Chapter One — P E R S O N S C I V I L L Y L I A B L E F O R F E L O N I E S
Article 100. Civil liability of a person guilty of felony 351

What is the basic principle in civil liability ex-delicto? 351
What are the two kinds of acquittal and their effects
on the civil liability of the accused? 351
Compare the effect of death on civil liability ex-
delicto and civil liability based on quasi-delict 353
What is the effect of acquittal of the accused in a
criminal action? 353
Can the court trying a criminal case award damages
to the accused in a counterclaim in
the same case? 354
Article 101. Rules regarding civil liability in certain cases 355
Article 102. Subsidiary civil liability of innkeepers, tavernkeepers,
and proprietors of establishments 356
Give the rules on civil liability in particular cases 356
Article 103. Subsidiary civil liability of other persons 357
Who are the persons subsidiarily liable for criminal
offenses? 357
What is the statutory basis for an employer's
subsidiary liability? 357
What are the requirements for subsidiary civil liability
of the employer? 357
Should a hearing for employer's subsidiary
civil liability be conducted? 358
What is the nature of the subsidiary liability of the
persons secondarily liable? 358
In what instances may the existence of the employer-
employee relationship determined? 359
Is there a need for the court to pronounce subsidiary
liability of the employer? 359
xxxv
Chapter T w o — W H A T C I V I L L I A B I L I T Y
INCLUDES
Article 104. What is included in civil liability 360

Article 105. Restitution — How made 360
Article 106. Reparation — How made 360
Article 107. Indemnification — What is included 360
• Compare Arts. 38 and 104 361
What are included in civil liability? 361
What is the relationship between the Civil Code
and Revised Penal Code on Civil liability
for the commission of crime? 361
When an unlawful act results in death,
what are the civil obligations of the offender 362
If the heirs cannot produce receipts to prove
actual damages, what may be granted
by the court as substitute? 364
How is life expectancy computed? Net earning capacity?.. 364
What is loss of earning capacity? When is it awarded? 365
Is it correct to award lump sum for actual and moral
damages? 365
How much should be awarded as moral damages? 367
When are moral damages not imposed on the
convict for homicide? 368
When is exemplary damages imposed? 368
Is relationship an aggravating circumstance
that justifies the grant of exemplary damages? 369
What is the effect of the Revised Rules on
Criminal Procedure on exemplary damages? 372
What are the civil liabilities in rape? 373
Can moral damages be increased if the victim
dies, but the information charges forcible
abduction with rape? 373
What is the civil liability of a person convicted
of the crime of rape when an offspring results
from the rape? 374
When is compulsory acknowledgment of the
offspring of rape proper? 375
Article 108. Obligation to make restoration, reparation for
damages, or indemnification for consequential
damages and action to demand the same —
Upon whom it devolves 375
Article 109. Share of each person civilly liable 375
Article 110. Several and subsidiary liability of principals,
accomplices, and accessories of a felony
Preference in payment 375
What is the nature of the civil liability
of co-conspirators? 376
Article 111. Obligation to make restitution in a certain case 376
Chapter Three — E X T I N C T I O N A N D S U R V I V A L
OF CIVIL LIABILITY
Article 112. Extinction of civil liability 377

Article 113. Obligation to satisfy civil liability 377
What should be the effect of a decision in a criminal
prosecution on the criminal and civil liability of
the accused? 377
Is a court-approved compromise agreement as to the
civil liability entered into by the culprit's lawyer
without his express authorization valid? 378
TITLE ONE
CRIMES AGAINST NATIONAL SECURITY A N D
THE L A W OF NATIONS
Chapter One — C R I M E S A G A I N S T N A T I O N A L S E C U R I T Y
What are the crimes comprising Title I of Book II? 381

Is rebellion a crime against national security? 381
Section One — Treason and Espionage

3 8 1
Article 114. Treason
xxxvii
Who can be liable for the crime of treason? 382
What kind of allegiance do citizens and aliens owe
this country? 382
What is allegiance? 382
What is the two-witness rule? 382
When can the crime of treason be committed? 383
What are acts of treason? 383
Who are the enemies of State? 383
Article 115. Conspiracy and proposal to commit treason —
Penalty 383
Article 116. Misprision of treason 383
What is kind of conspiracy is treated in Art. 115? 384
Where can crimes against law of nations triable? 384
What is misprision of treason? 384
Article 117. Espionage 384
Section T w o — Provoking w a r and disloyalty in

case of w a r
Article 118. Inciting to war or giving motives for reprisals 384
Article 119. Violation of neutrality 385
Article 120. Correspondence with hostile country 385
Article 121. Flight to enemy's country 385
Section Three — Piracy a n d mutiny on the high seas or

in Philippine waters
Article 122. Piracy in general and mutiny on the high seas or in
Philippine waters 386
Distinguish piracy and mutiny 386
• Presidential Decree No. 532 386
Compare piracy in the Revised Penal Code
and in P.D.532 388
Did R.A. 7659 obliterate the crime of piracy under
P.D. 532? 389
If piracy was committed outside the Philippine waters,
will the Philippine courts have jurisdiction
over the offense? 389
Can the accused be convicted as an accomplice
in an information that charges him as a
principal? 390
What is the presumption under
Section 4, P.D. 532? 390
Compare piracy in the Revised Penal Code
and in P.D. 532 390
Article 123. Qualified piracy 390
What is qualified piracy (Art. 123)? 390
Is there qualified mutiny? 391
What acts are punished under the Anti-Hijacking Law?... 391
What are the four kinds of aircraft and their
treatment in the law? 391
TITLE TWO
CRIMES AGAINST THE F U N D A M E N T A L LAWS
OF THE STATE
• Who are the offenders in Title II of Book II? 396
Chapter One — A R B I T R A R Y D E T E N T I O N O R E X P U L S I O N ,
VIOLATION OF DWELLING, PROHIBITION,
INTERRUPTION, AND DISSOLUTION OF
P E A C E F U L MEETINGS AND CRIMES
AGAINST RELIGIOUS WORSHIP
Section One — A r b i t r a r y Detention and Expulsion

Article 124. Arbitrary detention 397
Who can commit the crime of arbitrary detention? 397
How is arbitrary detention committed? 398
Compare arbitrary detention with unlawful arrest 398
Article 125. Delay in the delivery of detained persons to the
proper judicial authorities 398
• Compare Arts. 124 and 125 399
How is the arrestee "delivered" as provided in Art. 125?... 399
When does the detention become arbitrary? 400
What is the rationale for the provision of Art. 125? 400
To what do the words "judicial authority" refer? 400
When a municipal trial court judge conducts a
preliminary investigation, is he taken out of the
ambit of the "judicial authority"?
What is custodial investigation? 404
xxxlx
What is the mandatory duty of the arresting officers
in R.A. 7438? 404
How are persons under custody of the law variously
classified? 405
Is an invitation equivalent to arrest 405
What are the elements of custodial investigation? 406
What is the nature of searches, arrests and seizure
from the Constitutional point of view? 406
• People v. Uy, Jr 407
Describe the circumstances occurring during
custodial investigation 407
What situations are not covered by custodial
investigation? 407
What is the essence of the constitutional safeguard? 408
Article 126. Delaying release 409
What acts constitute delaying release under
Article 126? 409
Article 127. Expulsion 410
What is the crime of expulsion? 410
Who are the persons authorized by law to expel or
compel persons to change abode? 410
Section T w o — Violation of Domicile
Article 128. Violation of domicile 410

How is violation of domicile committed and by whom? 411
Article 129. Search warrants maliciously obtained, and abuse in
the service of those legally obtained 412
Article 130. Searching domicile without witnesses 412
Compare Art. 128 with Arts. 129 and 130 412
Cite examples of provisions imposing
additional liability 413
What procedures must be followed in searches
and seizures? 413
Section Three — Prohibition, interruption, and dissolution

of peaceful meetings
Article 131. Prohibition, interruption, and dissolution of
peaceful meetings 414
What are the acts punishable under Art. 131? 414
Section F o u r — Crimes against religious
worship
Article 132. Interruption of religious worship 415
Article 133. Offending the religious feelings 415
What are the religious ceremonies or manifestations
covered by Articles 132 and 133? 415
What is required for the act to contitute crimes
against religious worship? 416
What is the meaning of the phrase "notoriously
offensive"? 416
TITLE THREE
CRIMES AGAINST PUBLIC ORDER
What are included in Crimes against Public Order? 417
Chapter One — R E B E L L I O N , S E D I T I O N ,
AND DISLOYALTY
Article 134. Rebellion or insurrection — How committed 417
Article 134-A. Coup d'etat — How committed 417
Article 135. Penalty for rebellion, insurrection or coup d'etat 418
Article 136. Conspiracy and proposal to commit coup d'etat
rebellion or insurrection 418
Article 137. Disloyalty of public officers or employees 419
Article 138. Inciting to rebellion or insurrection 419
How is the crime of rebellion committed? 419
Compare rebellion and subversion 419
What amendments were introduced by R.A. 6968
on rebellion? 420
What is the nature of the crime of rebellion? 421
Office of the Provincial Prosecutor v. CA 421
In order to make out a case of rebellion,
what must be the motivation for the killing
of the victim? 421
When a criminal act has elements common
to more than one offense, who has the
option to choose the case to file? 421
Who has the burden of proving the political
4
motivation? ^2
May offenders be charged for "common crimes,"
such as murder and illegal possession
of firearms separately from rebellion? 422
xli
How is the crime of coup d'etat committed? 423
Distinguish rebellion from coup 424
Article 139. Sedition — How committed 424
Article 140. Penalty for sedition 425
Article 141. Conspiracy to commit sedition 425
Article 142. Inciting to sedition 425
What is the nature of sedition? 426
Compare rebellion and sedition 426
When disorderly conduct occurs during a rally,
will it always result to sedition? 426
Who can commit inciting to rebellion or sedition? 427
Can direct assault be committed during a
rebellion or sedition? 427
Compare inciting to sedition (Art. 142), tumults
(Art. 153), and direct assault (Art. 148) 427
Does wearing t-shirts printed with anti-government
invectives amount to inciting to sedition? 428
Is warrantless arrest of persons suspected
of rebellion valid? 428
What remedies are available to one suspected
of rebellion and arrested without warrant? 428
Chapter T w o — C R I M E S A G A I N S T P O P U L A R
REPRESENTATION
Section One — Crimes against legislative bodies and
similar bodies
Article 143. Acts tending to prevent the meeting of the Assembly
and similar bodies 430
Article 144. Disturbance of proceedings 430
Section T w o — Violation of parliamentary immunity
Article 145. Violation of parliamentary immunity 430
Chapter Three — I L L E G A L A S S E M B L I E S A N D
ASSOCIATIONS
Article 146. Illegal assemblies 432

