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Executive Penal Orders or Penal Executive Decrees, if
there is a law enacted by Congress delegating to the
President such power in times of emergency. So still, it
comes from Congress because it is necessary that there
must be a law passed or enacted by Congress delegating
to the President such power, to issue Penal Executive
Orders or Penal Executive Decrees.
INTRODUCTION
What is criminal law?
Criminal Law is a branch of public law that deals with
crimes, treats of their nature and provides for their
penalties.
It is a branch of public law because it deals with the
relationship of the individual with the State. Whenever
a crime is committed, whenever a violation of the public
law is committed, it is more of an offense against the
State than the private offended party or the victim.
SOURCES OF CRIMINAL LAW
1. The Revised Penal Code (Act No. 3815) and all its
amendments.
2. Special Penal Laws enacted by Congress.
3. Executive Penal Orders or Penal Executive Decrees
usually issued in times of emergency.
TWO RESULTING INJURIES RESULTING FROM
THE COMMISSION OF A CRIME
1. Social Injury – against the State. It is repaired by
the imposition of penalties like imprisonment or
fine in case of conviction.
2. Personal Injury – against the private offended
party. It is repaired by imposition of civil
indemnities and damages in case of conviction.
LIMITATIONS IN ENACTING PENAL LAWS1
1. The law must be general in its application.
Otherwise, it will be violative of the equal protection
clause under the Constitution. Penal laws enacted
by Congress must apply to all.
2. It must not partake the nature of an ex post facto
law2. An ex post facto law is a law which makes an
act criminal although at the time it was committed
it was not yet so.
3. It must not partake the nature of a bill of attainder.
A bill of attainder is a bill which punishes the
accused without the benefit of due process or
without giving him the right to be heard.
4. It must not impose cruel, excessive fines degrading
or inhuman punishment3.
5. It must observe substantive ad procedural due
process.
What is a crime?
Acts or omissions committed or omitted in violation of
the public law forbidding or compelling it. Crime is an
encompassing term which include a felony, offense and
an infraction of the law.



Felonies are acts or omissions in violation of the
Revised Penal Code
Offenses are acts or omissions in violation of
Special Penal Laws enacted by Congress
Infraction of the Law refers to an act or omission
which is defined and punished by the
Ordinances issued by the Local Sanggunian.
Congress passed a law reviving the Anti-Subversion
Law, making it a criminal offense again for a person to
join the Communist Party of the Philippines. Reporma,
a former high-ranking member of the Communist
Party, was charged under the new law for his
membership in the Communist Party when he was a
student in the 80’s. He now challenges the charge
against him. What objections may he raise? (BAR 2014)
Reporma may raise the limitations imposed by the 1987
Constitution on the power of Congress to enact
retroactive penal laws which are prejudicial to the
Note however that, whether in be a felony, an offense or
an infraction of the law they are all under the umbrella
term, crime.
Can the Chief Executive enact penal laws?
Yes, while as a rule in Philippine jurisdiction, it is the
Congress that has the power to enact penal laws, the
President under the Constitution can also issue
1
2
4.
Alters the legal rules of evidence, and authorizes conviction
upon less or different testimony than the law required at the
time of the commission of the offense;
5. Assumes to regulate civil rights and remedies only, in effect
imposes penalty or deprivation of a right for something which
when done was lawful; and
6. Deprives a person accused of a crime some lawful protection to
which he has become entitled, such as the protection of a
former conviction or acquittal, or a proclamation of amnesty.
3 1987 Constitution. Article III Sec. 19(1)
Compact Reviewer in Criminal Law (Boado, 2013:1)
An ex post facto law is one which:
1. Makes criminal an act done before the passage of the law and
which was innocent when done, and punishes such an act;
2. Aggravates a crime, or makes it greater than it was, when
committed;
3. Changes the punishment and inflicts a greater punishment
than the law annexed to the crime when committed;
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accused. Under the Bill of Rights of the Constitution
such is classified as an ex post facto law. It should be
noted that when Congress decriminalized the crime of
subversion, under R.A. 7637, it obliterated the felony
and its effects upon Reporma. Consequently charging
him now under the new law for his previous
membership in the Communist Party would be
constitutionality impermissible.
Exception: If there is a Treaty Stipulation between the
mother country of the consul and the host country,
stating that the said consul shall be immune from the
criminal jurisdiction of the host country, only then will
a consul enjoy diplomatic immunity from suit.
LAWS OF PREFERENTIAL APPLICATION
Those laws which exempt certain individuals from
criminal prosecution.
CHARACTERISTICS OF CRIMINAL LAW
1. Generality refers to the persons covered by the
penal laws.
2. Territoriality refers to the place where the penal
laws may be enforced.
3. Prospectivity refers to the time wherein the penal
laws may be applied.
Example: Article 6. Section 11 of the 1987 Constitution.
“A Senator or Member of the House of Representatives
shall, in all offenses punishable by not more than six
years imprisonment, be privileged from arrest while the
Congress is in session. No Member shall be questioned
nor be held liable in any other place for any speech or
debate in the Congress or in any committee thereof”.
A. GENERALITY
Members of Congress are immune from criminal
prosecution for the crimes of slander, libel, in cases of
speeches and debates in the course of performing their
functions in Congress while it’s on regular or special
session.
Our penal laws are binding upon all persons who live,
reside or sojourn in the Philippine territory whether he
is a Filipino Citizen or a foreigner regardless of race,
creed, sex, color or any other personal circumstances for
as long as he is in the Philippines, he has to comply and
abide by the Philippine penal laws.
So whatever these members of Congress will state in
their privilege speech in any debate while Congress is
in its regular or special session, no matter how
slanderous the statements are, they cannot be
prosecuted. It is an example of law of preferential
application.
Limitations of the Generality Principle
GENERALLY ACCEPTED PRINCIPLES OF PUBLIC
INTERNATIONAL LAW
Diplomatic Immunity from Suit
What if X is an officer at the ADB (Asian Development
Bank), he is a foreigner. Y is a Filipino, another officer
at ADB. In the course of their argument, X the
foreigner, stated slanderous and defamatory remarks
against Y, the Filipino co-worker. As a result, Y filed 2
counts of grave oral defamation against X. The case was
filed before the Metropolitan Trial Court (Metc). Upon
the filing of the case, the judge of the Metc received an
offer of protocol coming from the Department of Foreign
Affairs (DFA). The said offer of protocol states that X as
a foreigner working in ADB is among those immune
from the criminal jurisdiction of the Philippines based
on the ADB agreement with the Philippine government.
By reason of this offer of protocol, the Metc judge
immediately dismissed the case motu propio without
giving notice to the prosecution and so the prosecution
filed a petition for certiorari. Is the Metc Judge correct
in dismissing the case filed by Y?
Sovereigns, heads of States and other diplomatic
representatives such as ambassadors and public
ministers are immune from the criminal jurisdictions of
the country where they are assigned. They are immune
from the criminal jurisdiction of the host country where
they are assigned.
This immunity from suit applies not only to criminal
cases but also to civil and administrative case.
How about a consul? Does the consul enjoy the same
diplomatic immunity being enjoyed by ambassadors
and public ministers?
It is settled in Public International Law that Consuls,
although considered as diplomatic representative are
NOT immune from the criminal jurisdiction of the host
country where they are assigned. Therefore, they are
subject to the penal laws of the country where they are
assigned. Hence, they can be arrested, prosecuted and
punished.
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In the case of Liang vs People4, SC said that the Metc
Judge acted erroneously. SC said that the
determination by the DFA that certain individuals are
immune from the criminal jurisdiction of the
Philippines, that certain individuals enjoy diplomatic
immunity is only preliminary in nature and is not
binding on courts.
Exceptions:
1. Article 225 of the RPC provides that Penal laws
shall be given retroactive application if it is
favourable to the accused provided that the accused
is not a habitual criminal.
2. If the penal law itself provides for its own
retroactivity (e.g. Under Section 686 of RA 9344—
Juvenile Justice and Welfare Act which expressly
provides that the provisions of RA 9344 shall apply
retroactively to those minors who have already been
convicted of or already serving sentence).
In order for the Metc judge to have dismissed the case,
he should have asked for the presentation of evidence in
order to determine under what circumstances did X
state the said defamatory remarks.
PHILOSOPHIES UNDERLYING OUR CRIMINAL
LAW SYSTEM7.
SC said diplomatic immunity from suit is not absolute.
It is subject to the exception that it must refer only to
acts or statements made in the course of the
performance of his official capacity or official duty.
1. CLASSICAL/JURISTIC PHILOSOPHY
Man is a moral creature who understands right
from wrong and when he commits a wrong, he
voluntarily does the same, therefore, he shall be
ready for the consequences of his acts.
Therefore, the Judge should have accepted evidence to
determine if the slanderous statements are stated in the
course thereof or in private capacity.
a. Basis of criminal liability – human free will.
b. Purpose of the penalty – retribution, for the
State and/or private offended party must be
observed.
TERRITORIALITY
Our penal laws shall only be enforced within the
Philippine territory and within its atmosphere, internal
waters and maritime zones. Therefore, our penal laws
cannot apply to crimes committed outside the
Philippine territory.
Exception: Those provided for in Article 2 of the RPC
c.
PROSPECTIVITY
Our penal laws should only apply prospectively. That is
from the time of its effectivity and henceforth. As a rule,
our penal laws cannot be given retroactive application.
Otherwise, it would be violative of the ex post facto laws
of the Constitution.
It evolves from the maxim ‘an eye for an eye’.
Therefore, for every crime committed, there is a
corresponding penalty based on the injury
inflicted on the victim
Imposable penalty – penalty is predetermined
for every crime the gravity of which is directly
proportionate to the crime committed. With
this, homicide is punished with reclusion
temporal, whereas, murder with reclusion
perpetua.
Determination of penalty is done mechanically
since the penalty is always in direct proportion
to the crime or felony committed by the said
offender. So if the offender killed a person, then
1.
who is not a habitual criminal5, as this term is defined in
rule 55 of Article 62 of this Code,
2. although at the time of the publication of such laws
a. a final sentence has been pronounced and
b. the convict is serving the same.
6 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 who were below the age
of eighteen (18) years at the time the commission of the offense for
which they were convicted and are serving sentence, shall likewise
benefit from the retroactive application of this Act. They shall be
entitled to appropriate dispositions provided under this Act and their
sentences shall be adjusted accordingly. They shall be immediately
released if they are so qualified under this Act or other applicable law.
7 Compact Reviewer in Criminal Law (Boado, 2013:5)
Courts cannot blindly adhere and take on its face the communication
from the DFA that petitioner is covered by any immunity. The DFA’s
determination that a certain person is covered by immunity is only
preliminary which has no binding effect in courts. In receiving exparte the DFA’s advice and in motu proprio dismissing the two
criminal cases without notice to the prosecution, the latter’s right to
due process was violated. It should be noted that 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. At any rate, it has been ruled that
the mere invocation of the immunity clause does not ipso facto result
in the dropping of the charges. (Liang vs. People, 323 SCRA 692, G.R.
No. 125865 January 28, 2000)
5 ART. 22. Retroactive Effect of Penal Laws. — Penal laws shall have
a retroactive effect in so far as they favor the person guilty of a felony,
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death should also be his penalty. Penalty is
commensurate to the degree of injury inflicted
to the victim.
The Indeterminate Sentence Law, Probation
Law, the three-fold rule, and the rules on
mitigation of crimes apply this theory.
Capital Penalty or Death Penalty is a product of
Classical Philosophy
d. Emphasis of the law – on the offense.
3. MIXED/ECCLECTIC PHILOSOPHY
Combines the good features of both the classical and
the positivists theory. Ideally the classical theory is
applied to heinous crimes, whereas, the positivists’
works on economic and social crimes.
Emphasis is on the crime and not on the
criminal. It does not give any scant
consideration on the human aspect in the
commission of the crime. For as long as the
crime has been committed, the offender has to
be punished.
Crimes which are heinous in nature shall be dealt
with in the classical manner. Crimes which are
social or economic are positivist shall be dealt with
in the classical manner in the positivist manner.
2. POSITIVIST/REALISTIC PHILOSOPHY
To what Philosophy does RPC adhere?
RPC is molded in the classical philosophy because it is
merely copied from the Spanish Codigo Penal which in
turn was copied from French Penal Code of 1810 which
espoused the classical thinking. Our RPC is molded in
classical thinking.
a. Basis– man is inherently good but because of his
environment and upbringing, he becomes
socially sick.
Basis of criminal liability is man’s social
environment. All men are born inherently good,
they only become evil due to his association with
his fellow being, from his social environment.
Crimes are social phenomenon which cause a
person to do wrong although not of his own
volition.
b. Purpose of the penalty – corrective or curative
to reform the offender, thus, prisons are also
called reformatory or correctional institutions.
c.
NOTE: Although RPC is molded in the classical
thinking, the amendments are geared toward the
positivist
philosophy.
(e.g.
Probation
Law,
Indeterminate Sentence Law and RA 9346, death
penalty cannot be imposed)
THEORIES, DOCTRINES OR RULES CONCERNING
CRIMINAL LAW
1. DOCTRINE OF PRO REO
Penal laws should always be construed liberally in
favor of the accused and strictly against the State.
The purpose of the penalty is to cure, to
rehabilitate the offender, not to punish him.
Offender is a socially sick individual who needs
to be cure, rehabilitated and not punished.
Determination of penalty – on an individual
basis after considering his circumstances.
2. LENITY RULE
Whenever a penal law or provision of penal law is
susceptible of two interpretations, one lenient to the
accused which will bring about acquittal and the
other one strictly against the accused which will
bring about conviction, the lenient interpretation
shall prevail.
Determination of Penalty is done on a case to
case basis/individually. Determination is done
after individual has been examined by a group
of scientists which does not include a lawyer
because they do not want the law to be taken
into consideration in the imposition of penalty.
The basis of the Doctrine of Pro Reo and Lenity Rule
is the constitutional presumption of innocence. All
accused are innocent unless proven beyond
reasonable doubt.
The Jurist system in the US is a product of
Positivist Philosophy.
d. Emphasis of the law – on the offender not on the
offense.
3. EQUIPOSE RULE
Whenever the evidence of the prosecution is equally
balanced with the evidence of the defense, the scale
of justice shall be tilted in favor of the accused.
The emphasis is on the criminal not on the
crime. There is great regard to human element
of the crime. It must be take into consideration
why the offender committed the crime
The basis of this the constitutional presumption of
innocence and in so far as criminal prosecution are
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concerned it is the prosecution that has the burden
of proving the guilt of the accused beyond
reasonable doubt. The case of the accused will rest
on the strength of the evidence presented by the
prosecution and not on the weakness of the evidence
for the defense.
THE REVISED PENAL CODE
ARTICLE 1
This Code shall take effect on January 1, 1932
If the evidence are balanced, it means that the
prosecution failed to prove the guilt of the accused
beyond reasonable doubt. Hence, it should be an
acquittal.
RPC took effect on Jan. 1, 1932 but was passed into law
on Dec. 8, 1930.
4. UTILITARIAN/PROTECTIVE THEORY8
The basis of penalty and purpose of punishment is
to protect the society from actual and potential
wrongdoer. It behooves upon courts that in
imposing penalties it is only upon actual and
potential wrongdoers, and even in violation of
special penal laws, wherein intent is immaterial,
judges should only impose penalties to actual and
potential wrongdoers. Otherwise, it will foster
materialism and opportunitism.
The first paragraph provides for the intra-territorial
application of the RPC.
ARTICLE 2
The RPC shall be enforced within the Philippine
Archipelago, including its atmosphere, its interior
waters and maritime zone.
Exception: “As provided in treaties and laws of
preferential application”.
What does this phrase mean?
This phrase means that treaties entered into with other
countries, laws of preferential application takes
preference over the provisions of the RPC. Whenever
the Philippines enters into a treaty with another
country and the stipulations in the treaty is not in
consonance with the RPC, then the provisions in the
said treaty shall prevail over the RPC.
The basis of this is the maxim actus reus non facit
reum nisi mens sit rea which means that the act
cannot be criminal when the mind is not criminal.
What if a person performs an overt act that is so
pervert, so criminal so immoral in nature? So he was
arrested. But there’s no law punishing such immoral
act. What is the jurisdiction of the court?
The only jurisdiction of the Court is to dismiss the case
because of the maxim nullum crimen nulla poena sine
lege which means that there is no crime when there is
no law that defines and punishes the act.
The second paragraph provides for the extra-territorial
application of the RPC.
These are instances wherein the RPC can be applied
even if the crimes are committed outside Philippine
Archipelago.
Are there common law crimes in the Philippines?
There are no common law crimes in the Philippines.
Common law refers to body of principles, usages and use
of action which the community considers as
condemnable even if there’s no law that punishes it.
There are no common law crimes in the Philippines
because the Philippines is a civil law country. Penal
laws are enacted. They do not evolve through time.
In common law countries, when an act is immoral,
obnoxious and is considered contemptuous through
passage of time, it will be considered a criminal act.
It behooves upon a court of law that in applying the punishment
imposed upon the accused, the objective of retribution of a wronged
society, should be directed against the “actual and potential
wrongdoers.” In the instant case, there is no doubt that petitioner’s
four (4) checks were used to collateralize an accommodation, and not
to cover the receipt of an actual “account or credit for value” as this
was absent, and therefore petitioner should not be punished for mere
issuance of the checks in question. Following the aforecited theory, in
petitioner’s stead the “potential wrongdoer,” whose operation could be
a menace to society, should not be glorified by convicting the
petitioner. (Magno vs. Court of Appeals, 210 SCRA 471, G.R. No.
96132 June 26, 1992)
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1. SHOULD COMMIT AN OFFENSE WHILE ON A
PHILIPPINE SHIP OR AIRSHIP
Is there any exception?
Yes, if the vessel is a Philippine warship or war plane.
Wherever it may be located it is always the the
Philippines that will have jurisdiction because a
Philippine warship or warplane is considered an
extension of the Philippine territory. Therefore,
whenever they may be, when a crime is committed on
board a Philippine warship or warplane, the Philippines
will always have jurisdiction and the reason is the 1 st
paragraph of Article 2 of the RPC- the intra-territorial
application of the RPC because it is regarded as crime
committed within the Philippine territory.
A ship or an airship is considered a Philippine ship or
airship when it is registered in the Philippines under
Philippine laws. Even if it is totally owned by a Filipino
citizen, if it is not registered in the Philippines it cannot
be considered a Philippine ship or airship. It is the
registration of the vessel or the Philippine aircraft that
will make it a Philippine ship or airship. Only upon
registration that this aircraft/vessel can fly the country
flag of the Philippines.
In some books there’s still this so called French Rule
and English Rule. Do not anymore consider these.
Consider only the territoriality characteristic. The
reason is that under the United Nations Convention on
the Law of Seas of which Philippine is a signatory there
is no more French Rule and English Rule. Only the
territoriality characteristic is recognized.
Now the law says, when a crime is committed on board
a Philippine ship or airship, the extraterritorial
application of the RPC will apply. It means even if the
crime is committed in another place outside the PH
jurisdiction, still, the RPC will apply. So what is this
situation?
This is a situation where a crime is committed on board
a Philippine Vessel (PV) while it is outside the PH
territory but NOT in the territory of a foreign country.
The PV is on waters of the Philippines and a crime was
committed on board. It is necessary that the Philippine
ship or airship is outside the PH territory but not inside
the territory of another country. If the PV is in territory
of another country, then Philippines will have no
jurisdiction. The law of that country shall prevail.
2. SHOULD FORGE OR COUNTERFEIT ANY COIN
OR CURRENCY NOTE OF THE PHILIPPINE
ISLANDS OR OBLIGATIONS AND SECURITIES
ISSUED BY THE GOVERNMENT OF THE
PHILIPPINE ISLANDS
3. SHOULD BE LIABLE FOR ACTS CONNECTED
WITH THE INTRODUCTION INTO THESE
ISLANDS OF THE OBLIGATIONS AND
SECURITIES MENTIONED IN THE PRECEDING
NUMBER
The Philippine vessel was on Philippine waters. While
the vessel is in the PH waters a crime was committed
on board the vessel. What country has jurisdiction over
the said crime?
The Philippines. The vessel is in Philippine waters.
Article 2 first paragraph, intra-territorial application
will govern.
In these 2 circumstances, if the forging and
counterfeiting were done in a foreign country, the
offender can be prosecuted before the PH courts.
Philippine laws will apply because of the
extraterritorial application of the RPC under the second
and third paragraph.
What if the PV is on the high seas or international
waters not owned by any country and a crime was
committed on board? What country will have
jurisdiction?
Still the Philippines because of the extraterritorial
application of Article 2 second paragraph. The PV is
outside the Philippine Archipelago when the crime was
committed but it is not in the territory of another
country. Hence, the RPC should still apply.
X was arrested in Japan because he was caught in the
act of counterfeiting the Philippine peso bill likewise
Philippine securities issued by the BSP. Can he be
prosecuted before Philippine courts? Does Philippine
law apply?
Yes. Although the crime has been committed in Japan,
he can be held liable before Philippine courts.
What if the PV is on the waters of Malaysia and a crime
was committed on board? What country will have
jurisdiction?
Malaysian courts will have jurisdiction because of the
territoriality characteristics of criminal law. As a rule
penal laws are territorial in nature.
What if in the same problem, X introduced the same,
the counterfeited bills in the Philippines?
Still, in the Philippines because he introduced such in
the Philippines.
This is necessary in order to maintain and preserve the
financial circulation and financial stability of the
Philippines. Otherwise, no other country would be
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to sign the document but he will not do so without the
bribe money. So he is liable for direct bribery.
prosecuting him except Philippines because it is only
Philippines which will be affected by said
counterfeiting.
What if the Philippine consul went to a birthday party
in a hotel. She met a woman and found her attractive.
What the Philippine consul did is that he placed
something on the drink of the said woman so that when
she drank it she felt dizzy. The Philippine consul then
brought her to a room in the hotel and there he raped
the said woman. The woman wants to file a case against
the said Philippine consul. Does Philippine law apply?
Should the said woman file the case before the
Philippine courts or before the courts in Japan?
Before the Courts of Japan. Because the said consul
performed a crime committed not in connection with the
exercise of his public function. The said act was
performed in his private capacity. He can only be
prosecuted in courts of the host country and not the
Philippines. It is the laws of Japan that will apply not
Philippine laws.
4. WHILE BEING PUBLIC OFFICERS OR
EMPLOYEES, SHOULD COMMIT AN OFFENSE
IN THE EXERCISE OF THEIR FUNCTIONS
This refers to public officers and employees of PH
government who are working in another country. Even
if they are assigned in a foreign territory since they are
public officers of the government, if in the said country
they commit a crime in the performance of their official
functions they can be prosecuted before Philippine
court.
The crime committed by the public officers or employees
must be in connection with the exercise of their
functions. They can be prosecuted in PH courts. But if
the crime committed is not in any way connected with
the exercise of their functions, they should be
prosecuted in the courts where they are assigned.
Because although they are public officers or employees
of the Philippine government they acted in their private
capacity.
What if the Philippine consul asked his secretary to
work over time because they were finishing something.
Then the said consul asked his secretary to give him a
cup of coffee. The secretary did what she was asked to.
Then the consul asked the secretary to join him. When
the said secretary went to the restroom, the said consul
placed something in the coffee of the secretary. The
secretary felt dizzy and lost consciousness. The consul
then raped her inside his own office. The said secretary
wants to file a case against the consul. Where shall the
secretary file the case? Is the said consul liable under
Philippine laws?
Yes, because although the crime committed which is
rape is not in any way connected with the performance
of his official function, since it was committed inside the
Philippine embassy, then the Philippine laws will
apply. The reason is that Philippine embassy is
considered as an extension of the Philippine
sovereignty. So even if the crimes committed is not in
any way connected with the performance of their
functions but the crime is committed inside the
Philippine embassy, Philippine laws will still apply.
A woman, an OFW went to the Philippine Embassy in
Japan. She was asking the head of office of the embassy
to sign a document which is needed by her employer.
What the head of office did was he invited the said OFW
outside and they went to a hotel. Inside the hotel, the
said head of office told the said woman that he would
sign the document only if she would give herself to the
said head of office. So the said head of office made
immoral advances to this woman. The woman however
rejected and she immediately left. Later, the woman
returned to the Philippines. Can she file a case against
the said head of office in the Philippine Embassy in
Japan?
Yes. Because the crime committed by the head office, a
public officer, is in connection with his public function.
He made solicitation and immoral advances so that he
would sign the document needed by the OFW. He is
liable for abuses against chastity under Article 245. Our
penal laws shall apply to him.
5. SHOULD COMMIT ANY OF THE CRIMES
AGAINST NATIONAL SECURITY AND THE LAW
OF NATIONS, DEFINED IN TITLE ONE OF
BOOK TWO OF THIS CODE
What if in the same problem, so the said woman went
out with the said head of office. She was asking the head
of office of the embassy to sign the document because
she already need it. The said head of office said that he
will sign if the OFW gives him $500. The woman had no
$500 so she just left. Can the woman file a case in
Philippine Courts? Will Philippine laws apply?
Yes. The crime committed by the head office is in
connection with the exercise of his function. His duty is
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Crimes Against National Security
1. Art. 114 – Treason;
2. Art. 115 – Conspiracy and proposal to commit
treason;
3. Art. 116 – Misprision of treason;
4. Art. 117 – Espionage;
5. Art. 118 – Inciting to war or giving motives for
reprisals;
6. Art. 119 – Violation of neutrality;
7. Art. 120 – Correspondence with hostile
country;
8. Art. 121 – Flight to enemy’s country;
TWO WAYS OF COMMITTING A FELONY
1. By means of deceit.
2. By means of fault.
TWO KINDS OF FELONIES
1. Intentional Felony
deliberate intent.
–
those
committed
with
Elements (CiFI)
1. Criminal intent on the part of the offender
2. Freedom of action in doing the act on the part of
the offender
3. Intelligence of the offender
Crimes against Law of Nations
(Piracy, Qualified piracy, Mutiny and Qualified
mutiny)
9. Art 122 – Piracy in general and mutiny on the
high seas or in Philippine waters; and
10. Art. 123 – Qualified piracy
Is an intentional felony a voluntary act?
An intentional felony is a voluntary act because it is
committed by means of deliberate intent. The
offender knowingly, willfully and voluntarily
committed the act.
If any of these crimes is committed, even if done outside
the Philippine archipelago, the offender can be
prosecuted before the Philippine courts.
2. Culpable Felony – when the wrongful act results
from imprudence, negligence, lack of foresight, or
lack of skill.
The Philippines is at war against country X. Pedro was
in country X, and he connived with enemies. He
performed treasonable acts against the Philippine
Government. Can he be prosecuted under the
Philippine courts? Do Philippine laws apply against
Pedro?
Yes. Because treason is a crime against national
security. Philippine laws will apply wherever the
offender may be.
Elements (CnFI)
1. Criminal negligence on the part of the offender
2. Freedom of action in doing the act
3. Intelligence on the part of the offender
Both intentional and culpable felonies have the
same elements except for the element.
Is a culpable felony a voluntary act?
Yes, it is also a voluntary act although it is
committed with negligence not with deliberate
intent.
ARTICLE 3
Acts and omissions punishable by law are felonies
(delitos).
Felonies are committed not only by means of deceit
(dolo) but also by means of fault (culpa).
1. There is deceit when the act is performed with
deliberate intent; and
2. there is fault when the wrongful act results
from
2.1. imprudence,
2.2. negligence,
2.3. lack of foresight, or
2.4. lack of skill.
Under Article 3659, it is provided that in case of
culpable felony the imprudence or negligence
results from the voluntary but without malice or
deliberate intent in doing or failing to do an act from
which the injury results. Therefore, even a culpable
felony is also a voluntary act.
In so far as criminal law is concerned, the
voluntariness of an act is the concurrence of the 3
Article 365. xxx Reckless imprudence consists in voluntary, but
without malice, doing or falling to do an act from which material
damage results by reason of inexcusable lack of precaution on the part
of the person performing of failing to perform such act, taking into
consideration his employment or occupation, degree of intelligence,
physical condition and other circumstances regarding persons, time
and place.
9
Simple imprudence consists in the lack of precaution displayed in
those cases in which the damage impending to be caused is not
immediate nor the danger clearly manifest.
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elements of intentional felony or the concurrence of
the 3 elements of culpable felony.
TWO KINDS OF CRIMINAL INTENT
1. General Criminal Intent is presumed by law from
the mere doing of the criminal act. Therefore, the
prosecution does not have the burden to prove it. It
is the defense which has the burden of proving lack
of criminal intent on the part of the offender.
NOTE: Both intentional and culpable felonies are
voluntary act. Without voluntariness there can
neither be an intentional or culpable felony.
COMMON ELEMENTS OF INTENTIONAL AND
CULPABLE FELONY
Louisian and Marian were fighting with the use of
fist. Marian took out an icepick intending to hit the
arm of Louisian that has always been boxing.
However, instead of hitting the arm, the icepick
instead pierced through the heart of Louisian.
Marian left. Louisian was brought to the hospital
but was pronounced dead on arrival in the hospital.
Marian was prosecuted for homicide. Marian said
he has no intention to kill Louisian. Will Marian’s
defense lie on his favor?
No. Since Louisian died, intent to kill becomes a
general criminal intent which is presumed by law.
The prosecution need not prove intent to kill
because the best evidence of intent to kill is the fact
that the victim died. The defense then has the
burden of proving that he lacks intent to kill in
committing the crime.
1. Freedom of action – when the offender performs the
act on his own free will without force, duress,
uncontrollable fear. He knowingly and willfully
performs the act on his own free will.
So, if the offender performs the criminal act but he
did so under the impulse of an uncontrollable fear,
there is no criminal liability. This is an exempting
circumstances under Aricle 12 of the RPC because
there is no freedom of action, an element of
voluntariness.
2. Intelligence – the capacity of a person to know
wrong from right and to appreciate the
consequences of one’s act. If the person acted
without intelligence, there is no criminal liability.
2. Specific Criminal Intent is never presumed by law.
It must be proven beyond reasonable doubt by the
prosecution just like any other elements in the
commission of the crime. If the prosecution failed to
prove specific criminal intent, it will either be an
acquittal or a conviction but of a different crime, not
on the crime charged.
So if the criminal act has been committed by an
insane, imbecile or a minor 15 years of age or under,
the said offender is exempted from criminal liability
under Article 12 because he acted without
intelligence. There is no criminal liability. There is
no intentional nor culpable felony.
An important element of intentional felony is criminal
intent.
Louisian and Marian were engaged in a fight. In the
course of the said fight, although both of them were
using fist, since Marian was losing, Marian
immediately put out an icepick from his pocket and
then thereafter hit Lousian. Louisian was hit on the
left shoulder. Thereafter, Marian left. Louisian was
brought to the hospital and the medical certificate
stated that the wound will heal within a period of 3
days. A case of attempted homicide was filed
against Marian. Since the case filed was attempted
homicide, the prosecution has the burden of proving
that there was intent to kill on the part of Marian
when he hit Louisian with the use of ice pick
inflicting a wound that would heal for a period of 3
days. If the prosecution failed to prove intent to kill
then the judge can only convict him of slight
physical injuries. Specific criminal intent must be
present. Intent to kill must be proven.
What is criminal intent?
Criminal intent is the use of a particular means to
achieve the desired result. It is an internal state of the
mind. You cannot see intent.
How then is criminal intent established or determined?
It is determined by the overt act performed by the
offender in the commission of the crime or the particular
means employed by the offender in the commission of
the crime.
Examples:
1. The fact that the offender used a bladed weapon, a
lethal weapon, in hitting the victim, shows intent to
kill even if the victim did not die; or
2. When the accused took the bag of the woman
without asking the consent of the woman. It shows
intent to gain on the part of the offender.
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FACTORS IN DETERMINING INTENT TO KILL
generic aggravating circumstance of treachery.
Therefore, B should be acquitted of attempted murder.
What if Saturnino was walking on the road when
suddenly here comes Lorenzo armed with a lead pipe.
He suddenly hit the back of Saturnino with the lead
pipe strongly. Saturnino fell on the ground. Lorenzo left.
A suffered severe pain and went to the hospital. But
after the check-up, the medical certificate states that
Saturnino did not sustain any injury. Saturnino then
filed a case of attempted murder against Lorenzo
because there was treachery. Is Lorenzo liable for
attempted murder? What crime if any is committed by
Lorenzo?
In the case of People vs. Mapalo10, the SC said that
intent to kill may be proved by evidence of:
1. Motive;
2. The nature or number of weapons used in the
commission of the crime;
3. The nature and number of wounds inflicted on the
victim;
4. The manner the crime was committed; and
5. Words uttered by the offender at the time the
injuries are inflicted by him on the victim. (before,
during or after the commission of the crime)
What if Amante and Bok had a heated altercation
because Bok is teasing Amante that the latter is jobless
and therefore he is a good for nothing man. The
following day, Bok went to the store together with his
daughter. The moment Bok entered the store together
with his daughter, Amante and his 2 brothers suddenly
appeared. Amante and his brothers began boxing and
kicking Bok until Bok fell on the ground. While Bok was
lying on the ground, Amante and his brother
continuously boxed and kicked Bok. One of them even
hit the head of Bok with a stone. Then the siren of the
police was heard and so they scampered away. Bok was
brought to the hospital. The medical certificate showed
that Bok suffered injuries all over his body but all these
injuries are only superficial in nature which would heal
within a period of 7 days. Bok filed a case of attempted
murder against the said accused Amante and his 2
brothers. Are they liable? What crime if any is
committed by Amante and his 2 brothers?
In the case of Rivera vs. People12, the SC said that
Amante and his 2 brothers are liable for attempted
murder because in inflicting injuries to Bok, there was
intent to kill.
First, there was no evidence of motive, Lorenzo just hit
Saturnino with a lead pipe at the back of his head once.
Second, the nature and number of weapon used by the
accused in the commission of the crime, Lorenzo used a
lead pipe not a bladed or a lethal weapon. Third, the
nature, number and location of wounds inflicted or
sustained by the victim. Saturnino did not sustain any
wound despite the fact that he was hit by the lead pipe.
Although he was hit by a lead pipe, no damage resulted.
Fourth, manner of committing the crime Lorenzo only
hit the back of Saturnino once. Thereafter he left.
Lastly, the acts or words uttered by the offender before,
during or immediately after the commission of the
crime. After hitting Saturnino at the back, Lorenzo
immediately left.
Again, the SC considered the factors in establishing
intent to kill. First, there is evidence of motive. Prior to
the mauling incident, there was an altercation between
Amante and Bok because Bok had been teasing Amante
that he is jobless. Second, the nature or number of
weapons used in the commission of the crime, the
accused used their fists and legs to box and kick the said
victim. Third, the nature and number of wounds
inflicted on the victim, the victim suffered superficial
wounds all over his body. 4th, the manner of committing
the crime, Amante and his brothers is acted in
conspiracy in beating and kicking Bok. They acted
simultaneously kicking, beating and one hitting Bok
with a stone. Lastly, words uttered by the offender at
the time the injuries are inflicted by him on the victim,
Amante and his brother encircled Bok, repeatedly boxed
him until he fell on the ground. They left only when they
heard the siren of the police. SC said considering these
factors, it is evident that there is intent to kill and it is
All of these show that there is no intent to kill on the
part of the offender. Since the medical certificate states
that Saturnino did not sustain injuries although he
suffered pain. SC convicted Lorenzo of ill-treatment of
another by deed11, a form of slight physical injuries with
inter alia, in the means used by the malefactors, the nature, location
and number of wounds sustained by the victim, the conduct of the
malefactors before, at the time, or immediately after the killing of the
victim, the circumstances under which the crime was committed and
the motives of the accused. If the victim dies as a result of a deliberate
act of the malefactors, intent to kill is presumed. (Rivera vs. People,
480 SCRA 188, G.R. No. 166326 January 25, 2006)
10 People vs. Mapalo, 514 SCRA 689, G.R. No. 172608 February 6,
2007
11 ART. 266. Slight physical injuries and maltreatment. - The crime of
slight physical injuries shall be punished:
Xxx (3). By arresto menor in its minimum period or a fine not
exceeding 50 pesos when the offender shall ill-treat another by deed
without causing any injury.
12 In People v. Delim, 396 SCRA 386 (2003), the Court declared that
evidence to prove intent to kill in crimes against persons may consist,
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evident that Amante and his 2 brothers are liable for
attempted murder with the qualifying circumstance of
treachery.
the evening. Another witness came and said that he
saw the victim with JL and Axel board a jeepney.
Another witness said the JL and Axel is playing
billiards with the victim. Another witness said that
he saw JL and Axel with the victim having a heated
argument about 10 meters away from the place
where the victim was found dead. In this case no one
has seen who killed the victim. There is no direct
evidence. What is present is only circumstantial
evidence to prove the commission of the crime. Who
was the last person seen with the victim before he
was killed? What could be the motive behind the
killing? Who has the motive to kill the victim?
Obviously it is JL and Axel who was seen arguing
with the victim.
What is motive?
Motive is the moving factor which impels a person do an
act to achieve the desired result.
As a rule, motive is not material in determining the
criminal liability. In the following cases, motive is not
material:
1. If the offender is clearly identified.
2. Admits to the commission of the crime.
3. If the prosecution has direct evidence or eyewitness
to the commission of the crime.
4. If the crime committed is brought about by
imprudence or negligence or a culpable felony.
5. Crime committed is in violation of a special penal
law.
Can motive bring about conviction?