What is the gravamen of illegal assembly? 432
What are the two ways of committing illegal
assembly? 432
xiii
What are the penalties imposable for illegal assembly?.... 433
Batas Pambansa Bilang 880 433
What is the meaning of "assembly"? 440
What is the only limitation on the freedom
of assembly? 440
Can participation in a peaceable assembly be a basis
for warrantless arrest on a charge of sedition? 440
Article 147. Illegal association 441
What is the essence of illegal association? 441
Chapter Four — A S S A U L T U P O N A N D R E S I S T A N C E A N D
DISOBEDIENCE TO PERSONS IN AUTHORITY
A N D THEIR AGENTS
Article 148. Direct assaults 442
Article 149. Indirect assaults 442
Article 150. Disobedience to summons issued by the National
Assembly, its committees or subcommittees, by the
Constitutional Commissions, its committees,
subcommittees or divisions 442
Article 151. Resistance and disobedience to a person in
authority or the agents of such person 443
Article 152. Persons in authority and agents of persons
in authority — Who shall be deemed as such 443
What is the rationale for penalizing direct assault? 444
How is direct assault committed? 444
Define (a) person in authority; and (b) agent of
a person in authority 444
What are the elements of the common form of
direct assault? 445
Can direct assault be committed during rebellion
or sedition? 445
What is the effect of direct assault on the felony? 445
Relate less serious physical injuries to direct assault 446
When the assault on the person in authority
or his agent results to his death, what
crime is committed? 446
Relate "ignorance of the law" and "ignorance of fact"
to direct assault 447
The qualifying circumstance of laying
applies to whom? 447
xliii
When is laying of hands upon a public officer
not direct assault? 447
Who can become an agent of a person in authority? 448
When the offended is a civilian who aids a person
in authority or his agent, what crime or crimes
are committed? 448
Chapter F i v e — P U B L I C D I S O R D E R S
Article 153. Tumults and other disturbances of public orders —
Tumultuous disturbance or
interruption liable to cause disturbance 449
Article 154. Unlawful use of means of publication and unlawful
utterances 449
What crimes comprise Article 153? 450
Acts of disturbance or interruption could result in
what crimes? 451
What is Public Disorder? 451
Burying a person legally put to death
constitutes what crime? 451
Article 155. Alarms and scandals 451
What are the acts penalized as alarms and scandals? 452
What variant crimes can arise from the use
of firearms? 452
What is charivari? 453
Creating noise and annoyance may bring about
what offenses? 453
Article 156. Delivery of prisoner from jail 453
Chapter Six — E V A S I O N O F S E R V I C E O F
SENTENCE
Article 157. Evasion of service of sentence 454
Article 158. Evasion of service of sentence on the occasion
of disorders, conflagrations, earthquakes, or
other calamities 454
Article 159. Other cases of evasion of service of sentence 454
Who is the offender in Art. 156 (Delivery
of Prisoner)? 455
What is the crime if the escapee is a detention
prisoner or serving final judgement? 455
What is the condition precedent for entitlement
to loyalty time allowance in Art. 98
in relation to Art. 158 455
What calamities are covered in Art. 158? 456
What is mutiny? Does it include riot? 456
How is evasion committed in Art. 158? 456
Why is violation of conditional pardon an evasion
of sentence? 457
Is violation of conditional pardon a substantive
offense? 457
Summarize the interconnection among
Arts. 156, 157 and 158 vis-a-vis
223, 224 and 225 457
Chapter Seven — C O M M I S S I O N O F A N O T H E R C R I M E
D U R I N G SERVICE OF PENALTY IMPOSED
FOR ANOTHER PREVIOUS OFFENSE
Article 160. Commission of another crime during service of

penalty imposed for another previous
offense — Penalty 459
What is quasi-recidivism? 459
• Is quasi-recidivism a felony? 459
TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST
Chapter One — F O R G E R I E S
Section One — Forging the seal of the Government of

the Philippine Island, the signature
or stamp of the Chief Executive
Article 161. Counterfeiting the great seal of the government

of the Philippine Island, forging the signature
of the Chief Executive 460
Article 162. Using forged signature or counterfeit seal or stamps.. 460
Section T w o — Counterfeiting coins
Article 163. Making and importing and uttering false coins 460
xiv
Article 164. Mutilation of coins — Importation and utterance
of mutilated coins 461
Article 165. Selling of false and mutilated coin, without
connivance 461
Section Three — Forging treasury or bank notes,

obligations and securities; importing and uttering
false or forged notes, obligations and securities
Article 166. Forging treasury or bank notes or other documents

payable to bearer; importing, and uttering such
false or forged notes and documents 461
Article 167. Counterfeiting, importing, and uttering instruments
not payable to bearer 462
Article 168. Illegal possession and use of false treasury or bank
notes and other instruments of credit 463
Article 169. How forgery is committed 463
When is counterfeiting not forgery? 463
Section F o u r — Falsification of legislative, public, commercial

and private documents, a n d wireless telegraph
and telephone messages
Article 170. Falsification of legislative documents 463

Article 171. Falsification by public officer, employee, or notary
or ecclesiastical minister 463
Article 172. Falsification by private individuals and use of
falsified documents 464
What is penalized in falsification of public document? 465
What are the elements of falsification under
Art. 171? 465
Who is a public officer? How does he take advantage
of his official position? 465
What is a document? 466
How is a document falsified? 466
What are the four kinds of documents? 466
Cite examples of public documents 467
In falsification under Art. 171(2), should
the document be an authentic official paper? 468
Is good faith a defense in falsification 468
xlvi
What is the presumption in favor of public document? 468
What are the elements of falsification by making
untruthful statements in a narration of facts? 469
What is meant by "illegal obligation
to disclose the truth"? 469
Compare falsification and perjury 469
Is the fact that the entries in the public document
were all true not exculpatory since
there was no damage to the government? 470
What are the acts punished under Art. 172? 470
Can falsification be committed through culpa? 470
What are the elements of use of falsified documents? 471
Distinguish Article 171 from Art. 172 471
What is the presumption on the possession and use
of falsified documents? 472
What crime should the user of falsified document
be charged with? 472
In what instance will fasification not give rise to
What is the effect when the document is
private? Public? 473
In falsification of private documents, what will
determine whether the crime committed
is estafa or falsification? 473
What is the value of the opinions of handwriting
experts in forgery cases? 474
Article 173. Falsification of wireless cable, telegraph
and telephone messages, and use of said
falsified messages 474
Section Five — Falsification of medical certificates, certificates
of merit or service and the like
Article 174. False medical certificates, false certificates of merit

or service and the like 475
Article 175. Using false certificates 475
Section Six — Manufacturing, importing and possession

of instruments or implements intended for
the commission of falsification
Article 176. Manufacturing and possession of instruments or
implements for falsification 475
xlvii
Chapter T w o — O T H E R F A L S I T I E S
Section One — Usurpation of authority, rank, title,

and i m p r o p e r use of names, uniforms,
and insignia
Article 177. Usurpation of authority or official functions 476

What are the forms of usurpation of Article 177? 476
What is the essence of usurpation of authority
under R.A. 10? 476
Article 178. Using fictitious name and concealing true name 477
Commonwealth Act No. 142 477
• Ursua v. C A 478
• What is the rationale for C A . 142? 478
• How should C A . 142 be construed? 478
Will the use of another name in a single instance
constitute use of an alias? 479
When can a resident Filipino citizen use an alias
legally? 479
Article 179. Illegal use of uniform and insignia 480
Section T w o — False Testimony
Article 180. False testimony against a defendant 480