Motive, no matter how strong, will never bring about
conviction because the law requires an overt act. But
motive plus circumstantial evidence, motive plus
convincing evidence will bring about conviction. But
pure motive alone no matter how strong cannot bring
about conviction.
Intent becomes material in determining the criminal
liability of the offender in the following instances:
1. When the act of the offender would result to variant
crimes.
How is motive established?
Motive is established by testimony of witnesses as to the
acts or statements made by the accused, immediately
prior to or after the commission of the crime; not during,
because there is no direct evidence.
ILLUSTRATION: The Judge was exercising in the
park at 5:30AM. When Jep went near the Judge and
stabbed him repeatedly. The Judge died. The act of
Jep would result to variant crimes. It could either
be plain murder or the complex crime of direct
assault with murder. How would you know which
crime is committed?
Motive as determinant of criminal liability
Motive alone will not bring about criminal liability
because the RPC requires that there must be an overt
act or an omission. When there is motive in the
commission of a crime, it always comes before the
intent.
Take into consideration the motive. If the killing
was done for personal reason or vendetta, then it
will be plain murder. But if the motive to kill is
because of a past performance of the Judge of his
official function, then Jep should be prosecuted for
direct assault with murder.
2. When the identity of the offender is doubtful.
ILLUSTRATION: The victim was found dead.
INTENT
MOTIVE
Use of particular means
to achieve a desired
result.
Moving power which
impels a person to do a
specific act to achieve the
desired result. It is the
reason behind intent.
As a rule, immaterial in
determining the criminal
liability of the offender.
A material element in
determining
criminal
liability of the offender.
Lorenzo was arrested as a suspect. But there was
doubt as to the identity of Lorenzo as the suspect.
Motive then becomes material to determine
whether it was Lorenzo who killed the victim.
3. When the prosecution has only circumstantial
evidence to prove the commission of the crime.
Established by overt act
of the offender or by the
means employed by him
in the commission of the
crime.
ILLUSTRATION: The victim was found dead with
5 stab wounds in a vacant lot. No one saw who killed
the victim. But the mother of the victim said that
her son was fetched by JL and Axel about 6:30 in
11
Established
by
the
testimony
of
the
witnesses as to the acts
or statements made by
the accused immediately
prior to or after the
commission of the crime.
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What negates criminal intent? What may be a defense
against criminal intent?
Mistake of fact is the misapprehension of facts on the
part of the person who caused injury to another. He is
not, however, criminally liable, because he did not act
with criminal intent. It is necessary that had the facts
been true as the accused believed them to be, the act is
justified. Moreover, the offender must believe that he is
performing a lawful act.
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: "If you enter
the room I will 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.
Thereupon he called to his employers and rushed back
into the room to secure bandages to bind up the wound.
Defendant 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, in this jurisdiction, a person 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 were as he supposed them to be, but
would constitute murder if he had known the true state
of facts at the time.
An honest mistake of fact destroys the presumption of
criminal intent which arises upon the commission of a
felonious act.
NOTE: Mistake of fact is a defense only in intentional
felonies. It is an absolutory cause.
ELEMENTS OF MISTAKE OF FACT (LIW)
1. That the act done would have been Lawful had the
facts been as the accused believed them to be;
2. That the Intention of the accused in performing the
act is lawful; and
3. That the mistake must be Without fault, negligence
or carelessness on the part of the accused.
Held: That, under 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 facts 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 article 1 of the Penal Code, a person
voluntarily committing an act incurs criminal liability
even though the act be different from that which he
intended to commit.
Had the facts been as the accused believed them to be,
the act performed would have amounted to a justifying
or exempting circumstance in the commission of the
crime.
The intention of the offender must be legal. It must be
ignited solely by a lawful or legitimate intent.
In order for an offender to invoke mistake of fact it is
necessary that he ascertained the true facts of the case
before he performed the said act. If the offender was
negligent, if he was careless in ascertaining the true
facts of the case, then, he cannot invoke mistake of fact.
One cannot invoke mistake of fact and at the same time
be negligent in ascertaining the true facts of the
circumstance.
What if the guard was feeling sleepy when he heard a
noise. Upon hearing the said noise, he saw someone
jump from the fences inside the premises which he was
guarding. The guard called the man to stop and identify
himself. But the unidentified man instead of
introducing himself fired repeatedly at the security
guard. The guard hid himself and returned fire to the
man. But the man fired at the lock of the warehouse and
entered the said warehouse. The security guard
followed the man inside the warehouse which had no
lights. When the security guard entered, he has a
flashlight and the moment he entered he saw a shadow
of a man holding a gun pointed at him and so he turned
around and shot the man. It turned out that the man
Mistake of fact is only a defense in intentional felony
but not in culpable felony.
In the case of United States vs. Ah Chong13 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
Ah Chong was afraid of bad elements so one evening, before going
to bed, he locked himself in his room and placed a chair against the
door. After going to bed, he was awakened by someone who was trying
to open the door. He called out, “Who is there?” twice but received no
answer. He then said, “If you enter the room, I will kill you.” At that
moment, he was struck by the chair. Believing he was being attacked,
he took a kitchen knife and stabbed the intruder who turned out to be
his roommate. Is he criminally liable?
No. There was mistake of fact. Had the facts been as Ah Chong
believed them to be, he would have been justified in killing the
intruder under Article 11, paragraph 1; self-defense.
13
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the life of the police officer in actual or imminent danger
because Wendy was merely picking it from the waist.
The gun was not yet pointed at the police officer.
Therefore it is not yet a situation where his life and limb
is in danger.
was a worker in the warehouse who did not ask
permission to sleep inside. And so the security guard
was prosecuted for homicide. He invoked mistake of
fact. Is he liable of homicide or will mistake of fact
absolve him from criminal liability?
Mistake of fact will absolve him from criminal liability.
2nd element, the intention of the accused in performing
the act is lawful present. This element is present.
1st
element, the act done would have been lawful had
the facts been as the accused believed them to be, he is
justified in shooting because the said man had already
fired at him which placed his life and limb in immediate
danger. The first element is present.
3rd element, the mistake must be without fault,
negligence or carelessness on the part of the accused is
also absent. The mistake committed by the police officer
was brought about by his negligence in ascertaining the
true facts of the case. He was asking for the license and
permit to carry of the said woman, naturally, the
woman would produce it. Since he failed to ascertain the
true facts of the case, then, mistake of fact cannot
absolve him from criminal liability.
2nd element, the intention of the accused in performing
the act is lawful. That is to save his life from imminent
danger. The second element is also present.
3rd element, the mistake must be without fault,
negligence or carelessness on the part of the accused.
There was no negligence or carelessness on the part of
the security guard. The said warehouse was locked and
was only opened when the man fired at it. The
warehouse had no lights. Who would have anticipated
that someone would be sleeping inside the locked
warehouse. The third element is also present.
Can a crime be committed without criminal intent?
Yes, a crime can be committed even in the absence of
criminal intent.
1. In case of crimes brought about by imprudence,
negligence, lack of foresight or lack of skill,
otherwise known as culpable felony.
2. In case of crimes which are violation of penal laws.
Therefore, mistake of fact will absolve the security
guard from any criminal liability.
ACTS MALA PROHIBITA
Acts which are only wrong because there is law that
defines and punishes the said act. Without the said law,
said act will not be considered a crime.
What if the police officer was eating in a nearby
canteen, when he was bothered by the noise of
Kathleen, Wendy and Dianne. And so the police officer
looked at these 3 women who were so noisy. The police
officer noticed that one of the women, Wendy, had a gun
tucked at his waist. So the police officer went to the back
of Wendy and told her, “you have a gun tucked on your
waist, I am a police officer. Could you show me your
license and permit to carry?” and Wendy said “yes I
have a license and permit to carry”. And so Wendy stood
up and she tried to pick his wallet from his pocket in
order to show the license. As she was doing, so she was
turning around to look at the police. The moment she
turned around to the police, the police fired at him. The
woman died. Prosecuted for homicide, the police officer
said he acted under mistake of fact because he thought
that what A was picking was not his wallet to show his
license, but her gun, and so to save himself he fired first
at Wendy. Is the police officer liable for homicide? Or
should he be absolved based on mistake of fact?
The police officer is liable. There’s no MOF.
Example: Possession of firearm. Mere possession is not
criminal in nature but possession of firearms without
license and without permit to carry is considered
criminal and illegal because there is a law, PD 1866 as
amended by R.A. 9284 and further amended by R.A.
10591 which prohibits the possession and carrying of
firearms without license and permit to carry.
ACTS MALA IN SE
This are acts which are inherently evil or wrong by their
very nature. It is wrong per se, even if there’s no law, it
is evil.
Examples:
1. Killing a person.
2. Molesting a woman.
3. Taking the thing of another without the consent of
the owner.
1st element, the act done would have been lawful had
the facts been as the accused believed them to be.
Granting for the sake of argument that what Wendy
was picking was the gun, still such act does not yet place
There need not be a law to say that these acts are wrong,
they are by nature wrong.
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MALA IN SE
Inherently evil, wrong
per se.
Criminal liability is
based on the intent of
the offender.
Good faith or lack of
criminal intent is a
valid defense
Modifying
circumstances such as
aggravating
and
mitigating
circumstances
are
considered by the court
in imposition of penalty
Degree of participation
of the offender in the
commission
of
the
crime whether as a
principal, accomplice or
accessory, is considered
in the imposition of
penalty.
The stage of the
execution of the crime,
whether
it
be
attempted, frustrated
or consummated is
considered by the court
in the imposition of
penalty.
Are all acts punished by special penal laws considered
as mala prohibita?
No, not all acts punished by special laws are mala
prohibita. There are some special laws which acts are
considered as mala in se or malum in se. (e.g. Plunder
under R.A. 7080, the act of increasing or decreasing the
vote of a candidate punishable under Election Laws)
MALA PROHIBITA
It is only wrong because
there is a law that defines
and punishes the act. It is
not inherently evil or
wrong.
Criminal liability is based
on the mere doing of the
prohibited act.
Good faith or lack of
criminal intent is not a
valid defense
Modifying circumstances
are NOT considered by the
court in imposition of
penalties
UNLESS
otherwise provided by the
special law
In the case of Estrada vs. Sandiganbayan14, SC said
that plunder although punished by a special penal law
is a malum in se. It is inherently evil to amass,
accumulate or acquire ill-gotten wealth from the State.
Hence, since plunder is malum in se, criminal intent
matters.
In the case of Garcia vs. Court of Appeals15, Garcia was
the head of the board of canvassers. The number of votes
of Sen. Pimentel was decreased. In decreasing the
number of votes, the said votes were not added to any
candidate. It did not favor any candidate. So according
to Garcia, he acted in good faith and with no criminal
intent. The other side said that it is a special penal law
and therefore he should be held criminally liable.
Degree of participation of
the
offender
is
not
considered.
All perpetrators of the
crime are punished equally
unless otherwise provided.
The Supreme Court said, the said act, although punish
by a special penal law is considered as malum in se. The
act of increasing or decreasing a vote of a candidate in
the election, although punished by election law, is a
malum in se. Criminal intent matters in order to bring
about conviction of a crime. Garcia’s defense of good
faith would not lie. According to SC, they should have
exercised extraordinary diligence in the counting of
votes.
The only stage of execution
considered
is
the
consummated stage. No
attempted or frustrated
stages
except
when
expressly provided by the
law.
In the case of Ysidoro vs. People16, the Supreme Court
said, the crime of technical malversation, punished
under Article 220 of the RPC, was held to be a crime
that is malum prohibitum. The law punishes the act of
diverting public property earmarked by law or
ordinance for a particular public purpose for another
public purpose. The prohibited act is not inherently
punish unintentional election canvass errors. However, intentionally
increasing or decreasing the number of votes received by a candidate
is inherently immoral, since it is done with malice and intent to injure
another. Criminal intent is presumed to exist on the part of the person
who executes an act which the law punishes, unless the contrary shall
appear. Thus, whoever invokes good faith as a defense has the burden
of proving its existence.
14
The legislative declaration in R.A. No. 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. Indeed, it would be absurd to treat prosecutions for
plunder as though they are mere prosecutions for violations of the
Bouncing Check Law (B.P. Blg. 22) or of an ordinance against
jaywalking, without regard to the inherent wrongness of the acts.
(Estrada vs. Sandiganbayan, 369 SCRA 394, G.R. No. 148560
November 19, 2001)
15 The acts prohibited in Section 27(b) are mala in se. For otherwise,
even errors and mistakes committed due to overwork and fatigue
would be punishable. Given the volume of votes to be counted and
canvassed within a limited amount of time, errors and miscalculations
are bound to happen. And it could not be the intent of the law to
The fact that the number of votes deducted from the actual votes
received by private complainant, Sen. Aquilino Pimentel, Jr. was not
added to any senatorial candidate does not relieve petitioner of
liability under Section 27(b) of Rep. Act No. 6646. The mere
decreasing of the votes received by a candidate in an election is
already punishable under the said provision. (Garcia vs. Court of
Appeals, 484 SCRA 617, G.R. No. 157171 March 14, 2006)
16 Ysidro vs. People, G.R. No. 192330, November 14, 2012.
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immoral, but becomes a criminal offense because
positive law forbids its commission on considerations of
public policy, order, and convenience. Therefore, good
faith and lack of criminal intent are not valid defenses
element which the other does not, x x x. 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.
NOTE: Even if a special law uses the nomenclature of
penalties under the RPC, that alone will not make the
act or omission a crime mala in se 17. The special law
may only intend for the Code to apply as a
supplementary.
ARTICLE 4
Criminal liability shall be incurred:
1. By any person committing a felony (delito)
although the wrongful act done be different
from that which he intended. (Proximate Cause
Doctrine)
2. By any person performing an act which would
be an offense against persons or property, were
it not for the inherent impossibility of its
accomplishment or an account of the
employment of inadequate or ineffectual means.
Can acts mala in se absorb acts mala prohibita? Can
acts mala prohibita absord acts mala in se?
In the case of Loney vs. People18, the SC said no. Loney
and other official of the Marcopper Mining Corporation
were charged with criminal cases for polluting two
rivers in Marinduque.
Four cases were filed against Loney and other officials;
(1) Violation the Water Code of the Philippines.
(2) Violation of the National Pollution Control Decree.
(3) Violation of the Philippine Mining Act.
(4) Violation of Article 365 of the RPC for Reckless
Imprudence Resulting in Damage to Property.
PROXIMATE CAUSE DOCTRINE
ELEMENTS (IRD)
1. The Intended act is a felonious act
2. The Resulting act is a felony
3. The resulting felony is the Direct, natural and
logical consequence of the felonious act of the
offender
Loney et. Al. filed a motion to quash the information for
the three special penal laws. Their contention was that
the 3 other information involving the violation of special
law should be quashed because they are already
absorbed by Art. 365. Is their contention correct?
The Supreme Court said no, acts mala in se cannot
absorb acts mala prohibita. What makes an act malum
in se is the presence of intent, deceit or dolo or fault or
culpa. Whereas what makes an act malum prohibitum
is the presence of a special penal law that defines and
punishes the act. Therefore one cannot absorb the other.
They shall be prosecuted for all cases separate and
distinct of each other.
As a rule, the offender is criminally liable for all the
consequences of his felonious act, although not
intended, if the felonious act is the proximate cause of
the felony.
Under the proximate cause doctrine, for one to be
criminally liable, it is necessary that the offender is
performing a felonious act and since he is performing a
felonious act, he becomes liable for all the resulting
crime although different from that which he intended,
provided that the resulting felony is the direct, natural
and logical consequence of the felonious act of the
offender.
NOTE: As early as the start of the last century, this
Court had ruled that 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.
The only limit to this rule is the Constitutional
prohibition that no person shall be twice put in jeopardy
of punishment for “the same offense.” In People v.
Doriquez, we held that two (or more) offenses arising
from the same act are not “the same”—x x x if one
provision of law requires proof of an additional fact or
For one to be criminally liable under the proximate
cause doctrine, it is not necessary that the offender
should have even touched the body of the victim. It
suffices that the felonious act performed by the offender
has generated in the mind of the victim a fear for his
prohibita crimes (such as those violating PD 1067, PD 984, and RA
7942). What makes the former a felony is criminal intent (dolo) or
negligence (culpa); what makes the latter crimes are the special laws
enacting them. (Loney vs. People, 482 SCRA 194, G.R. No. 152644
February 10, 2006)
People vs. Simon, G.R. No. 93028, July 29, 1994.
On petitioners’ claim that the charge for violation of Article 365 of
the RPC “absorbs” the charges for violation of PD 1067, PD 984, and
RA 7942, suffice it to say that a mala in se felony (such as Reckless
Imprudence Resulting in Damage to Property) cannot absorb mala
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life. And by reason of such fear, the victim performed
acts and made risks that injured himself. The accused
will become criminally liable.
that his life and limb is in danger. And by reason of such
fear, the victim performed acts that took risks of
himself. It cannot be said that he is the author of the
said act but rather the said person who caused or
generated the fear on him. The holdupers were
performing a felonious act and the felonious act was the
proximate cause of the resulting felony, the death of the
victim. Were it not for the announcement of the said
holdup which generated fear on the mind of X, she
should have not jumped on the said window.
What is proximate cause?
Proximate cause19 has been defined as that cause,
which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury,
and without which the result would not have occurred.
Therefore, for one to be criminally liable under the PCD,
it is necessary that the felonious act and resulting act
must not be broken by efficient intervening cause that
has broken the causal connection between the felonious
act of the offender and the resulting felony.
A,B and C were having a drinking spree. They were very
noisy. Because of this X went to A, B, C and requested
them to tone down their voices. Thereafter, X left. Such
act of X angered A, and so A told B and C that one time
he will do something to X. The next day, A,B,C were
again having a drinking spree in the same store. Then
suddenly X passed by. A called on X and the moment X
went near A, A immediately boxed X continuously until
X fell on the ground. X found an opportunity to escape
and he went home. Later, X was found by his wife lying
on the floor salivating. The wife brought X to the
hospital. He was pronounced dead on arrival upon
reaching the hospital. According to the medical
certificate X sustained superficial injuries which would
heal within 2 days. It was also stated that the cause of
death was myocardial infarction or heart attack
brought about by the mauling incident. A was
prosecuted for homicide but he contended that he is not
liable for such because the medical.certicate showed
that he only inflicted superficial injuries. Is A liable for
homicide under the proximate cause doctrine?
Yes. He is liable for homicide under the proximate cause
doctrine as held in the case of Garcia vs People20.
Supreme Court said that his act of kicking and mauling
the victim is a felonious act which brought about the
resulting felony. Were it not for the said mauling
incident the victim would not have suffered a heart
attack that brought about his death. The SC held the
accused liable for homicide under the proximate cause
doctrine.
If there is an efficient intervening cause that has broken
the causal connection between the felonious act of the
offender and the resulting felony, the offender will not
be held liable or the felony but only for the particular
act that he committed.
What is efficient intervening cause?
It is an intervening active force which is a distinct act
or fact absolutely foreign from the felonious act of the
offender.
Therefore, in order that an act is considered an efficient
intervening cause, it is necessary that it is totally
foreign from the felonious act that is performed by the
offender.
What if the bus was going towards Quezon province and
as the bus was maneuvering in a zigzag road, suddenly,
4 persons stood up and announced a hold up. Two
positioned in front of the bus and the other two was
positioned at the back. They unleashed their sharp
bolos and told the passengers of the bus that it is a hold
up and nothing will happen to them if they will only give
their valuables. Upon hearing the word hold up, X
shivered in fear because he had a former encounter with
holdups. He was so afraid that he immediately opened
the window of the bus and jumped. As a result, X died.
The said holdupers were prosecuted for the death of X.
They contended that they are not liable for the death of
X. In fact they did not even went near X. Are they liable
for the death of X?
Yes. The act of announcing a holdup was a felonious act
and the said act generated fear in the mind of X. Fear
The accused contended that the medical.certificate also
shows that the victim in the past has suffered already
two heart attacks so he was already suffering from a
previous malady. SC said that as early in the case of
United States v. Brobst, 14 Phil. 310 (1909), they have
settled in jurisprudence that even if the victim is
suffering from a previous malady, if by reason of the
that: x x x where death results as a direct consequence of the use of
illegal violence, the mere fact that the diseased or weakened condition
of the injured person contributed to his death, does not relieve the
illegal aggressor of criminal responsibility. (Garcia vs. People, 597
SCRA 381, G.R. No. 171951 August 28, 2009)
People v. Villacorta, G.R. No. 186412, September 7, 2011
In this case, petitioner was committing a felony when he boxed the
victim and hit him with a bottle. Hence, the fact that Chy was
previously afflicted with a heart ailment does not alter petitioner’s
liability for his death. Ingrained in our jurisprudence is the doctrine
laid down in the case of United States v. Brobst, 14 Phil. 310 (1909)
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acts performed by the accused, his death was hastened,
still the accused will be held criminally liable under
proximate cause doctrine.
and on the course of the argument, A suddenly stabbed
B with a knife near the chest. Thereafter, A left. B was
already on his way home. Suddenly there was rain and
there was lightning and thunder. Since B is wounded,
he hid first under a roof. While he was waiting under
the roof for the rain to stop, the roof and B was suddenly
struck by lightning and so B died. A was prosecuted for
homicide under proximate cause doctrine. Is he liable?
What crime if any has been committed?
He is not criminally liable under proximate cause
doctrine. The act of stabbing A near the chest is a
felonious act, and he hit the victim in his chest, it could
have been a fatal wound. However, while B was waiting
under the roof, he was struck by lightning and that
caused his death. That lightning happens to be an
efficient intervening cause that broke the causal
connection between the felonious act and the resulting
felony. As such, A is not criminally liable for the death
of said victim. The lightning is an intervening active
force which is a distinct act or fact absolutely foreign
from the felonious act of the offender.
Lolo Pedro was sleeping in the afternoon in his house.
Then he was suddenly awakened by the noise of
children. Angry for being awaken, he tried to find out
where the noise is coming from. Then he saw at the back
of his house 4 young boys at the top of his mango tree
harvesting fruits aged 7-8. So, Lolo Pedro told the boys
to come down the tree, otherwise, he will be calling the
police and let them be arrested. The boys hurriedly went
down the tree. One of the young boy jumped down and
his knee hit a big stone. He suffered serious physical
injuries. Is Lolo Pedro liable for serious physical
injuries? What crime if any is committed by Lolo Pedro?
He is not liable for serious physical injuries. The act of
Lolo Pedro of telling the boys to come down from his tree
and to stop stealing the fruits of his tree, otherwise he
will call the police is not a felonious act. Therefore it
cannot be said that he may be held liable for the
resulting felony.
A, depending on evidence, can be liable only for
frustrated homicide or serious physical injuries.
Frustrated homicide if there was intent to kill and
serious physical injuries if there was no intent to kill. In
the problem it is more of frustrated homicide because
when A stabbed B with knife, it showed intent to kill.
Under Article 4 paragraph 1 the offender merely
becomes criminally liable for the resulting felony if he
is performing a felonious act. He was just exercising his
right because the boys are stealing the fruits of his tree.
What if in the same problem, Lolo Pedro got his
shotgun, fired shots in the air and said that if you will
not get down, the next shot will be on you. The boys
were so afraid that they hurriedly went down. One of
them jumped and his knee hit a big stone. He suffered
serious physical injuries. Is Lolo Pedro liable for serious
physical injuries? What crime if any is committed by
Lolo Pedro?
He is liable for serious physical injuries. The act of
threatening the children that he will shoot them is a
felonious act. His act of threatening the children that he
will shoot them if they will not go down and stop
stealing his fruits was the proximate cause of the
resulting felony. Lolo Pedro is liable for serious physical
injuries under Art. 4 1st paragraph, proximate cause
doctrine.
A and B played card games. A lost. A confronted B and
told him that he cheated on him. They had an argument
A was buying in a store and suddenly B struck the left
side of the body of A with a sharpened bamboo stick.
Thereafter, B left. A was brought to the hospital and
treated as a patient. The wound sustained by A was not
a fatal wound, so A was allowed to go home that very
same day. 22 days thereafter, A was again brought to
the hospital. This time, A was suffering from tetanus
poisoning and on the 23rd day, A died. The death
certificate showed that the cause of death is tetanus
poisoning. In this regard, the heirs of A filed a case of
homicide against B under the proximate cause doctrine.
They contended that it was the stab wound that caused
the death. Is B liable as charged for homicide? What
crime if any has been committed?
It is settled in the case of Urbano vs. Intermediate
Appellate Court21 as well as People vs Villacorta22 that
tetanus poisoning based on expert testimony has only
an incubation period of 14 days. Therefore, if the stab
The rule is that the death of the victim must be the direct, natural,
and logical consequence of the wound inflicted upon him by the
accused. (People v. Cardenas, supra). And since we are dealing with a
criminal conviction, the proof that the accused caused the victim’s
death must convince a rational mind beyond reasonable doubt. The
medical findings, however, lead us to a distinct possibility that the
infection of the wound by tetanus was an efficient intervening cause
later or between the time Javier was wounded to the time of his death.
The infection was, therefore, distinct and foreign to the crime.
(Urbano vs. Intermediate Appellate Court, 157 SCRA 1, No. L-72964
January 7, 1988)
22 Nevertheless, there is merit in the argument proffered by Villacorta
that in the event he is found to have indeed stabbed Cruz, he should
only be held liable for slight physical injuries for the stab wound he
inflicted upon Cruz. The proximate cause of Cruz’s death is the
tetanus infection, and not the stab wound. Proximate cause has been
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wound inflicted by the accused on the victim had
tetanus germs at the time it was inflicted, the victim
would have died within a period of 14 days or 2 weeks.
But in the given problem, the victim survived until the
22nd day.
NOTE: There are only two persons involved: the
actual but unintended victim, and the offender.
3. Injurious consequences are greater than that
intended (praeter intentionem) –The injury is on
the intended victim but the resulting consequence
is so grave a wrong than what was intended. It is
essential that there is a notable disparity between
the means employed or the act of the offender and
the felony which resulted. This means that the
resulting felony cannot be foreseen from the acts of
the offender. (A, without intent to kill, struck the
victim on the back, causing the victim to fall down
and hit his head on the pavement.)
Therefore, SC said that the wound inflicted by the
accused on the victim had no tetanus germs. What
brought about tetanus poisoning was the act/s
performed by the victim after he sustained the said stab
wounds. The tetanus infection/poisoning was the
proximate cause of the death of the victim and the stab
wound was only the remote cause. The tetanus
infection was an efficient intervening cause that has
broken the causal connection between the felonious act
of stabbing and the resulting felony which is homicide.
NOTE: The three enumerated situations are always the
result of an intentional felony or dolo. These situations
do not arise out of criminal negligence.
In both cases, SC acquitted the accused of the crime
charged. In People vs Villacorta, the accused was liable
only for slight physical injuries with aggravating
circumstance of treachery because the offender adopted
the means used, a sharpen bamboo stick, and likewise
this rendered the victim totally defenseless. Slight
physical injuries because the wound was not serious
and he was even allowed to leave, there was no showing
that there was intent to kill. The stab wound is only a
remote cause in the death of the victim.
ABBERATIO ICTUS/MISTAKE IN THE BLOW
A situation wherein the offender directed the blow at his
intended victim but because of poor aim, the blow
landed on someone else.
What is the effect of abberatio ictus on the criminal
liability of the offender?
It will generally give rise to 2 crimes, one is against the
intended victim and one against the actual victim. If 2
crimes are grave or less grave felony, it will be a complex
crime. But if one happens only to be a light felony, there
will be no complex crime but distinct and separate
charges.
3 INSTANCES WHERE THE OFFENDER BECOMES
CRIMINALLY LIABLE FOR THE RESULTING
FELONY ALTHOUGH DIFFERENT FROM THAT
WHICH HE INTENDED
A went to the house of B mad. B had been spreading
rumors against A. A wanted to kill B but the latter was
not inside the house. So he boarded his motorcycle
looking for B. B happens to be a jeepney driver.
Suddenly, A saw B on the other side of the street. A on
board his motorcycle, pulled out his pistol and fired a
shot intending to kill B. However, because of poor aim,
the bullet hit C. C died. B was not hit at all.
What crime/s is/are committed by A?
Murder with attempted murder
1. Mistake in the blow (aberratio ictus) –A person
directed the blow at an intended victim, but because
of poor aim, that blow landed on somebody else. In
aberratio ictus, the intended victim and the actual
victim are both at the scene of the crime. (A, shot at
B, but because of lack of precision, hit C instead).
NOTE: There are three persons involved: the
offender, the intended victim, and the actual victim.
2. Mistake in identity (error in personae) –The
offender intends the injury on one person but the
harm fell on another. The intended victim was not
at the scene of the crime. It was the actual victim
upon whom the blow was directed, but he was not
really the intended victim. There was really a
mistake in identity (A, wanting to kill B, killed C
instead).
In so far as B is concerned, A is liable for attempted
murder because he intended to kill B. He already
performed an overt act when he fired the gun with
intent to kill against B. There was treachery, the victim
was totally defenseless. In so far as C is concerned, the
crime committed is murder.
defined as “that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred.” (People vs.
Villacorta, 657 SCRA 270, G.R. No. 186412 September 7, 2011)
These are 2 crimes committed which are grave felonies.
Since the 2 crimes were brought about by a single act
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coming from the offender, it will give rise to a complex
crime of murder with attempted murder.
ERROR IN PERSONAE/MISTAKE IN THE IDENTITY
A situation wherein the offender directed the blow at
the person thinking that he is the intended victim, but
the intended victim was not at the scene of the crime.
The actual victim who received the blow was mistaken
to be the intended victim. Only the actual victim is at
the scene of the crime, the intended victim is not at the
scene of the crime.
Same problem, A wanted to kill B fired a shot intending
to kill B. However, because of poor aim the bullet hit C,
the passenger seated next to B. C sustained a fatal
wound and he was immediately brought to the hospital.
Because of immediate medical intervention, C survived.
What crime/s is/are committed by A?
Attempted murder with serious physical injuries.
What is the effect of error in personae on the criminal
liability of the offender?
It depends, under Art 4923, in case of error in personae,
the law provides:
1. If there is variance between the intended felony and
the felony actually committed, the lesser of the two
penalties shall be the one imposed in its maximum
period.
2. If the intended felony is just the same as the felony
actually committed, error in personae with have no
effect on the criminal liability of the offender. But if
there is variance in the intended and actually
committed felony, error in personae will mitigate,
extenuate the criminal liability of the offender
because the law says that the lesser of the two
penalties between the intended and resulting felony
shall be the one imposed in its maximum period.
In so far as B is concerned, attempted murder. In so far
as C, the actual victim is concerned, A is liable for
serious physical injuries. Since one is a grave felony,
attempted murder, and the other is less grave felony,
serious physical injuries, under Art. 48 they shall be
complexed because they’re a product of a single act
coming from the offender. The crime committed by A is
attempted murder with serious physical injuries.
Why is it that in so far C is concerned, it is only serious
physical injuries and not frustrated murder?
Because there was no intent to kill C on the part of the
offender. The intent to kill was only to B but because of
poor aim the bullet landed on C who was hit with a fatal
wound but survived because of immediate medical
intervention.
There was a fight between A and B. A kicked B. B
landed on the ground facing the ground. A believed he
defeated B and so A left, but B retaliated. He pulled out
a fan knife or a balisong, and thereafter stabbed the
person next to him thinking he was A but it turned out
to be his father. His father saw what happened to him
and his father came to help him but B stabbed him. The
father died. What crime was intended to be committed
by B?
Homicide because he intended to kill A.
Same problem, A wanted to kill B fired a shot intending
to kill B. However, because of poor aim the bullet hit C,
the passenger seated next to B. C sustained a very
minor wound. The medical certificate showed that the
wound would heal within a period of 3 days. What
crime/s is/are committed by A?
Attempted murder and slight physical injuries.
In so far as B is concerned, the intended victim,
attempted murder. In so far as C, the actual victim, the
crime is slight physical injuries. So there is one grave
felony and the other is only a light felony. You cannot
complex them under Art. 48 because only grave or less
grave felonies may be complexed, not a light felony.
Hence, there will be 2 cases filed against A. Attempted
murder and slight physical injuries.
What crime was actually committed?
Parricide because he stabbed his own father.
With what crime shall B be prosecuted?
B shall be prosecuted for the crime of parricide because
it is the crime he actually committed.
In cases in which the felony committed is different from that which
the offender intended to commit, the following rules shall be observed:
1. If the penalty prescribed for the felony committed be higher than
that corresponding to the offense which the accused intended to
commit, the penalty corresponding to the latter shall be imposed
in its maximum period.
2. If the penalty prescribed for the felony committed be lower than
that corresponding to the one which the accused intended to
commit, the penalty for the former shall be imposed in its
maximum period.
3.
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The rule established by the next preceding paragraph shall not
be applicable
3.1. if the acts committed by the guilty person shall also
constitute an attempt or frustration of another crime,
3.2. if the law prescribes a higher penalty for either of the latter
offenses, in which case the penalty provided for the attempt
or the frustrated crime shall be imposed in its maximum
period.
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Let’s say that he is now found guilty beyond reasonable
doubt of the rime of parricide. If you were the Judge,
what penalty will you impose on B?
Reclusion temporal in maximum period.
PRAETER
INTENTIONEM/
INJURIOUS
CONSEQUENCES ARE GREATER THAN THAT
INTENDED
A situation wherein the offender directed the blow at his
intended victim, the intended victim actually received
the blow, but the resulting injury is far greater than
that anticipated by the means employed by the offender.
When the consequence went beyond the intention, the
injurious result is greater than that intended
The penalty for homicide, the crime intended to be
committed, is reclusion temporal. The penalty for
parricide, the actual crime committed, is reclusion
perpetua to death. Although he committed parricide,
the penalty imposed shall be the lesser penalty in its
maximum period which is that of homicide, reclusion
temporal in maximum period. This is because if there is
variance between the intended felony and the felony
actually committed, the lesser of the two penalties shall
be the one imposed in its maximum period.
NOTE: It is always a mitigating circumstance because
of Art. 13. (3) — That the offender had no intention to
commit so grave a wrong as that committed. Its effect is
to lower the imposable penalty.
ELEMENTS (FNd)
1. A Felony had been committed.
2. There must be a Notable disparity between the
means employed by the offender and the resulting
felony.
In the same problem, instead of the father, B stabbed C
his best friend. His best friend saw what happened to
him and his best friend came to help him but B stabbed
him thinking that he was A. C died. What crime was
intended to be committed by B?
Homicide because he intended to kill A.
That is out of the means employed by the offender, no
one could have anticipated or foreseen such injurious
result.
What crime was actually committed by B?
The crime committed is homicide because he killed his
own best friend. Here, there is no variance between the
intended felony and the felony actually committed.
Since there is no variance, Art. 49 would not apply.
Error in personae will not mitigate the criminal liability
of the offender.
After losing in a cockfight, the husband went home
disappointed. He called on his wife who was watching
television to ask if dinner was ready, but the wife said
that she did not yet cook. The husband suddenly
slapped the wife twice. The wife lost balance and fell on
the floor. As she was falling on the floor, her head hit
the sharp edge of the table. As a result, blood came out
at the head of the wife, and the wife suffered cerebral
hemorrhage and thereafter died. What crime should the
husband be prosecuted?
Parricide. When the husband slapped the wife twice, he
was committing a felonious act. Since he is committing
a felonious act he is liable for the resulting felony. The
act of slapping his wife is the proximate cause of the
death of his wife.
A decided to kill B. So he tried to conduct surveillance
on the itinerary of B, of where he will pass by every day.
Based on his surveillance, he knew that every 11:30 in
the evening, B would pass by a dark alley. So A decided
to kill B on that night. A hid behind a post. At exactly
11:30, a man passed by in the said alley, which
resembled B. So A repeatedly stabbed the person
thinking it was B. It turned that it was his own father.
He killed his own father. What is the crime intended to
be committed by A?
Murder. He intended to kill B and he employed means,
methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without
risk to himself arising from the defense which the
offended party might make.
The husband said he had no intention to kill his wife,
he only slapped her twice. Would you give him the
benefit of praeter intentionem?
Yes, because no one could have anticipated that the
mere act of slapping the face of the wife twice would
result to her death. A felony was committed, parricide
and there was a notable disparity between the means
employed by the husband and the resulting felony.
What crime is actually committed?
Parricide because he actually killed his own father. The
penalty for murder is reclusion perpetua to death while
for parricide it is also reclusion perpetua to death. Here,
note that although the crimes differ in title, they have
the same penalties. Therefore Art. 49 will not apply.
A child arrived home in the morning. During the night,
the child failed to go home and so the father was so mad.
The father tied the son, 8 year old, in a coconut tree and
thereafter began beating the body of the child with a
thick piece of wood. Later, the father released the said
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child. On their way home, the child fell on the ground
unconscious. There was a crack on the head of the child
and thereafter he died. The father was prosecuted for
parricide. He contended that he had no intention to kill
the child, he only intended to discipline the child. If you
were the judge would you convict the father of the crime
of parricide? If so, would you give him the benefit of
praeter intentionem, so as to mitigate his criminal
liability.
In the case of People vs. Sales24, the SC held the father
liable for parricide. The said act of the father in beating
the son with a thick piece of wood was the proximate
cause of the death of the said child. Therefore, the father
should be liable for the resulting felony under the
proximate cause doctrine.
acts which would produce and indeed produced the
death of the child. There was no notable disparity
between the means employed by the father and the
resulting felony. Hence, praeter intentionem will not
apply.