Article 181. False testimony favorable to the defendant 480
Article 182. False testimony in civil cases 480
What are the different forms of false testimony
in court? 481
What is the effect in prescriptive period when the false
testimony is in favor of the accused against
the accused? 481
Article 183. False testimony in other cases and perjury in solemn
affirmation 481
• What are the elements of perjury? 482
Where is perjury committed? 482
Will the mere assertion of falsehood constitute perjury?... 482
Will the fact that the document is under oath sufficient
to make the affiant liable for perjury? 483
What is the nature of perjury? How should it
be treated? 483
xlviii
Is statement of belief or conviction, considered
perjurious? 433
When the affiant made two contradictory statements,
can he be convicted of perjury? 484
What is the meaning of the term "material matter"
in perjury? , 484
What are the two essential elements of proof
of perjury? 484
Article 184. Offering false testimony in evidence
What is subornation of perjury? 485
Chapter Three — F R A U D S
Section O n e — Machinations, monopolies

a n d combinations
Article 185. Machinations in public auctions 486

Article 186. Monopolies and combinations in restraint of trade 486
Section T w o — F r a u d s in commerce and industry
Article 187. Importation and disposition of falsely marked articles

or merchandise made of gold, silver, or other
precious metals or their alloys 487
Articles 188-189. Expressly repealed by Republic Act 8293 488
What is the purpose of public auction? 488
What is the new law on public bidding? 488
What are the governing principles of R.A. 9184? 489
What are the aims of public bidding? 489
What are the three principles of public bidding? 490
• What acts are penalized by R.A. 9184? 490
I T F P v. Comelec 492
When is grave abuse of discretion committed? 492
How was the bidding process violated in the
automation contract? 492
What should be done when a substantive amendment
to a contract is made after the bidding process
was concluded? 493
Who is liable for the amount expended under the void
4 9 4
contract?
What is the test of unfair competition? 494
xlix
TITLE FIVE
CRIMES RELATIVE TO O P I U M A N D OTHER
PROHIBITED DRUGS
Articles 190-194. Repealed by R.A. 6425 as amended by R.A. 7659

and further amended by R.A. 9165
• Republic Act No. 9165 495
What changes were introduced by R.A. 9165
on R.A. 6425? 536
• On Penalties 536
Classification of Drugs 537
New Offenders 537
New Offenses 538
Quahfying/Aggravating Circumstances 539
What is the nature of violations of dangerous
drugs law? 540
Compare violations of dangerous drugs law
with possession of unlicensed firearms 540
Definitions/Distinctions/Elements of the offense 540
What presumptions arise from mere possession of
equipment, instrument, apparatus and other
paraphernalia? 543
What are the new programs for treatment and
rehabilitation of drug dependents? 543
Outline the penalty on possession vis-a-vis the
quantity of drugs 544
Delineate the applicability of Sec. 11 and Sec. 15 544
What actions shall be taken upon a minor drug
violator? 545
What are the conditions for the suspended sentence to
a minor drug offender? 545
What procedures must be followed upon initial
seizure of drugs? 546
What is the effect when the procedures are not
complied with? 547
How should the accusatory portion of the Information
be worded? 551
What should the penalty on the convict include? 551
T I T L E SIX
CRIMES AGAINST PUBLIC MORALS
Chapter One — G A M B L I N G A N D B E T T I N G
What crimes are include in Crimes against

Public Morals? 552
Articles 195-199. Repealed and modified by P.D. Nos. 449, 483
and 1602, as amended by LOINo. 816 552
• Republic Act N o . 9287 552
What forms of gambling are prohibited by R.A. 9287? 556
Who are the persons liable? 556
Chapter T w o — O F F E N S E S A G A I N S T D E C E N C Y
A N D GOOD CUSTOMS
Article 200. Grave scandal 558

What is grave scandal? 558
What is required for the act to constitute
grave scandal? 558
Article 201. Immoral doctrines, obscene publications and
exhibitions, and indecent shows 558
• Compare R.A. 3060 and Art. 201 of the RPC 561
Article 202. Vagrants and prostitutes — Penalty 561
Who are vagrants? 562
What different crimes may be committed
by "loitering around"? 562
What is prostitution? 563
TITLE SEVEN
CRIMES COMMITTED BY
PUBLIC OFFICERS
What are the different crimes committed by public

5 6 4
officers?
• Who are the offenders in this Title? 564
Chapter One — P R E L I M I N A R Y P R O V I S I O N S
5 6 5
Article 203. Who are public officers
5 6 5
• Who are public officers?
li
May a laborer or casual be considered a public officer? .... 565
Chapter Two — M A L F E A S A N C E A N D M I S F E A S A N C E
Define malfeasance, misfeasance, nonfeasance 567
Section One — Dereliction of Duty
Article 204. Knowingly rendering unjust judgment 567

How is knowingly rendering unjust judgment
committed? 567
What is the nature of knowingly rendering
unjust judgment? 567
What militates against a charge for rendering
unjust judgment? 568
Article 205. Judgment rendered through negligence 568
Article 206. Unjust interlocutory order 569
Article 207. Malicious delay in the administration of justice 569
Article 208. Prosecution of offenses; negligence and tolerance 569
Who is liable for dereliction of duty? 569
Article 209. Betrayal of trust by an attorney or solicitor —
Revelation of secrets 569
Are all information confided to counsel
classified as privileged? 570
What is essential for the communication to
be clothed with the privilege? 570
Section T w o — B r i b e r y
Article 210. Direct bribery 571

• What is bribery? 571
• What are the kinds of bribery? 572
When the act performed by the officer constitutes
a crime, what should be the penalty to the offender?.. 572
• What are the essential elements of direct bribery? 573
Article 211. Indirect bribery 574
What is indirect bribery? 574
How is indirect bribery committed? 574
• What are the distinctions between Direct and
Indirect Bribery? 574
Hi
Article 211-A. Qualified bribery 575
What are the elements of qualified bribery? 575
Article 212. Corruption of public officials 576
When the officer refused to be corrupted,
what is committed? 576
Presidential Decree No. 749 576
Under P.D. 749, what are required for immunity? 577
Chapter Three — F R A U D S A N D I L L E G A L E X A C T I O N S
A N D TRANSACTIONS
Article 213. Frauds against the public treasury and similar

offenses 579
Who is the offender in illegal exaction? 580
What are the three ways of committing illegal
exaction? 580
What are the elements of illegal exaction? 580
What crimes may be committed in relation
to illegal exaction? 580
Article 214. Other frauds 581
Article 215. Prohibited transactions 581
Article 216. Possession of prohibited interest by a public officer 581
Chapter Four — M A L V E R S A T I O N O F P U B L I C F U N D S
OR PROPERTY
Article 217. Malversation of public funds or property —

Presumption of malversation 583
What are the elements of malversation? 584
How is malversation committed? 584
Who is an accountable officer? 585
Who could be liable for malversation? 585
In what other instance may a person who is not
an accountable officer be convicted
of malversation? 586
What is the condition precedent for any taking,
appropriation, conversion or loss of public
funds to amount to malversation? 587
What is the effect on the penalty if malversation
is committed through negligence? 587
liii
When will the presumption of malversation arise? 588
Is direct evidence required in malversation? 589
Is demand an element of malversation? 590
If the disbursement of public funds is unauthorized,
will that make up a case of malversation? 590
Is good faith a valid defense in malversation? 591
What is the effect of restitution of the amount
malversed? 591
What court has jurisdiction over malversation cases? 592
Compare malversation, estafa and qualified theft 593
If falsification of documents was resorted to for
the purpose of concealing malversation, is
a complex crime committed? 593
Article 218. Failure of accountable officer to render accounts 594
Article 219. Failure of a responsible public officer to render
accounts before leaving the country 594
Article 220. Illegal use of public funds or property 594
What are elements of illegal use of public funds or
property (technical malversation)? 595
Does the presumption of criminal intent
automatically apply to technical malversation? 595
Compare malversation and technical malversation 596
What is required for technical malversation to exist? 597
Can accused be convicted of technical malversation
in an information charging malversation? 597
Article 221. Failure to make delivery of public funds
or property 598
Article 222. Officers included in the preceding provisions 598
How is malversation committed by a private
person? 598
Azarcon v. Batausa 599
Does a person become a public officer via his
designation by the BIR as custodian by distrained
property? 599
Has the Sandiganbayan jurisdiction over a private
person? 600
Estrada v. Sandiganbayan 603
What is the crime of plunder and its nature 603
Is the plunder law void for being vague? 604
liv
Does not the failure of the law to define certain terms
make a case of vagueness or "overbreath"? 605
Define "series," "combination" and "pattern." 605
As applied to criminal law, define the "void-for-
vagueness" rule? 606
What is the facial challenge against a statute? 607
A r e the "void-for-vagueness" rule and the facial
challenge applicable to criminal statutes 607
What is the test in determining whether a criminal
statute is void for uncertainty? 607
Does Sec. 4 dispense with the "reasonable doubt"
requirement? 608
What does Sec. 4 dispense with in not requiring proof
of each and every act in the pattern of
accumulation? 608
What is the nature of Sec. 4 of the Plunder Law? 609
Republic Act 3019 609
• What is the rationale for R.A. 3019 616
Define the significant terms under R.A. 3019? 616
Is attempted or frustrated violation of R.A. 3019
punishable? 617
• What are the acts punishable under R.A. 3019? 617
What kind of intervention is required of the public
officer? 618
What are the two ways of violating Sec. 3(e)? 619
What kind of bad faith would convict under
Sec. 3(e)? 619
Is lack of intent a defense against Sec. 3(e)? 620
How is the crime committed with abuse of public
office? 621
When should the prescriptive period begin? 621
What is the policy of the Supreme Court on the review
of the exercise of the investigatory power of the
Ombudsman, and the rationale therefor? 622
Does the Sandiganbayan have jurisdiction over officers
of State corporations incorporated under the
Corporation Code? 622
What are government-owned or -controlled
corporations? 623
• Republic Act No. 8249 625
Can the Sandiganbayan preventively suspend
6 2 7
a senator?
Iv
What is the nature of preventive suspension? 627
How is suspension of the officer mandatory but
not automatic? 627
May the official be suspended in a different office
than where the act complained of was
committed? 628
How should the pre-suspension hearing be conducted? 628
What should and should not be proved in a
pre-suspension hearing? 629
Does this power of the Sandiganbayan not encroach
upon the doctrine of separation of powers? 629
When would the Sandiganbayan have jurisdiction over
common crimes committed by public officers? 629
Chapter Five — I N F I D E L I T Y OF P U B L I C O F F I C E R S
Section One — Infidelity in the custody of prisoners
Article 223. Conniving with or consenting to evasion 631

Article 224. Evasion through negligence 631
Article 225. Escape of prisoner under the custody of a person
not a public officer 631
What are the elements of evasion through negligence? 632
How is infidelity in the custody of prisoners
committed? 632
Will mere laxity amount to negligence as defined in
Art. 224? 632
Does evasion through negligence require connivance
between the officer and the prisoner? 632
How is infidelity committed by private persons? 633
Section T w o — Infidelity in the custody of documents
Article 226. Removal, concealment or destruction of documents 633

Article 227. Officer breaking seal 633
Article 228. Opening of closed documents 634
• What are the elements of infidelity in the custody of
documents? 634
What are the ways of committing infidelity in the
custody of documents? 634
Distinguish infidelity from qualified theft 635
Is mail matter property? 635
Ivi
Section Three — Revelation of Secrets
Article 229. Revelation of secrets by an officer 635

Article 230. Public officer revealing secrets of private individual... 635
Chapter Six — O T H E R O F F E N S E S OR I R R E G U L A R I T I E S
BY PUBLIC OFFICERS
Section One — Disobedience, refusal of assistance and

maltreatment of prisoners
Article 231. Open disobedience 636

Article 232. Disobedience to order of superior officer, when
said order was suspended by inferior officer 636
Article 233. Refusal of assistance 636
Cite an example of the crime of refusal of assistance 636
Article 234. Refusal to discharge elective office 637
Article 235. Maltreatment of prisoners 637
When a prisoner is maltreated, how many crimes may
be committed? 637
To what does the word maltreatment refer to? 637
R.A. 9745 - Anti-Torture Act 638
• What is torture as defined in R.A. 9745? 638
Who are the offenders and victims of torture? 639
What are the different kinds of torture? 641
What are the crimes punished in the law? 643
What is the relationship between the RPC and other
special laws, and the Anti-Torture Act? 643
Section T w o — Anticipation, prolongation and

abandonment of duties and powers of public office
Article 236. Anticipation of duties of a public office 644

Article 237. Prolonging performance of duties and powers 645
Article 238. Abandonment of office or position 645
Section Three — Usurpation of powers and unlawful

appointments
Article 239. Usurpation of legislative powers 645

Article 240. Usurpation of executive functions 645
Ivii
Article 241. Usurpation of judicial functions 646
Article 242. Disobeying request for disqualification 646
Article 243. Orders or requests by executive officers to any
judicial authority 646
Article 244. Unlawful appointments 646
Section Four — Abuses against chastity
Article 245. Abuses against chastity — Penalties 646

Who is the offended in Art. 245? How is the law
violated? 647
TITLE EIGHT
CRIMES AGAINST PERSONS
Chapter One — D E S T R U C T I O N OF L I F E
What crimes are covered by Title Eight? 648

What kinds of offenses comprise crimes against
persons? 648
How is intent to kill determined? 649
What is the corpus delicti in taking of human life? 649
When indictment is on the basis of proximate cause,
what evidence on the nature of wound
is required? 650
When there are other possible causes of death aside
from proximate cause, what should be duly
established? 651
Section One — Parricide, M u r d e r , Homicide
Article 246. Parricide 652

How is parricide committed? 652
What is the basis of the crime of parricide? 652
If the killing of the child less than three days old
was committed by the parent, is the crime
parricide or infanticide? 653
Distinguish between parricide and infanticide 653
Why is the rule on conspiracy that the act of one
is the act of all not applicable in parricide? 654
Ivlii
In killing of a spouse, how will the
relationship be proved? 655
If the information failed to mention that offender
and offended are married, can the former be
convicted with parricide? 655
Article 247. Death or physical injuries inflicted under
exceptional circumstances 655
Does Art. 247 define and penalize a felony? 656
What are the requisites to be entitled to the benefit
of Art. 247? 656
What are the two time elements involved in this
article? 657
What are the two issues involved in this article? 657
If a period of time such as one hour passed from the
surprising up to the killing, will the benefit still
be available? 657
Will the fact that the spouses were living separately
militate against the accused? 658
What is the nature of the "penalty" of destierro? 658
Should qualifying circumstances be appreciated
in inflicting death under exceptional
circumstances? 659
How should the requirements of the law be
complied with? 659
When third persons are injured in the course of firing
at the paramours, will the offender be free from
Article 248. Murder 660
How is murder committed? 661
How many circumstances are necessary to qualify
homicide to murder? 661
Can homicide be upgraded to murder by a subsequent
act of the offender? 662
When the qualifying circumstances were not those
proved in the trial, can the accused be convicted
6 6 2
for murder?
Give some instances when treachery is not appreciated
to qualify killing to murder 662
May treachery be appreciated in aberratio ictus? 663
Are dwelling and nocturnity qualifying circumstance? 663
lix
When the qualifying circumstance is the use of fire,
what variant crimes may result? 663
Is arson with homicide a complex crime? 664
What determines whether the offense committed
is frustrated or attempted murder? 664
Article 249. Homicide 665
What is homicide? 665
What is the rule on intent to kill when the victim
dies? 665
What determines whether the offense is attempted/
frustrated homicide and not physical
injuries? 665
Can attempted or frustrated homicide be committed
through imprudence or negligence? 666
May a person charged with homicide by stabbing
be convicted when the cause of death
was drowning? 666
• What changes did R.A. 8294 make on P.D. 1866 670
What are the elements of illegal possession of
firearm? 671
If the killing was committed through the use of
unlicensed firearm, with what crime should
the offender be charged? 671
What are the implications of the amendment on
the use of unlicensed firearm being an
aggravating circumstance of homicide
or murder? 672
What is the exception to the single offense rule in the
commission of homicide/murder with the use
of unlicensed firearm? 672
Who are the offenders in illegal possession of firearm,
ammunition and explosives? 673
What are the presumptions on illegal possession
of firearm? 674
What is the relationship of the law on the felonies
under the Revised Penal Code? 674
Can the law be both prospectively and retroactively
applied? 675
What are covered by the phrase "homicide or murder"
in paragraph 3, Sec. 1 of R.A. 8294? 675
What are the offenses penalized under the amendatory
law? 676
When the "other crime" is a slight felony, what is the
effect on the criminal liability of the offender? 677
When the gun is a paltik (a home-made gun), will
that dispense of the necessity to prove that
it is unlicensed? 678
Where the Information charged the accused for
qualified illegal possession, can he be convicted
for homicide? 679
How is homicide using unlicensed firearm
denominated? 679
Who should own the unlicensed firearm? 680
What are the kinds of possession punished
by P.D. 1866? 680
How is the Indeterminate Sentence Law applied
in crimes under P.D. 1866? 680
What is the nature of the crime of illegal possession
of firearm? 680
Republic Act N o . 6539 681
What amendments were made by R.A. 7659
on R . A . 6539 681
Is it material whether the killing is homicide
or murder? 681
Article 250. Penalty for frustrated parricide, murder
or homicide 682
Article 251. Death caused in a tumultuous affray 682
Article 252. Physical injuries inflicted in a tumultuous affray 682
Will the mere fact that the affray is tumultuous make
the crime fall within Art. 251? 683
If it cannot be shown who inflicted serious physical
injuries or any form of violence on the victim,
who should be liable? 683
Who may be the victim in the affray? 684
• What is required of the "injuries" in Art. 252? 684
Article 253. Giving assistance to suicide 684
Is committing suicide a felony? 684
What are the three acts punished under this article? 684
Article 254. Discharge of firearms 685
• What are the elements of illegal discharge of firearm? 685
Ixi
Section T w o — Infanticide and Abortion
6 8 5
Article 255. Infanticide
What is infanticide? 686
What is required if the victim is a fetus? 686
Article 256. Intentional abortion 686
Article 257. Unintentional abortion 687
Article 258. Abortion practiced by the woman herself or by
her parent 687
Article 259. Abortion practiced by a physician or midwife and
dispensing of abortives 687
What are the different kinds of abortion? 687
To what do the words "intentional" and "unintentional"
refer? 688
If the woman having abortion is not pregnant, what
crimes are committed? 689
Can the woman commit unintentional abortion upon
herself? 689
Is there unintentional abortion by means of
intimidation? 689
Compare intentional abortion and unintentional
abortion 690
Distinguish between abortion and infanticide 690
Who are the victims in abortion and in infanticide? 691
Section Three — Duel
Article 260. Responsibility of participants in a duel 691