There was error in appreciating the miti-gating
circumstance of lack of intention to commit so grave a
wrong. Appellant adopted means to ensure the success
of the savage battering of his sons. He tied their wrists
to a coconut tree to prevent their escape while they were
battered with a stick to inflict as much pain as possible.
Noemar suffered injuries in his face, head and legs that
immediately caused his death. “The mitigating
circumstance of lack of intent to commit so grave a
wrong as that actually perpetrated cannot be
appreciated where the acts employed by the accused
were reasonably sufficient to produce and did actually
produce the death of the victim.” (Ibid)
Appellant attempts to evade criminal culpability by
arguing that he merely intended to discipline Noemar
and not to kill him. However, the relevant portion of
Article 4 of the Revised Penal Code states: Art. 4.
Criminal liability.—Criminal liability shall be incurred:
By any person committing a felony (delito) although the
wrongful act done be different from that which he
intended. x x x x In order that a person may be
criminally liable for a felony different from that which
he intended to commit, it is indispensible (a) that a
felony was committed and (b) that the wrong done to the
aggrieved person be the direct consequence of the crime
committed by the perpetrator. Here, there is no doubt
appellant in beating his son Noemar and inflicting upon
him physical injuries, committed a felony. As a direct
consequence of the beating suffered by the child, he
expired. Appellant’s criminal liability for the death of
his son, Noemar, is thus clear. (Ibid)
IMPOSSIBLE CRIME
Art. 4 (2) Criminal liability shall be incurred: (2) By any
person performing an act which would be an offense
against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.
(Impossible Crime Doctrine)
It is one where the act would have amounted to a crime
against persons or property but it is not accomplished
because of its inherent impossibility or because of the
employment of inadequate means
It is not really a crime in the legal sense of the word
because a crime requires a substantive change in the
outside world. Here, the act did not ripen into a crime.
It was not accomplished into a crime because of its
inherent impossibility. Objectively no crime is
committed but subjectively the offender is a criminal,
hence, the offender is being punished because of his
criminal tendency and dangerousness.
The RTC gave the father the benefit of praeter
intentionem. Should the father be given the benefit of
praeter intentionem?
No. According to Supreme Court, praeter intentionem
cannot benefit the father. The acts of the father beating
the frail body of the child with a thick piece of wood are
The imposition of parental discipline on children of tender years
must always be with the view of correcting their erroneous behavior.
A parent or guardian must exercise restraint and caution in
administering the proper punishment. They must not exceed the
parameters of their parental duty to discipline their minor children.
It is incumbent upon them to remain rational and refrain from being
motivated by anger in enforcing the intended punishment. A deviation
will undoubtedly result in sadism. Prior to whipping his sons,
appellant was already furious with them because they left thefamily
dwelling without permission and that was already preceded by three
other similar incidents. This was further aggravated by a report that
his sons stole a pedicab thereby putting him in disgrace. Moreover,
they have no money so much so that he still had to borrow so that his
wife could look for the children and bring them home. From these, it
is therefore clear that appellant was motivated not by an honest
desire to discipline the children for their misdeeds but by an evil
intent of venting his anger. This can reasonably be concluded from the
injuries of Noemar in his head, face and legs. It was only when
Noemar’s body slipped from the coconut tree to which he was tied and
lost consciousness that appellant stopped the beating. Had not
Noemar lost consciousness, appellant would most likely not have
ceased from his sadistic act. His subsequent attempt to seek medical
attention for Noemar as an act of repentance was nevertheless too late
to save the child’s life. It bears stressing that a decent and responsible
parent would never subject a minor child to sadistic punishment in
the guise of discipline. (People vs. Sales, 658 SCRA 367, G.R. No.
177218 October 3, 2011)
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4. ART. 297. Attempted and frustrated robbery
committed under certain circumstances.
5. ART. 298. Execution of deeds by means of violence
or intimidation.
6. ART. 299. Robbery in an inhabited house or public
The penalty of IC is only arresto mayor a fine of P200500 depending on the criminality or dangerousness of
the offender.
ELEMENTS (PE-IV)
1. Act performed would be an offense against Persons
or property;
2. Act was done with Evil intent;
3. Accomplishment is inherently Impossible or means
employed is either inadequate or ineffectual; and
4. Act performed should not constitute a Violation of
another provision of RPC.
building or edifice devoted to worship.
7. ART. 300. Robbery in an uninhabited place and by
a band.
8. ART. 302. Robbery is an uninhabited place or in a
private building.
9. ART. 303. Robbery of cereals, fruits, or firewood in
10.
11.
12.
13.
14.
15.
NOTE: Kidnapping is a crime against personal
security and not against person or property
1st Element: Act performed would be an offense against
Persons or property;
Crimes Against Persons under Title 8
1. ART. 246. Parricide.
2. ART. 247. Death or physical injuries inflicted under
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
exceptional circumstances.
ART. 248. Murder.
ART. 249. Homicide.
ART. 251. Death caused in a tumultuous affray.
ART. 252. Physical injuries inflicted in
tumultuous affray.
16.
17.
18.
19.
20.
21.
22.
23.
a
ART. 253. Giving assistance to suicide.
ART. 254. Discharge of firearms.
ART. 255. Infanticide.
ART. 256. Intentional abortion.
ART. 257. Unintentional abortion.
ART. 258. Abortion practiced by the woman herself
of by her parents.
ART. 259. Abortion practiced by a physician or
midwife and dispensing of abortives.
ART. 261. Challenging to a duel.
ART. 262. Mutilation.
ART. 263. Serious physical injuries.
ART. 264. Administering injurious substances or
24.
25.
26.
27.
28.
29.
30.
31.
32. ART. 329. Other mischiefs.
33. ART. 330. Damage and obstruction to means of
beverages.
18. ART. 265. Less serious physical injuries.
19. ART.
266.
Slight physical injuries
maltreatment.
an uninhabited place or private building.
ART. 304. Possession of picklocks or similar tools.
ART. 306. Who are brigands; Penalty.
ART. 307. Aiding and abetting a band of brigands.
ART. 308. Who are liable for theft.
ART. 310. Qualified theft.
ART. 311. Theft of the property of the National
Library and National Museum.
ART. 312. Occupation of real property or usurpation
of real rights in property.
ART. 313. Altering boundaries or landmarks.
ART. 314. Fraudulent insolvency.
ART. 315. Swindling (estafa).
ART. 316. Other forms of swindling.
ART. 317. Swindling a minor.
ART. 318. Other deceits.
ART. 319. Removal, sale or pledge of mortgaged
property.
ART. 320. Destructive arson.
ART. 321. Other forms of arson.
ART. 323. Arson of property of small value.
ART. 324. Crimes involving destruction.
ART. 325. Burning one's own property as means to
commit arson.
ART. 326. Setting fire to property exclusively owned
by the offender.
ART. 327. Who are liable for malicious mischief.
ART. 328. Special cases of malicious mischief.
communication.
34. ART. 331. Destroying or damaging statues, public
and
monuments or paintings.
2nd Element: Act was done with Evil intent
Crimes Against Property under Title 10
It is necessary that the offender be incited with evil
intent.
1. ART. 293. Who are guilty of robbery.
2. ART. 294. Robbery with violence against or
intimidation of persons; Penalties.
3. ART. 295. Robbery with physical injuries,
3rd Element: Accomplishment is inherently Impossible
or means employed is either inadequate or ineffectual;
committed in an uninhabited place and by a band,
or with the use of firearm on a street, road or alley.
Inherent impossibility means that under any and all
circumstance the act will not develop into a crime.
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2 KINDS OF INHERENT IMPOSSIBILITY
committed had the circumstances been as the defendant
believed them to be, it is no defense that in reality the
crime was impossible of commission. Legal
impossibility, on the other hand, is a defense which can
be invoked to avoid criminal liability for an attempt.
1. Legal Impossibility when all intended acts even if
completed would not have amounted to a crime.
ILLUSTRATIONS: Intod vs. Court of Appeals25
(Ibid)
killing a person already dead.
4th Element: Act performed should not constitute a
Violation of another provision of RPC.
X loss his diamond ring. X is envious of the new
diamond ring of B. X knew that B always removes
her ring whenever she wash her hands and so when
B went to the restroom X followed her. Indeed, B
removed her diamond ring and placed it beside the
faucet. Then B went inside the cubicle. X came in
and took the diamond ring. When X saw the
diamond ring, she saw that it was actually her
stolen diamond ring. Her initials where engaged on
the said diamond ring. What crime is committed by
X?
X is liable for an impossible crime. The crime would
have amounted to theft, a crime against property.
The act was done with evil intent. However, the act
did not ripen to theft because of inherent
impossibility, the said happens to be his own ring.
It is a legal impossibility. In theft, it is necessary
that the thing taken must belong to another person
because theft is done with intent to gain.
Otherwise, that person will be liable for that crime and
not of impossible crime. Impossible crime is a crime of
last resort. You only file an impossible crime if the said
act would not result to any other crime punishable
under the RPC.
A wanted to kill B so he looked for the house of B. A
repeatedly fired shots at the room of B, wanting to kill
B. However, B was not inside the room because he was
in another place. What crime if any is committed by A?
In the case of Intod vs. Court of Appeals, they were
convicted of attempted murder up to the CA. But when
the case reached SC, SC said that it is only an
impossible crime and what is present is physical
impossibility.
The act of firing shots in the room of B could have
amounted to murder, a crime against person. It was
done with evil intent, however, the act was not
accomplished because the intended victim was not
inside the room. Extraneous circumstances unknown to
the offender prevented the consummation of the crime.
2. Physical/Factual Impossibility- when an extraneous
circumstances unknown to the offender/beyond the
control
of
the
offender,
prevented
the
consummation of the crime.
X is an employee of ABC Corporation. She was asked to
collect a check from a client and thereafter remit the
said check to ABC Corp. X did as told. However, instead
of remitting the check to the Corp., X deposited the
amount to his own account but the check bounced
because for insufficient funds. The Corporation found
out and filed a case of qualified theft against X. Is X
liable for qualified theft? What crime if any is
committed by X?
In the case of Jacinto vs People26, SC said that she is not
liable of qualified theft. She is liable of an impossible
crime.
ILLUSTRATION: A person placed his hands inside
the bag of another intending to get anything but the
bag was empty. The person who owned the bag
noticed the hand. The person was not able to get
anything from the bag. This is an impossible crime.
A physical impossibility. The act done would have
amounted to theft, it was done with evil intent, but
because of extraneous circumstance unknown to the
offender, the act did not ripen to a crime. Unknown
to the offender, the bag was empty.
NOTE: Factual impossibility of the commission of the
crime is not a defense. If the crime could have been
puts his hand in the coat pocket of another with the intention to steal
the latter’s wallet and finds the pocket empty. (Intod vs. Court of
Appeals, 215 SCRA 52, G.R. No. 103119 October 21, 1992)
26 As may be gleaned from the aforementioned Articles of the Revised
Penal Code, the personal property subject of the theft must have some
value, as the intention of the accused is to gain from the thing stolen.
This is further bolstered by Article 309, where the law provides that
the penalty to be imposed on the accused is dependent on the value of
the thing stolen. In this case, petitioner unlawfully took the postdated
check belonging to Mega Foam, but the same was apparently without
Legal impossibility occurs where the intended acts, even if
completed, would not amount to a crime. Thus: Legal impossibility
would apply 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.
On the other hand, factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. One example is the man who
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All the elements are present. 1st, the acts perform would
have amounted to qualified theft, a crime against
property. 2nd, The act was done with evil intent. 3rd, the
theft was not accomplished because of inherent
impossibility. The check bounced. X was not able to get
the face value of the check. There is physical or factual
impossibility because an extraneous circumstance
unknown to the offender prevented the consummation
of the crime.
ARTICLE 6
2 PHASES IN THE COMMISSION OF THE CRIME
1. Subjective Phase – portion of the commission of the
act wherein the offender commences the
commission of the crime after the time that he has
still control over his acts.
He may or may not proceed in the commission of the
crime. He still has control over his acts.
What about the fact that X took the check? Will that not
amount to qualified theft?
SC said no. The mere act of taking the check without
getting the face value of the check would not amount to
qualified theft because under Art. 308, theft is defined
is the taking of a property of another without the
consent of another and with intent to gain . Therefore,
it is necessary that the thing taken must be of value.
The mere act of taking the check without value will not
amount to theft because the check without value is a
worthless check. Hence, the crime committed is only an
impossible crime.
X wanted to kill B. When he passed by the house of B,
he saw B lying on the bench in the garden of the house.
X entered the house without permission and stabbed B.
Unknown to X, B had long been dead for 2 hrs. What
crime if any is committed by X?
The act of X, stabbing B would have amounted to
murder because B was totally defenseless. It is a crime
against persons. It was done with evil intent. However,
the crime was not accomplished because of inherent
impossibility. It is legal impossibility. B was already
dead when X stabbed him. He did not kill a person n the
eyes of criminal law. X is not criminally liable under the
eyes of the law.
2. Objective Phase – offender has no more control over
his acts. He has already performed all the acts of
execution in the commission of the felony.
NOTE: If the subjective and objective phases are
present, there is consummated felony.
3 STAGES IN THE COMMISSION OF FELONY
1. Attempted – when the offender commences the
commission of a felony directly or over acts, and
does not perform all the acts of execution which
should produce the felony by reason of some cause
or accident other than this own spontaneous
desistance.
2. Frustrated – when the offender performs all the acts
of execution which would produce the felony as a
consequence but which, nevertheless, do not
produce it by reason of causes independent of the
will of the perpetrator.
3. Consummated – when all the elements necessary
for its execution and accomplishment are present.
ATTEMPTED STAGE
In the attempted stage, the offender is still in the
subjective phase of committing the felony. He has still
control over his acts, he merely commences the
commission of the crime. Shall he proceed? Or shall he
stop?
How about the 4th element that the act performed
should not constitute a violation of another provision of
RPC, is the 4th element present?
No. When X entered the house of B without permission,
he in effect committed trespassing. Therefore, instead
of being prosecuted for impossible crime. X should be
prosecuted for Trespass to Dwelling. Impossible crime
is a crime of last resort. You only file an impossible
crime if the said act would not result to any other crime
punishable under the RPC.
If he proceeds he becomes criminally liable. If he
voluntarily desisted he is absolved of criminal liability.
Hence, desistance negates criminal liability in the
attempted stage.
Article 308 of the Revised Penal Code, “there is only one operative act
of execution by the actor involved in theft—the taking of personal
property of another.” Elucidating further, the Court held, thus: x x x
Parsing through the statutory definition of theft under Article 308,
there is one apparent answer provided in the language of the law—
that theft is already “produced” upon the “taking of personal property
of another without the latter’s consent.” (Jacinto vs. People, 592 SCRA
426, G.R. No. 162540 July 13, 2009)
value, as it was subsequently dishonored. Thus, the question arises
on whether the crime of qualified theft was actually produced.
The fact that petitioner was later entrapped receiving the P5,000.00
marked money, which she thought was the cash replacement for the
dishonored check, is of no moment. The Court held in Valenzuela v.
People (525 SCRA 306 [2007]) that under the definition of theft in
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ELEMENTS (ODS)
1. The offender commences the commission of the
felony directly by Overt acts.
2. That offender Does not perform all acts of execution
that would have produced the felony
3. That offender was not able to perform all acts of
execution by reason of some cause or accident other
than his own Spontaneous desistance
guard and everyone came up to her. A case was filed for
attempted rape against the man. Is the man liable as
charged? What crime if any is committed by the said
man?
Unjust vexation. In the case of Baleros Jr. vs. People27,
SC said the overt act of pressing a cloth soaked with
chemical on the face of a woman is not an overt act
directly connected to rape.
1st Element: The offender commences the commission of
the felony directly by Overt acts
The obvious intent was to make the woman unconscious
but once the woman is made unconscious, the man may
rape the woman, may touch the private parts of the
woman, may injure the woman, or kill the woman.
Therefore, he cannot be liable for attempted rape.
Different acts, but not necessarily connected to rape.
Overt Acts are external acts which if allowed to
continue will naturally and logically ripen into a crime.
The phrase “directly by overt acts” means that the
attempted felony that is punished by law is that directly
connected to the overt act performed by the offender
although he has a different crime in mind.
SC said that when the overt act of a person in relation
to his intent or purpose is ambiguous, what we have is
an attempt to commit an indeterminate offense which
has no juridical standing insofar as RPC is concerned.
A wanted to rob the house of B. So he made an opening
on the wall of the house of B sufficient for him to enter.
However, before he was able to enter, the Brgy. Tanod
apprehended him. He was arrested. Is A liable of
attempted robbery? What crime if any is committed by
A? What if in the same problem. A wanting to rob the
house of B secretly and slowly took the jalousies of the
window in the house of B. A was about to enter, passing
through the window when suddenly the Brgy. Tanod
saw him and arrested him. Is A liable of attempted
robbery? What crime if any is committed by A?
Attempted trespass to dwelling.
Accused is liable of unjust vexation. Unjust Vexation
refers to any acts which although incapable of producing
any injury, unjustifiably annoys, vexes, or irritates an
innocent person. The act of pressing a cloth soaked with
chemical on the face of a woman definitely annoyed,
vexed or irritated the said woman. It is a form of light
coercion.
2nd Element: That offender Does not perform all acts of
execution that would have produced the felony.
In both instances, the accused is not liable for attempted
robbery. His real intention is to rob the house of B,
however, although that was his intended crime, the
overt act performed by him which is that of taking the
jalousies of the window and that of making an opening
in the wall of the house is overt act not directly
connected with robbery. These are overt acts directly
connected to trespassing. Hence, A could only be
prosecuted for attempted trespass to dwelling but not
attempted robbery.
3rd Element: That offender was not able to perform all
acts of execution by reason of some cause or accident
other than his own Spontaneous desistance.
X was sleeping inside the room being rented by her.
When suddenly she was awakened by a man pressing a
cloth soaked with chemical on her face. The man was on
top of her. X struggled and was able to kick the man,
the man jumped out of the window. She called on the
What if the father entered the room of the daughter, 8
yrs. old, and he undressed the said girl. Thereafter, he
removed his clothes and placed himself on top of the
girl. He happened to look on the door and saw his only
son peeping. When he saw his son peeping, the father
27 Pounding on the nature of an attempted felony, the Court, speaking
thru Justice Claro M. Recto in People vs. Lamahang, stated that "the
attempt which the Penal Code punishes is that which has a logical
connection to a particular, concrete offense; that which is the
beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation."
Absent the unavoidable connection, like the logical and natural
relation of the cause and its effect, as where the purpose of the
offender in performing an act is not certain, meaning the nature of the
act in relation to its objective is ambiguous, then what obtains is an
attempt to commit an indeterminate offense, which is not a juridical
fact from the standpoint of the Penal Code. (Baleros, Jr. vs. People,
513 SCRA 321, G.R. No. 138033, February 22, 2006)
In order for attempted stage to arise, it is necessary that
the non-consummation of the crime was by reason of
some cause or accident other than the offender’s own
spontaneous desistance. Desistance negates criminal
liability in the attempted stage but not in the frustrated
and consummated stages.
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got off the bed and left the room. What crime if any is
committed by the father?
Attempted rape.
act directly connected to parricide having yet been
committed, the son is not liable of any crime.
In the same problem, the son mixed the poison that he
bought on the juice of the father. So, he prepared a juice
for the father and then he mixed the poison that he
bought and then he gave the glass of juice to the father.
The father was about to drink the said glass of juice
when suddenly, the glass slipped from his hand and so,
it fell on the floor. The father was not able to drink the
juice with poison. Is the said son liable of attempted
parricide?
The son is liable of attempted parricide. The overt act of
mixing the poison with the juice of the father and giving
it to the father for him to drink it are overt acts directly
connected to parricide. However, the son was not able to
consummate the crime. The parricide was not
consummated by reason of a cause other than his own
spontaneous desistance; the glass accidentally fell from
the hand of the father, hence, the son is liable of
attempted parricide.
In the case of People vs. Lizada28, the SC said that the
acts of undressing the girl and placing himself on top of
the said child, are overt acts directly connected with
rape. However, he was not able to perform all the acts
of rape because when he accidentally looked at the door,
he saw the son peeping. That was the reason why the
rape was not consummated. Hence, the crime
committed is attempted rape.
FRUSTRATED STAGE
A felony is frustrated when the offender performs all the
acts of execution which would produce the felony as a
consequence but which nevertheless do not produce it
by reason of causes independent of the will of the
perpetrator.
In the frustrated stage, the offender is already in the
objective phase of committing the felony. He no longer
has control over his acts, he already has performed all
the acts of execution which would produce the felony,
but nevertheless, the felony was not produced by reason
of causes independent of his will.
In the same problem, the son mixed the poison with the
juice of the father, gave it to the father, the father was
about to drink the juice, when suddenly, the son has a
change of heart, the son took the glass of juice and threw
it in the garden. Is the said son liable of attempted
parricide?
The son is not liable of attempted parricide. The acts of
the son of mixing the poison with the juice of the father
and giving it to the father for him to drink it are overt
acts directly connected to parricide. However, he was
ELEMENTS (AP)
1. The offender performs All the acts of execution
which would produce the felony.
2. The felony was not Produced by reason of causes
independent of the will of the perpetrator.
not able to perform all the acts of execution not because
of any cause or accident but because of his own and
voluntary spontaneous desistance. Since he voluntarily
The son wanted to kill his own father? He was mad at
the father, and so, he wanted to kill the father. The son
bought poison from the drugstore. He will poison his
father. He however, revealed his intent to his friend,
and so the friend informed the police and the police and
the friend went to the house of the father and son. When
they arrived at the house of the father and the son, the
son was unwrapping the poison that he bought from the
drugstore. The police arrested the son. Is the son liable
of attempted parricide?
The son is not liable of attempted parricide. The act of
buying the poison, although his intention was to poison
the father, is not an overt act directly connected to
parricide. It is a mere preparatory act. The poison may
be used for other purposes, not purely or not merely to
kill the father. It being a mere preparatory act, no overt
desisted, he incurs no criminal liability. It makes an
absolutory cause in the attempted stage.
In the same problem, the son mixed poison with the
juice of the father thereafter, he gave it to the father.
The father drank the juice thereafter, the father showed
signs of being poisoned. The son took pity on the father
and thereafter administered to him, the antidote. Then
he hurriedly brought his father to the hospital. The
father survived. The doctor said “were it not for the
antidote administered by the son, the father would have
died.” Is the son liable of attempted parricide?
The son is not liable of attempted parricide. Because
when son mixed the poison with the juice, gave the juice
Although accused-appellant desisted from performing all the acts of
execution however his desistance was not spontaneous as he was
impelled to do so only because of the sudden and unexpected arrival
of Rossel. Hence, accused-appellant is guilty only of attempted rape.
(People vs. Lizada, 396 SCRA 62, G.R. Nos. 143468-71 January 24,
2003)
28 In light of the facts established by the prosecution, we believe that
accused-appellant intended to have carnal knowledge of private
complainant. The overt acts of accused-appellant proven by the
prosecution were not mere preparatory acts. By the series of his overt
acts, accused-appellant had commenced the execution of rape which,
if not for his spontaneous desistance, will ripen into the crime of rape.
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with poison to the father and the father drank the same,
the son has already performed all the acts of execution.
It is no longer in the attempted stage because in the
attempted stage, the offender merely commences the
commission of the felony. But here, the son had already
performed all the acts of execution, hence, the son is not
liable of attempted parricide.
done with intent to kill. The wound sustained was not
fatal, it was only on the arm, hence, A is liable only for
attempted homicide.
In the same problem, A, with intent to kill, stabbed B.
The knife pierced through the heart of B. B was brought
to the hospital, due to immediate medical intervention,
although the wound was fatal, B survived, what crime
is committed by A?
A is liable for frustrated homicide. In this case, the
liability of A is for frustrated homicide because the
wound he inflicted on B is a mortal wound, a fatal
wound, sufficient to bring about death but that did not
supervene because of immediate medical intervention.
Is the son liable of frustrated parricide?
When the son mixed the poison with the juice and gave
it to the father and the father drank the same, the son
had already performed all the acts of execution that
would bring about the crime of parricide. However, the
crime was not consummated not because of a cause
independent of the will of the perpetrator, but because
of his own will. He is the one who administered the
antidote. Therefore, the son is not liable of frustrated
parricide because in frustrated parricide, it is necessary
that the reason for the non-consummation of the crime
was a cause independent of the will of the perpetrator .
In this case, the reason for the non-consummation of
parricide was a cause brought about the own will of the
son administering the antidote, hence, the son is not
liable of frustrated parricide.
In the first problem given, the wound inflicted by A on
B was on the arm. It was a non-fatal wound in the first
problem, hence it is attempted homicide. In the second
problem, when A stab B it was the heart that was hit, a
mortal wound. Despite the mortal wound, B survived
because of immediate medical intervention, it is now
frustrated homicide.
In a number of cases, the latest is of People vs.
Labiaga29,the Supreme Court held and ruled that in
case of intentional killing, for it to be considered in the
frustrated stage, it is necessary that the wound inflicted
on the victim is a mortal wound, a fatal wound,
sufficient to bring about death because it is only upon
the infliction of a fatal wound or a mortal wound that it
can be said that the offender has already performed all
the acts of execution that will bring about the
consummation of the crime but even if the offender has
performed all the acts of execution by inflicting a fatal
or mortal wound, he survived because of immediate
medical intervention, a cause independent of the will of
the perpetrator, it is in the frustrated stage.
What crime, if any, is committed by the son?
The son is liable of Physical Injuries. Depending on how
long the father needed medical attendance. If his father
needed medical attendance for a period of 1-9 days, the
son is liable for slight physical injuries. If his father
needed medical attendance for a period of 10-30 days,
the son is liable for less serious physical injuries. If his
father needed medical attendance for a period of more
than 30 days, the son is liable for serious physical
injuries. Not attempted parricide and not frustrated
parricide.
A, with intent to kill, stabbed B. B, evaded the blow so
B, was not killed, what crime, if any, is committed by A?
A is liable for attempted homicide. A’s act of stabbing B
is an overt act directly connected to homicide, however,
he was not able to perform all the acts of execution by
reason of a cause other than this own spontaneous
desistance, that is, B was able to evade the said blow.
If the wound inflicted by the accused on the victim is not
a mortal wound, not a fatal wound, the crime is only in
the attempted stage because the offender has yet to
perform another act that will consummate the crime.
That non-fatal wound is not sufficient to bring about
death hence it cannot be said that the offender has
already performed all the acts of execution that is
necessary to produce the crime.
What if, A, with intent to kill, stabbed B, B was hit on
the arm, what crime, if any, is committed by A?
A is liable also for attempted homicide. In the act of
stabbing B, hitting B on his arm is an overt act directly
related to homicide because the problem says it was
A with intent to kill, took out his pistol, aimed the pistol
at B, and then he pulled the trigger and shot A.
However, no matter how hard he pulled the trigger, no
In frustrated murder, there must be evidence showing that the
wound would have been fatal were it not for timely medical
intervention. If the evidence fails to convince the court that the wound
sustained would have caused the victim’s death without timely
medical attention, the accused should be convicted of attempted
murder and not frustrated murder. (People vs. Labiaga, 701 SCRA
214, G.R. No. 202867 July 15, 2013)
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bullets came out, unknown to him, the gun has no
bullets. What crime is committed by A?
IMPOSSIBLE CRIME
The accomplishment of
the crime is not possible.
The non-accomplishment
of the crime is due to its
inherent impossibility.
A, with intent to kill, aimed the gun at B and pulled the
trigger, however, no bullet came out, the gun jumped.
He had then pulled the trigger a second time, still, the
gun jumped. What crime, if any, is committed by A?
In the first problem, wherein A pulled the trigger and
no bullets came out because the gun, unknown to him,
was empty, it is not loaded, it has no bullets inside. The
crime committed is an impossible crime because under
any and all circumstances an unloaded firearm would
not fire and kill a person, so the crime committed is an
impossible crime.
The act performed by him, pulling the trigger with
intent to kill is an act that would amount to a crime
against persons, homicide. He performed the act with
evil intent however, the act wasn’t accomplished
because of its inherent impossibility. The gun had no
bullets inside, there is physical or factored
impossibility. The act does not constitute a violation of
any other provision, therefore, the crime committed is
an impossible crime.
ATTEMPTED FELONY
The accomplishment of
the crime is possible.
The non-accomplishment
of the crime was due to
some cause or accidents
other than the offender’s
spontaneous desistance.
ATTEMPTED FELONY
all the acts of execution
were not accomplished.
FRUSTRATED FELONY
Crime
was
not
consummated by reason
of a cause or accident
other than the offender’s
spontaneous desistance.
The offender is still at the
subjective
phase
of
committing the crime
The non-commission of a
crime is by reason or
cause
of
an
act
independent of the will of
the perpetrator.
The offender is already at
an objective phase of
committing the crime.
all the acts of execution
had
already
been
accomplished.
What if A raped B, B filed a case of rape against A,
during the trial of the merits of the case, while B was
testifying on cross examination, B admitted that she
was not sure if it was a full or complete penetration.
Because of this testimony, an admission made by B, the
victim, that she was not sure a penetration was
complete, the judge convicted the accused only of
frustrated rape. Is the judge correct?
The judge is wrong. There is no such crime as frustrated
rape.
In the second problem, A, with intent to kill aimed the
gun at B, he pulled the trigger but the bullet did not
come out, the gun jumped, he tried again, for the second
time, still, the gun jumped and so B was not hit, the
crime committed is attempted homicide. The reason is
A’s act of aiming the gun at B with intent to kill pulling
the trigger of the gun are overt acts directly connected
to homicide, however, he was not able to perform all the
acts of execution that will bring about homicide, because
it was purely accidental that the gun jumped.
In the cases of People vs. Quińanola30 and People vs.
Morante, the Supreme Court said that it is settled in
jurisprudence that there is no such thing as frustrated
rape. Rape admits only of two stages, attempted and
consummated. There is no frustrated rape because
under Article 266-A, rape, as it has been defined as,
when a man has carnal knowledge with a woman
against her will. The law uses the term carnal
knowledge, not sexual intercourse, therefore, it suffices
Let it be said once again that, as the Revised Penal Code presently
so stands, there is no such crime as frustrated rape. In People vs.
Orita, the Court has explicitly pronounced. Clearly, in the crime of
rape, from the moment the offender has carnal knowledge of his
victim, he actually attains his purpose and, from that moment also all
the essential elements of the offense have been accomplished. Nothing
more is left to be done by the offender, because he has performed the
last act necessary to produce the crime. Thus, the felony is
consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527;
People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule
that for the consummation of rape, perfect penetration is not
essential. Any penetration of the female organ by the male organ is
sufficient. Entry of the labia or lips of the female organ, without
rupture of the hymen or laceration of the vagina is sufficient to
warrant conviction. Necessarily, rape is attempted if there is no
penetration of the female organ (People vs. Tayaba, 62 Phil. 559;
People vs. Rabadan, et al., 53 Phil. 694; United States vs. Garcia, 9
Phil. 434) because not all acts of execution was performed. The
offender merely commenced the commission of a felony directly by
overt acts. Taking into account the nature, elements and manner of
execution of the crime of rape and jurisprudence on the matter, it is
hardly conceivable how the frustrated stage in rape can ever be
committed. (People vs. Quiñanola, 306 SCRA 710, G.R. No. 126148
May 5, 1999)
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that the penis has touched the lips or labia of the
pudendum of a woman’s genital. It is not necessary that
there be complete penetration, it is not necessary that
there be hymenal laceration, the slightest penetration
of the penis of the woman’s genitalia will already
consummate the crime of rape. The law does not require
sexual intercourse but only carnal knowledge.
How then, will it be attempted rape? How then will it
be acts of lasciviousness?
A. If when the penis touched the outer surface of the
woman’s genitalia based on the acts of the man,
there was intent to lie, intent to have carnal
knowledge with the said woman then the crime
committed is attempted rape.
B. If the penis touched the outer surface of the
woman’s genitalia based on the acts of the man,
there was no intent to lie, no intent to have carnal
knowledge of the woman, the crime committed is
only acts of lasciviousness.
In the case of People vs. Christopher Pareja31, the
Supreme Court said that it is settled in jurisprudence
that the slightest penile penetration consummates the
crime of rape.
Applying this in the case of People v. Christopher
Pareja, the Supreme Court said, the acts of the accused,
entering the room of the girl, undressing the girl,
undressing himself, touching the private parts of the
girl, and trying to insert his penis into the genitalia of
the girl, these are acts that prove that the said man has
an intent to lie with the said girl. As such, the SC held
the accused liable for attempted rape.
When is there slightest penile penetration?
There is the slightest penile penetration the moment
the penis touches the lips or labia of the pudendum of
the woman’s genitalia. So, penetration is required, but
complete penetration is not required because the
slightest penile penetration already consummates the
crime of rape.
X was sleeping, she was 13 years of age, then suddenly
here comes Y, Y went inside the bedroom and undressed
X. X tried to stop Y but Y was so strong, X was crying,
then Y undressed himself and placed himself on top of
X, and covered X with a blanket, however, the cries of X
became louder and louder such that Y left the room with
the warning not to tell anyone what had been done. A
case of rape was filed against Y, Is Y liable of rape?
What crime, if any is committed by Y?
In the case of People v. Christopher Pareja, both the
RTC and the CA, based on the said facts convicted the
said accused of the crime of rape but when the case
reached the Supreme Court, SC said that the crime
committed by Y is not rape but only attempted rape. The
SC noticed that based on the evidence presented on the
sworn statement of the girl, she said, the penis of the
accused naidikit to her genitalia. The same words were
used by the girl in her open court testimony. The penis
of the accused, naidikit on her genitalia. The SC said
that when you say “naidikit,” the penis merely touched
the woman’s genitalia. When what the penis has
touched is the outer surface of a woman’s genitalia,
there was yet no penetration, no slightest penetration,
hence it cannot be consummated rape. It can either be
attempted rape or acts of lasciviousness.
So, to summarize, the slightest penile penetration
already consummates the crime of rape.
When is there slightest penetration?
When the penis touches the lips or labia of the
pudendum of the woman’s genitalia.
When what the penis has merely touched the outer
surface of the woman’s genitalia, the crime could either
be attempted rape or acts of lasciviousness.
A. It is attempted rape if there was intent to lie based
on the acts of the man.
B. It is acts of lasciviousness if there is no intent to lie
based on the acts of the said man.
Is there such a crime as frustrated theft?
There is no such crime as frustrated theft. As held by
the Supreme Court in the cases of Valenzuela vs.
People32, there’s no such crime as frustrated theft
because theft, according to the SC based on Article 308
is defined as a taking with intent to gain of any personal
property belonging to another without consent of the
owner or without violence or intimidation against
persons or force upon things.
however slight, of the victim’s labias. In the absence of testimonial or
physical evidence to establish penile penetration, the appellant
cannot be convicted of consummated rape. (People vs. Pareja, 680
SCRA 198, G.R. No. 188979 September 5, 2012)
32 There would be all but certain unanimity in the position that
“in theft or robbery the crime is consummated after the accused had
material possession of the thing with intent to appropriate the same,
although his act of making use of the thing was frustrated.”
(Valenzuela vs. People, 525 SCRA 306, G.R. No. 160188 June 21,
2007)
31Simply
put, “rape is consummated by the slightest penile
penetration of the labia majora or pudendum of the female organ.”
Without any showing of such penetration, there can be no
consummated rape; at most, it can only be attempted rape [or] acts of
lasciviousness.” As earlier discussed, the prosecution failed to present
sufficient and convincing evidence to establish the required penile
penetration. AAA’s testimony did not establish that the appellant’s
penis touched the labias or slid into her private part. Aside from
AAA’s testimony, no other evidence on record, such as a medico-legal
report, could confirm whether there indeed had been penetration,
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From its very definition, unlawful taking is the only
operative act necessary to consummate the crime of
theft. If unlawful taking is complete, theft is
consummated. Unlawful taking is deemed complete the
moment the offender gains possession of the personal
property of another even if he has not yet disposed the
said property, even if he has no opportunity to dispose
the same.
taking is already complete because the man has already
gained possession of this property of the said
department store. Even if he has not yet left the store
premises, unlawful taking is complete because he
already gained possession of the personal property of
another even if he has no opportunity to dispose of the
same.
X was seated on the jeepney. He has a big bag. Suddenly
he felt that his bag was becoming heavy and then he felt
something inside the bag and so he looked inside the
bag and there it was, he found the hand of the passenger
seated next to him. The said passenger was not able to
take the cellphone inside his bag because he timely
discovered the hand of the said passenger. The said
passenger was brought to the PNP Station, what crime
if any is committed by the said fellow passenger?
He is liable for attempted theft. The act of the passenger
of putting his hand inside the said bag intending to get
something from the said bag is an overt act directly
connected to theft. However, he was not able to perform
all the acts of execution because it was purely accidental
or because of a cause that the said owner was timely
able to discover the said hand inside his bag. Hence, it
is attempted theft. So, there is no circumstance wherein
theft would be in the frustrated stage.
In the case of Valenzuela vs. People, the accused took
boxes of detergents from the supermarket and loaded
the same in the trunk of the car. The security guard
however took notice of the said man and suspected him.
Indeed it was found out that the said boxes of detergents
had no receipt. A case of theft was filed against
Valenzuela and his company. Convicted, and he
appealed.