Article 261. Challenging to a duel 691
What are the elements of a duel? 691
Chapter T w o — P H Y S I C A L I N J U R I E S
As to stage of execution, what is the nature of this

felony? 693
Distinguish physical injuries from attempted
or frustrated homicide or murder 693
Article 262. Mutilation 693
What is mutilation? 694
Article 263. Serious physical injuries 694
Article 264. Administering injurious substances or beverages 695
Ixii
How is serious physical injuries committed? 695
How are the injuries inflicted to the victim classified? 696
Compare the incapacity and duration in nos. 2, 3, and
and 4 696
Relate the physical injuries to robbery with physical
injuries under Art. 294, nos. 2 to 4
and Art. 295/296 697
What is deformity? 697
What are the qualifying circumstances affecting
this crime? 697
Article 265. Less serious physical injuries 698
What circumstances qualify for less serious
physical injuries? 698
Relate qualified less serious physical injuries with
direct assault 698
Article 266. Slight physical injuries and maltreatment 699
Can there be physical injuries without inflicting
injury? 699
Distinguish serious, less serious and slight
physical injuries 699
Republic Act N o . 8049 700
What is the nature of the violations of the anti-hazing
law? 704
Who are liable for violations of the law on hazing? 704
Chapter Three — R A P E

Article 266-A. Rape; When and How Committed 706
Article 266-B. Penalties 707
Article 266-C. Effect of pardon 708
Article 266-D. Presumption 709
When did the Anti-Rape Law of 1997 take effect? .... 709
What is the effect of the reclassification of rape into
a crime against persons? 710
What are the differences between the two modes
rape? 711
What is the effect of error in the mode of rape in
the Information? 711
How is rape committed and by whom? 711
Ixlll
What consummates the crime of rape? 712
Under what circumstance will rape absorb forcible
abduction? 712
When is rape attempted? 712
What is the meaning of "slightest penetration" that
would consummate the crime rape? 713
Distinguish attempted rape from acts of lasciviousness.... 714
When multiple rapes are committed at about the
same time and place, is the principle of delito
continuado applicable? 714
In what circumstance will the rape of a retardate fall? 714
What is the nature of the ten circumstances in
Art. 266-B? 715
If the rapist is merely a relation how should such fact
be alleged in the information? 715
What relationships will not elevate the crime to
qualified rape? 716
What is the nature of a "step" relationship? 717
How is the circumstance of age or relationship proved?.... 717
How should the term force and violence be construed? 717
What is the meaning of "force" in rape? 718
What is "intimidation" in rape? 718
Distinguish between force and intimidation in rape 719
In incestuous rape, is force or intimidation
indispensable? 719
Offender hacked the victim thrice on the face after raping
her twice and left for dead. What crimes were
committed? 720
What facts do not constitute elements of rape? 720
What guiding principles must be considered in
reviewing rape cases? 720
Give some doctrinal principles in rape 721
• What are the elements of statutory rape? 722
How relevant is force and intimidation in statutory
rape? 722
Can the accused be charged with seven homicides
in rape with homicide considering that only two
persons died? 722
May a woman be guilty of rape against
another woman? 723
What is necessary for an effective pardon by the
offended? 723
Ixiv
What are the presumptions added by the new law? 724
What elements constitute the offense of
sexual harassment? 725
Is a casual buss on the cheek by the superior on
his subordinate sexual harassment? 726
What is the philosophy underlying this gender-related
law on sexual harassment? 726
What constitutes violence against women
and children? 736
What are the acts of violence punished under
the law? 737
What protective policies were put in place under
the law? 740
People v. Genosa 741
Who is a battered woman? 741
What are the characteristics of the "battered
woman syndrome"? 742
What effect does the recurrence of the cycle of violence
have upon the woman victim? 742
What is the nature of the defense of battered woman
syndrome? 743
For the defense of battered woman syndrome to
absolve the offender, what must the battered
woman prove? 743
If the invocation of self-defense fails, what shall
the battered woman syndrome amount to? , 744
TITLE NINE
CRIMES AGAINST PERSONAL LIBERTY
AND SECURITY
What crimes are covered by Title 9? 746
Chapter One — C R I M E S A G A I N S T L I B E R T Y
Section One — Illegal detention
Article 267. Kidnapping and serious illegal detention 747

7
What is the essence of kidnapping? ^7
Ixv
When shall deprivation of liberty fall
under Art. 267? 748
Will any and all kinds of deprivation result to
kidnapping? 749
Who should be the offender in kidnapping? 750
What special complex crimes may arise in
kidnapping? 750
What is the nature of the crime committed when
the kidnapped victim was killed by his abductor? 751
How should the composite crime be denominated? 752
When is the crime homicide or murder and
not kidnapping? 752
Where detention and killing of the victim both occurred,
what will determine the crime was committed? 753
Will the fact alone that ransom is demanded
indicative of kidnapping? 754
What is ransom? Is it an element of kidnapping? 754
When is demand for many robbery, not kidnapping
for ransom? 754
Distinguish kidnapping from grave coercion 755
Cite an example of the crime of kidnapping
in the attempted stage 756
What distinguishes kidnapping from forcible
abduction? 756
Distinguish between kidnapping with rape and
forcible abduction with rape? 757
If the injuries inflicted were merely slight, may the crime
be kidnapping with physical injuries? 758
Will the victim's disappearance negative criminal
liability? 758
Article 268. Slight illegal detention 759
When is slight illegal detention committed? 759
Compare slight illegal detention, and kidnapping
and serious illegal detention 759
What are the requisite for the specific mitigating
circumstances of voluntary release? 760
Article 269. Unlawful arrest 760
What is the essence of the crime of unlawful arrest? 760
Who can commit the crime of unlawful arrest? 760
• What are the grounds for a lawful arrest
without a warrant? 761
Ixvl
Section T w o — K i d n a p p i n g of Minors
Article 270. Kidnapping and failure to return a minor 761

What are the elements of the crime of failure
to return a minor? 761
What is the gravamen of the crime of failure to return
a minor? 761
What is shown by the phrase "deliberately fails"? 762
Article 271. Inducing a minor to abandon his home 762
Relate kidnapping with inducing a minor to abandon
his home 763
Section T h r e e — Slavery and Servitude
Article 272. Slavery 763

Article 273. Exploitation of child labor 763
Article 274. Services rendered under compulsion in payment
of debt 763
• Compare Arts. 272, 273 and 274 with Art. 267 764
• Compare Art. 274 with Art. 287 764
Chapter T w o — C R I M E S A G A I N S T S E C U R I T Y
Section O n e — A b a n d o n m e n t of Helpless Persons

and Exploitation of Minors
Article 275. Abandonment of persons in danger and

abandonment of one's own victim 765
What are the different kinds of abandonment? 765
How should the word "uninhabited" be construed? 765
Compare "abandonment" in Art. 275 with that
in Art. 365 766
How old should be the abandoned child? 766
Article 276. Abandoning a minor 766
Article 277. Abandonment of minor by person entrusted
with his custody; indifference of parents 767
Article 278. Exploitation of minors 767
What kind of business does Art. 278 speak of? 768
Article 279. Additional penalties for other offense 768
Ixvii
What penalties are imposable when the abandonment
resulted to other crimes? 769
Republic Act No. 7610, as amended 769
Who are included in the definition of "children"
i n R . A . 7610? 790
What are the specific crimes penalized under
R.A. 7610 790
What are the two kinds of child prostitution and
sexual abuse? 792
What situations are covered by sexual abuse of children
under Section 5 of R.A. 7610? 794
Distinguish sexual abuse and child abuse 794
Explain the relationship between rape and sexual
abuse? 796
How relevant is the sweetheart theory in rape;
In R.A. 7610? 796
What are required for conviction for child abuse
through lascivious conduct under Sec. 5
of R.A. 7610? 797
What is meant by the word lewd or lascivious? 797
How is "lewd designs" defined for purposes
of R.A. 7610? 798
Are sexually abused children entitled to moral
damages even without proof of mental
anguish, etc.? 798
What are the other laws on child trafficking? 799
R.A. 9208 - Anti Child Pornography 799
What is child pornography and who are deemed
children? 800
What are the punishable acts in the law? 800
What presumptions on child pornography are
prescribed? 802
Section T w o — Trespass to D w e l l i n g
Article 280. Qualified trespass to dwelling 803

Article 281. Other forms of trespass 803
What determines whether the crime committed is
trespass to dwelling or trespass to property? 803
Ixviii
What does the phrase "against the will of the owner"
denote? 804
Is the occupant required to be the owner of the
dwelling? 804
Under what instances is the crime of trespass not
committed? 804
Relate the crime of trespass with other crimes 805
Who should give permission or prohibit entry
to dwelling? 805
Section Three — Threats and Coercion
Article 282. Grave threats 805