In his appeal, he did not deny having taken the boxes of
detergents but he contended that he should only be
liable of frustrated theft not consummated theft because
according to him, he had not yet left the premises of the
said supermarket. Therefore, it should only be in the
frustrated stage.
In this 2007 case of Valenzuela v. People, the SC made
a landmark ruling that theft has no frustrated stage.
There is no such crime as frustrated theft. With the
same reasoning given earlier; under Article 308, theft is
the unlawful taking of the property of another with
intent to gain. The moment the offender has unlawful
taking of the personal property of another, theft is
already consummated. Unlawful taking is complete the
moment the offender gains possession of the personal
property of another even if he has no opportunity to
dispose of the same.
Is there such a crime as attempted impossible crime?
There is no such crime as attempted impossible crime
because impossible crime, in reality, there is no crime
committed because impossible crime is the only crime
imposed on an offender whose acts did not perfect into
a crime because of its inherent impossibility but because
of his criminal tendency, he is being punished for an
impossible crime.
In impossible crimes, the offender has already
performed all the acts of execution; consummated, but
even if consummated, the act or the crime did not ripen
because of its inherent impossibility. Hence, there
cannot be a frustrated stage in an impossible crime.
A man entered the department store, then he took 5 Tshirts and he told the sales lady that he is going to fit
them. In the fitting room and so he was allowed to go
inside the fitting room. The man took of his jacket and
thereafter fitted the said T-shirts and below, he wore
the said t-shirts. 1st, 2nd, 3rd, 4th and 5th t-shirt, he placed
them all. He placed them all inside his body and then
thereafter, he covered the t-shirts with his jacket. After
putting on his 5 t-shirts on his body, he put on his jacket
and then he started to leave. However, as he passed by
the door of the said store, an electronic device sounded
which means that there was something in him that has
not yet been paid in the cashier and the five t-shirts on
his body were indeed found. What crime is committed
by the said man?
The man is liable for consummated theft. The moment
the man took the same, fitted the same, put on the tshirts on his body and tried to leave, the said unlawful
Is there such a crime as frustrated adultery? Is there
such a crime as frustrated false testimony? Is there such
a crime as frustrated slander? Is there such a crime as
frustrated physical injuries?
There are no frustrated physical injuries, no frustrated
slander, no frustrated false testimony, no frustrated
adultery. The reason is that these are all crimes based
on consequence, based on result, not based on tendency.
These are crimes which are consummated upon the
actual performance of the act. They are considered as
formal crimes.
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Formal crimes are crimes which do not admit stages.
Formal crimes are based on consequence, based on
result, not based on tendency. Hence, there are no
attempted or frustrated stages in formal crimes but only
consummated stages.
A conspiracy exists when two or more persons come to
an agreement concerning a commission of a felony and
they decide to commit it.
If the crime admits stages, attempted, frustrated,
consummated, or attempted and consummated, they
are called as Material crimes.
There is proposal to commit felony when the offender
who has decided to commit a felony proposes its
execution to some other person.
Crimes which do not admit of a frustrated stage
1. Rape – the gravamen of the offense is carnal
knowledge, hence, the slightest penetration to the
female organ consummates the felony.
2. Corruption of public officers – mere offer
consummates the crime.
3. Physical injury – consummated at the instance the
injuries are inflicted.
4. Adultery – the essence of the crime is sexual
congress.
5. Theft – the essence of the crime is the possession of
the thing, once the thing has been taken or in the
possession of the person, the crime is consummated.
Conspiracy is a bilateral act. It requires agreement
involving two or more persons, on the other hand,
proposal to commit a felony is only a unilateral act. Only
one person who has decided to commit the crime
proposes its execution to another person. If that other
person whom the proposal is given agreed to the said
proposal, we no longer have a proposal to commit a
crime, instead, what we have now is a conspiracy to
commit a crime.
ARTICLE 8
As a rule, conspiracy and proposal to commit a felony
are not punishable acts because they are mere
preparatory acts; exception to the rule, when the law
specially provides a penalty therefore.
CONSUMMATED STAGE
A crime is consummated when all the elements
necessary for its execution and accomplishment are
present.
So as a rule, the conspiracy to commit a crime is not a
punishable act because it is a mere preparatory act;
exception to the rule, as provided by article 8 first
paragraph, conspiracy to commit a crime shall be
punishable only when the law especially provides a
penalty therefore. Therefore, there are two concepts of
conspiracy; one, conspiracy as a crime by itself and the
other one, conspiracy as a means of committing a crime.
Instances wherein the stages of a crime will not apply
1. Offenses punishable by Special Penal Laws, unless
otherwise provided for;
2. Formal crimes (e.g., slander, adultery, etc.);
3. Impossible crimes;
4. Crimes consummated by mere attempt (e.g.,
attempt to flee to an enemy country, treason,
corruption of minors);
5. Felonies by omission; and
6. Crimes committed by mere agreement (e.g., betting
in sports, corruption of public officers).
CONSPIRACY AS A CRIME BY ITSELF
When conspiracy is a crime by itself, the mere act of
conspiring makes the conspirator criminally liable.
They need not perform an overt act to commit the crime.
They need not perform an overt act to become criminally
liable. For merely conspiring, they are already
criminally liable. That is conspiracy as a crime by itself.
ARTICLE 7
CONSPIRACY AS A MEANS OF
COMMITTING A CRIME
The other form of conspiracy, the other concept is
conspiracy as a means in the commission of the crime.
If conspiracy is only a means in the commission of the
crime, before the persons who come out with the crime
become criminally liable as conspirator, they must first
perform an overt act. Mere agreement will not suffice,
an overt act must be performed.
Under Article 7 of the Revised Penal Code, we have, as
a rule, light felonies can only be penalized in their
consummated stage. Exception to the rule, light felonies
against persons, light felonies against property, even in
the attempted or frustrated stages, the offender already
incurs criminal liability.
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A, B and C conspired to commit rebellion against a
government. They were arrested. They were charged of
conspiracy to commit rebellion. Are they liable as
charged?
They are liable as charged because conspiracy to commit
rebellion is a crime by itself. It is punished under Article
136. Just by the mere act of conspiring, they are already
criminally liable. Conspiracy to commit rebellion is a
crime by itself. No overt act need to be performed by
them in order that they be held criminally liable.
they failed to appear at the scene of the crime or even if
they appeared at the scene of the crime, they performed
acts to prevent the consummation of the crime, they are
not considered as conspirators.
A, B and C conspired to commit robbery. After they have
come out with the agreement the police arrested them.
Are they liable for conspiracy to commit robbery?
They are not liable for conspiracy to commit robbery.
Their conspiracy, their act of planning to commit
robbery is only a preparatory act. The conspiracy here
is only a means to commit the crime. It is not a crime by
itself, there is no such crime as conspiracy to commit
robbery. Hence, the offenders are not yet criminally
liable. For them to be liable, it is necessary that they
must perform an overt act relating to robbery for at
least; they will be liable for attempted robbery.
A, B and C agreed and decided to injure X. They found
X so rude and boastful and therefore, to humble X, they
decided to injure him and so, A, B and C encircled X and
all of them simultaneously and repeatedly boxed X and
kicked X until X fell on the ground. When they saw that
X had already been hurt, A and B left but C saw that
when X fell on the ground, his cellphone also fell on the
ground and so before leaving, C also took the cellphone
of X. What crime or crimes is/are committed by A, B and
C?
A, B and C are all criminally liable as conspirators for
the crime of physical injuries, they agreed to injure X
and they actually committed the said act.
In case of direct or express conspiracy, as a rule, the
conspirators are liable only for the crime agreed upon.
They are not liable for any crime which has not been
part of the agreement, so they are liable only as a rule
for the crime agreed upon.
2 KINDS OF CONSPIRACY AS A MEANS OF
COMMITTING A CRIME
1. Direct or Express Conspiracy
2. Implied or Inferred Conspiracy.
In addition, C would be liable for theft because when X
fell on the ground and his cellphone also fell on the
ground, C took the said cellphone. The act of taking was
not part of the agreement. The agreement of A, B and C
was only to injure X, hence, only C will be held liable for
the crime of theft.
There is direct or express conspiracy when the offenders
planned, meet and agreed to commit a crime. Direct or
express conspiracy is a conspiracy based on a preconceived plan or agreement. The conspirators met,
they planned, agreed and decide to commit the crime; it
is direct or express conspiracy. For the mere act of
conspiring, they are already considered as conspirators,
but they are not yet liable because they are merely
performing a preparatory act. But the moment any one
of them performs an overt act relative to the crime
agreed upon, all of them will become criminally liable
because they are part of the conspiracy.
So, as a rule, in case of direct or express conspiracy, the
conspirators are liable only for the crime agreed upon.
They are not liable for any other crime for any other
crime which is not part of agreement.
There are, however, exceptions to the rule. The
following are the exceptions:
1. When the other crime was committed in the
presence of the other conspirators who did not
prevent its commission.
2. When the other crime was the necessary
consequence of the crime agreed upon.
3. When the resulting crime is a special complex crime
or a composite crime or a single indivisible offense.
All of them will become criminally liable except:
1. A conspirator who, although part of the agreement,
failed to appear at the scene of the crime, his nonappearance shall be construed by law as resistance
and
2. A conspirator who although part of the agreement
and appeared at the scene of the crime performed
acts to prevent others from consummating the
crime.
In these 3 instances, although the other crime was not
part of the agreement, all conspirators will be liable for
the said crime.
A, B and C decided to injure X, their purpose was to
humble X because X was so rude and boastful and so
they encircled X and thereafter they pulled him, kicked
These 2 persons although they are part of the
agreement, although they are part of conspiracy, since
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All of them are liable for the special complex crime of
robbery with homicide under Article 294. Since the
resulting felony is a special complex crime, all of them
will be criminally liable of the said special complex
crime because the said crime cannot be separated.
Therefore, even if the crime agreed upon was only
robbery, and even if it was only A who stabbed the
victim, all of them would be liable for the special
complex crime of robbery with homicide because the
homicide occurred by reason or on the occasion of the
said robbery.
him and boxed him until X fell on the ground. While X
was laying on the ground, his wallet fell from his pocket
as well as his cellphone. C saw the wallet and the
cellphone and so, A and B were about to leave when C
told A and B, “wait, there’s the cellphone, there’s the
wallet.” So A and B stopped and they saw C taking the
said wallet and then A told C “what about the necklace?
What about the watch?” and so C also took the watch
and the necklace. What crime/s is/are committed by A,
B and C?
A, B and C are all criminally liable for physical injuries,
that is the crime agreed upon, to injure X. In addition,
A, B and C would also be criminally liable as
conspirators for the crime of theft because when C took
the cellphone, the wallet and the necklace, it was done
in the presence of A and B who did not perform acts to
prevent its commission.
So these are the 3 instances wherein the conspirators
become criminally liable for the other crime committed
although not part of the agreement. Again, these are the
exceptions to the rule because the general rule is the
conspirators are criminally liable only for the crime
agreed upon.
Here, although theft was not a crime agreed upon, since
its commission was done in the presence of A and B and
they did not perform acts to prevent it, but they even
encouraged it and prompted to it, they also become
conspirators in the crime of theft.
In case of direct or express conspiracy, for one to be
liable as a conspirator, aside from being part of the
agreement, he must appear at the scene of the crime
and he must perform acts showing his support in the
commission of the crime. However, in case of direct or
express conspiracy, since it is a conspiracy based on a
preconceived plan, the act performed by one of the
conspirator may either be a direct or indirect
participation in the commission of the crime. He may
not only participate in doing the criminal act, or he may
merely be present at the scene of the crime, giving moral
support or giving moral ascendancy, that would suffice.
Since he was part of the agreement, he is a conspirator.
A, B and C decided to injure X so they all boxed and
kicked X. X was lying on the ground, A, B and C
continuously beat X until C kicked the neck of X, a fatal
blow. X was brought to the hospital, X died. What
crime/s is/are committed by A, B and C?
Since X died, A, B and C would all be held criminally
liable for murder. Although the crime agreed upon was
only physical injuries, that is to injure X, although the
crime agreed upon was only physical injuries, since the
death of the said victim, the murder of the victim was
the necessary consequence of the said plan to injure the
victim, all of them will become criminally liable as
conspirators for the crime of murder.
In case of implied or inferred conspiracy, it is a
conspiracy which is deduced from the mode and manner
of committing the crime. Implied or inferred conspiracy,
the conspirators acted simultaneously, in a
synchronized and coordinated manner, their acts
complimenting one another towards a common criminal
design, towards a common criminal objective. In implied
or inferred conspiracy there is no prior agreement.
There is no preconceived plan, it may happen that the
conspirators only knew it in that instant, yet, a
conspiracy was established instantly, impulsively, at
the start of the moment, based on the turn of events, it
is a conspiracy that sprung out of the turn of events
because the acts of the conspirators show that they have
the same criminal intent.
A, B and C decided to take the wallet of X. X was
withdrawing from the ATM machine, A, B and C were
watching X. They saw X place the money inside the
wallet. So, when X was already walking on the street A,
B and C encircled X. A, B and C told X to give to them
the wallet and a knife was pointed at X. So, a knife was
pointed at X and A, B and C told X to give to them the
wallet but X would not want to give to them the wallet.
X put up a fight and so, A stabbed the victim, thereafter
B took the wallet and A, B and C scampered away. X
died. What crime/s is/are committed by the said accused
A, B and C?
The conspiracy was to commit robbery. To rob the wallet
of the said victim, X but in the course of the said
robbery, the said victim was killed by reason or on
occasion of the said robbery, the victim was killed, a
homicide was committed.
Since implied or inferred conspiracy is a conspiracy
which is deduced from the mode and manner of
committing the crime, for one to be liable as a
conspirator, it is necessary that he must actively
participate in the commission of the crime.
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In case of implied or inferred conspiracy, mere approval
to the commission of the crime, mere knowledge of the
commission of the crime, mere acquiescence to the
commission of the crime will not make a conspirator
liable. Absent any active participation in the
commission of the crime conspiracy will not exist.
If, however, conspiracy is not established, each
perpetrators would be liable individually depending on
their participation in the commission of the crime.
The moment conspiracy is established, you do not ask
who inflicted the fatal blow? Who performed a mere
minor act? They being conspirators, their liability would
be the same and one. The act of one is the act of all.
The police officers got a tip that there was a shabu
session ongoing in the house of X. So, the police officers
went to this said place, upon arrival in the place, they
announced their presence. When X learned of the
presence of the police officers, at that time, X, Y and Z
were indeed engaged in a shabu session. When X heard
the police, X suddenly shut the door. When X shut the
door, 2 police officers entered inside, the moment the
two police officers opened the door and entered inside,
Y repeatedly shot at the two police officers who both fell
on the floor, lifeless. They were not able to return the
shots. The third police officer also opened the door and
Y also fired at the two police officers. The third police
officer fell on the floor but he’s still alive and so Z
ordered X to finish the third police office but before X
could finish the third police officer, reinforcement
arrived and X, Y and Z were all arrested. X, Y and Z
were prosecuted for two counts of murder and 1 count
of frustrated murder as conspirators. Two counts of
murder for the death of the two police officers and one
count of frustrated murder for the fatal wound inflicted
on the third police officer. X contented that he is not
liable as a conspirator because his only participation in
the commission of the crime was to shut the door. On
the other hand, Y also said that he is not liable as
conspirator for the crime of murder because his only
participation was to order X to finish the 3rd police
officer but X wasn’t able to do so. It was only Y according
to them who should be held criminally liable because it
was only Y who fired at the victim. Are X, Y and Z
criminally liable for 2 counts of murder and 1 count of
frustrated murder?
As held by the Supreme Court in the case of People v.
Carandang, Milan & Chua33, all of them are criminally
liable for 2 counts of murder and 1 count of frustrated
murder. A conspiracy existed among X, Y and Z. The
SC said “it is settled in jurisprudence in the case of
People v. Garchitorena34, to establish conspiracy, direct
evidence is not necessary.” Direct proof is not necessary
To summarize, Milan’s and Chua’s arguments focus on the lack of
direct evidence showing that they conspired with Carandang during
the latter’s act of shooting the three victims. However, as we have held
in People v. Sumalpong, 284 SCRA 464 (1998), conspiracy may also be
proven by other means: Conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony and
decide to commit it. Evidence need not establish the actual agreement
among the conspirators showing a preconceived plan or motive for the
commission of the crime. Proof of concerted action before, during and
after the crime, which demonstrates their unity of design and
objective, is sufficient. When conspiracy is established, the act of one
is the act of all regardless of the degree of participation of each.
(People vs. Milan, 653 SCRA 607, G.R. No. 175926 July 6, 2011)
Accused-appellant Garcia also argues that there was no conspiracy,
as “there was no evidence whatsoever that he aided the other two
accused-appellants or that he participated in their criminal designs.”
We are not persuaded. In People v. Maldo, 307 SCRA 436 (1999) we
stated: “Conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it. Direct proof is not essential, for conspiracy may be inferred
from the acts of the accused prior to, during or subsequent to the
incident. Such acts must point to a joint purpose, concert of action or
community of interest. Hence, the victim need not be actually hit by
each of the conspirators for the act of one of them is deemed the act of
all.” (People vs. Gatchitorena, 597 SCRA 420, G.R. No. 175605 August
28, 2009)
A and B were having an argument thereafter, so pissed
off, A took out a knife and he tried to stab B however, B
evaded the blows. Here comes X, X passing by saw the
situation X saw that A was trying to stab B but couldn’t
do so because B evaded the blows. So what X did, he
went at the back of B held both hands of B at the back,
as a result, A was able to stab B repeatedly until B died.
Is X a conspirator of A in the crime?
X is a conspirator of A. There was no preconceived plan,
no prior agreement made between A and X, the
conspiracy was established at the spur of the moment.
X’s act of placing himself at the back of B, holding the
hands of B at the back which allowed A to continuously
stab B are direct and positive overt acts that shows that
he has the same criminal intent as that of A which is to
kill B and so, an implied conspiracy was impulsively,
instantly established between A and X.
This is an example of an implied or inferred conspiracy.
Whatever be the kind of conspiracy, whether it is direct
or express conspiracy or implied or inferred conspiracy,
the moment conspiracy is established, the act of one is
the act of all. What does it mean?
The act of one is the act of all means that the moment
conspiracy is established, all perpetrators are punished
to the same effect. The moment conspiracy is
established, all perpetrators are punished to the same
criminal liability imposed by the same penalty
regardless of the quantity or quality of participation in
the crime.
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him “Tara na, tayo na, patay na.” Thereafter, both of
them left.
to establish conspiracy because conspiracy can be
established by the acts of the accused immediately,
prior to, during and after the commission of the crime.
They were later arrested, both Michael Bokingco and
Reynante Kol were arrested and they were prosecuted
for the crime of murder and for the death of Noli Pasion.
Both of them were convicted by the RTC, conviction was
affirmed by the CA. When the case reached the
Supreme Court, the Supreme Court convicted accused
Michael Bokingco for homicide for killing Noli Pasion
but acquitted accused Reynante Kol. The Supreme
Court said that there was no conspiracy between the
two accused. What was present in the evidence is that
at the time accused Bokingco was killing the victim at
the apartment, another crime was being committed by
accused Reynante Kol inside the house. There was no
showing that Reynante was part of the killing. There
was no showing that Reynante Kol knew about the said
killing before he was informed by accused Bokingco as
such, conspiracy not being established, the Supreme
Court said that their liabilities would be individual in
nature.
Applying this case, the SC said that the act of X of
shutting the door, gave Y the opportunity to wait in
anguish for the 2 police officers. Hence, when the 2
police officers entered, Y was able to fire at them
without the police officers being able to return their
shots. The act of Z on the other hand showed that he has
moral ascendancy over the others, as such, from their
acts, it can be established that a conspiracy existed in
particular, there was a preconceived plan among the 3
of them. Hence, they are all criminally liable.
The prosecution said that since Z ordered X to finish the
3rd officer and X followed, Z should be liable as a
principal by inducement. The Supreme Court said since
they’re all liable as conspirators, all of them are
considered as principals by direct participation in the
commission of the crime.
As I said, in case of conspiracy, the act of one is the act
of all if it is established but if it is not established, the
liabilities of the offenders would depend on the act that
they had actually committed in the commission of the
crime.
Since the crime charged was homicide, only accused
Bokingco would be held liable. Accused Reynante Kol
would not be held liable because the crime that he
committed was attempted robbery and the crime
charged was homicide. Hence, there was an acquittal
insofar as Reynante Kol is concerned.
In the case of People v. Michael Bokingco and Reynante
Col35, the Supreme Court said that the offenders are not
criminally liable for the crime of homicide. So what
happened in this case?
The accused went to the apartment, when the said
accused went to the apartment, a noise was heard and
so the witness went to the said apartment and he looked
through the screen of the window. As he was looking at
the screen of the window, he saw the said accused,
Michael Bokingco hitting something on the ground.
Thereafter, it was discovered that the said man was the
victim, Noli Pasion. At the time of the said incident,
when Michael Bokingco was killing the victim Noli
Pasion in the said apartment, his other co-accused,
Reynante Col, was inside the house of the victim Noli
Pasion and this time, he was asking the wife, Elsa
Pasion, to open the vault of the house. He held the hair
of the woman and forcibly asked the woman open the
vault. However, before the woman was able to open the
vault, Michael Bokingco called on Reynante Col and told
In conspiracy, if it is not established, the liability of the
perpetrators of the crime would be individual in nature.
The father waited for X. The father was mad at X and
so he waited for X. Upon seeing X, the father boxed and
boxed X. The son of the father A, saw the father boxing
X and so the son A, joined the father in boxing X. X was
now on the ground and both his father and A boxed X.
Thereafter, the father and the son A left. At the precise
moment the father and A left, here comes B, the other
son of the father. B went to X who was about to stand
up from the ground and B stabbed twice the stomach of
X. X died. The father, son A and son B were all arrested
and prosecuted for homicide as conspirators. Is there
conspiracy? What crime, if any is/are committed by the
father, son A and son B?
There was conspiracy insofar as the father and son A
are concerned. When the father was hitting and boxing
equated to attempted robbery. The fact that Elsa heard Bokingco call
out to Col that Pasion had been killed and that they had to leave the
place does not prove that they acted in concert towards the
consummation of the crime. It only proves, at best, that there were
two crimes committed simultaneously and they were united in their
efforts to escape from the crimes they separately committed. (People
v Bokingco and Col, G.R. No. 187536, August 10, 2011)
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Conspiracy exists when two or more persons come to an agreement
to commit an unlawful act. Unity of purpose and unity in the
execution of the unlawful objective are essential to establish the
existence of conspiracy. In the instant case, Bokingco had already
killed Pasion even before he sought Col. Their moves were not
coordinated because while Bokingco was killing Pasion, Col was
attempting to rob the pawnshop. At the most, Col’s actuations can be
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the victim, the son saw the same and the son joined the
father in hitting and beating the said victim. There was
an implied conspiracy at the spur of the moment. Their
acts showed by the same intent they have to injure the
victim. Hence, there was a conspiracy between the
father and the first son A.
ARTICLE 11
Justifying circumstances are those circumstances
which, if present in the commission of the crime, the
offender is said to have acted within the bounds of the
law. The offender is said not to have transgressed the
law. Hence, there is no crime committed, there is no
criminal liability and there is also no civil liability.
However, insofar as son B is concerned, there was no
conspiracy together with the father. The act of son B
was individual in nature. The intent of the father and
son A was only to injure the victim but the intent of son
B was to kill the victim. No conspiracy was established
insofar as son B is concerned. In this case, the liability
of the second son B would be individual in nature. The
father and the first son A would be liable physical
injuries as conspirators while the second son B would be
liable for homicide since the liability of son B is different
from that of the father and Son A.
Justifying Circumstances or the presence of justifying
such is both an admission and avoidance. If the accused
invoked any of the justifying circumstances under
Article 11, he is in effect, admitting the commission of
the crime but at the same time, avoiding the criminal
liability thereof.
So, justifying circumstances show both admission and
avoidance. If a person accused of a crime invokes any of
the justifying circumstances, he admits the commission
of the crime but he avoids responsibility thereof.
ARTICLE 9
Therefore, the burden of evidence now is on him, to
prove the justifying circumstance that he is invoking.
The moment an accused invoked any of the justifying
circumstances under Article 11, trial will be inverted, it
is the defense that must present first the evidence to
prove the elements of the justifying circumstance that
the accused is invoking. Otherwise, it would be a
conviction.
Under Article 9, how are felonies classified according to
severity?
According to severity felonies are classified into grave,
less grave and light felonies.
Grave felonies are those to which the law attaches the
1. capital punishment or
2. penalties which in any of their periods are
afflictive, in accordance with Art. 25 of this
Code.
A was charged with homicide. During arraignment, he
pleaded not guilty. The judge asked the counsel,
“Counsel, what is your defense?” the counsel said “Selfdefense your honor.” The moment the judge learned
that the defense of the said accused would be selfdefense, trial will be inverted.
Less grave felonies are those which the law punishes
with penalties which in their maximum period are
correctional, in accordance with the abovementioned
Article.
In regular trial, it is the prosecution that must first
present the evidence to prove the guilt of the accused
beyond reasonable doubt but, if the justifying
circumstance is invoked, the judge will require the
defense to first present its evidence. The defense has the
burden of proving the justifying circumstance that he is
invoking. If the defense failed to prove the justifying
circumstance that he is invoking, definitely, there is
conviction, because in effect, the accused already
admitted the commission of the crime.
Light felonies are those infractions of law for the
commission of which the penalty of
1. arresto menor or
2. a fine not exceeding 200 pesos or
3. both, is provided.
CHAPTER TWO
Justifying Circumstances and Circumstances
which Exempt from Criminal Liability
There are different circumstances affecting the criminal
liability of the offender and these different
circumstances affecting the criminal liability of the
offender include justifying, exempting, mitigating and
aggravating circumstances.
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Under Article 11 the following do not incur any criminal
liability:
victim put in real peril the life or personal safety of the
person defending himself; the peril must not be an
imagined or imaginary threat.
1. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means
employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of
the person defending himself.
TWO KINDS OF UNLAWFUL AGGRESSION
1. Actual or Material Unlawful Aggression
Actual or material unlawful aggression means an
attack with physical force or with a weapon, an
offensive act that positively determines the intent of
the aggressor to cause the injury.
2. Imminent Unlawful Aggression.
Imminent unlawful aggression means an attack
that is impending or at the point of happening; it
must not consist in a mere threatening attitude, nor
must it be merely imaginary, but must be offensive
and positively strong (like aiming a revolver at
another with intent to shoot or opening a knife and
making a motion as if to attack).
This is otherwise known as self-defense. Self-defense
does not only include defense of one’s life and limb. Selfdefense also include defense of one’s honor and chastity,
it also includes defense of one’s property if coupled by
an attack on the person entrusted with the said
property.
ELEMENTS OF SELF-DEFENSE (URL)
1. Unlawful aggression.
2. Reasonable necessity of the means employed to
prevent or repel it.
3. Lack of sufficient provocation on the part of the
person defending himself.
Imminent unlawful aggression must not be a mere
threatening attitude of the victim, such as pressing
his right hand to his hip where a revolver was
holstered, accompanied by an angry countenance, or
like aiming to throw a pot. (Ibid)
1ST ELEMENT: The first element of self-defense is
unlawful aggression. The unlawful aggression must
come from the victim. In the case of People v.
Fontanilla36, the Supreme Court said that unlawful
aggression is the primordial element in self-defense
because without unlawful aggression, there is nothing
to repel; hence, self-defense will not lie.
It is necessary that there must be an unlawful
aggression coming from the victim.
2nd ELEMENT: The second element of self-defense is
reasonable necessity of the means employed to prevent
or repel the unlawful aggression.
What is unlawful aggression?
Unlawful Aggression refers to any act done or material
attack that places the life and limb of the person
defending himself in actual or imminent danger.
When you say reasonably necessary, it doesn’t mean
perfect equality of weapon, it doesn’t mean that if the
unlawful aggressor is using a knife, the person
defending himself must also use a knife. It suffices that
the means used by the offender, by the accused or the
person defending himself; is rationally necessary in
order to prevent the unlawful aggression.
“Reasonable necessity” means that they used, or the
means employed or the weapons by the person
defending himself must be rationally necessary in order
to repel or to prevent the unlawful aggression being
given by the victim.
The elements of unlawful aggression as held by the SC
in the case of People v. Fontanilla are
When the unlawful aggressor makes use only of his fist,
the use of a lethal weapon, the use of a gun, the use of a
bolo on the part of the person defending himself is not
rationally necessary in order to prevent the unlawful
aggression, but when the unlawful aggressor is
attacking the victim with a bolo, the use of a gun by the
person defending himself is reasonably necessary in
order to prevent or repel the unlawful aggression.
ELEMENTS OF UNLAWFUL AGGRESSION (PAU)
1. There must be a Physical or material attack or
assault.
2. The attack or assault must be Actual or at least
imminent and;
3. The attack or assault must be Unlawful.
The test for the presence of unlawful aggression under
the circumstances is whether the aggression from the
Unlawful aggression is the indispensable element of self-defense,
for if no unlawful aggression attributed to the victim is established,
self-defense is unavailing, for there is nothing to repel. (People vs.
Fontanilla, 664 SCRA 150, G.R. No. 177743 January 25, 2012)
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3rd ELEMENT: The third element of self-defense is lack
of sufficient provocation on the part of the person
defending himself.
prevent the unlawful aggression. Last element is also
present, lack of sufficient provocation on the part of A.
A was merely waiting for a ride. No provocation at all
was given. If ever A and B had a fight a day after, even
if A was the one who provoked the said crime, the said
provocation was not imminent to the unlawful
aggression on the part of the victim. Hence, the third
element is still present. All of the elements of selfdefense being present, A should be acquitted of the
crime charged based on self-defense.
“Provocation” refers to any improper act or conduct
which excites or incites a person to do a wrongful act.
Provocation is said to be sufficient when it is adequate
to stir a person to commit a wrongful act and when it is
proportionate to the gravity of the act.
What the third element of self-defense requires is that
there must be no sufficient provocation coming from the
person defending himself; lack of sufficient provocation
on the part of the person defending himself.
A was waiting for a ride when suddenly, here comes B,
the person whom he had an altercation a day before and
B was fast approaching him, hurriedly, holding a bolo
on his hand. The bolo was raised down to the ground
and B was fast approaching A. A felt danger and so,
when B was about 5 feet away, A pulled out his pistol
and shot B. Prosecuted for homicide, A said he acted in
self-defense, is there self-defense?
There is no self-defense because there is no unlawful
aggression.
There is no sufficient provocation on the part of the
accused or the person defending himself:
1. When no provocation at all is given by the said
accused to the aggressor.
2. When although provocation was given, it was not
sufficient.
3. When although provocation was sufficient, it was
not given by the person defending himself.
4. When although provocation was given by the person
defending himself, it was not imminent to the said
act of aggression.
First element, was there unlawful aggression? There is
no unlawful aggression. The act of B of approaching A
with a weapon, a bladed weapon, a bolo on his hand,
facing down; B on his way, does not yet constitute
unlawful aggression. It may be a provocation but it does
not yet constitute unlawful aggression, because the
mere act of holding a bolo does not place the life and
limb of the person defending himself in actual or
imminent danger. Since there was no unlawful
aggression to speak of on the part of B, therefore, the
use of a gun is not necessary to kill the said victim.
There is no unlawful aggression, there is nothing to
repel, the use of the gun is not reasonably necessary, as
such, A should be convicted as charged, A should be
convicted of the crime of homicide.
In all these instances, the third element is present;
there is lack of sufficient provocation on the part of the
person defending himself.
A was a waiting for a ride in order to go to work when
suddenly he saw B, the man whom he had an
altercation the other day. He saw B fast approaching
him telling him “I will kill you! I will kill you!” and B
was running towards A with a bolo raised on his hand
in a hacking position. So when he was about 5 feet away
from A, A shot B. Prosecuted for homicide, A said he
acted in self-defense. He invoked the first justifying
circumstance. Is A liable of homicide or should A be
acquitted based on self-defense?
A should be acquitted of the crime charged based on
self-defense.
A was watching the television, when A was watching
the television; he suddenly heard noise, noise in the
garage. And so, he went to the garage, armed with his
pistol, a caliber 45. When he was in the garage, he saw
X. X had opened the hood of his jeepney and upon
opening the hood of his jeepney, he saw that X was
about to get the battery of his jeepney and so, what A
did was he shot the said victim, that is X. X died.
Prosecuted for homicide, A said that he only acted in
self-defense, particularly, in defense of his property
because he caught the said victim in the act of taking
the battery of his jeepney.
The elements of self-defense, first, unlawful aggression
on the part of the victim; there was unlawful aggression
on the part of B. The said act of B of running towards A,
shouting “I will kill you, I will kill you!” with a bolo
raised in a hacking position places the life and limb of A
in actual and imminent danger. Second element,
reasonable necessity of the means employed; the life
and limb of A was in danger, there was this bolo which
B was holding in a hacking position, at that precise
moment, he has no weapon but the use of his gun. And
so, the use of his gun was rationally necessary to
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In the case of People v. Ramon Camacho37, the Supreme
Court said there is no self-defense on the part of the said
accused. The act of the said victim, opening the hood of
the car and trying to get the battery, does not constitute
actual and imminent danger on the property of the said
accused, more so on his life. The SC said, the said act
does not constitute unlawful aggression. Since the said
act does not constitute unlawful aggression, there was
no necessity on the part of the said accused to use a gun,
a caliber 45 pistol in firing at the said victim. In this
case, self-defense was not considered by the court on the
favor of the said accused.
The answer is yes. Although the man is not armed, the
man is greater than the said woman in his personal
circumstances.
In order to determine whether the means employed by
the accused is reasonably necessary in order to prevent
the unlawful aggression, you have to consider the
following factors:
1. The nature and number of weapons used by the
accused.
2. The height, weight, and other personal
circumstances of the accused as against that of the
victim.
3. The places and location of the assault.
In case of defense of property, for self-defense to lie; it is
necessary that it is not only the property that is in
danger. It is necessary that there must also be an
unlawful aggression; there must be a coupled attack on
the person entrusted with the said property. Otherwise,
self-defense would not lie.
These 3 factors would establish if the means employed
by the accused defending himself was reasonably
necessary in order to prevent or repel the unlawful
aggression.
The woman was on her way home. As she passed by a
dark alley, a man suddenly grabbed the said woman,
the said woman was dragged forcibly inside a vacant
house and there, at gunpoint, the said woman was
undressed by the man and forcibly pinned down on the
ground. The man also undressed himself. As the man
placed himself on top of the said woman, the woman
took a balisong inside her bag and stabbed the man. The
man died. Prosecuted for homicide, the woman said she
acted in self-defense. Is there self-defense? Was there
unlawful aggression on the part of the man?
There is self-defense.
Considering these factors in the case, first, the nature
and number of weapons used. The man was unarmed
but although the man was unarmed, he has his fist, by
use of fist, by use of his arms, he forcibly dragged the
woman and undressed the woman. Second, the personal
circumstances, height, weight, size and other personal
circumstances of the unlawful aggressor versus the
person defending himself, the unlawful aggressor, the
man is greater in strength, in height, in size, in personal
circumstances against the woman who was been down.
Third, the place and location of the assault, it was a
dark alley, the woman was brought to a vacant a house.
The presence of these circumstances, of these 3 factors
would show that the woman’s use of a balisong in order
to prevent or repel the unlawful aggression was
reasonably or rationally necessary.
There was unlawful aggression on the part of the man.
The man forcibly dragged the victim inside a vacant
building, inside a vacant house, thereafter, the man
undressed the woman, undressed himself, placed
himself on top of the woman. This shows that there was
an actual and imminent danger on the honor, chastity
and virtue of the said woman. There was unlawful
aggression on the part of the said man.
Last element of self-defense, lack of sufficient
provocation on the part of the person defending himself,
there was no provocation at all coming from the woman.
The woman was only walking at home, hence, the said
woman should be acquitted of the crime charged, should
be acquitted of homicide because she acted in selfdefense; that is, in defense of her honor or of her
chastity.
Second element of self-defense, reasonable necessity of
the means employed to prevent or repel the aggression.
Was it reasonably necessary for the said woman to stab
the man? The man was unarmed, he has no arms at the
time, but the woman made use of a balisong in order to
stab the said man. Was the use of a balisong rationally
necessary in order to prevent the unlawful aggression?
A tried to stab B. B evaded the blow then A tried to stab
B again. This time, B jumped on A and tried to get the
weapon from A. So A and B struggled for the possession
of the said knife that A was trying to use in stabbing B.
Unlawful aggression is a condition sine qua non for the justifying
circumstance of self-defense. There can be no self-defense, whether
complete or incomplete, unless the victim has committed unlawful
aggression against the person defending himself.29 As we previously
explained, accused-appellant failed to present evidence to corroborate
his claim that the elements of self-defense, including unlawful
aggression, were present in this case.(People vs. Camacho, 359 SCRA
200, G.R. No. 138629 June 20, 2001)
37
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With all his might, B was able to gain possession of the
said knife. Upon possession of the said knife, B stabbed
A. A died. B is now prosecuted for homicide. He invoked
self-defense. Is B liable of homicide or should he be
acquitted on the ground of self-defense?
B is liable for homicide.
Therefore, the first and the second element are both
absent.
How about the third element, lack of sufficient
provocation on the part of the person defending himself,
the third element is also absent. There was sufficient
provocation on the part of the accused brother. The
brother was seen by the husband sleeping with the wife
on top of the bed, naked, that constituted sufficient
provocation.