Article 283. Light threats 806
Article 284. Bond for good behavior 806
Article 285. Other light threats 806
Distinguish among the three kinds of threat 807
Compare light threat with blackmailing 807
How should the phrase "some harm not constituting
a crime" in Art. 285, no. 2 be construed 808
What is bond for good behavior? 808
What are the nature and the forms of other
light threat? 808
Is a threat to sue in court unlawful? 809
Article 286. Grave coercions 809
Article 287. Light coercions 809
What are the principal distinctions between threat
and coercion? 810
What are the elements of grave coercion? 811
What are the kinds of grave coercion? 812
Why is the distinction between preventive and
compulsive coercion significant? 813
May coercion be in writing? 813
What different crimes can arise from intimidation? 813
What is required of intimidation to make the act
grave coercion? 813
What should characterize the force in grave coercion? 814
When property of a debtor is seized, what crimes
8
may result? ^
What is unjust vexation? 815
Relate unjust vexation and attempted rape 815
Ixix
Article 288. Other similar coercions 816
Article 289. Formulation, maintenances, and prohibition of
combination of capital or labor through
violence or threats 816
R.A. 9995 - Anti-Photo Voyeurism Act 817
What is photo or video voyeurism and how is it
committed? 817
Chapter Three — D I S C O V E R Y A N D R E V E L A T I O N
OF SECRETS
Article 290. Discovering secrets through seizure of

correspondence 819
Article 291. Revealing secrets with abuse of office 819
Article 292. Revelation of industrial secrets 819
• What is penalized in Art. 290? 819
What other crimes involving correspondence may be
committed? 820
Who are exempted from the provisions of
Art. 290? 820
What kind of communication is covered
by R.A. 4200? 823
Is R.A. 4200 violated if the recording was done by a
party to the conversation? 824
Should the conversation be alleged in the information?.... 824
Does "private communication" include "private
conversations"? 824
Are tape recorders among the prohibited devices? 825
TITLE TEN
CRIMES AGAINST PROPERTY
What crimes are covered under this title? 826
Chapter One — R O B B E R Y I N G E N E R A L
Article 293. Who are guilty of robbery 827

Compare the crimes of robbery and theft 827
Can real property be subject of robbery? 827
What is asportation? When is it present? 827
How is animus lucrandi determined? 828
Ixx
What will give rise to the presumption of animus
lucrandi? 828
When is the crime of robbery or theft consummated? 829
Can there be frustrated theft? 829
Must the person divested of personal property be its
owner? ; 829
When is the element of "taking" not present? 830
Compare robbery with violence against
or intimidation of persons to robbery
with force upon things 830
Section One — R o b b e r y with violence against

or intimidation of persons
Article 294. Robbery with violence against or intimidation

of persons — Penalties 831
What crimes are penalized under Art. 294? 832
What is the nature of the homicide, rape, mutilation,
arson or physical injuries committed with the
robbery? 832
What is the nature of the crime of robbery
with homicide? 833
In charging the complex crime of robbery with
homicide, what should the Information contain? 833
What does "homicide" in robbery with homicide
encompass? 834
When the special complex crime of robbery with
homicide is not proved, for what can the defendants
be convicted? 835
What is the significance of the phrase "by reason" in
Art. 294 on robbery with homicide? 835
Is it necessary for the robbery to precede the killing
for the crime to be "robbery with homicide"? 836
In robbery with homicide, should robbery be the
sole purpose of the offenders? 836
Does it necessarily follow that when a killing was
done during a robbery, the offense committed is
robbery with homicide? 838
Is there a crime of robbery with double homicide? 839
Is there robbery with homicide and frustrated homicide;
robbery with homicide and physical injuries? 840
Ixxl
If the robbery was accompanied by homicide, will
those who did not take part in the killing
be liable? 840
If the robbery was accompanied by killings (or rapes),
will the other homicides (or rapes) be aggravating?.... 841
Distinguish the special complex crime of robbery
with homicide from the complex crime under
Art. 48 842
What is the rationale for penalizing as a special
complex crime, robbery with homicide? 842
Is the aggravating circumstance of dwelling
appreciated in robbery with homicide? 842
Is the value of the stolen articles relevant to the
criminal liability of the accused? 843
When the detention of the victims was made by the
robbers to shield themselves from the police,
is the crime of illegal detention committed? 843
What two principles of conspiracy are relevant in a
conviction for robbery with rape? 844
In robbery with rape, when should the rape
be committed? 844
What determines whether the crime committed
is the special complex crime of robbery with
rape or separate crimes for the taking and
the rape? 845
What is required of the execution of the robbery and
the rape? 846
If the sequence is: rape, homicide, then
robbery, what crimes are committed? 846
When several rapes are committed during a robbery,
how many crimes are committed? 847
What should be the stage of execution in robbery
with mutilation? 847
What is the peculiar nature of robbery with arson? 847
In robbery with serious physical injuries, what should
be the nature of the physical injuries? 848
Who is the victim in robbery with homicide,
with serious physical injuries, and with less
serious or slight physical injuries? 848
Snatching may constitute what crime? 848
Article 295. Robbery with physical injuries, committed in an
uninhabited place and by a band, or with the use
of firearm on a street, road or alley 848
Article 296. Definition of a band and penalty incurred by
the members thereof 849
People v. Apduhan 849
In what kind of robbery do Arts. 295 and 296 apply? 849
• What is Art. 296 related to Arts. 294 and 295? 850
To what does the word "offense" in Art. 296 refer? 851
Article 297. Attempted and frustrated robbery committed
under certain circumstances 851
Does the rule on liability for conspirators in robbery with
homicide apply to attempted robbery
with homicide? 851
How is attempted robbery committed? 852
If in the course of the attempted robbery, parricide,
murder, or infanticide was committed, what
will be the proper charge? 852
Who should be the killer in attempted robbery with
homicide? 853
Article 298. Execution of deeds by means of violence or
intimidation 853
S e c t i o n T w o — R o b b e r y b y the use
of force upon things
If both violence against or intimidation of persons

and force upon things are present, what is
the proper crime to charge? 854
Article 299. Robbery in an inhabited house or public building
or edifice devoted to worship 854
What three places are covered by this Article? 855
To be robbery, the taking must be done under
what situations? 855
When the offender is a family member or servant
who broke a receptacle inside to take property
of his housemate, what crime is committed? 857
Article 300. Robbery in an uninhabited place and by a band 857
Ixxiii
Article 301. What is an inhabited house, public building, or
building dedicated to religious worship and
their dependencies 857
Article 302. Robbery in an uninhabited place or in a private
building 858
Article 303. Robbery of cereals, fruits, or firewood in an
uninhabited place or private building 858
What peculiar provisions on robbery
should be amended? 859
Article 304. Possession of picklocks or similar tools 859
Article 305. False keys 860
What is the nature of the act of possessing picklocks? 860
Chapter T w o — B R I G A N D A G E
Article 306. Who are brigands — Penalty 861

Article 307. Aiding and abetting a band of brigands 861
Distinguish brigandage under the Code from
P.D. 532 862
What is the purpose of the malefactors under
P.D. 532? 862
What is the gravamen of brigandage under
Art. 306? 863
What is the liability of abettors of brigandage? 863
Is highway robbery with homicide a heinous crime? 863
Does the situs determine whether the crime is
highway robbery? 863
What is the import of the word "indiscriminate" in
P.D. 532? 864
Chapter T h r e e — T H E F T
Article 308. Who are liable for theft 865

What are the elements of theft? 865
What is encompassed by the element of intent
to gain? 866
What will make the crime theft and homicide,
not robbery with homicide? 866
Can theft be committed by a co-owner of the property? 867
What other circumstances may constitute theft? 867
Ixxiv
What offenses are penalized by the Revised
Forestry Law? ggg
What amendment was made by E.O. 277 on the
Revised Forestry Law? 869
When is one who benefited in the loot without
participating in the commission of the offense
(1) a principal and (2) an accessory? 870
Article 309. Penalties 870
Article 310. Qualified theft 871
Article 311. Theft of the property of the National Library
and National Museum 872
What circumstances can qualify theft? 872
What kind of confidence between employer and
employee is required to bring about qualified theft?... 873
How is the offense of illegal fishing under P.D. 704
committed? 874
Is the presumption of guilt contrary to the presumption
of innocence? 874
Republic Act No. 6539, as amended 875
Compare carnapping to robbery and qualified theft 878
What are the elements of carnapping? 879
What changes were introduced by R.A. 7659 on
R . A . 6539? 879
What are the implications of the amendments
b y R . A . 7659? 880
When is carnapping presumed to have been
committed? 881
What should be the relationship between
the carnapping and the killing? 882
May qualified theft of motor vehicle be committed
despite R.A. 6539 as amended by R.A. 7659? 882
May a person charged with qualified theft of motor
vehicle be convicted of carnapping? 882
What crime is committed when a public utility
vehicle under the "boundary" system
is appropriated by the driver? 883
Has the Revised Penal Code suppletory effect
8 8 4
o n R . A . 6539?
Whether or not attempted and frustrated murder/
8 8
homicide are included in qualified carnapping 5
Ixxv
Is a tricycle used within inner streets within
the coverage of R.A. 6539 885
Is license to use the public highways required in the
law? 886
What is the nature of the crime of carnapping? 886
What is fencing? 888
P.D. 1612 covers the proceeds of what crimes? 888
What are the elements of the crime of fencing 888
Is fencing a continuing offense? 889
What is cattle rustling? 891
Is the Anti-Cattle Rustling Law a special penal law? 892
When homicide is committed during cattle rustling,
are the offenders liable for cattle and
for homicide? 892
Compare carnapping and cattle-rustling 893
Chapter Four — U S U R P A T I O N
Article 312. Occupation of real property or usurpation of real

rights in property 894
What penalties are provided under this provision? 894
How should the violence or intimidation
in usurpation be viewed? 894
What is the nature of the crime of usurpation? 895
How should the phrase "by means of violence
against or intimidation of persons"
in Art. 312 be construed? 895
• What is intimidation? 896
What crimes may result from intimidation? 896
Compare the penalty for robbery with homicide, etc.
to that for usurpation 897
How many Informations should be filed against the
usurper? 897
What possible crimes may accompany the act
of usurpation? 897
Who is the offended party in Art. 312? 898
Republic Act No. 8368 - repealing P.D. 772 898
Article 313. Altering boundaries or landmarks 899
Chapter Five — C U L P A B L E I N S O L V E N C Y
Article 314. Fraudulent insolvency 900
Who are liable for culpable insolvency? 900
C h a p t e r Six — S W I N D L I N G A N D O T H E R D E C E I T S
Article 315. Swindling (estafa) 901

How is estafa committed? 903
What is the nature of the damage suffered by the
offended party? 904
What are the elements of estafa through
misappropriation or conversion in
Art. 315(l)(b)? 905
When will misappropriation of money or property
entrusted to another constitute estafa? theft? 905
What constitute juridical possession? 906
How are the words "convert" and "misappropriate"
understood? 906
M a y a person who failed to liquidate his cash advance
be convicted of estafa? 906
Will delivery to a third person of the thing held in
trust constitute a defense in estafa? 907
How is misappropriation or conversion proved? 908
W i l l the return of the money to the victim free the
accused from criminal liability? 908
What are the elements of estafa under
Art. 315(2)(a)? , 908
Define fraud; deceit 909
Who should suffer the damage due to the fraud
or deceit committed by accused? 909
Is the principle of caveat emptor a defense in
swindling? 909
What is the basis for the penalty for the crime of
estafa? 910
Can estafa be committed thru negligence? 910
How is estafa under P.D. 115 (trust receipt)
committed? 911
When the violator is a juridical entity, to whom
is the penalty imposed? 911
Can a money market transaction give rise to estafa? 912
Ixxvii
Does estafa involve moral turpitude? 912
How is estafa by post-dating a check committed? 912
When the check was issued after the goods have been
delivered, is estafa committed? 913
Recall the rulings as regards the condition precedent
for conviction for estafa thru false pretenses
or deceit 913
Batas Pambansa Big. 22 914
What are the distinctions between estafa and B.P. 22? 915
Does prosecution for estafa preclude that for B.P. 22? 916
What are the elements of the offense under
B.P. 22? 916
What is the gravamen of the offense of B.P. 22? 917
How is knowledge of lack or insufficiency of funds
established? 917
What are the requisites for the presumption of
knowledge of insufficiency of funds? 918
When should the knowledge of insufficiency
of funds exist? 918
What will prevent the presumption of knowledge
of insufficiency of funds to arise? 919
Is an oral notice of dishonor sufficient? 919
When should the notice of dishonor be sent to the
maker or drawer? 920
If the drawer or maker of the check is an officer
of a corporation, how should notice be given 921
How is the first element affected by a variance in the
identity of the check issued? 921
What is the effect when the "stop payment" order was
not due to insufficiency of funds? 921
If a court acquires jurisdiction over the estafa, does
it necessarily acquire jurisdiction over
B.P. 22 violation? 922
What checks are covered by B.P. 22? 922
What circumstances will negate conviction for
violation of B.P. 22? 923
Is the failure or lack of consideration a defense in
B.P. 22? 924
What is the proper penalty for B.P. 22 violations? 925
• Whether or not B.P. 22 is a continuing crime 926
How should the affidavit of desistance be appreciated? 926
Relate B.P. 22 and the Civil Code provision of
obligations 927
What are the kinds of illegal recruitment under the
Labor Code? 930
How are the different forms of illegal recruitment
committed? 930
May offender be charged separately for illegal
recruitment and for estafa under Art. 315? 931
What is the relationship of the R P C to the law
on illegal recruitment? 932
How is the participation of the employees of
a corporation in the illegal recruitment
determined? 932
Is the law on agency applicable to criminal case? 933
Article 316. Other forms of swindling 933
How is estafa committed in case of selling of
encumbered property? 934
May the owner of property commit estafa involving
his own property? 934
What are the elements of syndicated estafa under
P.D. 1689? 936
May this crime be committed by only one offender? 936
Article 317. Swindling a minor 936
Article 318. Other deceits 936
Chapter Seven — C H A T T E L M O R T G A G E
Article 319. Removal, sale or pledge of mortgaged property 938

What is penalized under Art. 319? 938
Chapter Eight — A R S O N A N D O T H E R CRIMES

INVOLVING DESTRUCTION
Article 320. Destructive arson 939

What is arson and how is it committed? 943
Can arson be committed through negligence? 943
What is the basis for the penalty for arson? 944
Ixxix
Is there frustrated arson? 944
What are the elements of arson under Sec. 3(2)
9 4 4
of P.D. 1613?
Is conviction for arson proper when the
evidence is circumstantial? 944
Who should be the owner of the property burned? 946
What is the nature of the crime when arson results
to death? 946
When is the crime murder, arson, or composite
crime of arson with homicide? 946
When the accused is charged with "violation of
P.D. 1613" without specifying the particular
provision thereof, what crime is committed? 947
When will the special aggravating circumstance
of spite not be appreciated? 947
Chapter Nine — M A L I C I O U S M I S C H I E F
Article 327. Who are liable for malicious mischief 948

Article 328. Special cases of malicious mischief 948
Article 329. Other mischiefs 948
Article 330. Damage and obstruction to means of
communication 949
Article 331. Destroying or damaging statues, public
monuments, or paintings 949
How is malicious mischief committed? 949
Compare malicious mischief and cattle rustling 949
Distinguish malicious mischief from unjust vexation 950
Distinguish malicious mischief from theft 950
Distinguish malicious mischief from arson 950
If in the course of the commission of malicious
mischief death and injuries resulted, what
crimes are committed? 951
Chapter Ten — E X E M P T I O N F R O M C R I M I N A L L I A B I L I T Y
IN CRIMES AGAINST P R O P E R T Y
Article 332. Persons exempt from criminal liability 952

• Who are the relatives benefited by Art. 332? 952
For what crimes are they exempted? 953
Ixxx
TITLE ELEVEN
CRIMES AGAINST CHASTITY
Chapter O n e — A D U L T E R Y A N D C O N C U B I N A G E
Article 333. Who are guilty of adultery 954

Article 334. Concubinage 954
Will the doctrine of pari delicto be applicable
in adultery? 954
Is there frustrated adultery? 955
Distinguish pardon from consent. How will either
benefit the accused? 955
How is concubinage committed? 955
What is the penalty for and consequently which court
has jurisdiction over the crime of concubinage? 956
Who can initiate the action for adultery
or concubinage? 956
May a husband be liable for concubinage and adultery
for the same act of illicit intercourse with the wife
of another man? 957
Chapter T w o — R A P E A N D A C T S O F L A S C I V I O U S N E S S
Article 335. When and how rape is committed. Repealed

by R . A . No. 8353 — The Anti-Rape Law of 1997 958
Article 336. Acts of lasciviousness with the consent
of the offended party 958
• Compare Art. 336 with Art. 339 958
Compare acts of lasciviousness under the R P C
andR.A. 7610 959
Chapter Three — S E D U C T I O N , C O R R U P T I O N
OF MINORS A N D WHITE SLAVE TRADE
Article 337. Qualified seduction 960

Article 338. Simple seduction 960
Article 339. Acts of lasciviousness with the consent of the
offended party 960
What are the elements of qualified seduction? 960
Compare rape and qualified seduction 961
Ixxxi
What are the distinctions between simple (SS)
and qualified seduction (QS)? 961
What is the effect of carnal knowledge in certain
crimes against chastity? 962
Article 340. Corruption of minors 962
Article 341. White slave trade 962
How is corruption of minors committed? 963
What is involved in white slave trade? 963
Chapter F o u r — A B D U C T I O N
Article 342. Forcible abduction 964

Article 343. Consented abduction 964
What are the elements of forcible abduction? 964
When is forcible abduction complexed
with rape? 965
Is there a crime of forcible abduction with attempted
rape or with acts of lasciviousness? 965
• What is "lewd design"? 966
What will lead to the presumption of lewd designs? 966
Where the girl is under 12, what is the nature of
abduction? 966
When will the abduction be absorbed in the crime
of rape? 966
What various crimes can be committed with forcible
taking of a woman? 967
Can there be consented abduction with simple
seduction? 967
Compare consented abduction and seduction 967
Chapter F i v e — P R O V I S I O N S R E L A T I V E T O T H E
PRECEDING CHAPTERS OF TITLE ELEVEN
Article 344. Prosecution of the crimes of adultery,

concubinage, seduction, abduction,
rape and acts of lasciviousness 968
Article 345. Civil liability of persons guilty of crimes against
chastity 968
Article 346. Liability of ascendants, guardians, teachers, or other
persons entrusted with the custody of the offended
party 969
Ixxxii
What is the nature of the indemnity awarded under
Art. 345? 969
When should the pardon be given by the offended
party? 969
What are the effects of pardon by the offended party? 969
In rape cases, will the pardon of the parents of the
victim without the concurrence of the minor
victim be effective? 970
Is an affidavit of desistance effective? 970
What is the civil liability of a person convicted of the
crime of rape when an offspring result from
the rape? 970
When compulsory acknowledgement of the offspring
of rape proper? 971
TITLE TWELVE
CRIMES AGAINST THE CIVIL STATUS
OF PERSONS
Chapter One — S I M U L A T I O N OF B I R T H S
A N D U S U R P A T I O N O F CRVIL S T A T U S
Article 347. Simulation of births, substitution of one child for

another and concealment or abandonment
of a legitimate child 973
Article 348. Usurpation of civil status 973
Where should the simulation of birth be made? 973
Chapter T w o — I L L E G A L M A R R I A G E S
Article 349. Bigamy 974