First element, was there unlawful aggression on the
part of A? The act of trying to stab B two times
constituted unlawful aggression however, when they
struggled for the repossession of the bolo and B gained
possession of the bolo, B was able to get the bolo from A,
whatever inceptive unlawful aggression A had
commenced had already seized to exist. Since the
unlawful aggression commenced by A had already
seized to exist when B was able to get hold of the bolo,
there is no reasonable necessity for B to still stab and
kill the victim. As such, self-defense would not lie in
favor of B. That is the case of People v. Regalario38.
All the elements of self-defense were absent; therefore,
the brother has to be convicted of the crime of homicide.
Self-defense would not lie in his favor.
In the case of Toledo vs. People39, the accused and the
victim had an argument because during a drinking
spree, they had an argument and so the victim tried to
hack the said accused. The accused ran towards his
house and closed the house. Thereafter, accused took
also the bolo hanging on the house. Then, he opened the
door of the house and there was the victim and he killed
the said victim. The accused is now prosecuted for
homicide. Accused invoked self-defense. Thereafter, the
accused invoked accident. The accused said that he
accidentally killed the said victim by reason of selfdefense.
The husband arrived home, upon arrival, he went inside
the bedroom, upon opening the bedroom, he saw his own
wife on bed together with his own brother. Upon seeing
his own wife and his brother, both naked on top of the
bed, the said husband pulled out a knife and tried to kill
his brother. However, the said brother evaded the blow.
They struggled for the possession of the said bolo, of the
said knife, the brother was able to gain possession and
thereafter, he stabbed the husband. The husband died.
Prosecuted for homicide, the brother said he acted in
self-defense.
Is
there
self-defense?
Unlawful
Aggression?
There is no self-defense.
Supreme Court said, there was no such thing as
accidental self-defense. You cannot invoke self-defense
and accident at the same time. The reason is that selfdefense, is a direct and positive overt act performed by
an offender under the impulse of self-preservation. The
offender, the accused, has to kill the victim in order to
preserve his own life. So, it is based on self-preservation,
it is not done negligently but deliberately. The accused
deliberately killed the victim. A direct and positive overt
act in order to save his own life, it is based on the
impulse of self-preservation. Therefore, since selfdefense is a direct and positive overt act done
deliberately to save one’s life, it cannot go along with
accident; wherein, there is only negligence. So, Supreme
Court said, there is no such thing as accidental selfdefense.
The act of the husband of trying to stab his own brother
whom he saw sleeping naked together with his wife,
that constituted unlawful aggression because he tried to
stab the brother. However, when they struggled for the
possession of the bolo and the brother gained possession
of the bolo, whatever incentive unlawful aggression had
been commenced by the husband, it has already seized
to exist. Since the unlawful aggression had already
seized to exist, there is no more reasonable necessity for
the said accused brother to kill and stab the husband.
39 There is no such defense as accidental self-defense in the realm of
criminal law.Self-defense under Article 11, paragraph 1 of the Revised
Penal Code necessarily implies a deliberate and positive overt act of
the accused to prevent or repel an unlawful aggression of another with
the use of reasonable means. The accused has freedom of action. He is
aware of the consequences of his deliberate acts. The defense is based
on necessity which is the supreme and irresistible master of men of
all human affairs, and of the law. From necessity, and limited by it,
proceeds the right of self-defense. The right begins when necessity
does, and ends where it ends. (Toledo vs. People, 439 SCRA 94, G.R.
No. 158057 September 24, 2004)
38
The settled rule in jurisprudence is that when unlawful aggression
ceases, the defender no longer has the right to kill or even wound the
former aggressor. Retaliation is not a justifying circumstance. Upon
the cessation of the unlawful aggression and the danger or risk to life
and limb, the necessity for the person invoking self-defense to attack
his adversary ceases. If he persists in attacking his adversary, he can
no longer invoke the justifying circumstance of self-defense. Selfdefense does not justify the unnecessary killing of an aggressor who
is retreating from the fray. (People vs. Regalario, G.R. No. 174483,
March 31, 2009)
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The rule behind self-defense is “stand ground when in
the right.” What does it mean?
Stand ground when in the right means that when the
accused is where he should be, the rule does not require
him to retreat when he saw his assailant fast
approaching him with a weapon; for if he retreats, he
runs the risk of being stabbed on the ground. “Stand
ground when in the right”
means that even if the provocation was given by the
relative being defended, there can still be a valid
defense of a relative provided that the relative making
the defense is not a party to the said provocation.
3. Anyone who acts in defense of the person or
rights of a stranger, provided that
3.1. the first and second requisites mentioned in
the first circumstance of this Article are
present and
3.2. that the person defending be not induced
by
3.2.1. revenge,
3.2.2. resentment, or
3.2.3. other evil motive
2. Anyone who acts in defense of the person or
rights of his
2.1. spouse,
2.2. ascendants,
2.3. descendants, or
2.4. legitimate, natural or adopted brothers or
sisters, or of
2.5. his relatives by
2.5.1. affinity in the same degrees, and
2.5.2. those by consanguinity within the
fourth civil degree,
provided that the first
and
second
requisites prescribed in the next preceding
circumstance are present, and the further
requisite,
i.
in case the provocation was given by
the person attacked,
ii.
that the one making defense had no
part therein.
ELEMENTS OF DEFENSE OF STRANGERS (URR)
1. Unlawful aggression;
2. Reasonable necessity of the means employed
to prevent or repel it; and
3. Person defending be not induced by Revenge,
resentment or other evil motive.
Person considered as stranger
Any person not included in the enumeration of relatives
mentioned in par. 2 of Art. 11.
So, this is otherwise known as “Defense of a Stranger.”
Again, we have already discussed the first element of
unlawful aggression as well as the 2nd element,
reasonable necessity of the means employed to prevent
or repel the unlawful aggression.
ELEMENTS OF DEFENSE OF RELATIVES (URP)
1. Unlawful aggression.
2. Reasonable necessity of the means employed to
prevent or repel it.
3. In case the Provocation was given by the person
attacked, that the one making defense had no part
therein.
How about the third element? That the person
defending be not induce by revenge, resentment or other
evil motive. What does it mean?
It means that in order for defense of a stranger to lie in
favor of the accused, it is necessary that the said
accused, in defending the stranger must be ignited only
by a disinterested and lawful objective of helping a total
stranger. He must be ignited solely by disinterested and
lawful objective of helping a total stranger. He must not
be ignited by ill-motive like revenge, resentment and
the hatred, etc.
NOTE: The law gives a leeway on the third requisite,
even if the relative being defended gave the provocation,
if the relative making the defense had no part therein,
he can successfully invoke the defense of relative.
So, these are the elements of the 2nd justifying
circumstance which is more popularly known as
“Defense of Relative.”
A and B were passengers on a jeepney. They’re only two
inside the jeepney. So one is seated on the right seat,
the other one is seated on the left portion of the jeepney.
Then the jeepney was flagged down by X. X seated next
to A because he saw A using a nice cellphone. When they
passed by a dark portion of the street, X immediately
pulled an ice pick, placed it on the left side of the body
of A and told A, “this is a hold-up, give me your
cellphone, give me your wallet.” A, however, resisted
and would not give the cellphone and the wallet. B, who
In defense of relative, we have to take note of the
relatives which may be defended, even if the person
being defended is a relative but he is not among those
mentioned in Article 11, 2nd paragraph; then, it cannot
be considered as defense of relative but rather it is
defense of a stranger.
The third element of defense of relative, in case the
provocation was given by the person attacked, that the
one making the defense had no part therein. It’s simply
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at that time was merely looking saw that X was about
to stab the left side of the body of A and so what B did,
he kicked X outside of the jeepney. X fell out of the
jeepney passing through the window. X suffered serious
physical injuries. B was prosecuted for serious physical
injuries. B invoked defense of a stranger as a justifying
circumstance. Is B liable of serious physical injuries or
should he be acquitted based on defense of a stranger?
B should be acquitted based on defense of a stranger.
So, this is the 4th justifying circumstance. This 4th
justifying circumstance is otherwise or more popularly
known as “State of necessity.”
The offender, in order to prevent any person, or in order
to prevent an evil or injury, he does an act which causes
damage to another person. It is a state of necessity and
the offender is justified in causing the damage if the
three requisites are present.
That the evil sought to be avoided actually exists, that
the injury feared be greater than that done to avoid it,
that there be no practical and less harmful means of
preventing it.
First element, was there unlawful aggression? There
was unlawful aggression. X was at the point of stabbing
the left side of the body of A because A refused to give
his cellphone that act placed the life and limb of the
stranger A in actual and imminent danger. Second
element, reasonable necessity of the means employed to
prevent or repel the unlawful aggression. B, at that time
was without arm. In order to prevent the unlawful
aggression about to be made by X on A, B kicked the
said hold upper, the said victim, out of the jeep. It was
reasonably necessary because at that time, it was the
only means he had to help the said victim, the other
passenger A, in order to prevent the unlawful
aggression and third, that the person defending, B, be
not induced by revenge, resentment or other evil motive.
The problem does not show that X and B know each
other. Therefore, B cannot be said to be ignited by any
ill-motive in helping A. B is ignited solely by the
disinterested and lawful objective of helping a total
stranger. Therefore, B should be acquitted of serious
physical injuries because his acts are justifying acts,
defense of a stranger.
In justifying circumstances, if it is present in the
commission of a crime, there is no criminal liability and
civil liability. An exception to that is paragraph 4, state
of necessity. In case of state of necessity, there is no
criminal liability but there is civil liability. Civil
liability in state of necessity shall be borne by all
persons who have been benefited by the said state of
necessity.
A was driving his vehicle at about 11:30 in the evening
along EDSA or along the highway, he was driving his
vehicle. He was driving the vehicle within LTO rules
and regulations then suddenly, he saw a big truck in the
middle of the said highway without any lights, he was
already near the said truck. There was no lights, no
early warning device in the middle of the said street. If
X would go on driving, he would be hitting the car which
would result to his death. If he would turn to the right,
he would be hitting the island and this may also cause
his death because his car would be damaged and he may
have died. If he turned to the left, he would be hitting a
person who was begging for alms and so, he turned to
the left, hit the said person, the person died. X is now
prosecuted for reckless imprudence resulting in
homicide. He invoked the justifying circumstance of
state of necessity as a defense. Is X liable of reckless
imprudence resulting in homicide or should he be
acquitted because he acted based on state of necessity?
X should be acquitted of reckless imprudence resulting
in homicide.
4. Any person who, (1) in order to avoid an evil or
injury, (2) does an act which causes damage to
another, provided that the following requisites
are present:
First. That the evil sought to be avoided
actually exists;
Second. That the injury feared be greater than
that done to avoid it;
Third. That there be no other practical and less
harmful means of preventing it.
ELEMENTS OF STATE OF NECESSITY (EGP)
1. That the Evil sought to be avoided actually exists.
2. That the injury feared be Greater than that done to
avoid it.
3. That there be no other Practical and less harmful
means of preventing it.
First, that the evil sought to be avoided actually exists.
The evil that he sought to avoid, the collision of his car
with the truck which was suddenly in front of him in the
middle of the street, without any lights, without any
early warning device. Second element, that the injury
feared be greater than that done to avoid it; the injury
that he feared, his death. If his vehicle collided with the
said truck, he may die and the third, that there be no
other practical and less harmful means of preventing it.
NOTE: State of necessity can only be invoked by a
person who is not the author of the state of necessity.
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It was a state of necessity, he could no longer hold on
the breaks because the truck was already in front of him
because there was no early warning device, no anything
that would give notice that there was this big truck in
the middle of the highway. All the elements are present;
therefore, the said accused X should be acquitted of
reckless imprudence resulting in homicide.
harmful means of preventing it. It was as a state of
emergency. He has only 3 choices to go on and fall on
the deep excavation, to swerve to the right or to swerve
to the left. Hence, all the 3 elements are present but
although all the three elements are present, the taxi
driver is criminally liable for reckless imprudence
resulting in multiple physical injuries.
What about the fact that it was only his life that was
preserved, what about the life of the said person whom
he hit? Isn’t it of such importance too?
The Supreme Court said that insofar as a person is
concerned, his life is always more important than any
other person. Hence, the second element is present, that
the injury feared be greater than that done to avoid it.
The injury he feared, his own death. It is greater than
that of any other life of any other stranger.
The reason is that state of necessity can only be invoked
by a person who is not the author of the state of
necessity.
In this problem, the taxi driver himself was the author
of the said state of necessity. He was the author of the
said state of emergency. He is the one who placed
himself in that situation. He disregarded the sign,
“Detour, Do not Enter.” Since he is the one who placed
himself in that situation, since he is the one who
authored the state of emergency, he cannot now invoke
the very same state of necessity in order to absolve
himself of criminal liability. Therefore, the driver
should be held criminally liable for reckless imprudence
resulting in multiple physical injuries.
The taxi driver has to go to Greenhills on board the taxi,
was a family of 5, the mother, the father and the three
children and they’re going to Greenhills. Since traffic
was heavy in EDSA, the taxi driver decided to take the
streets of Mandaluyong then the streets of San Juan. As
the taxi driver was passing by the streets of San Juan,
he entered a shortcut. Before entering the shortcut, he
saw a sign, a big sign saying “Detour, Do not Enter.”
The taxi driver disregarded the said sign and entered
and he increased his speed then suddenly the taxi
driver found himself in an emergency situation. If he
goes on, the taxi would fall on a deep excavation. If he
turned to the right, he would be hitting several
construction workers. If he turned to the left, he would
be hitting a blank wall. He turned to the right and hit
and wounded 5 construction workers. The taxi driver is
now prosecuted for reckless imprudence resulting in
multiple physical injuries. To absolve himself of
criminal liability, he invoked the fourth justifying
circumstance that is state of necessity. Is the taxi driver
liable as charged for reckless imprudence resulting in
multiple physical injuries or should he be acquitted
because his act was based on the state of necessity?
Although all the three elements of state of necessity are
present, the taxi driver is criminally liable for reckless
imprudence resulting in multiple physical injuries.
5. Any person who acts in the
5.1. fulfillment of a duty or
5.2. in the lawful exercise of a
5.2.1. right or
5.2.2. office.
ELEMENTS (PC)
1. Accused acted in the Performance of a duty or in the
lawful exercise of a right or office; and
2. Injury caused or offense committed be the necessary
Consequence of the due performance of duty or the
lawful exercise of such right or office.
Under this 5th justifying circumstance, it is necessary
that the resulting injury must be the unavoidable or the
necessary consequence of the lawful performance of
duty of the said accused.
6. Any person who acts in obedience to an
6.1. order issued by a superior
6.2. for some lawful purpose.
First element, that the evil sought to be avoided
actually exist. The evil that he sought to avoid that is
the collision or his car going down the deep excavation
which would cause his death and the death of his
passengers. Second element, that the injury feared be
greater than that done to avoid. The injury that he
feared, the loss of his life and the life of the passengers
it is far greater than the physical injuries sustained or
inflicted on the said construction workers. Third
element, that there be no other practical and less
ELEMENTS (OL)
1. That an Order has been issued by a superior.
2. The said order must be for some Lawful purpose.
3. The Means used by the subordinate to carry out the
order must also be lawful.
So, in this last justifying circumstance, it is not only
necessary that the order issued by the superior must be
lawful, it is equally necessary that the means used by
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the subordinate to carry out the order must also be
lawful. Otherwise, there cannot be a valid justifying
circumstance.
the means used by Police Officer X was not lawful.
Instead of arresting him, he fired at the said man. Even
if the criminal ran away, the Police Officer could have
chased him first and not necessarily fired repeatedly at
the back. The death of the said criminal was not within
the order issued by the said superior. Therefore, the
sixth justifying circumstance is also not present in this
case; Police Officer X should be convicted as charged.
A warrant of arrest had been issued by the judge
against a person who had been convicted of a crime, a
wanted criminal; the police was in possession of the
same, particularly, the head of the police. The head of
the police formed a team in order to arrest this wanted
criminal and so, the chief of the PNP gave the said
warrant of arrest to the head of the team Police Officer
X and the chief PNP told Police Officer X, by virtue of
this warrant of arrest, arrest this person, bring him to
this police station so that we could present him to the
court. That was the order given by the said chief of
police to police officer X and his men. Police Officer X
and his men went to look for the said wanted criminal.
They got a tip as to the whereabouts. So, they went to
the particular province where the said criminal was.
Upon reaching the said place, in the particular place
designated there, they indeed saw the wanted criminal.
Upon seeing the wanted criminal, Police Officer X went
to him, showing him the warrant of arrest and showed
him that he is under arrest and must be brought to
Manila. However, upon reading the said warrant of
arrest and upon giving his statement to police officer X,
the said wanted criminal hurriedly ran away. Police
Officer X took out his pistol and shot the man several
times at the back. The man died. Prosecuted for
homicide, Police Officer X invoked the following
justifying circumstance, first, according to him, he acted
in the performance of his duty, that is the fifth justifying
circumstance and; Second, according to him, he acted in
obedience to an order issued by a superior. Are all
justifying circumstances present?
So those are the justifying circumstances present in the
Revised Penal Code.
BATTERED WOMAN SYNDROME
A justifying circumstance which is not present in Article
11 of the Revised Penal Code is found under RA 9262.
That is the so called “Battered Woman Syndrome”
(BWS).
BWS refers to a scientifically defined pattern of
psychological and behavioral symptoms found in women
living in battering relationships as a result of
cumulative abuse.
Under Section 26 of RA 9262, it is provided that,
“Victim-survivors who are found by the courts to be
suffering from battered woman syndrome do not incur
any criminal and civil liability notwithstanding the
absence of any of the elements for justifying
circumstances of self-defense under the Revised Penal
Code.
In the determination of the state of mind of the woman
who was suffering from battered woman syndrome at
the time of the commission of the crime, the courts shall
be assisted by expert psychiatrists/ psychologists”.
The first justifying circumstance that he invoked, that
he acted in the due performance of his duty or in the
lawful exercise of a right or office. Is it present?
The first element that he acted in the performance of
his duty or in the lawful exercise of a right of office is
present however, the second element of this justifying
circumstance is absent because firing or killing the said
man, that is the crime of homicide, is not the
unavoidable or necessary consequence of his due
performance of his duty. Therefore the justifying
circumstance of fulfillment of duty would not lie in favor
of Police Officer X.
So, BWS is akin to a justifying circumstance. The
offender who has committed a crime but was suffering
from BWS does not incur any criminal liability or civil
liability. The last paragraph, however of section 26 of
RA 9262 provides that before the charge may be
considered, the said accused to be suffering from BWS,
it is necessary that there must be an expert testimony
coming from psychologists and psychiatrists. So the
courts, by themselves, cannot determine if the woman
was indeed suffering from the so called BWS. There
must be expert testimony coming from psychiatrists,
coming from psychologists, they are the ones to
determine if indeed, the woman was suffering from
BWS.
So Dong and Donna, husband and wife have been
married for years. The woman had always been beaten
by Dong, so they’re married for 10 years and during
How about the second justifying circumstance that he
invoked? That is that he acted in obedience to an order
issued by a superior?
The order issued by the chief of police to arrest him,
bring him to the police station so that the criminal may
be presented in court. The order was lawful; however,
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such final episode produced in the battered person’s
mind an actual fear of an imminent harm from her
batterer and an honest belief that she needed to use
force in order to save her life (People v. Genosa, G.R.
No. 135981, January 15, 2004).
those 10 years of marriage; Dong had been continuously
beating the said wife. One day, the said husband arrived
home. Upon seeing the wife, he again began beating the
said wife. Thereafter, after the said wife fell on the floor,
the said husband slept. While the husband was
sleeping, the said woman took a knife and thereafter,
she went to her sleeping husband and stabbed the
husband to death. Thereafter, she placed the husband
on the blanket and left, but later, the commission of the
crime was discovered and the wife was arrested. The
wife was prosecuted for parricide. As a defense, she
invoked the so-called “Battered Woman Syndrome.”
b. Will your answer be the same, assuming that Talia
killed Dion after being beaten up after a second
time? Explain.
Yes, Talia can invoke the defense of Battered
Woman Syndrome to free herself from criminal
liability for killing her husband since she suffered
physical and emotional distress arising from
cumulative abuse or battery. Under Section 26 of
RA 9262, victim survivors of Battered Woman
Syndrome do not incur any criminal or civil liability
despite the absence of the requisites of self-defense.
If based on the testimony of the expert psychologist and
psychiatrist, the said woman was indeed suffering from
BWS, the said woman should be acquitted of the crime
charged. There can be no criminal liability; likewise, no
civil liability shall be incurred by the same woman.
Again, BWS is a scientifically defined pattern of
psychological and behavioral symptoms found in women
who live in battering relationship as a result of
cumulative abuse. It is akin to a justifying
circumstance; no criminal liability, no civil liability.
ARTICLE 12
Exempting Circumstances are those circumstances
which, if present or attendant in the commission of a
felony would exempt the offender from criminal
liability. There is a crime committed but the offender is
not criminally liable. The offender is exempted from
criminal liability because there is the absence of any of
the elements of voluntariness in the commission of the
crime.
Dion and Talia were spouses. Dion always came home
drunk since he lost his job a couple of months ago. Talia
had gotten used to the verbal abuse from Dion. One
night, in addition to the usual verbal abuse, Dion beat
up Talia. The next morning, Dion saw the injury that he
had inflicted upon Talia and promised her that he would
stop drinking and never beat her again. However, Dion
did not make good on his promise. Just after one week,
he started drinking again. Talia once more endured the
usual verbal abuse. Afraid that he might beat her up
again, Talia stabbed Dion with a kitchen knife while he
was passed out from imbibing too much alcohol. Talia
was charged with the crime of parricide. (BAR 2015)
The elements of voluntariness, criminal intent, freedom
of action and intelligence; therefore, any of these is
absent in the commission of the crime, either criminal
intent, or freedom of action, or intelligence; is absent in
the commission of the crime, hence, the offender is
exempted from criminal liability.
If an exempting circumstance is present in the
commission of the crime, there is a crime committed but
there is no criminal because the offender acted without
voluntariness. There’s also no criminal liability again,
because the offender acted without voluntariness but
there is civil liability as a rule because a crime had
indeed been committed.
a. May Talia invoke the defense of Battered Woman
Syndrome to free herself from criminal liability?
Explain.
No, a single act of battery or physical harm
committed by Dion against Talia resulting to the
physical and psychological or emotional distress on
her part is not sufficient to avail of the benefit of the
justifying circumstance of “Battered Woman
Syndrome”. The defense of Battered Woman
Syndrome can be invoked if the woman with marital
relationship with the victim is subjected to
cumulative abuse or battery involving the infliction
of physical harm resulting to the physical and
psychological or emotional distress. Cumulative
means resulting from successive addition. In sum,
there must be “at least two battering episodes”
between the accused and her intimate partner and
So in case of justifying, as a rule no crime, no criminal
liability, no civil liability except in paragraph 4, state of
necessity where there is civil liability. In case of
exempting circumstances, there is a crime but there is
no criminal, there is no criminal liability but there is
civil liability because there is a crime committed.
1. An imbecile or an insane person, unless the
latter has acted during a lucid interval.
When the imbecile or an insane person has
committed an act which the law defines as a
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felony (delito), the court shall order his
confinement in one of the hospitals or asylums
established for persons thus afflicted, which he
shall not be permitted to leave without first
obtaining the permission of the same court.
insanity on the part of the said accused, the defense
counsel presented the father of the accused. The father
of the accused stated in open court that his son had been
in and out of the mental institution. 2nd, he said that his
son was always naked; his son was always naked inside
the house, would leave the house naked and would
return weeks or month thereafter still naked. The
father testified that the son was inside the house, would
take the jewelries of his mother and would sell the same
at a very low price. Because of this, the father said his
son should be acquitted of criminal liability because he
was insane. Based on the testimony given by the father.
If you were the judge would you convict the accused as
charged or would you acquit the said accused on the
ground of insanity?
Based on the testimony of the father, the accused should
be convicted as charge of the crime of murder.
TWO EXEMPTING CIRCUMSTANCES
1. Imbecility
An imbecile person is one who although he is
already advanced in age; he has only the mindset of
a 2-7 year old child. Therefore, he lacks intelligence,
an element of voluntariness in the commission of a
crime, hence, it is exempting. Imbecility is
exempting under any and all circumstances. There
is no lucid interval insofar as imbecility is
concerned.
2. Insanity
Insanity is the mental aberration of the mind. It is
the incapacity of the offender to determine the right
from wrong and to appreciate the consequences of
his act.
The testimony given by the father, instead of showing
insanity on the part of his son, what is revealed was that
if ever the son had been insane in one time or another,
he may have lucid interval.
Insanity is not exempting under any or all
circumstances because the first paragraph of Art. 12
provides “unless the offender acted during a lucid
interval.” So, if the offender who committed the
crime invokes insanity, he, in effect, admits the
commission of the crime but he is avoiding criminal
liability by saying that he was insane, either before
or during the commission of the crime.
First, the father said that the son had been in and out
of the mental institution. It means that the son would
be cured because he would be released by the mental
institution.
2nd, the father said that although naked to leave the
house, the son would return weeks or months after, still
naked. This shows that the son had lucid interval
because a totally insane person would not know where
his house is located and the statement of the father, the
son would take the jewelry of the mother and would sell
it a lower price. An insane person would not know that
jewelry had value.
So the insanity that is exempting is the insanity
that is existing either immediately before, at the
time, or during the commission of the crime.
If the insanity occurs after the commission of the crime,
it is no longer exempting in nature. Insofar as insanity
in concerned, all persons are presumed sane, therefore,
the burden of evidence is on the accused, that the said
accused, at the time of the commission of the crime or
immediately prior to the commission of the crime, was
suffering from insanity. Otherwise, if evidence would
show that there was lucid interval, he shall be held
criminally liable as charged.
The testimony of the father proved that if ever the son
had been insane once, he acted with lucid intervals.
Therefore, the said accused should be convicted as
charged.
What about the state of somnambulism?
What if, a person sleepwalks and whenever he is
sleepwalking, he will commit a crime. In the old case of
People v. Taneo40, the Supreme Court said being in the
state of somnambulism or sleepwalking in the
commission of a crime is akin to insanity. The offender
would not know the effects or consequences of his act in
the commission of the crime because he was sleeping at
Accused killed the victim. Accused was prosecuted for
the crime of murder because of the brutal matter of
killing the victim; accused invoked the defense of
insanity. According to the counsel, the accused was
insane immediately prior to and at the time of the
commission of the crime, therefore, the accused should
be acquitted of the crime charged. In order to prove
By virtue of the facts stated in the decision, Held: That the
defendant acted while in a dream and his acts, with which he is
charged, were not voluntary in the sense of entailing criminal
liability. (People vs. Taneo, 58 Phil. 255, No. 37673 March 31, 1933)
40
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the time of the commission of the crime. Hence, it is akin
to insanity.
If based on the facts, he acted without discernment,
still, he is totally exempted from criminal liability but if
based on the facts, he acted with discernment; he
becomes criminally liable as charged.
JUVENILE JUSTICE AND WELFARE
ACT OF 2006 (RA 9344)
Under Sec. 6 of RA 9344, it is provided that the said
child in conflict with the law; shall already be exempted
from criminal liability but not from civil liability. Again,
in exempting circumstances, there is no criminal
liability but there is civil liability because a crime had
been committed.
The 2nd and 3rd exempting circumstance under article 12
refers to minority and this 2nd and 3rd exempting
circumstance under Article 12 had already been
amended by RA 9344, the juvenile justice and welfare
act.
Under Section 641 of RA 9344, if the child in conflict with
the law at the time of the commission of the crime is 15
years of age or under, so if the child is 15 years of age or
under, at the time of the commission of the crime, he is
totally exempted from criminal liability.
If, however, a child, in conflict with the law, at the time
of the commission of the crime, is over 15 years of age
but below 18 years of age, still, he is totally exempted
from criminal liability except when he acted with
discernment. So, there are 2 ages being referred to in
section 6.
If the child in conflict with the law, at the time of the
commission of the crime is 15 or below, 15 years of age,
or under 15, he is totally exempted from criminal
liability regardless of discernment. So the moment you
saw in the problem, the child is 15 or under, do not
anymore determine discernment. Just by the age, he is
already totally exempted from criminal liability. No
criminal liability.
AGE
BRACKET
15 years old
or below
CRIMINAL
LIABILITY
Exempt
Above 15 but
below 18, who
acted without
discernment
Above 15 but
below 18, who
acted with
discernment
Exempt
Not exempt
TREATMENT
The child shall be
subjected to an
intervention
program.
The child shall be
subjected to an
intervention
program.
Such child shall be
subjected to the
appropriate
proceedings in
accordance with
R.A. 9344.
How do you determine the age of the child?
Under Sec. 742 of RA 9344, it is provided that minority
shall always be viewed in favor of the child. The age of
the child shall be determined by taking into
consideration his birth certificate, his baptismal
certificate or any other relevant or pertinent
documents.
But, if the child in conflict with the law, at the time of
the commission of the crime is over 15 but below 18
years of age, based on the facts of the problem, you have
to consider discernment.
SEC. 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
Act.
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.
Any person contesting the age of the child in conflict with the law prior
to the filing of the information in any appropriate court 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.
41
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.
The exemption from criminal liability herein established does not
include exemption from civil liability, which shall be enforced in
accordance with existing laws.
42 SEC. 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
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If there are no such documents, the age of the child of
shall be determined from the statement coming from
the child, from the testimony of other persons or from
the physical appearance of the child himself. Absent any
other evidence, minority shall always be resolved in
favor of the child. Therefore, unless there be any
showing that the said child is no longer 18 at the
commission of the crime, he enjoys the privileges under
RA 9344.
with the law is already above 18 years or 18 and above
of the time of the publication of judgment, at the time of
the pronouncement of his guilt, he should still be given
a suspended sentence for as long as he was a minor at
the time of the commission of the crime.
Although under Sec. 38, the said suspended sentence
can be applied to a child in conflict with the law even if
he is already 18 or above at the time of the
pronouncement of his guilt, this provision is tempered
by Sec. 4044 of RA 9344, if the child in conflict with the
law reaches the age of 18 while under suspended
sentence, the judge shall determine whether the said
suspended sentence shall be extended or the said child
shall be made to serve his sentence. If the said
suspended sentence need to be extended, it is necessary
that the said child must not be above 21 years of age.
Therefore, under Sec. 40 of RA 9344, the suspended
sentence may only be applied to a child in conflict with
the law if he is 21 or below at the time of the
promulgation of judgment or the pronouncement of his
guilt. The moment the child in conflict with the law is
already beyond 21 years of age, suspended sentence,
shall no longer apply to the said child in conflict with
the law.
What if the child in conflict with the law, who
committed the crime was 17 years of age at the time of
the commission of the crime and he acted with
discernment and so he was prosecuted in court. After
trial of the merits, the judge found the accused minor,
17 years of age guilty beyond reasonable doubt. Now,
there be a pronouncement as to his guilt; there shall be
no pronouncement as to his guilt as provided for in Sec.
38.
Under Sec. 3843, what the judge should only pronounce
is the civil liability arising from the commission of the
crime but there shall be no pronouncement as to the
guilt of the said child in conflict with the law instead,
the said child shall be placed under suspended sentence
without need of application. It is not necessary for the
defense counsel, it is not necessary for the said child to
apply for a suspended sentence. It is motu propio upon
the judge to place the said child under suspended
sentence for as long as he was minor at the time of the
commission of the crime.
There are several cases on these. In the case of Madali
vs. People45; 2 brothers, Raymond and Rodel Madali,
killed another teenager. Raymond Madali at the time of
the killing was only 14 years of age. Rodel Madali was
16 years of age. Insofar as Raymond Madali is
concerned, the Supreme Court, he is totally exempted
from criminal liability regardless of discernment
because at the time he committed the crime, he was
below 15 years of age.
Section 38 provides that the said child in conflict with
the law shall be placed under suspended sentence, even
if he was already 18 or above at the time of the
pronouncement of his guilt or at the time of the
publication of judgment. So even if the child in conflict
SEC. 38. Automatic Suspension of Sentence. - Once the child who is
under eighteen (18) years of age at the time of the commission of the
offense is found guilty of the offense charged, the court shall
determine and ascertain any civil liability which may have resulted
from the offense committed. However, instead of pronouncing 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 Law.
44 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 law 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.
45 Although the crime was committed on 13 April 1999 and Republic
Act No. 9344 took effect only on 20 May 2006, the said law should be
given retroactive effect in favor of Raymund who was not shown to be
a habitual criminal. This is based on Article 22 of the Revised Penal
Code which provides: Retroactive effect of penal laws.—Penal laws
shall have a 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 this Code, although at the time of the
publication of such laws a final sentence has been pronounced and the
convict is serving the same. While Raymund is exempt from criminal
liability, his civil liability is not extinguished pursuant to the second
paragraph of Section 6, Republic Act No. 9344. (Madali vs. People, 595
SCRA 274, G.R. No. 180380 August 4, 2009)
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Insofar as Rodel Madali is concerned, he was 16, that
means, above 15 but below 18 therefore, discernment
matters. Based on the evidence presented, Supreme
Court said that Rodel Madali, in killing the victim acted
with discernment; hence, he was convicted.
Second Issue in the case, Considering that the crime
committed by the said accused was a heinous crime,
that is rape, can he be given retroactive application of a
suspended sentence considering that he committed a
heinous crime does Sec. 38 of RA 9344 providing for a
suspended sentence applies even to child in conflict with
the law who has committed a heinous crime?
The Supreme Court said yes, according to the SC, such
provision of RA 9344 does not distinguish as to the
nature of the crime committed by the offender,
therefore, taking into consideration the rule in
Statutory Construction, that when the law does not
distinguish, neither should the court distinguish.
Therefore even if the crime committed by the child in
conflict with the law is a heinous crime, suspended
sentence may still be given to the said child in conflict
with the law. The provision on suspended sentence
under section 38 or RA 9344 may be applied regardless
of the crime committed by the minor. Whether the crime
committed by the minor is a heinous crime or the crime
committed by the minor is a crime of lesser penalty.
There was discernment on the part of Rodel Madali
because based on the witness who testified that after
the killing, Rodel Madali warned him not to tell the said
act to any other person. Such act of warning the witness
showed that Rodel Madali knew that he committed
unlawful or a criminal act and that if revealed, he would
be punished. This means that there was discernment on
the part of the said accused. He knows the consequences
of his act. As such, since Rodel Madali was 16 years of
age at the time of the commission of the crime, acting
with discernment, he is convicted of the crime charged.
In the case of People v. Sarcia46, Sarcia was prosecuted
for the crime of qualified rape and he was convicted of
the same but he was a minor at the time of the
commission of the crime, 17 years of age. So, the penalty
imposed on him was reclusion perpetua. On appeal of
his case before the Supreme Court, RA 9344 took into
effect. So since at the time of the said review of the
Supreme Court, this law of RA 9344, there are many
issues in this case.
The third issue, considering the age of Sarcia, the age of
the accused, at the time the Supreme Court
promulgated the judgment; can the provision on
suspended sentence be applied on him? Be given
retroactive application to him?
This time, the answer is no, Supreme Court said,
although Sec. 38 of RA 9344 provides that the
suspended sentence shall be applied to the child in
conflict with the law, even if he is already 18 and above
at the time of the pronouncement of his guilt, Sec. 40
however, provides that the suspended sentence can be
applied to a child in conflict with the law only up to the
maximum age of 21.
The first issue, can the provisions of RA 9344 be given
retroactive application to Sarcia?
The Supreme Court said yes, the provisions of RA 9344
shall be given retroactive application to Sarcia. The
reason is, Sec. 6847 of RA 9344. Under Sec 68 of RA 9344,
persons who are already convicted or are serving
sentence but who were minors at the time of the
commission of the crime, shall be given retroactive
application of the law.
At the time the SC promulgated the judgment, Sarcia
who was 17 years of age at the time of the commission
of the crime, was already 31 years old; therefore, the
suspended sentence can no longer be applied to him
because he was way beyond the maximum limit of 21
years of age.
Supreme Court said, if those persons who are already
convicted and serving sentence shall be given
retroactive application of the law, how much more
accused Sarcia when his case was still under review by
the Supreme at the time of the effectivity of the law.
More so, he shall be given retroactive application of the
provisions of RA 9344.
These are the issues presented by the court and ruled
by the court in the case of People vs. Sarcia. RA 9344
shall be given retroactive application to him.
at the time of the effectivity of this Act, and who were below the age
of eighteen (18) years at the time the commission of the offense for
which they were convicted and are serving sentence, shall likewise
benefit from the retroactive application of this Act. They shall be
entitled to appropriate dispositions provided under this Act and their
sentences shall be adjusted accordingly. They shall be immediately
released if they are so qualified under this Act or other applicable law.
Since Republic Act No. 9344 does not distinguish between a minor
who has been convicted of a capital offense and another who has been
convicted of a lesser offense, the Court should also not distinguish and
should apply the automatic suspension of sentence to a child in
conflict with the law who has been found guilty of a heinous crime.
(People vs. Sarcia, 599 SCRA 20, G.R. No. 169641 September 10,
2009)
47 SEC. 68. Children Who Have Been Convicted and are Serving
Sentence. - Persons who have been convicted and are serving sentence
46
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So, considering that the suspended sentence can no
longer be given retroactive application to him because
of his age, what provision then of RA 9344 was given
retroactive application?
Under Section 5148 of RA 9344 the child in conflict with
the law, who has already been sentenced need not serve
his sentence in the regular penal institutions together
with hardened criminals, instead, he must serve his
sentence in agricultural camps and other training
facilities established by the bureau of corrections in
coordination with DSWD. So even if the accused was
already 31 years of age at the time of promulgation of
judgment, Section 51 may still be given retroactive
application to him.
9165, the penalty is life imprisonment to death
regardless of the quantity and purity of the dangerous
drugs involved. So, he committed a heinous crime.
Considering that the crime that he committed is a
heinous crime, can a suspended sentence be applied to
him?
Again, the answer is yes. Again, Supreme Court, as held
in the case of People vs. Sarcia, ruled in this case of
People vs. Mantalaba that Sec. 38 of RA 9344 does not
distinguish between a heinous crime and a crime of
lesser penalty. So, whatever be the crime committed by
the child in conflict with the law, he can avail of a
suspended sentence.
Third issue, considering the age of the said accused
Mantalaba at the time the SC promulgated the
judgment, can he be given the benefit of a suspended
sentence?
This time, the answer is no because at the time the SC
promulgated the judgment, Mantalaba was already 25
years of age; way beyond the 21 maximum age limit
provided for in Sec. 40 of RA 9344.
The issues answered and discussed by the Supreme
Court in the case of People vs. Sarcia were also the very
same issues discussed and ruled by the Supreme Court
in the case of People vs. Mantalaba. Sarcia was 2009,
People v. Mantalaba was 2011.
In the case of People vs. Mantalaba49, Mantalaba was
charged with illegal sale of dangerous drugs. At the
time of the commission of the crime, Mantalaba was 17
years of age. He was convicted by the court; the case was
on review by the Supreme Court. While the case of
Mantalaba was on review by the Supreme Court, again,
RA 9344 took into effect. So, the same issues as the case
of People vs. Sarcia;
In this case, again, just like the case of People vs. Sarcia,
the only benefit to Mantalaba was Sec.51. He need not
serve his sentence in the regular penal institution but
instead, he may serve his sentence in agricultural
camps and training facilities established by the bureau
of corrections in coordination with DSWD.
First, can the provisions of RA 9344 be given retroactive
to Mantalaba?
Yes, because of Section 68 of the law. Sec.68 provides
the persons who are already convicted or are serving
sentence but were minors at the time of the commission
of the crime, shall be given retroactive application, how
much more Mantalaba, who, at the time of the
effectivity of the law, the case was still on review by the
Supreme Court.
In this case, actually, the SC said that when the case of
Mantalaba was before the Court of Appeals, and the
Court of Appeals affirmed the conviction; Mantalaba at
that time, was 21 years of age. Supreme Court said, the
Court of Appeals could have given him a suspended
sentence but since the Court of Appeals failed to do so
at the time that case reached the Supreme Court,
Mantalaba was already way beyond the 21 maximum
age limit, hence, the suspended sentence would no
longer apply to him.
2nd issue, the crime committed by Mantalaba is a
heinous crime. Illegal sale of dangerous drugs under RA
SEC. 51. Confinement of Convicted Children in Agricultural 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 facilities that may be
established, maintained, supervised and controlled by the BUCOR, in
coordination with the DSWD.
49 This Court has already ruled in People v. Sarcia, 599 SCRA 20
(2009), that while Section 38 of RA 9344 provides that suspension of
sentence can still be applied even if the child in conflict with the law
is already eighteen (18) years of age or more at the time of the
pronouncement of his/her guilt, Section 40 of the same law limits the
said suspension of sentence until the child reaches the maximum age
of 21.
48
In finding the guilt beyond reasonable doubt of the appellant for
violation of Section 5 of RA 9165, the RTC imposed the penalty of
reclusion perpetua as mandated in Section 98 of the same law. A
violation of Section 5 of RA 9165 merits the penalty of life
imprisonment to death; however, in Section 98, it is provided that,
where the offender is a minor, the penalty for acts punishable by life
imprisonment to death provided in the same law shall be reclusion
perpetua to death. Basically, this means that the penalty can now be
graduated as it has adopted the technical nomenclature of penalties
provided for in the Revised Penal Code. (People vs. Mantalaba, 654
SCRA 188, G.R. No. 186227 July 20, 2011)
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maximum age of twenty-one (21) years. This leaves the
Court with no choice but to pronounce judgement.
Perpenian is found guilty beyond reasonable doubt as
an accomplice in the crime of kidnapping for ransom.
Since this Court has ruled that death as utilized in
Article 71 of the Revised Penal Code shall no longer
form part of the equation in the graduation of penalties
pursuant to R.A. No. 9346, the penalty imposed by law
on accomplices in the commission of consummated
kidnapping for ransom is Reclusion Temporal, the
penalty one degree lower than what the principals
would bear (Reclusion Perpetua). Applying Article 68 of
the Revised Penal Code, the imposable penalty should
then be adjusted to the penalty next lower than that
prescribed by law for accomplices. This Court, therefore,
holds that as to Perpenian, the penalty of Prision
Mayor, the penalty lower than that prescribed by law
(Reclusion Temporal), should be imposed. Applying the
Indeterminate Sentence Law, the minimum penalty,
which is one degree lower than the maximum imposable
penalty, shall be within the range of Prision
Correccional; and the maximum penalty shall be within
the minimum period of Prision Mayor, absent any
aggravating circumstance and there being one
mitigating circumstance. Hence, the Court imposes the
indeterminate sentence of six (6) months and one (1)
day of Prision Correccional, as minimum, to six (6) years
and one (1) day of Prision Mayor, as maximum”. (Ibid)
In the recent case of People v. Gambao, one of the
accused who was held criminally liable as an
accomplice, was a 17 year old woman at the time of the
commission of the crime. So, the crime was kidnapping
for ransom and the said woman, was 17 years of age at
the time of the commission of the crime. The Supreme
Court held her liable as an accomplice in the crime of
kidnapping for ransom. Should she be given a
suspended sentence?
At the time the Supreme Court promulgated the
judgment, convicting the said accused of being an
accomplice to the crime of Kidnapping for Ransom, she
was already 31 years of age. Hence, SC said the
suspended sentence can no longer apply to the said
woman. The only benefit under RA 9344 which may be
given retroactive application to her according to the
Supreme Court, again, was section 51. So, the issue
contended here is that she was a minor at the time of
the commission of the crime but at the time the
Supreme Court promulgated the judgment, she was
already 31 years of age. Should Section 51 still apply to
her considering that at the time of the promulgation of
judgment, she was already 31 years of age. SC said yes.
According to the SC, under Sec. 51, these persons who
were minors at the time of the commission of the crime
should serve their sentence in agricultural camps and
training facilities, not in the regular penal institution;
even if at the time of the promulgation of judgment, he
is no longer a minor for as long as he was a minor at the
time of the commission of the crime.
What if a child in conflict with the law, so he was
already 17 years of age. Over 15 but below 18 at the time
of the commission of the crime, he acted with
discernment. Then the judge convicted him, there is no
suspended sentence because he was way beyond 21
years of age at the time of the promulgation of the judge.
Can he apply for probation if the penalty imposed on
him by the judge is within the probationable penalty of
6 years or below?
The answer is yes, under Sec. 4250 of RA 9344, if the
child in conflict with the law has been convicted and
sentenced and upon his application, the court may place
him under probation and this is an amendment to PD
968, the probation law.
“Modification should also be made as to the criminal
liability of Perpenian. Pursuant to the passing of R.A.
No. 9344, a determination of whether she acted with or
without discernment is necessary. Considering that
Perpenian acted with discernment when she was 17
years old at the time of the commission of the offense,
her minority should be appreciated not as an exempting
circumstance, but as a privileged mitigating
circumstance pursuant to Article 68 of the Revised
Penal Code. Under Section 38 of R.A. No. 9344, the
suspension of sentence of a child in conflict with the law
shall still be applied even if he/she is already eighteen
(18) years of age or more at the time of the
pronouncement of his/her guilt. Unfortunately, at the
present age of 31, Perpenian can no longer benefit from
the aforesaid provision, because under Article 40 of R.A.
No. 9344, the suspension of sentence can be availed of
only until the child in conflict with the law reaches the
So, if the offender is a child in conflict with the law, if
he was a minor at the time of the commission of the
crime, even if he appealed and in the said appeal, the
conviction was affirmed; he can still go back to the lower
court and apply for probation. The probation shall be
applied to him as provided for under Sec. 42.
best interest of the child. For this purpose, Section 4 of Presidential
Decree No. 968, otherwise known as the "Probation Law of 1976", is
hereby amended accordingly.
50 SEC. 42. Probation as an Alternative to Imprisonment. - The 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
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What are the so called “Status Offenses”?
Status Offenses are those which discriminate against
children. Status offenses are those offenses which when
committed by an adult, aren’t criminal and not
punishable but when committed by a minor; are
considered as criminal and punishable. (e.g. curfew,
disobedience to parents, etc.)
The fourth exempting circumstance is otherwise known
as “accident.”
ELEMENTS (LD-IF)
1. The offender was performing a Lawful act;
2. He was performing a lawful act with Due care;
3. He causes an Injury by mere accident;
4. The said injury was without Fault or intent on the
part of the said offender.
Can a child be held liable of Status Offenses? Can a
child in conflict with the law be held liable of status
offenses?
RA 9344 said under Section 5751 of RA 9344, the law
provides that these acts which when committed by
adults are not criminal and not punishable shall not
also be considered criminal and punishable if committed
by minors. Therefore, Status Offenses are prohibited
under Sec. 57 of RA 9344.
As I said, in case of exempting circumstances, as a rule,
there is no criminal liability but there is civil liability.
An exception to that is in paragraph 4, exempting
circumstance that is accident; in case of accident, there
is both no criminal liability and also no civil liability,
there is both no criminal and no civil liability because
the offender was performing a lawful act. Hence, it is
more akin to a justifying circumstance.
What if a girl or a child, a woman, 17 years of age was
caught by the police officers in the act of prostitution,
can the said child be prosecuted under Article 202 of the
Revised Penal Code for Prostitution?
The answer is no, it is under Section 58 52 of RA 9344.
Under Sec. 58 of RA 9344, persons under 18 years of age
cannot be prosecuted for vagrancy and prostitution,
mendicancy and sniffing of rugby because these are not
in consonance with the United Nations Convention on
the Welfare of the Children.
Police Officer X was patrolling the area to maintain
peace and order in the said barangay. He saw A and B
fighting, they were already rolling on the ground as one
attacked the other. Police Officer X went near A and B
and tried to pacify them, to stop them. Police Officer X
blew his whistle to stop them but A and B would not
stop and they continued the fight and so, Police Officer
X decided to pull out his pistol, raise it in the air and
shot. He fired a shot in the air in order to stop A and B
from fighting. Indeed, A and B stopped from fighting.
However, the bullet fired by the said Police Officer in
the air landed and hit a child who was sleeping on the
terrace of their house nearby. The bullet hit the head of
the child, the child went into coma and thereafter, the
child died. The Police Officer was prosecuted for
reckless imprudence resulting in homicide. He invoked
however, accident as an exempting circumstance. He
said he is not criminally liable because it was purely
accidental. Are all the elements of accident as an
exempting circumstance present?
Instead, the said child shall undergo counseling and
training. Note however, that although under Sec. 58 of
RA 9344, if the child under 18 years of age committed
the crime of vagrancy cannot be prosecuted, note that
vagrancy had already been decriminalized by RA 10158.
So, there is now no vagrancy as a crime under Article
202 of the RPC. So insofar as Sec. 58 is concerned,
whenever a child is under 18 years of age, he cannot be
prosecuted for prostitution, mendicancy and sniffing of
rugby because the same is in violation of the United
Nations Convention on the Welfare of Children. No
child can be prosecuted for these crimes under Sec. 58
of RA 9344.
First, was the police officer performing a lawful act?
He was performing a lawful act because he was trying
to pacify A and B who were continuously fighting.
4. Any person who,
4.1. while performing a lawful act with due care,
4.2. causes an injury
4.2.1. by mere accident
4.2.2. without fault or intention of causing
it.
Second element, was he performing the lawful act with
due care?
The second element is absent. The Police Officer
although performing a lawful act in trying to pacify A
and B from their fight, did not do so with due care. His
51 SEC. 57. Status Offenses. - Any 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.
52 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. 1563, and
sniffing of rugby under Presidential Decree No. 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.
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Last element, the said injury was without fault or intent
on the part of the said police officer.
act of firing shots in the air show that he did not perform
his lawful act with due care; knowing that it is a
community wherein people are living, wherein people
are resting, people are there. He should not have fired
shots in the air because any stray bullet could hit an
innocent person. Since the second element of due care is
lacking, the police officer is liable for a culpable felony.
The Police Officer is liable for reckless imprudence
resulting in homicide.
All the elements of accident as an exempting
circumstance are present since all the elements of
accident as an exempting circumstance are present,
therefore, the offender police officer should be exempted
from criminal liability as well as from civil liability.
Again, to reiterate, in case of the exempting
circumstance of accident, the offender incurs both no
criminal and no civil liability.
Police officer brought a suspect to the police station, he
placed handcuffs on the said suspect and then brought
him inside the police station. He told the suspect to
please sit first as he was going to call the investigator.
The said suspect has to be investigated. When the
arresting Police Officer came back together with the
investigator and went near the said suspect, the suspect
suddenly stood up and grabbed the pistol on the waist
of the arresting police officer and the said suspect
pointed the pistol at the Police Officer, but the Police
Officer suddenly tried to grab it in order to prevent the
suspect from shooting. The Police Officer and the
suspect were now struggling for the possession of the
service pistol. In the course of the struggle for the
possession of the pistol, the Police Officer, with all his
might was able to regain possession. However, the
moment that it was in his possession, the gun suddenly
fired hitting the said suspect. The suspect sustained a
fatal wound, was brought to the hospital and survived.
The police officer is now prosecuted for frustrated
homicide. He invoked accident as an exempting
circumstance. Is the police officer liable for frustrated
homicide or should the said police officer be acquitted of
the crime charged because the said act of shooting was
purely accidental, an exempting circumstance? Are all
the elements of accident as an exempting circumstance
present?
5. Any person who acts under the compulsion of an
irresistible force.
ELEMENTS (PIA)
1. There is Physical force;
2. The physical force must be Irresistible and;
3. The physical force must come from Another person.
When do you say that the offender acted under the
compulsion of an irresistible force?
The offender is said to have acted under the compulsion
of an irresistible force if by reason of the force employed
on him, he becomes an instrument who acted not only
without will but also against his will.
So totally, he has no freedom of action because of the
irresistible force employed on him, because of the
irresistible force employed on him, he has no recourse
but to commit the said criminal act. He acted under the
compulsion of an irresistible force.
Related to that is paragraph 6 of Article 12.
6. Any person who acts under the impulse of an
uncontrollable fear of an
6.1. equal or
6.2. greater injury.
First, was the police officer performing a lawful act?
He was. He was trying to get back the pistol that was
taken from his waist, suddenly grabbed by the said
suspect.
ELEMENTS (URG)
1. That there exists an Uncontrollable fear;
2. That the uncontrollable fear be Real or at least
imminent and;
3. The fear of the injury must be Greater than or at
least equal to the act committed.
Was he performing the lawful act with due care?
Again the answer is yes. There is no way by which he
would be able to get the pistol than to struggle for its
possession because the pistol had already been pointed
to him and it is dangerous while in possession of the said
suspect.
The first element requires that there must exist an
uncontrollable fear.
Third, he causes an injury by mere accident; it was
purely accidental that at the moment he gained
possession, the gun fired.
When do you say that the fear be experienced by the
offender who committed the crime is uncontrollable?
It is uncontrollable when by reason of the threat
employed on him which causes the fear; he has been
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reduced to a mere instrument such that he acted not
only without will but also against his will.
a co-principal, that is, as a principal by indispensable
cooperation because without his act of opening the
vault, the money would not have been taken. The said
bank manager invoked the exempting circumstance
under paragraph 6. That he acted based on the impulse
of an uncontrollable fear. Is the said bank manager
liable as charged as a principal by indispensable
cooperation in the crime of robbery or should he be
acquitted because he acted merely based on the impulse
of an uncontrollable fear?
The bank manager should be acquitted of the crime
charged as a principal by indispensable cooperation
The second element requires the fear must be real and
imminent. It must be present, it must be actually
existing; it must not be imagined, it must not be in the
future, it must not be speculative.
Then we have the last element requires the fear of the
injury must be greater than or at least, equal to the act
committed.
The basis of these two exempting circumstances, we
have, having acted under the compulsion of an
irresistible force or having acted based on the impulse
of an uncontrollable fear of equal or greater injury, is
lack of freedom of action.
The elements of an uncontrollable fear are first, there
must exist an uncontrollable fear.
The fear on the part of the said bank manager was
uncontrollable because the said bank robber has
already killed the employee.
When the offender committed the wrongful act, there
was no freedom of action on his part, an element of
voluntariness. There was no freedom of action on his
part because of the irresistible force employed on him,
because of the threat that caused the uncontrollable
fear on him.
Second, was the fear real and imminent?
The fear was real and imminent. It is actual, it is about
to happen. The bank manager saw the robber kill the
employee and then the next shot would be on him if he
would not follow. If the robber was able to shoot the
employee, definitely, he too, would be able to shoot the
manager.
So, for these exempting circumstances to lie in favor of
the accused so as to exempt him from criminal liability,
it is necessary that totally, the offender has no freedom
of action. Totally, he has no choice. If although there
was threat employed on him, if although there was
physical force employed on him, he is still has freedom
of choice whether to do the act or not to do the act, then,
these exempting circumstances will not lie in favor of
the accused. It is necessary that totally, he has no
freedom of action; that he acted without choice on his
part.
The third requisite requires that the fear or the injury
must be greater than or at least equal to the act
committed.
The injury that he feared, the loss of his own life, it is
far greater than all the money inside the vault of the
bank, all the elements of paragraph 6, exempting
circumstance having acted under the impulse of an
uncontrollable fear are present, therefore, the bank
manager should be acquitted of the crime charged as a
principal by indispensable cooperation in the crime of
robbery.
The bank robbers entered a bank, the robbers tied each
of the employees in the bank and told them to lay on the
floor, and then then the robbers picked the manager and
told the manager to open the vault but the manager
would not open the vault and so, what the said head of
the robbers did, he took one of the employees and then
he told the said manager if you will not open the vault,
this employee would die. The said manager, not
believing that indeed the said robber will indeed shoot
the said employee, stood firm and did not open the vault
and so the head of the robbery shot the said employee
who died. Then the head of the robbers pointed the gun
at the said manager and told him, if you will not open
the vault, the next shot will be on you, afraid, the said
bank manager opened the said vault. Thereafter, the
bank robbers were able to take away all the money
inside the bank. Later, the bank robbers were arrested.
The manager was also arrested, they were charged with
robbery. The said manager of the bank was charged as
In the same problem, the said bank robber told the
manager, open the vault, if you will not open the vault,
we will go to your house we will rape your wife, kill your
wife and then kill all of your children, then we will burn
your house to erase the commission of the crime. Upon
hearing these, the bank manager became so afraid and
so, he opened the vault of the said bank. The bank
robbers were able to take away the money. Later the
robbers were arrested together with the bank manager.
The bank manager was charged as a principal by
indispensable cooperation in the crime of robbery. He
invoked the 6th exempting circumstance, he acted under
the impulse of an uncontrollable fear of equal or greater
injury. Are all the elements of this exempting
circumstance present?
No, the second element is absent.
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First, was there uncontrollable fear?
There was, everything will be taken away from him,
wife, children, house, that is sufficient to bring about an
uncontrollable fear.
First element, was there uncontrollable fear?
The fear that the mother would commit suicide is
sufficient to bring about uncontrollable fear on the part
of the daughter.
Second element, was the fear real or at least imminent?
The second element is absent. The fear is not real, it is
not imminent, it is not about to happen, it is not actual.
The threat was that, the bank robbers would go to his
house, rape the wife, kill the wife, kill the children, burn
the house. Before that could have been done, the said
bank manager could have already asked for police
assistance. Therefore, the threat, the uncontrollable
fear was not real, imminent nor actual.
The second element, was the uncontrollable fear real or
imminent?
The second element is absent. The fact that the mother
threatened to commit suicide, that is not actual, that is
not real, that is not imminent; it is in the future,
speculative and imaginative. Hence, this exempting
circumstance would not lie against the accused, drawer
of the check.
The other defense made by the said accused was that
the issuance of the check was done based on a state of
necessity. According to her, it was a state of emergency
because her mother would not be released without
paying the said bills? Are all the elements of state of
emergency or state of necessity as a justifying
circumstance present?
Supreme Court said no. According to the Supreme
Court, the first element, that the evil sought to be
avoided actually exist. It already does not exist, the first
element is not present. The evil that is sought to avoid,
the suicide of the mother, again, SC said it is in the
future, and not present or actual. The first element
being absent, therefore, this justifying circumstance,
said the court, would not apply in favor of the said
accused.
The second element being absent, therefore, the bank
manager should be liable as charged and he cannot hide
under the exempting circumstance of having acted
under the impulse of an uncontrollable fear of equal or
greater injury.
In the case of Ty vs. People53, the mother of Ty was
hospitalized for months and so the hospitalization bill
reached up to millions of pesos. The mother was already
cured but she was not allowed to leave the hospital
unless the bills had been paid. The mother threatened
the daughter that if she would not be released from the
hospital, she would commit suicide and so, the daughter
did, she issued checks in favor of the bank; several
checks that would answer for the millions of pesos of
hospital bills, so the mother was released. On the
maturity date of the checks, the hospital, or the head of
the hospital deposited the said check but all checks
issued by Ty bounced due to lack of funds. As a result,
cases, violation of BP 22 was filed by the hospital
against the drawer of the check, Ty. During the hearing
of the case, the contention of Ty was that he cannot be
held criminally liable based on first, the justifying
circumstance of state of necessity and second, based on
the exempting circumstance that he acted under the
impulse of an uncontrollable fear of equal or greater
injury. Ty said that the issuance of the check was done
under the impulse of uncontrollable fear. According to
her if she would not issue the check, her mother
threatened that she would commit suicide and the life
of her mother is very important hence, she should be
acquitted as charged. Will this defense lie in her favor?
Further, the SC said based on the evidence presented,
Ty, as stated in her testimony has many jewelry.
Instead of issuing checks that would bounce at the
hospital, she should have sold her jewelry in order to
pay for the bills of her mother in the said hospital. By
issuing the check, she committed the said act and
therefore, the SC held her criminally liable as charged.
7. Any person who
7.1. fails to perform an act required by law,
7.2. when prevented by some
7.2.1. lawful or
7.2.2. insuperable cause.
In exempting circumstances there is no criminal
liability but there is civil liability. Another exception is
in this case of paragraph 7, in case of lawful or
insuperable cause. Under paragraph 7, the offender or
the accused was not able to perform the act required of
In the instant case, the evil sought to be avoided is merely expected
or anticipated. If the evil sought to be avoided is merely expected or
anticipated or may happen in the future, this defense is not
applicable. Ty could have taken advantage of an available option to
avoid committing a crime. By her own admission, she had the choice
to give jewelry or other forms of security instead of postdated checks
to secure her obligation. (Ty vs. People, 439 SCRA 220, G.R. No.
149275 September 27, 2004)
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him by law by reason of lawful or insuperable cause.
Since the reason for the non-performance of the act was
a lawful one, therefore, he incurs no criminal and no
civil liability.
1. Those mentioned in the preceding chapter,
when all the requisites necessary to justify the
act or to exempt from criminal liability in the
respective cases are not attendant.
In other words, we have incomplete justifying
circumstance or incomplete exempting circumstance.
ARTICLE 13
MITIGATING CIRCUMSTANCES
Mitigating Circumstances are those circumstances
which if present or attendant in the commission of a
felony would serve to lower the imposable penalty. It
will lower the imposable penalty to the minimum period
of penalty prescribed by law.
A. When all the elements necessary to justify the act
are not present, we have incomplete justifying
circumstance.
B. When all the elements necessary to exempt the
offender from criminal liability are not present,
then, we have incomplete exempting circumstances.
They shall be treated as mitigating circumstance.
The presence of a mitigating circumstance will lower
the imposable penalty because in the commission of the
wrongful act, the offender acted with a diminution in
voluntariness.
How would you know if an incomplete justification or an
incomplete exemption would be treated as an ordinary
mitigating circumstance or a privileged mitigating
circumstance?
There is a diminution in any of the elements in
voluntariness. There is a diminution either in criminal
intent, freedom of action or intelligence. Hence, it shows
the lesser perversity or lesser criminality, lesser
dangerousness of the offender. As such, the penalty will
be reduced to the minimum period of the penalty
prescribed by law.
1. If majority of the requisites necessary to justify the
act or to exempt the offender from criminal liability
are present in the commission of the crime, it shall
be considered as a privileged mitigating
circumstance.
2. If less than a majority of the requisites necessary to
justify the act is present in the commission of the
crime, then it shall be treated as a mere ordinary
mitigating circumstance.
3. If there are only two requisites, in the justifying or
exempting circumstance, the presence of one
requisite is already considered as majority and it
shall be treated as a privileged mitigating
circumstance.
4. In case of incomplete self-defense, incomplete
defense of a stranger, incomplete defense of a
relative, there must always be unlawful aggression
in order to amount to a mitigating circumstance.
4.1. If only the element of unlawful aggression is
present, it shall be treated as an ordinary
mitigating circumstance.
4.2. If aside from unlawful aggression, another
element is present but not all, it shall be treated
as a privileged mitigating circumstance.
TWO KINDS OF MITIGATING CIRCUMSTANCES
1. Ordinary mitigating circumstances
2. Privileged mitigating circumstances.
Ordinary mitigating circumstances are those which
may be offset by a generic aggravating circumstance
while a privileged mitigating circumstance cannot be
offset by any aggravating circumstance.
Ordinary mitigating circumstances, if not offset, will
serve to decrease the penalty to the minimum period of
the penalty. Whereas, in case of privileged mitigating
circumstances, the penalty will be lowered by one or two
degrees.
These circumstances particularly privileged mitigating
circumstance, whenever it is present in the commission
of the crime, it shall first be considered by the court
before computing the penalty. It is called privileged
because it takes preference over all other things. So
before the court may consider other circumstances and
thereafter compute the penalty, whenever a privileged
mitigating circumstance is present, it must first be
taken into consideration.
A was holding a bolo he was running amok in a
subdivision. With the use of bolo, he was hitting all
persons who would pass by. The residents of the
subdivision sought assistance from the police. The
police arrived headed by police officer X. When the
police saw A, they called on A to surrender and to lay
down his bolo. However, A instead of surrendering,
hurriedly advanced menacingly to the police officer in
a hacking position with a bolo raised in his hand. So the
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If both elements are present, then Police Officer X is
justified. If only one is present, then, it is a privileged
mitigating circumstance.
police shot him. He fell on the ground, he slumped on
the ground. The wound was not fatal. While a was
slumped on the ground, the head of the police, Police
Officer X, went to him, took his bolo and thereafter fired
two shots on the head of A. A died. Prosecuted for
homicide, the police officer, Police Officer X invoked two
circumstances so as to free him from criminal liability.
In the case, the first requisite is present. Police officer
X acted in the due performance of his duty. He was there
as an answer to the call of the residence for police
assistance so he was there to fulfill his duty. He acted
in the performance of his duty. The first element is
present.
First, he invoked the justifying circumstance of selfdefense. According to him, he acted in self-defense.
Second, he invoked the justifying circumstance of
fulfillment of duty. According to him, he merely acted in
the lawful exercise of his duty. Are both justifying
circumstances present in the commission of the crime so
as to free Police Officer X from criminal liability? Or is
there at least incomplete self defense? Is there at least
incomplete fulfillment of duty?
How about the second element of fulfillment of duty? Is
the resulting injury the necessary consequence of the
due performance of his duty?
The second element is wanting. The firing, the killing of
A is not a necessary consequence of the police officer’s
fulfillment of his duty. The police officer exceeded his
duty. Hence, the second element is wanting.
We go first to the defense of self-defense. Is there selfdefense? Is there at least incomplete self-defense?
When A advanced menacingly to the police officers, the
police officers shot him and A fell on the ground. That
act of A of advancing to the police officer with a bolo
raised on his head in a hacking position constituted
unlawful aggression.
When A slumped on the ground, wounded, he can no
longer mount any aggression. There is no reason for
police officer X to still shoot him on the head twice that
caused his death. For having exceeded his duty, Police
Officer X cannot be said to have acted in due
performance of his duty.
However, the moment he slumped on the ground, the
police officer, particularly Police Officer X went up to
him took his bolo and thereafter shot him twice on the
head. At that precise moment that A slumped on the
ground, after receiving a gunshot wound, whatever
inceptive unlawful aggression have been commenced by
him, already ceased to exist. Since the inceptive
unlawful aggression on the part of the said victim
already ceased to exist, there is no more reason for
Police Officer X to shoot him. The unlawful aggression
had already ceased.
However, since of the two elements, the first one is
present, then we have an incomplete justification. An
incomplete justifying circumstance of fulfillment of duty
which shall be treated as a privileged mitigating
circumstance. So it will lower the imposable penalty by
at least one degree.
Therefore, since the element that is wanting is unlawful
aggression, there is both no self-defense nor incomplete
self-defense.
When the offender who committed the crime is a minor
over 15 but under 18 years of age and he acted with
discernment. Minority is a privileged mitigating
circumstance.
2. That the offender is under 18 years of age or
over 70 years. In the case of the minor, he shall
be proceeded against in accordance with the
provisions of Art. 80.
How about the second defense laid down by Police
Officer X for fulfillment of duty. Is the justifying
circumstance of fulfillment of duty present or is there at
least incomplete fulfillment of duty?
There are only two requisites for the justifying
circumstance of fulfillment of duty.
If minority is not exempting, it is always and always a
privileged mitigating circumstance.
If the minor is 15 years of age or below exempting but if
the minor is over 15 but below 18 and he acted without
discernment, still exempting. But if the minor is over 15
but below 18 and he acted with discernment, then his
minority shall be considered as a privileged mitigating
circumstance. It will always lower the imposable
penalty by one degree.
First, that the offender acted in the due performance of
his duty or in the lawful exercise of his right or office.
Second, that the resulting injury is the necessary
consequence of the due performance of his duty or
lawful exercise of his right or office.
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The second mitigating circumstance under the second
paragraph of Article 13 is seniority being over 70 years
of age. If the offender who committed the crime is over
70 years of age, the penalty to be imposed on him would
be lowered to the minimum period of penalty prescribed
by law. Seniority or being over 70 years of age is an
ordinary mitigating circumstance.
homicide but he should be given the mitigating
circumstance under paragraph 3, that the offender has
no intention to commit so grave a wrong as that
committed.
4. That sufficient provocation or threat on the part
of the offended party immediately preceded the
act.
3. That the offender had no intention to commit so
grave a wrong as that committed.
It is necessary that there must be a sufficient threat or
provocation on the part of the offended party. That
sufficient threat or provocation on the part of the
offended party immediately preceded the commission of
the crime.
This is known as praeter intentionem, when the
consequence went beyond the intention. That the
offender has no intention to commit so grave a wrong as
that committed.
ELEMENTS (TOI)
1. That there be the existence of Threat or the
existence of provocation which must be sufficient.
2. The provocation must Originate from the offended
party.
3. The provocation must be Immediate to the
commission of the crime by the person who had been
provoked.
ELEMENTS
1. That a Felony had been committed.
2. That there is a Notable disparity in the means
employed by the offender and the resulting felony.
That is out of the means employed by the offender, no
one could have anticipated. No one could have foreseen
such resulting felony.
The first element requires that there must be a
provocation which must be sufficient.
A and B were playing basketball. A with his group, B
with his group, and the two teams were against each
other in the basketball game. The team of A won but an
altercation between A and B ensued thereafter. The
altercation became heated, they were already shouting
with one another. As a result, B left A. While A was still
talking, B left. A felt it was so rude on the part of B to
have left him while he was still talking. And so, A
followed B who was walking hurriedly. When A was
already at the back of B, A kicked B. B fell on the
cemented wall, the head hitting the wall. B suffered
cerebral hemorrhage and thereafter died. A was
prosecuted for the crime of homicide. Is A liable of
homicide? In case of conviction, would you give him the
benefit of this mitigating circumstance under
paragraph 3, praeter intentionem, that the offender has
no intention to commit so grave a wrong as that
committed?
A is liable for homicide. His act of kicking B is a
felonious act and it is the proximate cause of the death
of the victim. Therefore, A is liable for homicide under
the proximate cause doctrine.
Provocation refers to any improper or unjust act or
conduct which excites or incites a person to do a
wrongful act.
Provocation is said to be sufficient when:
1. It is adequate to stir a person to commit a wrongful
act, and
2. It is proportionate to the gravity of the act.
The first element requires that the provocation must be
sufficient.
The second element requires that the provocation must
come from the offended party. If the provocation came
from any other person not the offended party, then this
mitigating circumstance would not lie in favor of the
accused. It is necessary that it is the victim who
provoked the offender or the accused.
The third element requires that the provocation must
be immediate to the commission of the crime by the
person provoked.
However, A should be given the mitigating
circumstance of praeter intentionem. There is a notable
disparity between the means employed by A kicking the
victim and the resulting felony which is homicide, the
death of the victim. No one could have anticipated nor
foreseen that out of the mere act of kicking one’s back,
death would result. Therefore, A should be convicted of
The word immediate here does not allow a lapse of time.
Right after the giving of the provocation, the person
provoked must immediately commit the criminal act in
order that this mitigating circumstance may lower his
imposable penalty.
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Related to 4th paragraph is the 5th mitigating
circumstance.
the commission of the felony. It suffices that the grave
offense be the proximate cause of the commission of the
felony but it must not be too long a time for the offender
to have recovered his normal equanimity.
5. That the act was committed in the immediate
vindication of a grave offense to the one
committing the felony(delito),
5.1. His spouse,
5.2. ascendants,
5.3. descendants,
5.4. legitimate, natural, or adopted brothers or
sisters, or
5.5. relatives by affinity within the same
degrees.
6. That of having acted upon an impulse so
powerful as naturally to have produced passion
or obfuscation.
This is known as “sudden impulse of passion and
obfuscation’’.
ELEMENTS (AP)
1. That there be an Act both unlawful and sufficient to
produce passion and obfuscation on the part of the
offender.
2. The commission of the act that produced Passion
and obfuscation must not be far removed from the
commission of the crime by the offender, so that the
offender would not yet have recovered his normal
equanimity.
It is a mitigating circumstance known as “immediate
vindication of a grave offense’’.
ELEMENTS (GV)
1. That there be a Grave offense committed to the
offender or to his spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters or
relatives by affinity in the same degree.
2. That the felony was committed in immediate
Vindication of this grave offense done.
In the first element, the said offended party must have
committed an unlawful act against the offender.
Therefore, since an unlawful act had been committed on
the offender which brought about passion and
obfuscation on the offender, it is necessary under the
first element that the passion and obfuscation on the
part of the offender arose from lawful sentiments. The
said passion and obfuscation was brought about by
lawful sentiments because an unlawful act had been
committed against him.
In other words, the grave offense done must be the
proximate cause of the commission of the felony.
The grave offense under the first element need not be a
punishable act. It refers to any act, any conduct, which
caused a person mental agony and moved him to
vindicate himself.
In the second element, the word immediate here allows
a lapse of time.
In the second element, it is necessary that the
commission of the crime must be based on sudden
impulse of passion and obfuscation, but it is also
necessary that there be no lapse of time also. It must be
right after the passion and obfuscation, the crime had
been committed, sudden impulse.
In sufficient provocation the word immediate does not
allow a lapse of time, but in case of immediate
vindication, the word immediate allows a lapse of time.
In a number of cases, the Supreme Court held that the
word immediate in paragraph 5 allows a lapse of time
because there was an erroneous Spanish translation.
Our revised penal code was merely copied from the
Spanish Codigo Penal. According to the Supreme Court,
in the Spanish Codigo Penal, the word used was
“proxima”. Yet when they translated in our Revised
Penal Code, the word used was immediate. Therefore,
Supreme Court said the word immediate in paragraph
5 allows a lapse of time between the grave offense and
There must not be a lapse of time which is long enough
for the offender to have recovered to his normal
equanimity.
These 3 (Paragraph 4, 5 and 6), according to the SC in
the case of Romera vs. People54, if all are present in the
We must stress that provocation and passion or obfuscation are not
two separate mitigating circumstances. Well-settled is the rule that if
these two circumstances are based on the same facts, they should be
treated together as one mitigating circumstance. From the facts
established in this case, it is clear that both circumstances arose from
the same set of facts aforementioned. Hence, they should not be
treated as two separate mitigating circumstances. (Romera vs.
People, 434 SCRA 467, G.R. No. 151978 July 14, 2004)
Only there will the offender be able to be able to
appreciate the benefit of this mitigating circumstance of
sudden impulse of passion and obfuscation.
54
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Hence, the husband merely acted based on sudden
impulse of passion and obfuscation.
commission of the crime, or if at least two of them are
present in the commission of the crime and they arose
from the same facts and circumstances, they shall be
treated only as one mitigating circumstance insofar as
the imposition of penalty is concerned.
Both mitigating circumstances are present according to
the Supreme Court yet in computing the penalty,
Supreme Court said, since these two mitigating
circumstances arose from the same facts and
circumstances, they shall be considered only as one
mitigating circumstance.