Article 350. Marriage contracted against provisions of laws 974
What are the elements of bigamy? 974
Is the lack of judicial declaration of nullity of a void
marriage a cause for conviction for bigamy? 975
Distinguish bigamy from illegal marriage 975
The judicial declaration of absolute nullity of a previous
marriage is necessary for what purposes? 976
May the nullity of the marriage be presumed
9 7 6
b y the parties?
Ixxxiii
Will the declaration of nullity of the first marriage
after the celebration of the second free the offender
from the charge of bigamy? 977
If a marriage ceremony was not held before a
solemnizing officer the parties thereto merely signed a
marriage contract, would such signing operate to give
validity to the marriage? 978
Will the principle of constructive notice by registration
be applicable to the crime of bigamy? 978
Article 351. Premature marriages 979
What is the reason for the law in premature marriage? ... 979
Article 352. Performance of illegal marriage ceremony 979
If a priest or minister who (a) has lapsed authority; or
(b) is merely pretending to be one, officiated a
marriage, what crime is committed? 979
TITLE THIRTEEN
CRIMES AGAINST H O N O R
What are the different crimes of defamation? 981
Chapter One — L I B E L
Section One — Definition, Forms a n d Punishment

of this Crime
Article 353. Definition of libel 981

To find a person guilty of libel, what elements must
be proved? 981
How should the defamatory words in a publication
be construed? 982
Article 354. Requirement of publicity 982
How are the elements of publication and identification
satisfied? 982
Does the issuance of an inter-office memorandum satisfy
the element of publicity in libel? 983
Article 355. Libel by means of writings or similar means 984
What kind of defamation are utterances made in
broadcast media? 984
Can the court impose fine instead of imprisonment? 984
Article 356. Threatening to publish and offer to prevent such
publication for a compensation 985
Article 357. Prohibited publication of acts referred to in the
course of official proceedings 985
Article 358. Slander 985
When is a defamatory remark serious and when slight? .. 985
Is the expression "p...i..mo" defamatory? 986
Is there frustrated or attempted defamation? 986
Article 359. Slander by deed 986
Section T w o — General Provisions
Article 360. Persons responsible 986

Who are the persons responsible for defamatory
publications? 988
What court has jurisdiction in libel case? 988
What is the effect of R . A . 7691 on the jurisdiction
of the courts over libel cases? 989
Where is the venue of libel cases? 990
What should the information contain to vest
jurisdiction on a particular court? 991
Article 361. Proof of the truth 992
When is the truth of a defamatory statement
a defense? 992
M a y evidence proving the truthfulness of the imputation
be received? 993
What is the nature of fair commentaries on matters
of public interest? 994
Who is a public figure? 994
Article 362. Libelous remarks 995
What is malice in law? 995
What is malice presumed? 995
What is malice in fact? 996
What are privileged statements? 996
What is the purpose of the doctrine of privileged
communication? 997
In determining the issue of relevancy, what has been
9 9 7
the attitude of the courts?
9 9 7
• What is the "rule of actual malice"?
What is the nature of statements made in judicial
proceedings?
Ixxxv
Does an inter-office memo partake of the nature
of privileged communication? 998
When a communication is privileged, what happens
to the presumption of malice in defamatory
imputations? 999
How should imputations against public figures be
treated? 999
What is the requirement before public officers can
demand damages from members of the press? 1000
How is reckless conduct measured? 1000
Who has the burden of showing the truth of allegations
of official misconduct and/or good motives and
justifiable ends for making such allegations? 1000
Can the headline alone of the newspaper be libelous? 1000
Chapter T w o — I N C R I M I N A T O R Y M A C H I N A T I O N S
Article 363. Incriminating innocent person 1001

Article 364. Intriguing against honor 1001
What is intriguing against honor? 1001
What is incriminating innocent person? 1001
TITLE FOURTEEN
QUASI-OFFENSES
Sole Chapter — C R I M I N A L N E G L I G E N C E
Article 365. Imprudence and negligence 1003

What is reckless imprudence? Compare it with simple
imprudence 1004
What are the elements of reckless imprudence? 1005
Discuss the nature of culpa or imprudence 1005
Does the principle of complex crimes apply
to imprudence? 1006
What is the proper penalty for imprudence resulting
to slight physical injuries? 1006
What is the proper penalty for imprudence resulting to
damage to property only? 1007
Does subsidiary penalty apply to reckless imprudence?.... 1007
• In cases of abandonment of the victim, what provision
of the Code shall govern? 1008
Relate reckless imprudence to malice 1008
Give examples of reckless acts which result to
homicide 1008
To convict for medical malpractice, what evidence
is required? 1009
What is the exception to the requirement of expert
witness for medical negligence? 1009
Cite examples when the res ipsa loquitur rule was
applied 1010
What are the requisites for the application of res ipsa
1
loquitur ? 1011
Is there Double Homicide through Reckless Imprudence
with violation of the Motor Vehicle Law
(R.A. 4136)? 1011
What is the rule on double recovery in negligence
cases? 1012
Should the offender whose single reckless act resulted
to multiple offenses be charged with only one offense
pursuant to the prohibition against multiplicity or
duplicity of charges? 1013
What is the limitation to the rule that a single act or
incident offending against two or more unrelated
provisions of law justify prosecution for more
than one offense? 1013
Does a felony (malum in se) "absorb" an offense
(malum prohibitum)? 1014
Ixxxvii

FUNDAMENTAL PRINCIPLES OF CRIMINAL LAW

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FUNDAMENTAL PRINCIPLES OF CRIMINAL LAW

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FUNDAMENTAL PRINCIPLES

What is criminal law?

It is that branch of public law which defines criminal

Penal laws are those acts of the legislature which prohibit

What are the constitutional limitations on penal laws?

Article I I I (Bill of Rights) of the 1987 Constitution

a. " N o person shall be deprived of life, liberty, or property

b. " N o torture, force, violence, threat, intimidation, or any

c. " N o ex post facto law or bill of attainder shall be enacted."

3. Describe due process as applied to penal laws.

4. Who are entitled to the mantle of due process of law?

T h e State, as well as the accused, is entitled to due process

In receiving ex-parte the Department of Foreign Affairs

5. What is the effect of violation of the due process clause?

In Guevarra u. Sandiganbayan, G.R. No. 138792-804,

6. What makes a penalty cruel and unusual?

/ 7. What is an ex post facto law?

even if the penal law is made to apply retroactively, if it is

8. Give examples of ex post facto law.

a. Makes an act punishable as a crime when such act was

g. Deprives the accused of some lawful protection to which

9. Give examples of laws not covered by the ex post facto clause.

Ex post facto law generally prohibits retrospectivity of

T h e prohibition applies only to criminal legislation which

y 10. What is a bill of attainder? Why is it constitutionally proscribed?

Ferrer said that the Anti-Subversion Act is not a bill of

What are the characteristics of penal law?

They are generality, territoriality, and prospectivity.

What is the generality characteristic of penal law?

Penal laws are binding on all persons who reside or

"Art. 14. Penal laws and those of public security and

"Section 1. No person shall be deprived of life, liberty or

Even aliens are covered by the generality principle

to citizens. Excepted w i t h qualification are those covered

As distinguished from the territoriality principle, gener-

• 13. Describe the territoriality characteristic of penal law.

T h e law is applicable to all crimes committed within the

^14. What does prospectivity rule mean?

Prospectivity of penal laws means that laws have

/ 15. Does the prospectivity rule cover only laws?

by B.P. 22. This Circular cannot be applied retroactively

17. What is the rationale against retroactivity of laws?

Lex prospicit, non respicit, the law looks forward not

i/18. Enumerate the different philosophies underlying the criminal

There are four schools of thought: a) the classical or

corrective or curative to reform him or bring him

T h e rigid penalty in Book II under the classical

/ 20. What is meant by the ecclectic (or mixed) philosophy?

This combines the good features of both the classical and

/ 21. What does the utilitarian theory believe on the function of

T h e primary function of punishment in criminal law is

What is the rule in the interpretation of penal laws in relation to

Stated otherwise, where a penal law is susceptible of two

C A . 142 being a penal statute should be construed

What is the equipoise rule?

T h e equipoise rule — that if the inculpatory facts and

conviction the same must be denied. (Abarquez v. People, G R

W h e r e the evidence of the prosecution and of the defense

Conviction must rest on hard evidence showing that the

What is the relationship of presumption of law and prima facie

interference is made to adduce satisfactory evidence to rebut

(dolo), when the accused acted in good faith, there is no crime