A and B, husband and wife, were having dinner when
suddenly their door was being banged by a person. The
person sounded that of their neighbor. The person was
calling on the name of the husband asking him to come
out. When the wife opened the door, the said neighbor
tried to hack the wife, the wife was however able to
immediately close the door so the wife was not hit. The
neighbor kept hacking the door of the house and so the
husband was forced to get out of the house to face the
neighbor using the other door. The husband confronted
the neighbor. The husband asked the neighbor what
was the matter while he was shouting, while he was
looking for the husband. But the said neighbor, instead
of answering the husband, tried to hack the said
husband. The husband evaded the blow and thereafter,
he tried to get possession of the bolo and the two, the
neighbor and the husband struggled for the possession
of the bolo.
So if in the bar, a problem was given, and based on the
problem the question is, is the mitigating circumstance
of sufficient provocation present? Is the mitigating
circumstance of immediate vindication present? Is the
mitigating circumstance of sudden impulse of passion
and obfuscation present?
You will answer, yes they are present if based on the
facts, they are indeed present.
And then the second question is, if you were the judge
convicting the accused, how would you consider these
mitigating circumstances?
The answer is, if you were the judge who will convict the
accused, you shall consider these three mitigating
circumstances only as one mitigating circumstance
because they arose from the same facts and
circumstance.
In the course thereof, the husband was able to get
possession of the bolo. While he was in possession of the
bolo, the husband hacked the neighbor. Thereafter, he
brought the neighbor to the hospital. The neighbor
suffered a fatal wound but he survived after a medical
operation. So the husband was prosecuted for the crime
of frustrated homicide. Among the mitigating
circumstances invoked by the husband were: first,
according to him, there was sufficient provocation
coming from the offended party. And second, according
to him, he acted based on sudden impulse of passion and
obfuscation. Are these two mitigating circumstances
present in the commission of the crime?
The Supreme Court in the case of People vs. Romera
said the first mitigating circumstance, sufficient
provocation was present. It is present because the act of
the neighbor of trying to act the wife, the act of the
neighbor of continuously hacking the door of the house
are considered as acts which will provoke the offender
to commit a crime. Therefore, the commission of the
crime was done immediately after the provocation.
Sufficient provocation is present as a mitigating
circumstance.
So remember if the question is are they present, state
that they are present if they are so. But if the question
is how would you consider them, if all three or any two
are present, consider them only as one if they arose from
the same facts and circumstance.
The husband learned that the wife was having an affair,
the husband confronted the wife. The said wife
admitted to the husband that she has an affair with
another man. Because of this, the husband and the wife
got separated. The husband looked for the man. Two
weeks thereafter, the husband found the man in the
public market. The husband went to the man, shot the
man. The man died. Prosecuted for murder, the
husband invoked among others two mitigating
circumstances. First, according to the said husband, he
acted under immediate vindication of a grave offense.
Second, according to him, he acted based on sudden
impulse of passion and obfuscation. Are both mitigating
circumstances present so as to lower the imposable
penalty on the husband?
Supreme Court said sudden impulse of passion and
obfuscation is present. The same act of the neighbor of
trying to hack the wife and continuously hacking the
door of the house brought about an act that produced
passion and obfuscation on the part of the said husband.
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The Supreme Court in the case of People vs. Ignas55
said, both mitigating circumstances are absent in the
commission of the crime. Supreme Court said two weeks
is too long a time for the offender to have recovered his
normal equanimity. Therefore, since the killing took
place two weeks after the discovery of the husband that
the wife was having an affair with this victim, two
weeks is already too long a time for the husband to have
reflected on the consequences of his act, to recover his
normal equanimity. Therefore, this two mitigating
circumstances will not mitigate his criminal liability.
Rodel and Balweg were both employees in a water
district. After a day’s work, they decided to have a
drinking spree together with the other fellow
employees. While they were having this drinking spree,
Rodel started calling Balweg names.
Rodel was
bullying Balweg. He was stating slanderous remarks
against Balweg. And so B confronted A, “Why is it that
whenever you are drunk, you would always say
slanderous remarks against me?” So Balweg confronted
Rodel. They had a heated argument and this heated
argument ensued into a fist fight. Rodel and B were now
fighting. Balweg was a little man. He was little. He’s a
smaller man compared to Rodel. And so, Balweg was
losing the fight. When Balweg was losing the fight, he
suddenly hit a lucky punch on the face of Rodel. By that
one lucky punch by the face of Rodel, Rodel fell on the
ground unconscious. When he regained consciousness,
he was brought to the hospital. And since then, he had
been in and out of the hospital until he died thereafter.
B was prosecuted for the crime of homicide under the
proximate cause doctrine. Is he liable as charged? In
case of conviction, what mitigating circumstances would
you consider in his favor? If you were the judge, would
you convict him of homicide?
In the case of Urbano vs. People, the Supreme Court
said that Balweg is liable as charged for the crime of
homicide under the proximate cause doctrine. Balweg’s
act of hitting Rodel on the face with what was called as
one lucky punch, is considered as a felonious act. And
this felonious act inflicted by Balweg on Rodel was the
proximate cause of the death of Rodel.
The husband learned that a grandfather, their
neighbor, tried to molest his wife. Four days thereafter,
the said husband went to the said grandfather and
hacked the grandfather. Prosecuted for murder, among
the mitigating circumstance invoked by the said
accused in order to lower the imposable penalty was
immediate vindication of a grave offense. Is this
mitigating circumstance present so as to lower the
imposable penalty?
The act of the grandfather trying to molest the wife may
be a grave offense. However, the second element is
absent. Supreme Court said, four days is too long a time
for the offender to have recovered to his normal
equanimity. It cannot be said that the said act of the
grandfather constituted the grave offense that was the
proximate cause of the killing because four days had
lapsed from the said act to the act of killing. Since four
days had lapsed, Supreme Court said it cannot be said
that the commission of the said crime was done in the
immediate vindication of a grave offense.
What mitigating circumstances would you consider?
In this case of Urbano vs. People56, the Supreme Court
considered two mitigating circumstances in favor of the
Same; Same; Same; Passion and Obfuscation; Requisites; The rule is
that the mitigating circumstances of vindication of a grave offense and
passion and obfuscation cannot be claimed at the same time, if they
arise from the same facts or motive.—We likewise find the alleged
mitigating circumstance of passion and obfuscation inexistent. The
rule is that the mitigating circumstances of vindication of a grave
offense and passion and obfuscation cannot be claimed at the same
time, if they arise from the same facts or motive. In other words, if
appellant attacked his victim in proximate vindication of a grave
offense, he could no longer claim in the same breath that passion and
obfuscation also blinded him. Moreover, for passion and obfuscation
to be well founded, the following requisites must concur: (1) there
should be an act both unlawful and sufficient to produce such
condition of mind; and (2) the act which produced the obfuscation was
not far removed from the commission of the crime by a considerable
length of time, during which the perpetrator might recover his moral
equanimity. To repeat, the period of two (2) weeks which spanned the
discovery of his wife’s extramarital dalliance and the killing of her
lover was sufficient time for appellant to reflect and cool off. (People
vs. Ignas, 412 SCRA 311, G.R. Nos. 140514-15 September 30, 2003)
56 When the law speaks of provocation either as a mitigating
circumstance or as an essential element of self-defense, the reference
is to an unjust or improper conduct of the offended party capable of
According to the OSG, for the mitigating circumstance of
vindication of a grave offense to apply, the vindication must be
“immediate.” This view is not entirely accurate. The word “immediate”
in the English text is not the correct translation of the controlling
Spanish text of the Revised Penal Code, which uses the word
“proxima.” The Spanish text, on this point, allows a lapse of time
between the grave offense and the actual vindication. Thus, in an
earlier case involving the infidelity of a wife, the killing of her
paramour prompted proximately—though not immediately—by the
desire to avenge the wrong done, was considered an extenuating
circumstance in favor of the accused. The time elapsed between the
offense and the suspected cause for vindication, however, involved
only hours and minutes, not days. Hence, we agree with the Solicitor
General that the lapse of two (2) weeks between his discovery of his
wife’s infidelity and the killing of her supposed paramour could no
longer be considered proximate. The passage of a fortnight is more
than sufficient time for appellant to have recovered his composure and
assuaged the unease in his mind. The established rule is that there
can be no immediate vindication of a grave offense when the accused
had sufficient time to recover his serenity. Thus, in this case, we hold
that the mitigating circumstance of immediate vindication of a grave
offense cannot be considered in appellant’s favor.
55
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accused, Urbano. First, Supreme Court said there was
sufficient provocation. It was Rodel who provoked
Balweg to confront him. It was Rodel who provoked him
to a fight. Rodel called Balweg names, Rodel had been
bullying B, Rodel stated slanderous remarks against
Balweg. The only act of Balweg was to confront Rodel
but this confrontation ensued into a fight. Hence,
sufficient provocation was present. The said sufficient
provocation originated from the offended party Rodel
and it was immediate to the commission of the crime.
the said offender, for as long as the police officers had
not yet gone out to look for them and thereafter arrest
the said offender, the first element is still satisfied.
In the second element, person-in-authority, we have the
mayor, we have the governor, we have the barangay
chairman. Agents of person-in-authority, we have the
police officers.
In the third element, the surrender is considered
voluntary when it is done spontaneously and
unconditionally. That is, the offender felt remorse for
what he had done or he wanted to save the government
that much needed funds and effort which would
definitely be incurred by them if they look for him and
thereafter arrest or capture him.
The other mitigating circumstance considered by the
court is paragraph 3 that is praeter intentionem. That
the offender has no intention to commit so grave a
wrong as that committed. The act performed by Balweg,
he only hit Rodel with one lucky punch. In fact, Balweg
was losing the fight because Balweg was a smaller man
until he hit one lucky punch on the face of Rodel. That
one lucky punch, no one could have anticipated that out
of it, death would result. No one could have foreseen
that out of such punch, death would result. Therefore,
obviously, there was no intention on the part of the
offender to commit so grave a wrong as that committed
which was homicide.
A warrant of arrest had been issued against the
offender, X. The police were armed with a warrant of
arrest against X. X learned that a warrant of arrest had
been issued against him. He got a tip from a person in
the court that a warrant of arrest had already been
issued against him and now it is already in possession
of the police. The moment X learned that a warrant of
arrest had already been issued against him, he
immediately went to the police and gave himself up. Is
the said surrender voluntary, which shall be considered
as a mitigating circumstance?
Yes. The said surrender is still voluntary and will
mitigate the criminal liability of the offender. Even if a
warrant of arrest had already been issued against X,
and even if the police officers are already in possession
of the same, the police officers, at the time that X gave
himself up and surrender to them, had not yet gone out
to look for him and to arrest him. Therefore, such
surrender is voluntary. It is still spontaneous in nature.
It is still done unconditionally to save the government
the funds and time that they will incur if they will still
look for him and arrest him.
Two mitigating circumstances are therefore present in
the commission of the crime. One is sufficient
provocation and the other one is praeter intentionem.
7. That the offender had
7.1. voluntarily surrendered himself to a person
in authority or his agents, or
7.2. that he had voluntarily confessed his guilt
before the court prior to the presentation of
the evidence for the prosecution.
TWO MITIGATING CIRCUMSTANCES UNDER
PARAGRAPH 7
1. Voluntary surrender.
2. Voluntary plea of guilt.
In the first element, it is necessary that the police
officers have not yet gone out to look and arrest the
offender. If there is already a warrant of arrest against
The surrender made by Senator Enrile, Senator Revilla
and Senator Estrada in the crime of plunder. Were they
considered as voluntary surrender so as to mitigate
their criminal liability?
In case of conviction, the said surrender is considered as
voluntary and therefore may mitigate their criminal
liability in case of conviction. Although the warrants of
arrest were already in possession of the police, the police
did not look for them. The police did not arrest them. It
was these three senators who surrendered voluntarily,
exciting, inciting, or irritating anyone; it is not enough that the
provocative act be unreasonable or annoying; the provocation must be
sufficient to excite one to commit the wrongful act and should
immediately precede the act. In the instant case, Tomelden’s insulting
remarks directed at petitioner and uttered immediately before the fist
fight constituted sufficient provocation. This is not to mention other
irritating statements made by the deceased while they were having
beer in Bugallon. Petitioner was the one provoked and challenged to
a fist fight. (Urbano vs. People, 576 SCRA 826, G.R. No. 182750
January 20, 2009)
ELEMENTS OF VOLUNTARY SURRENDER (ASV)
1. Offender has not been actually Arrested.
2. That the offender Surrendered himself to a person
in authority or his agents.
3. That the said surrender is Voluntary.
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who gave themselves up to the police. Hence, the said
surrender will be considered as mitigating in nature
because it was done spontaneously and unconditionally
to save the government the funds that they will incur if
they will look for them and capture the said senators.
A was charged as a principal in the crime of robbery.
During arraignment, he pleaded not guilty. On plea
bargaining, he moved that he be allowed to change his
plea to guilty but for the lesser participation as a mere
accomplice in the commission of robbery. With the
consent of the court, with the consent of the public
prosecutor and with the consent of the private
complainant, the accused pleaded guilty to that of being
a mere accomplice in the commission of robbery. The
judge rendered judgment and in the said judgment, in
imposing the penalty, the judge did not consider the
plea of guilt as voluntary and mitigating. Is the judge
correct?
Yes. The first element requires that for a voluntary plea
of guilt to lie as a mitigating circumstance in favor of
the accused, it is necessary that the confession of guilt
must be done unconditionally. In the problem, the plea
of guilt was done subject to the condition that he be a
mere accomplice to the crime of robbery not as a
principal. Since it is subject to a condition, such plea of
guilt cannot be considered as voluntary and mitigating
so as to lower the imposable penalty of the said accused.
But the crime is plunder? Can these voluntary
surrender be considered as mitigating circumstance in
the crime of plunder in case of conviction?
Yes. Because under Section 257 of RA 7080, AntiPlunder Law, the law or the provision expressly
provides that in the imposition of penalty for plunder,
the mitigating and extenuating circumstances may be
considered by the court. Therefore, this surrender which
is voluntary in nature may be considered by the court in
the imposition of penalty even in the crime of plunder
as provided in the section 2 of RA 7080.
ELEMENTS OF VOLUNTARY
PLEA OF GUILTY (SOP)
1. The offender confessed his guilt Spontaneously and
unconditionally.
2. The confession of guilt must be made in Open court,
that is the court that trying the case.
3. That the confession of guilt must be made before the
Presentation of evidence for the prosecution.
In the third element, if the plea was done after the
prosecution has presented its evidence, because the
evidence against him was overwhelming, it is no longer
considered as voluntary and mitigating in nature.
A was charged with a crime of frustrated homicide.
During arraignment, he already pleaded not guilty on
frustrated homicide. On plea bargaining, he moved that
he be allowed to plead guilty to the lesser crime of
Serious Physical Injuries. With the consent of the judge,
with the consent of the public prosecutor and with the
consent of the complainant, the said accused was
allowed to plead guilty to the lesser crime of serious
physical injuries. Thereafter, the judge rendered
judgment. In imposing the penalty, the judge did not
consider his voluntary plea of guilt as a mitigating
circumstance. Is the judge correct?
Yes. Such plea of guilt is not done spontaneously. For
voluntary plea of guilt to be considered as done
spontaneously, it must be to the original crime charged.
Here, he only plead guilty to a lesser crime.
8. That the offender is (1) deaf and dumb, (2) blind
or (3) otherwise suffering some physical defect
which thus restricts his means of
8.1. action,
8.2. defense, or
8.3. communication with his fellow beings.
This mitigating circumstance refers to “physical defect’’.
For this mitigating circumstance to lower the imposable
penalty by the accused, it is necessary that the physical
defect must have a connection to the crime committed
by the offender, such that, by reason of his physical
defect, there was a restriction with his action and
defense with his fellow being. The physical defect has
restricted his means of action, defense or
communication with his fellow being. Only then will
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties,
the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code,
shall be considered by the court. The court shall declare any and all
ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the deposit
or investment thereof forfeited in favor of the State. (As amended by
RA 7659)
57 Sec. 2. Definition of the Crime of Plunder; Penalties. - Any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires illgotten wealth through a combination or series of overt criminal acts
as described in Section 1 (d) hereof in the aggregate amount or total
value of at least Fifty million pesos (P50,000,000.00) shall be guilty of
the crime of plunder and shall be punished by reclusion perpetua to
death. Any person who participated with the said public officer in the
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this physical defect mitigate the criminal liability of the
said offender.
ELEMENTS (DC)
1. The illness of the offender must Diminish the
exercise of the will power of the offender.
2. Such illness of the offender must not totally deprive
him of Consciousness of his act.
The offender is a blind beggar. He was begging outside
the church. Every day he will sit there and beg or he
will stand there and beg. Then suddenly one Sunday
morning, when the said blind man was begging for
alms, here comes X, a person who was mad at the blind
man. X struck the head of the blind man with the piece
of wood. The blind man fell on the ground. Thereafter,
X left. Wanting to retaliate, the blind man immediately
took his cane and thereafter stood up and hit the man
that was passing by thinking that he was still X, the
man who struck him in the head. But what the blind
man hit with his cane is an innocent churchgoer. The
said innocent churchgoer suffered less serious physical
injuries. The blind man was prosecuted for less serious
physical injuries. Will his physical defect mitigate his
criminal liability?
Yes. His physical defect, his blindness restricted his
means of action, defense and communication with his
fellow beings. Considering that he could not see the
person that he hit was another person, not the person
who struck him in the head.
If the illness of the offender would totally deprive him
of the consciousness of his act, it is not merely a
mitigating circumstance but already an exempting
circumstance. So it is necessary that the illness must
only diminish the exercise of the will power but not
totally deprive him of consciousness of his act.
10. And, finally, any other circumstance of a similar
nature and analogous to those above mentioned.
If the offender is 65 years of age and he was ill that can
be considered as akin, analogous to being over 70 years
of age.
Restitution of the money malversed by the public officer
may be considered as akin or analogous to voluntary
surrender.
Examples of analogous circumstances
1. The act of the offender of leading the law enforcers
to the place where he buried the instrument of the
crime has been considered as equivalent to
voluntary surrender.
2. Stealing by a person who is driven to do so out of
extreme poverty is considered as analogous to
incomplete state of necessity (People v. Macbul,
G.R. No. 48976, October 11, 1943), unless he became
impoverished because of his own way of living his
life, i.e. he had so many vices.
3. Defendant who is 60 years old with failing eyesight
is similar to a case of a person over 70 years of age
The offender has no legs. He was born with no legs.
What the offender did, although he has no legs, he
climbed the tree and thereafter passed to the window of
a house. From there, he took some important valuables,
(e.g. laptop, cell phones, etc.). Thereafter, he again
passed out of the said window, on to the tree and
climbed down. The said offender was arrested. He
invoked as a mitigating circumstance his physical
defect to lower his imposable penalty. He said he has no
legs. Will his physical defect mitigate his criminal
liability?
No. Although born with no legs, the physical defect did
not restrict his means of action, defense or
communication with his fellow being. Even without
legs, he was able to climb the tree and was able to go
inside the house and thereafter took the valuables or
commit robbery. Therefore, the physical defect is in no
way connected with the crime committed because it did
not restrict his means of action, defense or
communication with his fellow being.
(People v. Reantillo and Ruiz, C.A. G.R. No. 301,
July 27, 1938).
4. Impulse of jealous feeling, similar to passion and
obfuscation.
5. Voluntary restitution of property, similar to
voluntary surrender.
6. Outraged feeling of the owner of animal taken for
ransom is analogous to vindication of grave offense.
7. Wartime state of confusion resulting in illegal
possession of firearm after the liberation ( People v.
Quemuel, 76 Phil 135), as being similar to lack of
intent to commit so grave a wrong.
8. Testifying for the prosecution without being
discharged from the information ( People v.
Narvasca, et al., G.R. No. L-28107, March 15, 1977),
as being like a plea of guilty.
9. Acting out of embarrassment and fear caused by the
victim because of gambling debts of the accused
9. Such illness of the offender as would
9.1. diminish the exercise of the will-power of
the offender
9.2. without however depriving him of
consciousness of his acts.
This is known as “illness of the offender’’.
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(People v. Ong, et al., G.R. No. L-34497, January 30,
1975), as akin to passion or obfuscation.
criminality, greater dangerousness, greater perversity
on the part of the offender.
10. Retaliating for having been assaulted during a
public dance where the accused was well known and
respected (People v. Libria, 95 Phil. 398), as similar
to vindication.
11. When the petitioner submits extrajudicial
confession through the handwritten letter coupled
with her act of surrendering the redeemed pawn
tickets and thereafter going to the police station
(Frontreras v. People, G.R. No. 190583, December
07, 2015), as an analogous circumstance of
voluntary surrender.
DIFFERENT
KINDS
CIRCUMSTANCES
OF
AGGRAVATING
1. Generic aggravating circumstances are those
circumstances which apply to all kinds of crimes.
(e.g. Nighttime & Recidivism)
Nighttime is an aggravating circumstance which
may be considered in the commission of a crime
whether it’s a crime against person, crime against
property, crime against public interest, crime
against chastity. Whatever be the crime, nighttime
may be considered as an aggravating circumstance
if present in the commission of the crime.
Significance of this paragraph
The significance of this paragraph is that even though
a particular circumstance does not fall under any of the
enumerated circumstances in Art. 13, the court is
authorized to consider in favor of the accused “any other
circumstance of a similar nature and analogous to those
mentioned.”
Recidivism also applies to all kinds of crimes.
2. Specific aggravating circumstances are those which
apply only to certain or particular crimes. (e.g.
Treachery)
In Jarillo case, the SC ruled that an abandoned wife
who remained and found guilty of Bigamy, is entitled to
a mitigating circumstance of “for humanitarian reason”
as her marriage with the complainant was later on
declared null and void (G.R. No. 164435, September 29,
2009).
Treachery can only be considered as an aggravating
circumstance in crimes against persons. You do not
consider treachery in crimes against chastity. You
do not consider treachery in crimes against public
interest, in crimes against public order. It can only
be committed in crimes against persons. Hence, it is
considered as a Specific Aggravating Circumstance.
Circumstances which are neither exempting nor
mitigating
1. Mistake in the blow or aberratio ictus;
2. Mistake in the identity (error in personae);
3. Entrapment;
4. Accused is over 18 years of age; and
5. Performance of righteous action.
3. Inherent aggravating circumstances are those
which are of necessity considered as ingredient of
the crime. Hence, if present in the commission of the
crime, they are no longer to be considered so as to
increase the imposable penalty because they are
considered as absorbed being elements in the
commission of the crime (e.g. Dwelling in case of
trespass to dwelling, Evident Premeditation in case
of robbery)
ARTICLE 14
Aggravating Circumstances are those circumstances
which if present or attendant in the commission of a
felony will serve to increase the imposable penalty. The
imposable penalty would be increased but not beyond
the maximum penalty prescribed by law.
Even if present, it will not serve to impose the
imposable penalty.
4. Qualifying aggravating circumstances are those
circumstances which would change the nature of
the crime to bring about a more serious crime with
a higher penalty or even without changing the
nature of the crime; it would bring about the
imposition of a higher penalty. (Ex. Treachery if
present in the killing of a person will qualify the
penalty into reclusion perpetua to death because the
crime will become murder)
No matter how many aggravating circumstances
attended the commission of the crime, the court cannot
go beyond the maximum penalty prescribed by law.
That is the limit.
The presence of an aggravating circumstance in the
commission of a felony would serve to increase the
imposable penalty because the presence of an
aggravating circumstance would reveal greater
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prescribed by law shall be the one imposed. Therefore,
taking advantage of one’s public position being a special
aggravating circumstance cannot be offset by any
mitigating circumstance and would require the
imposition of the maximum penalty prescribed by law.
If you will look at Article 248, Murder, all the
circumstances enumerated in Article 248 are
qualifying aggravating circumstances. These
circumstances if present in the commission of the
act of killing will change the crime from homicide.
It will become murder with a higher penalty from
reclusion temporal in homicide, it will become
reclusion perpetua to death in the crime of murder.
The offender is said to have taken advantage of his
public position in the commission of the crime when he
use, misuse or abuse his public position to commit the
crime or to facilitate the commission of the crime. The
offender misuse or took advantage of the ascendancy,
the prestige and the influence that his office offers him
in order to facilitate the commission of the crime.
5. Special aggravating circumstances are those which
provide for the imposition of the maximum penalty
prescribed by law. Hence, they cannot be offset by
any mitigating circumstances (e.g. Taking
advantage of one’s public position)
So this aggravating circumstance may only be applied if
the offender is a public officer.
Under Article 62, if the crime was committed by the
offender, public officer by taking advantage of his
public position, the maximum penalty prescribed by
law shall be imposed. Likewise, if the crime is
committed by any person who belong to a syndicate
or organized crime group, such fact of being a
member of a syndicate or an organized crime group
is a special aggravating circumstance. Article 62
says the maximum penalty prescribed by law shall
be the one imposed.
Every morning this police officer would go to one
sidewalk vendor to another and he would get 50 pesos
from one sidewalk vendor to another as his toll. The
sidewalk vendor would not want to give because it was
still early in the morning and they have no buyers yet
but afraid of the said police officer who may arrest them,
they would always give 50 pesos to this public officer,
police officer. One time, one of the said sidewalk vendor
A, he got been mad already because of what police
officer had been doing so he filed a case of robbery
against the said police officer. In the information it was
alleged that in the commission of the crime of robbery,
the police officer took advantage of his public position
as a police officer. Is the said aggravating circumstance
of taking advantage of public position present in the
commission of the crime?
Yes. This police officer in committing robbery in
extorting money from these sidewalk vendors
committed the crime with taking advantage with grave
abuse of his public position. Were it not for the fact that
he was a police officer, the sidewalk vendors would not
give him 50 pesos every day, every morning. The police
officer took advantage of the influence, the prestige that
his office offers him. That he used his public position in
order to commit robbery. Therefore, it will be considered
as a special aggravating circumstance in accordance
with Article 62 of the revised penal code as amended by
RA 7659.
Justifying, exempting and mitigating circumstances are
not alleged in the information because they are a matter
of defense on the part of the accused which is not to be
proven by the prosecution. However, aggravating
circumstances needs to be alleged because it is a matter
that is need to be proven by the prosecution. If
aggravating circumstances is not alleged in the
information, it might arise to acquittal or not
appreciating the aggravating circumstance. In
whatever crime, aggravating circumstance must be
alleged and be proven by proof beyond reasonable doubt
otherwise, it cannot be considered against the accused
and cannot be considered by the court even proven
during trial. The reason is you deprive the accused to be
informed about the nature of the charge against him.
1. That advantage be taken by the offender of his
public position.
ELEMENTS (AF)
1. Abused his public position.
2. The use of the same Facilitated the commission of
the crime.
A notary public prepared a deed of absolute sale. The
deed of absolute sale states that A sold his property to
B. In reality however, A did not execute a deed of
absolute sale in favor of B. As such, the notary was
charged with a crime of falsification under Article 171,
taking advantage of his public position. So in the
information, it was alleged that in committing the crime
of falsification, this notary public offender, a public
officer took advantage of his public position. If you were
However, if you will look at Article 62, as amended by
RA 7659, taking advantage of one’s public position in
the commission of a crime is considered as a special
aggravating circumstance because Article 62 as
amended provides that the maximum period of penalty
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the judge convicting the said notary public, would you
consider taking advantage of one’s public position?
What kind of aggravating circumstance is it?
If you were the judge who would convict the said notary
public, the said aggravating circumstance of taking
advantage of one’s public position will be considered as
inherent in the commission of the crime. It is absorbed
as an element in the crime of falsification. Therefore, it
need not be considered so as to increase the imposable
penalty on the said notary public. It is an element of the
crime of falsification committed by the public officer
under Article 171
Public Authority/Person in Authority is any person
directly vested with jurisdiction whether as an
individual or as a member of some court or
governmental corporation or board. He has the duty to
govern and execute the law.
NOTE: A police officer is only an agent of persons in
authority not a public authority.
In the second element, it is required that the public
authority is not the person against whom the crime was
committed because if it is the public authority is the
very person against whom the crime was committed,
then the crime committed is direct assault. And in the
crime of direct assault, in contempt of or with insult to
public authorities is an inherent element.
If the offender is a police officer. The police officer has
in his custody a woman prisoner. And the police officer
raped the said prisoner. A charge of rape was filed
against the police officer. In the said information, it was
alleged that the said rape was committed by the said
police officer by taking advantage of his public position.
In the commission of the crime, if you were the judge,
would you consider this aggravating circumstance?
What kind of aggravating circumstance shall be
considered?
Obviously in the commission of the crime of rape, the
police officer took advantage of his public position. He
abused his position in committing rape on the prisoner
under his custody. He used the ascendancy and the
influence of his public office in order to facilitate the
commission of the crime of rape of the said female
prisoner. Therefore, the aggravating circumstance of
taking advantage of one’s public position shall be
considered against him and it shall be considered as a
qualifying aggravating circumstance. If you will look at
article 266-B, of the Revised Penal Code, it is provided
that, if rape is committed by any member of the military
or the police, by taking advantage of his public position,
the crime committed is qualified rape and the penalty is
capital punishment, death. Therefore, the taking
advantage of one’s public position by the police officer in
the commission of the crime of rape will be considered
as a qualifying aggravating circumstance. The crime
committed is qualified rape.
In the third element, it is required that the offender
knows him to be a public authority. The reason for this
aggravating circumstance is lack of respect to public
authority. Therefore, before it can be said that the
offender committed the crime in disrespect, in
contempt, in insult of public authority, it is necessary
that he must first know that the person present is a
public authority. Absent such knowledge, it cannot be
said that he has the intention to disrespect public
authority.
In the fourth element, the presence of the public
authority has not prevented the offender form
committing the crime. It shows lack of respect.
This aggravating circumstance is present if the crime is
committed in the presence of a public authority, but the
crime must not be directed against the public authority
himself.
X and Y went to the City Hall. X and Y parked their
vehicle in one of the spaces in the parking lot. Then
suddenly here comes A. A also parked near the vehicle
of X and Y. In the course thereof, he was about to hit the
vehicle of X and Y. And so, X and Y alighted from their
vehicle and confronted A but A reasoned to X and Y that
the vehicle was not hit. He was able to maneuver it so
as not to hit the vehicle. It was just about to be hit but
the vehicle was not even scratched. Still, X and Y were
both mad at A. There was a heated argument between
X and Y as against A. They were already shouting at
each other and the City Mayor heard their shouts. The
officer of the City Mayor was only at the second floor of
the said building. And so from the window he looked out
and when he saw that the persons shouting were X and
Y, both his constituents, and A his compadre, the said
City Mayor went down the ground floor and he went to
X and Y and A. The City Mayor talked to X and Y as
2. That the crime be committed in contempt of or
with insult to the public authorities.
ELEMENTS (EN-KP)
1. That the public authority is Engaged in the
discharge of his duties.
2. That he is Not the person against whom the crime
was committed.
3. That the offender Knows him to be a public
authority
4. That his Presence did not prevent the said offender
from committing the crime.
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well as to A to lower down their voice and to just forget
about everything. He tried to pacify the three. However,
instead of being pacified, X got mad at the mayor
because X knew that A was the compadre of the Mayor
and he believed that the Mayor was siding with A so X
who was then so mad pulled out a knife and stabbed A
in the presence of the Mayor. A sustained a fatal wound
but A survived. Prosecuted for frustrated homicide, in
the information, it was alleged that the crime was
committed in contempt of or with insult to public
authorities. Is this aggravating circumstance present?
Yes. All the requisites are present.
circumstance can be considered by the court, there
must be evidence showing by the act of the accused
that there was an intent to disrespect the rank of
the offended party.
2. Disregard of age may be considered by the court
either collectively or individually depending on
their presence in the commission of the crime. It can
only be considered in crimes against persons or
crimes against chastity but not in crimes against
property.
Age refers to the minority or seniority of the victim
or the offended party. Before this aggravating
circumstance can be considered by the court, there
must be evidence showing by the act of the accused
that there was an intent to disrespect the age of the
offended party.
3. Disregard of sex may be considered by the court
either collectively or individually depending on
their presence in the commission of the crime. It can
only be considered in crimes against persons or
crimes against chastity but not in crimes against
property.
First, the public officer, that is the City Mayor, is
engaged in the performance of his duty. He was trying
to pacify these persons who were having an argument.
So he was trying to maintain peace. Second, he was not
against whom the crime was committed. It was A who
was stabbed. Third, the offender knew that he was a
person in authority. X knew that he was the Mayor. X
was a constituent of the Mayor. Fourth, the presence of
the Mayor did not prevent, did not deter X from
committing the crime, from stabbing A. All the elements
are present therefore, in the crime of frustrated
homicide, the aggravating circumstance of in contempt
of or in insult to public authorities shall be considered
against the accused.
Sex refers to the female sex. Before this aggravating
circumstance can be considered by the court, there
must be evidence showing by the act of the accused
that there was an intent to disrespect the sex of the
offended party.
3. That the act be committed with insult or in
disregard of the respect due to the offended
party on account of his
3.1. rank,
3.2. age, or
3.3. sex, or
3.4. that it be committed in the dwelling of the
offended party, if the latter has not given
provocation.
NOTE: Even if the offended party is an old man,
even if the offended party is a female, even if the
offended party has a high position in the society, if
based on the acts of the accused, there was no intent
to disrespect the rank, the age, the sex, the
aggravating circumstances cannot be considered
against the accused.
4. That the crime be committed in the dwelling of the
offended party.
FOUR AGGRAVATING CIRCUMSTANCES UNDER
PARAGRAPH 3
This 4 aggravating circumstance may be considered by
the court either collectively or individually depending
on their presence in the commission of the crime.
Dwelling refers to any building or structure which
is used for rest or comfort. Dwelling includes the
enclosures, the staircases, and all the dependencies
stood therein.
1. Disregard of rank may be considered by the court
either collectively or individually depending on
their presence in the commission of the crime. It
can only be considered in crimes against persons or
crimes against chastity but not in crimes against
property.
For a dwelling to be considered as an aggravating
circumstance, it is not necessary that the offended
party owns the dwelling. Ownership is immaterial.
It suffices that the offended party uses the same
place as one for his rest and comfort. It can be a
rented room. It can be a room where the offended
party is a mere bed spacer. Anything, any room, any
place which is used for rest and comfort by the said
offended party, that will be considered as his
dwelling, his domicile.
Rank refers to a high social standing in society. It is
necessary that the offender party has a higher social
standing, higher status in the society than that of
the offended party. Before this aggravating
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Dwelling is considered as an aggravating
circumstance if the crime is committed inside the
dwelling of the offended party. If the crime is
committed inside the dwelling of the offended party,
there is greater criminality on the part of the
offender because he violates the sanctity of the
privacy of one’s abode which is enshrined in the
Constitution. Under the Constitution, we have e socalled “sanctity of the privacy of one’s abode or one’s
domicile”. If the offender committed the crime
inside the dwelling of the offended party, he
disrespected the privacy of one’s dwelling and for
that, it will aggravate his criminal liability.
in the evening and she was waiting for her father to
arrive. The door was open. While she was waiting for
her father to arrive, seated on a sala near the door, here
comes the accused. The accused suddenly arrived,
forcibly dragged her outside the house and brought her
to a nipa hut about 10m away from their house and
there the accused raped the said victim. In the
commission of the crime of rape, is dwelling an
aggravating circumstance?
Yes. Even if the crime of rape was not consummated
inside the dwelling of the offended party, the moment
the accused forcibly abducted and dragged the said
woman from their house, the aggression already starts.
And such aggression that started inside the dwelling of
the said offended party cannot be separated from the
commission of the crime of rape. Hence, in the
commission of the crime of rape, dwelling shall be
considered as an aggravating circumstance so as to
increase the imposable penalty.
Even if a crime is committed inside the dwelling of the
offended party, dwelling shall not be considered as an
aggravating circumstance in the following instances:
1. The offended party gave provocation
2. Both the offender and the offended party are living
in the same dwelling
3. Dwelling is inherent in the commission of the crime.
A candidate for the election has just awaken up from his
sleep in the morning. After waking up, he immediately
went to the window and thereafter opened the window
of the house. The moment the said victim opened the
window of the house, he was shot from the outside. The
bullet hit his forehead. He died instantly. In the
commission of the crime of murder, is the aggravating
circumstance of dwelling present?
Yes. It suffices that the offended party, the victim was
inside his house at the time of the commission of the
crime. It is not necessary that the offender must have
also entered the house in order commit the crime. So
even if the offender was from the outside and he was
able to device ways and means to perpetuate the crime
from the outside, for as long as the victim is inside the
dwelling, dwelling shall still be considered as an
aggravating circumstance in the commission of the
crime.
In these three instances, even if the crime is committed
in the dwelling of the offended party, it shall not be
considered as an aggravating circumstance.
In the first circumstance, if the offended party was the
one who provoked the accused, who committed the
crime inside his dwelling, one cannot be considered as
an aggravating circumstance because when he
provoked the offender, he loses the right to be respected.
Likewise for his dwelling to be respected. As such,
dwelling will not be considered as an aggravating
circumstance if there is any provocation coming from
the offended party or the victim.
What if A and B are both bed spacers in a room. They
had an altercation. So they are both living and sleeping
in the same room. They had an argument. A stabbed B.
B died. In the commission of the crime, is dwelling an
aggravating circumstance?
No. Both A and B are living in the same dwelling.
Therefore it cannot be said that when A stabbed B, he
disrespected the dwelling of B because both of them are
residents of the same dwelling.
In the third circumstance, in case of trespass to
dwelling, dwelling is inherent in the commission of the
crime. So even if the crime is committed in the dwelling
of the offended party, it will no longer be considered as
an aggravating circumstance because it is considered as
an element in the commission of the crime.
4. That the act be committed with
4.1. abuse of confidence or
4.2. obvious ungratefulness.
TWO AGGRAVATING CIRCUMSTANCES UNDER
PARAGRAPH 4
1. Abuse of confidence
ELEMENTS (TAF)
1. That the offended party has Trusted the
offender.
2. That the offender Abused the confidence
reposed on him by committing a crime.
3. That the said abuse of confidence reposed on
him Facilitated the commission of the crime.
X a woman was at the doorstep of their house. She was
seated near the door of their house, she was seated at
the sala near the door of their house. It was already 6:00
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It is necessary that the abuse of confidence must
facilitate the commission of the crime. It must
enhance the commission of the crime.
5. That the crime be committed
5.1. in the palace of the Chief Executive, or
5.2. in his presence, or
5.3. where public authorities are engaged in the
discharge of their duties, or
5.4. in a place dedicated to religious worship.
2. Obvious ungratefulness
Ungratefulness means lacking in gratitude. Instead
of being grateful, instead of saying thank you, the
offender committed the crime against the offended
party.
FOUR AGGRAVATING CIRCUMSTANCES UNDER
PARAGRAPH 5
1. The crime was committed in the palace of the Chief
Executive.
2. The crime was committed in the presence of the
Chief Executive.
3. The crime was committed in the place where the
public authorities are engaged in the discharge of
their duties.
4. The crime was committed in a place dedicated to
religious worship.
For it to be considered as an aggravating circumstance,
the law requires that the ungratefulness must be
obvious. It must be evident. It must be apparent.
A and B had been living in Manila for already 10 years.
They used to live in the province but now they are living
in Manila. One night, there was a knock on their door.
It was X. When A and B saw X, a neighbor in the
province a long time ago, they allowed X to enter the
house. X informed A and B that he had been in Manila
for already a week because he was looking for a job
however, he could not find one. And his money, his
resources had already gone. He no longer have the
money to pay his rent. And so he was asking for the
kindness of A and B to accommodate him inside their
house. Since X used to be a neighbor in their province,
A and B accommodated X and gave X one of the rooms
inside the house for him to use. So X is now staying in
one of the rooms inside the house of A and B. One day,
the husband, A, was out for work. All the maids were
also out. One maid brought the children to school, one
maid went to the grocery, one maid doing the laundry.
The said wife, B, was the only one inside the house. She
was inside the master’s bedroom when suddenly, X
entered the master’s bedroom and forcibly had carnal
knowledge of the said woman. In the commission of the
crime of rape, is the aggravating circumstance of abuse
of confidence present?
Yes. First, the offended party has trusted the offender.
They trusted X to live in their house and gave him one
room to stay. Second, the offender abused the said trust
and confidence by committing a crime. He abused the
trust and confidence by raping the said wife, the
woman. And this abuse of confidence facilitated the
commission of the crime, were it not for the trust of the
offended person reposed on him, were it not for the
abuse of the said confidence, he could not have
committed the crime of rape against the said wife.
Therefore, the crime of rape was committed with the
aggravating circumstance of abuse of confidence.
If the crime is committed in any of these places, it is
considered as an aggravating circumstance because of
the disrespect on this place. The accused deliberately
sought this place in order to commit the crime. He
disrespected the said place.
In order for these aggravating circumstances, any of
these, to lie against the accused, it is necessary to show
that the accused deliberately sought these places in
order to commit the crime.
Under the third aggravating circumstance in paragraph
5, it is necessary that in the place where the crime was
committed, the public authorities are engaged in the
discharge of their duties. Not only that, it is also
necessary that at the time of the commission of the
crime, the public authorities are actually engaged in the
performance of their duties.
If the crime is committed in the palace of the Chief
Executive, in the presence of the Chief Executive or in
the place of religious worship, these aggravating
circumstances will lie against the accused regardless of
whether there was any political or any social function
ongoing for as long as the offender sought the said place
in order to facilitate the commission of the crime.
A wanted to kill B. He had long wanted to kill B. So
what he did, he conducted a surveillance on the places
where he would often go. A learned that every Friday
morning, B would always go to this particular church to
pray. And so, that Friday morning, A waited for B to
come to the church. And once B was inside the church,
kneeling, praying, A went at the back of B and stabbed
B repeatedly at the back. In the commission of the
crime, is the aggravating circumstance that the crime is
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Even if the offender sought the cover of darkness or
nighttime in order to commit the crime, if at the
time of the commission of the crime, the scene of the
crime was illuminated by any light, whether it is a
light coming from nearby houses, light coming from
parked vehicles, lights coming from vehicles passing
by, lights coming from the electric post, lights
coming from the moon shining brightly, whatever be
the light for as long as the said light illuminated the
scene of the crime, nighttime is no longer considered
as an aggravating circumstance.
committed in a place dedicated for religious worship
present?
Regardless of whether there was a religious ceremony
or a religious function ongoing, since the said offender
deliberately sought the said place dedicated to religious
worship in order to commit the crime, in order to kill the
victim, this will aggravate his criminal liability. That
the crime was committed in a place dedicated to
religious worship would be an aggravating
circumstance.
6. That the crime be committed in the
6.1. nighttime, or
6.2. in an uninhabited place, or
6.3. by a band,
whenever such circumstances may facilitate the
commission of the offense.
In order to revenge, A waited in ambush for the coming
of B. A knew that every night, B would pass by this dark
alley. And so A waited in ambush for the coming of B.
This dark alley, it has no light whatsoever. The moment
B arrived, A appeared. When he was in the act of
stabbing B, suddenly a tricycle passed by and parked.
The lights coming from the tricycle illuminated the
scene of the crime. Is nighttime an aggravating
circumstance in the commission of the crime?
No. Although the offender sought the cover of darkness
in order to facilitate the commission of the crime, at the
time he was committing the crime, the scene was
illuminated by a light coming from the parked tricycle.
As such, nighttime will no longer be considered as an
aggravating circumstance.
Whenever more than three armed malefactors
shall have acted together in the commission of
an offense it shall be deemed to have been
committed by a band.
THREE AGGRAVATING CIRCUMSTANCES UNDER
PARAGRAPH 6
1. Nighttime shall be considered as an aggravating
circumstance if the offender deliberately sought the
cover of darkness for any of the following purposes:
1.1. to facilitate the commission of the crime, or
1.2. to conceal its identity
A and B chased X. So there was this rumble between A
and B and X left. A and B followed X. X went to the
sidewalks of Glorietta. A and B followed X, and
thereafter at the doorstep of Glorietta, A and B stabbed
X to death. It was 11 o’clock in the evening. In the
commission of the crime, is nighttime an aggravating
circumstance?
No. It need not be stated in the problem whether there
is light or not because it is already of knowledge that
even at 11 o’clock that portion of Makati in Glorietta is
fully lighted. Hence, nighttime cannot be considered as
an aggravating circumstance even if the crime was
committed at nighttime because the place was obviously
well lighted.
It is necessary that the offender deliberately sought
the cover of darkness. He deliberately took
advantage of the darkness of the night to afford
impunity.
The darkness of the night or nighttime has been
used by the offender in order to facilitate the
commission of the crime when the offender took
advantage of the cover of darkness. So that in the
commission of the crime, there will be no
interference, there will be no restriction. Hence,
definitely, the crime will be consummated. The
darkness of the night facilitated the commission of
the crime.
2. Uninhabited place
Uninhabited place is one which is far from other
houses in isolation far from the town. It is one where
there are no habitants.
On the other hand, the offender is said to have used
the darkness of the night or nighttime in order to
insure or afford impunity when he sought the cover
of darkness so that no one would discover him, no
one would recognize him. If no one would recognize
him, he will be able to conceal his identity. Hence,
he cannot be arrested, prosecuted and punished.
In order for an uninhabited place to be considered
as an aggravating circumstance, this definition will
not suffice because for an uninhabited place to be
considered as an aggravating circumstance, it is not
really necessary that in the place where the crime
was committed, there were no houses or it is far
from town. It is also important that in the place
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where the crime was committed, there was very
little, very remote possibility for the victim to
receive for some help.
A, B, C, D and E, five men all armed with balisong. They
stabbed X to death. Arrested, they were all considered
as conspirators for the crime of murder. In the
information, it was alleged that there conspired to kill
the victim, X with a use of a deadly weapon, a knife. And
in the information, it was also alleged that the
aggravating circumstance of a bond was present in the
commission of the crime because these five armed men
acted together in killing the victim X. After trial on the
merits, the judge convicted the five accused. The judge
considered them as conspirators. Likewise, the judge
considered
and
appreciated
the
aggravating
circumstance of these five men acting as a bond. After
the decision of the court, appreciating both conspiracy
and by a band, the counsel for the accused filed a motion
for reconsideration. The counsel for the accused stated
that the judge was erroneous when it considered both
conspiracy and by a bond. The counsel for the accused
argued that conspiracy having been considered by the
judge, the court can no longer consider by a band. Is the
contention of the counsel correct?
No. The contention of the counsel is wrong.
ELEMENTS (HF)
1. That in the place where the crime was
committed, there was very little or remote
possibility for the victim to receive some Help.
2. That the offender deliberately took advantage of
the said place to Facilitate the commission of
the crime.
In the first element, that in the place where the crime
was committed, even if the victim cries for help, no one
will be able to help him. There was very little, very
remote possibility for him to receive help.
In the second element, he knew that in the said place,
no one will be able to help or assist the said victim.
Early morning, three fishermen went to the sea.
Fishermen A, Fisherman B and Fisherman C. They
boarded their boats in order to go on fishing. Fisherman
A was already onboard his boat, fisherman B was still
untying the boat. Fisherman A was about 50meters
away from fisherman B and C who was still untying
their boat. When suddenly, X came out of the water and
stabbed fisherman A while on board his boat.
Fisherman A died. In the commission of the crime, is
the aggravating circumstance of an uninhabited place
present?
Yes. The place where the victim was killed was not
actually far from the houses, not actually far from other
people. In the place where the victim was killed, there
were B and C, they were along the seashore. However,
it was considered as an uninhabited place because there
was very little, very remote possibility for fisherman A
to receive some help from B and C. For A to receive some
help from B and C, they have to swim 50m before they
can render assistance to the victim. And obviously, the
second element is also present because the offender X
took advantage of the said place to facilitate the
commission of the crime. Hence, the killing was
attended by an aggravating circumstance of
uninhabited place.
Conspiracy is a means to commit the crime. Whereas,
by a band is an aggravating circumstance. When
conspiracy has been considered by the court, it means
all five men will be imposed with the same penalty.
They have the same criminal liability.
Where by a band was considered by the judge as an
aggravating circumstance, it means it should be
considered as a generic aggravating circumstance.
Therefore, it would increase the imposable penalty.
In this case, both circumstances that of being
conspirators and that of being a band shall be
considered by the court because conspiracy, only a
means of committing the crime cannot be absorbed by a
band which is an aggravating circumstance.
7. That the crime be committed on the occasion of
a
7.1. conflagration,
7.2. shipwreck,
7.3. earthquake,
7.4. epidemic or
7.5. other
7.5.1. calamity or
7.5.2. misfortune.
3. By a band
The crime is said to be committed by a band when
more than three armed malefactors shall have acted
together in the commission of the crime. Therefore,
there must be at least four armed malefactors who
shall have acted together in the commission of the
crime. All of them must have acted together in the
commission of the crime.
If the crime is committed on the occassion of these
calamities or misfortune, it will show the greater
criminality and greater dangerousness on the part of
the offender than when he committed any of the crime
but not on these occasions.
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So in these instances, the fact that the crime was
committed on the occasion of conflagration, shipwreck,
earthquake, epidemic or other calamity or misfortune,
it will be a qualifying aggravating circumstance.
In times of calamities, in times of misfortune, people
must have one another. But here, the offender instead
of helping one another in these times of calamity, he
committed the crime on the occasion of these calamity.
It will aggravate his criminal liability.
8. That the crime be committed with the aid of
8.1. armed men or
8.2. persons who insure or afford impunity.
There was this strong typhoon so the houses were all
shaking because of the strong winds. A and his family
had already fixed their things. A and his family were on
their way to the center which will be used for evacuation
purposes. So A and his family, his wife and two children
were on their way to the evacuation center during this
strong typhoon when suddenly here comes X. X
hurriedly chased A and stabbed A at the back. What
crime is committed by X?
X will be liable for the crime of murder qualified by the
crime having been committed on the occasion of this
typhoon, on the occasion of this calamity, on the
occasion of this misfortune.
It is necessary for this circumstance to lie against the
accused that the armed men supported the act of
perpetrator in the commission of the crime. There is no
requisite number of armed men. It can be one, two,
three, four, five, for as long as the man is armed and the
said man directly or indirectly aided the act of offender
in the commission of the crime. So the participation of
the armed men may be direct or indirect participation
to the commission of the crime.
BY A BAND
Note that although under paragraph 7, that the crime
be committed on the occasion of these calamities or
misfortune is a generic aggravating circumstance, if the
crime committed is that of killing a person, under article
248, it is a qualifying aggravating circumstance.
There must be at least 4
armed malefactors.
All these armed men
must have acted together
in the commission of the
crime.
So for having killed the victim on the occasion of this
calamity, typhoon, the crime that will be committed by
X would be murder because it is a qualifying
aggravating circumstance to kill a person in times of
calamities and misfortune as provided for in article 248.
There was again this strong typhoon, and by reason of
this strong typhoon, everybody was trying to get out of
their house to go to the evacuation center. The house of
A was left open as they were in a hurry to go to the
evacuation center. Here comes B. B entered the house
of A and took the remaining valuables inside. What
crime was committed by B?
B would be liable for qualified theft. So the fact that the
crime was committed on the occasion of this typhoon, on
the occasion of this calamity would qualify the crime of
theft as provided for by Article 310.
AID OF ARMED MEN
There is no requisite
number of men.
It suffices that the said
armed men participated
in the commission of the
crime by direct or indirect
participation
in
the
commission on the crime.
The
participation
is
merely to aid in the
commission of the crime.
9. That the accused is a recidivist.
A recidivist is one who,
9.1. at the time of his trial for one crime,
9.2. shall have been previously convicted by
final judgment of another crime
9.3. embraced in the same title of this Code.
ELEMENTS (TP-SS)
1. That the accused is on Trial for one crime
2. That at the time of the said trial, he has been
Previously convicted by final judgment of another
crime.
3. Both the first crime and the second crime are
embraced in the Same title of the code.
4. The offender is also convicted for the Second crime
for which he is on trial.
So in case of killing, if the crime is committed on the
occasion of this calamity or misfortune under article
248, the fact that the killing took place in times of these
calamities or misfortune, it will be a qualifying
aggravating circumstance.
Likewise, in case of theft, under article 310, if the taking
of the personal property of another was in times of this
calamity typhoon, the crime committed is qualified
theft.
For recidivism to lie against the accused, there must be
at least two conviction. The first conviction for the first
crime committed must be conviction by final judgment.
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The fact that A had been convicted of the crime of
homicide twenty years from the time of his conviction
by final judgment of serious physical injuries is
immaterial in recidivism. Recidivism is imprescriptible.
It doesn’t prescribe. No matter how long a time would
lapse between the first crime and the second crime for
as long as it is embraced in the same title of the code,
the accused is considered as a recidivist.
It is in the second conviction that the court shall
consider the accused as recidivist.
The offender committed a crime of perjury. X perjured
himself in a sworn statement. As such, he was charged
with perjury and X was convicted by final judgment of
perjury. X served out his sentence. After service of his
sentence, he is now a free man. Months later, X falsified
a deed of absolute sale. It was discovered and so X is
now being prosecuted for falsification of a private
document by a private individual under Article 172. The
judge found him guilty beyond reasonable doubt of
falsification. In imposing the penalty for falsification,
can the judge consider recidivism as an aggravating
circumstance?
Yes. The first element is present. He is on trial for crime
of falsification of a public document by a private
individual under Article 172. The second element is also
present. At the time of the said trial, he has already
been previously convicted by final judgment of the crime
of perjury. Third element, both crimes are embraced in
the same title of the code. Perjury is under article 183,
Crimes against public interest. Falsification of a public
document by a private individual is under article 172,
also crimes against public interest. So both crimes are
embraced in the same title of the code. Last element, the
offender is also convicted of the 2 nd crime. All the
elements are present. Hence, the court can consider
recidivism in the imposition of penalty for falsification.
10. That the offender has been previously punished
10.1. for an offense to which the law attaches
an equal or greater penalty or
10.2. for two or more crimes to which it
attaches a lighter penalty.
This is otherwise known as Reiteracion or Habituality.
ELEMENTS (TPC)
1. The offender is on Trial for one crime
2. At the time of the said trial, the offender had
already been Previously punished for an offense to
which the law attaches an equal or greater penalty
or for two or more crimes to which the law attaches
a lighter penalty.
3. The offender has been Convicted for this case on
which he is on trial.
So just like recidivism, reiteracion also requires at least
two conviction. One conviction in case of recidivism.
However, the two conviction requires that the first
conviction must be by final judgment and the second
conviction must be for the second crime committed.
In case however of reiteracion, a conviction by final
judgment will not suffice. In case of reiteracion under
paragraph 10, the law requires that the offender had
already been previously punished for an offense.
A was convicted by final judgment for the crime of
serious physical injuries. He served out the sentence.
He is now out of prison. Because of his experience inside
the prison cell, once outside the prison cell, he lived a
good life. However, 20 years thereafter, A engaged in a
fight. A killed his opponent. So now, A was being
prosecuted for the crime of homicide. The judge found
him guilty beyond reasonable doubt for the crime of
homicide. In imposing the penalty for homicide, can the
judge consider recidivism as an aggravating
circumstance?
Yes. The first element, he is on trial for one crime that
is homicide. Second element, at the time of the said
trial, he has already been convicted by final judgment
of another crime which is serious physical injuries.
Third element, both crimes are embraced in the same
title of the Code, Title 8 Crimes Against Person. Fourth
element, the offender was also convicted of the second
crime that is homicide. All the elements are present
therefore, he is a recidivist.
If you will look at the second element of reiteracion,
based on the second element, there are two situations:
1. If the offender has only committed two crimes, it is
necessary that the first crime, for which he had
already served out the sentence, must carry a
higher penalty than that of the first crime or can be
equal to than that of the first crime.
2. But if the offender has committed three crimes, the
law requires that the first two crimes must carry
lighter penalties than that of the third crime.
A had been convicted by final judgment of forcible
abduction and so A served out the sentence. After the
release of A for the crime of forcible abduction after
serving his sentence, A committed the crime of
homicide. He is now on trial for the crime of homicide.
The judge found him guilty beyond reasonable doubt for
the crime of homicide. In imposing the penalty for the
But what about the fact that the second crime of
homicide was committed by A twenty years thereafter.
Twenty years from the time of his conviction on the
crime of serious physical injuries?
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Therefore, this time, the court in imposing the penalty
for libel can consider reiteracion as an aggravating
circumstance against the accused A.
crime of homicide, can the judge consider reiteracion as
an aggravating circumstance?
Yes. The first crime forcible abduction for which A had
already served sentence carries a penalty equal to the
second crime that is homicide. Both are punishable by
reclusion temporal. Under Article 342, forcible
abduction is punished by reclusion temporal. Under
Article 249, homicide is punished by reclusion temporal.
HABITUAL DELINQUENT
Aside from these two forms of habituality, there are
other forms of habituality which are not found on Article
14 aggravating circumstance but that is found under
Article 62. Under Article 62, the third form of
habituality is known as habitual delinquency.
What if A was mad at his neighbor and so A slapped the
neighbor. The neighbor got mad and so the neighbor
filed a case of slight physical injuries against A. The
judge found him guilty beyond reasonable doubt,
convicted A. Penalty for slight physical injury was
arresto menor. A served out the sentence. After serving
out his sentence for slight physical injuries, A out of
prison was still mad at his neighbor B. And so A went
to the house of his neighbor B, and he deliberately
caused damage on the fence of his neighbor. The
neighbor filed a case of malicious mischief against A for
having deliberately cause damage on his property. So A
is now on trial for malicious mischief. The judge found
him guilty beyond reasonable doubt of malicious
mischief. The penalty for malicious mischief based on
the damaged caused is arresto mayor. In imposing the
penalty for malicious mischief, can the judge consider
reiteracion as an aggravating circumstance?
No. The first crime for which A have already served
sentence carries a lighter penalty than that of the
second crime, malicious mischief. The penalty for slight
physical injury, the crime that he had served sentence
is only arresto menor. The penalty for malicious
mischief is arresto mayor. Since the first crime for
which he had served sentence carries a lighter penalty
than that of the second crime, reiteracion cannot be
considered against the accused A.
Habitual Delinquent if within the period of 10 years
from the date of his last release or conviction of any of
the crimes of serious physical injuries, less serious
physical injuries, robbery, theft, estafa or falsification,
he shall be found be found guilty of any of these crimes
a third time or oftener.
ELEMENTS (C-10-3)
1. Convicted of either serious physical injuries, less
serious physical injuries, robbery, theft, estafa or
falsification
2. Each conviction must come within 10 years from the
date of last release or last conviction of the previous
crime.
3. These convictions must be at least 3 and so forth.
If recidivism under paragraph 9 of article 14 is a generic
aggravating circumstance which can be offset by any
mitigating circumstance, if reiteracion under
paragraph 10 of article 14, an aggravating circumstance
is a mere generic aggravating circumstance, how about
habitual delinquency?
Habitual delinquency is an extraordinary aggravating
circumstance because its effect on the criminal liability
on the offender is to impose an additional penalty aside
from the penalty for the crime committed. The
limitation however is that these two penalties, the
penalty for the crime that he has committed and the
additional penalty for being a habitual delinquent must
not exceed 30 years.
Let us add further facts. What if judge convicted A for
malicious mischief. So reiteracion was not considered as
an aggravating circumstance. A served the sentence for
malicious mischief. After service of sentence, he is now
out of prison. Once out of prison, he stated slanderous
remarks against his neighbor and the same were
published. So on publication, he accused his neighbor of
crime and he stated slanderous remarks at his
neighbor. And so the neighbor filed a case of libel
against A. A is now on trial for the crime of libel. The
judge found A guilty beyond reasonable ground for the
crime of libel. In imposing the penalty for libel, can the
judge consider reiteracion?
Yes. The two crimes for which A had already served
sentence, slight physical injuries and malicious
mischief carry lighter penalties than that of this new
crime, libel. The penalty for libel under article 355 is
prision correccional in its minimum and medium period.
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RECIDIVISM
The law only requires at
least two conviction
The crimes are not
specified. The law only
requires that the crimes
must be embraced in the
same title of the code.
There is no requisite
period of time necessary
between the first crime
and the second crime. It
is imprescriptible.
Generic
aggravating
circumstance which can
be offset by a mitigating
circumstance.
HABITUAL
DELINQUENCY
The law requires at least
three conviction and each
conviction must come
within 10 years from the
date of last release or last
conviction
The crimes are specified.
Serious physical injuries,
less
serious
physical
injuries, robbery, theft,
estafa or falsification.
Each conviction must
come within 10 years
from the date of last
release or last conviction.
final judgment of another crime of robbery embraced in
the same title of the code. Hence, he is also a recidivist.
Considering that in the commission of the crime, there
are two forms of habituality present: One, recidivism,
the other habitual delinquency. Which of these two
shall be considered by the court in the imposition of the
penalty?
The court may consider both aggravating circumstances
because they have different effects on the criminal
liability of the offender. The fact that X is a recidivist
could mean that the penalty that the judge will impose
on the third theft will be in its maximum period.
Recidivism is a generic aggravating circumstance which
can be offset by a mitigating circumstance. The fact, on
the other hand, that the accused is also a habitual
delinquent means that aside from the penalty to be
imposed by the judge on X for the crime of theft, an
additional penalty should be imposed on him for being
a habitual delinquent. Hence, the judge may consider
both aggravating circumstance, both forms of
habituality; recidivism and habitual delinquency.
Extraordinary
aggravating circumstance
which provides for the
imposition
of
an
additional penalty in
addition for the crime
that he has committed.
QUASI-RECIDIVIST
The fourth kind of habituality is found under article
160, book two of the RPC. This is quasi-recidivism.
X committed the crime of robbery. He was convicted by
final judgment. He served out the sentence. Thereafter,
he was released. Within a year from his release, he
committed the crime of theft. Prosecuted for theft, the
judge found him guilty beyond reasonable doubt,
convicted. He served out his sentence. After the service
of his sentence, he was released and just within 6
months, he again committed another theft. The judge
found him guilty beyond reasonable doubt of this second
theft and the judge imposed upon him the penalty, so he
serve out his sentence. After service of sentence for this
second theft, he was again released. Once released,
within a period of 5 years he again committed theft.
Now he is on trial for the crime of theft. The judge
convicted him, found him guilty beyond reasonable
doubt. In imposing the penalty for this third theft, can
the judge consider this aggravating circumstance of
habitual delinquency? Can the judge consider the
aggravating circumstance of recidivism? Is accused X a
habitual delinquent?
Quasi-recidivist is one who shall commit a felony after
having been convicted by final judgment before
beginning to serve his sentence or while serving his
sentence. Article 160 provides, the maximum penalty
prescribed by law shall be the one imposed. Hence,
quasi-recidivism is a special aggravating circumstance.
It is a special aggravating circumstance because the law
requires that the maximum penalty shall be the one
imposed. Hence, it cannot be offset by any mitigating
circumstance.
For one to be considered as a quasi-recidivist, it is
necessary that after committing the first crime, while
he is serving his sentence or before serving his sentence,
he must commit a second crime which is a felony. So it
is necessary that he must first be convicted by final
judgment of any crime whether it be a felony or an
offense and before beginning to serve that sentence,
conviction by final judgment or while serving that
sentence, he again committed a second crime. This
second crime, article 160 requires that it be a felony for
the offender to be considered as a quasi-recidivist.
X is a habitual delinquent. Within 10 years from the
date of his last release or last conviction of the crime of
theft, he was found guilty of this crime a third time.
Hence, he is a habitual delinquent.
The first crime for which he had already been convicted
by final judgment or for which he is about to serve or is
already serving must be any crime. It can be an offense
X is also a recidivist. At the time of his trial for the crime
of theft, he has been already previously convicted by
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or a felony. But the second crime must be a felony, one
punished under the RPC.
4. Quasi-recidivism is a special aggravating
circumstance. The law requires, the maximum
penalty prescribed by law shall be the one imposed.
A has been convicted by final judgment of illegal
possession of unlicensed firearms. He was serving his
sentence by final judgment when suddenly, in a gang
war, he killed a fellow inmate. So he was arrested and
he was prosecuted for the crime of homicide. The judge
found him guilty of the crime of homicide. In imposing
the penalty for the crime of homicide, can the judge
consider him a quasi-recidivist? Is he a quasi-recidivist?
Yes. The first crime that he has committed for which he
was convicted by final judgment was an offense, illegal
possession of unlicensed firearms. While he was serving
this sentence, his sentence for this offense, he commits
another crime. And that other crime happens to be a
felony, homicide. And the judge found him guilty of
homicide. Therefore, he is a quasi-recidivist.
11. That the crime be committed in consideration of
a
11.1. price,
11.2. reward, or
11.3. promise.
This aggravating circumstance is to be considered both
against the principal by inducement (the person who
gives the price, reward or promise) and the principal by
direct participation (the person who received the price,
reward of promise in order to commit the crime). So this
aggravating circumstance can be considered both
against the giver and against the receiver of the price,
reward or promise.
However, before this aggravating circumstance can be
considered against both the giver and the receiver of the
price reward or promise, it is necessary that the crime
would not have been committed were it not for the price,
reward or promise. Otherwise stated, the price, reward
or promise must be the determining factor, the primary
reason why the crime was committed.
X was convicted by final judgment of homicide. He was
serving his sentence by final judgment when he was
found by the jail guards in possession of dangerous
drugs. So he was charged with illegal possession of
dangerous drugs. After trial on the merits, the judge
found him guilty beyond reasonable doubt of violation
of RA 9165, illegal possession of dangerous drugs. In
imposing the penalty for illegal possession of dangerous
drugs, can the judge consider the accused as a quasirecidivist?
No, the accused is not a quasi-recidivist. The second
crime that the accused had committed while he was
serving his sentence by final judgment for the first
crime, homicide, the second crime that he committed
was not a felony but rather an offense, a violation of a
special penal law. As such, he cannot be considered as a
quasi-recidivist.
What is the effect of this four forms of habituality on the
criminal liability of the offender?
If the crime would nevertheless be committed even
without the price, reward or promise, then, even if the
principal by direct participation received the price,
reward or promise, it will not be considered as an
aggravating circumstance.
If the price, reward or promise is given to the principal
by direct participation in order that he would commit a
crime of killing another person, then, the crime
committed would be murder. The giving of a price,
reward or promise would become a qualifying
aggravating circumstance under Art. 248.
1. Recidivism is a mere generic aggravating
circumstance. Therefore, it can be offset by ordinary
mitigating circumstance. If not offset, the maximum
period of the penalty shall be imposed.
2. Just like recidivism, reiteracion is a mere generic
aggravating circumstance. Therefore, reiteracion
can be offset by any ordinary mitigating
circumstance. If not offset, the penalty will be in the
maximum period of penalty prescribed by law.
3. Habitual delinquency is an extraordinary
aggravating circumstance. It requires for an
imposition of an additional penalty on the convict
aside from the penalty for the crime that he has
committed.
12. That the crime be committed by means of
12.1. inundation,
12.2. fire,
12.3. poison,
12.4. explosion,
12.5. stranding of a vessel or intentional
damage thereto,
12.6. derailment of a locomotive, or
12.7. by the use of any other artifice
involving great waste and ruin.
If the crime is committed by any of these means, then it
will be considered so as to increase the imposable
penalty. But if any of these means has been used in
order to commit the crime of killing another, then these
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of theft. It is an inherent aggravating circumstance. In
killing, it is a qualifying aggravating circumstance.
circumstance is not merely a generic aggravating
circumstance
but
a
qualifying
aggravating
circumstance.
A punched B in front of so many people. B is so
humiliated and before leaving he said “mark my words,
the next time I see you, I will kill you’’. He bought a gun
and put it in his pillow. He cannot sleep always thinking
to kill A. Two weeks after, he saw A enter a store, so B
immediately went home to get his gun. He followed A in
the store and killed him. Evident premeditation is
present.
A wanted to poison his brother. What A did is that he
put a poison on the drink of his own brother. What crime
is committed?
Murder. The used of poison as a means to commit the
crime will qualify the penalty. Under 248, if any of these
forms that are mentioned in paragraph 7, inundation,
fire, poison, explosion, stranding of a vessel or
intentional damage thereto, derailment of a locomotive,
or by the use of any other artifice involving great waste
and ruin, has been used in killing a person, it is
considered as a qualifying aggravating circumstance,
not merely a generic.
A killed B. A case for frustrated murder was filed
against A. Fiscal presented a witness to prove that there
is an evident premeditation. Before the killing, A told
the witness that he would kill B and so the witness told
B that A is planning to kill him, but B just laughed at
it. Is evident premeditation present?
No, because mere threat to kill will not bring about
evident premeditation. It is very rarely considered by
the court because it is very difficult to prove.
13. That the act be committed with evident
premeditation.
Evident premeditation is the stubborn adherence to a
decision to commit a crime. It requires a deliberate
planning before the actual execution of the crime.
14. That
14.1.
14.2.
14.3.
ELEMENTS (TOL)
1. The Time that the offender has determined to
commit the crime
2. Overt act manifestly indicating that he has clung to
his determination
3. Sufficient Lapse of time between the determination
and the actual execution of the crime. (Time for him
to reflect on the consequences of his act)
craft,
fraud, or
disguise be employed.
Craft refers to cunning or intellectual trickery resorted
to by the accused so as to commit the crime
Fraud is a deceit manifested by the insidious words or
machination resorted to by the said accused so that the
offended party would perform an act that will ensure
the commission of the crime
In the first element, when did he decide to commit the
crime? It must be given in evidence.
Disguise refers to ways, means, effects and methods
which will conceal the identity of the offender in the
commission of the crime.
In the second element, what act did he perform to show
that he clung to his determination to commit the crime?
In the third element, it is necessary that the sufficient
lapse of time must be given to the accused to reflect
upon the consequences of his act. If despite the
sufficient lapse of time, he still proceeded with the
commission of the crime, then the third element is
present.
Any of these three may be appreciated singly or
collectively against the offender.
X knocked at the door of the house. He knew that the
master of the house were already gone for work. When
the maid opened the door, X informed the maid that he
was a relative of the master of the house in the province
and that he came here in Manila upon request of the
master of the house. The maid believed and so the maid
allowed X to enter. Once inside, X robbed the house.
Cunning, intellectual trickery, craft have been used by
the offender in the commission of the crime. It is an
aggravating circumstance.
Evident premeditation if present in the killing of the
person would qualify the killing to murder, under
article 248. If evident premeditation is used in the
commission of the crime of robbery or theft, it is an
inherent aggravating circumstance. So evident
premeditation is no longer to be considered as an
aggravating circumstance so as to increase the
imposable penalty in the crime of robbery, in the crime
X befriended B and thereafter moved B to go with him
to an uninhabited place and there, he molested B.
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There was craft, there was cunning, intellectual
trickery resorted by the accused so that he would be able
to molest the said woman.
In the first element, how can this inequality of forces
come?
Inequality of forces may come when:
1. Offender enjoy numerical superiority over that of
the offended party.
2. Offender has a weapon which is out of proportion to
the weapon available on the part of the offended
party.
3. Personal circumstances of the offender versus the
offended party. (e.g. the offender is greater than the
offended party in terms of size, weight and height)
There is a house where the first floor is a store. X at the
middle of the night told the owner that he would like to
buy something. However, when the owner came down
and goes out, X stabbed him. Is the aggravating
circumstance of fraud present?
Yes, there is deceit manifested by the insidious words
resorted to by X so that the offended party would
perform an act that will ensure the commission of the
crime.
In the second element, the mere fact that the offenders
are 5 and the offended party is only 1, it doesn’t
immediately give rise that in the commission of the
crime, there was abuse of superior strength because the
second element requires that the offender took
advantage of their superiority in strength to facilitate
the commission of the crime. There must be evidence
that the offender/offenders took advantage of their
superiority in strength to facilitate the commission of
the crime. Otherwise, mere numerical superiority, mere
superiority in weapon, mere superiority in personal
circumstances will not be considered as abuse of
superior strength.
X wanted to rob the house of his neighbor Y but he
doesn’t want to be identified. So what he did, he placed
a bonet on his face. Only his eyes can be seen. At exactly
one o’clock in the morning, when he knew that his
neighbor who happens to be his friend was already fast
asleep, X entered the house of his neighbor friend. He
opened the vault, took jewelries and money from the
vault, but on his way out, his neighbor friend was
awakened. His neighbor friend began shouting upon
seeing X with a bonet on his face. The neighbor friend
was asking for help and so X began talking to his
neighbor friend. He told him “do not shout otherwise I
will shoot you”. He stated that repeatedly because of
that, the neighbor recognized the voice of X. Is the
aggravating circumstance of disguise present?
Although X placed a disguise on his face because he put
a bonet that only his eyes can be seen, because he talked
to the neighbor friend, the neighbor friend recognized
his voice. Disguise will no longer aggravate the criminal
liability of the offender. If despite the disguise employed
by the offender, he was still recognized, rule out
disguise as an aggravating circumstance.
16. That the act be committed with treachery
(alevosia).
There is treachery when the offender commits
any of the crimes against the person,
i.
employing means, methods, or forms in
the execution thereof
ii.
which tend directly and specially to
insure its
execution,
iii.
without risk to himself arising from the
defense which the
offended party
might make.
15. That advantage be taken of
15.1. superior strength, or
15.2. means be employed to weaken the
defense.
ELEMENTS (DD)
1. That the accused Deliberately and consciously
adopted the ways, means and methods employed by
him in the commission of the crime
2. By reason of the ways, means and methods
employed by the offender, the offended party was
not able to put up any Defense.
This is otherwise known as Abuse of Superior Strength.
ELEMENTS (NA)
1. That there is a Notorious inequality of forces
between the offender and the offended party in
terms of their height, size, weight and strength and
other circumstances.
2. That the offender took Advantage of this superior
strength in order to facilitate the commission of the
crime.
In the first element, he reflected on the means, ways
and methods that he will use in order to commit the
crime.
Why?
Because under the second element, he wants the
offended party to be totally defenseless.
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The essence of treachery is the suddenness and an
unexpectedness of the attack to an unarmed and
unsuspecting victim who has not given the slightest
provocation. It is necessary that the offended party, the
victim, must be totally without any defense. Any minor
defense coming from the offended party would mean
that there is no treachery in the commission of the
crime.
helplessness of these minors. They will not be able to
put up any defense.
The victim was found on the street. He was lying on the
street full of blood. There are two stab wounds at the
back and five stab wounds on the chest in front. Nobody
had seen the commission of the crime but a witness saw
A running away from the scene of the crime with a
bladed weapon. Is there treachery in the commission of
the crime? Is the crime murder qualified by treachery?
So if the offended party or victim was able to evade the
blow, if the offended party was able to run, if the
offended party was able to parry the blow, if the
offended party was able to hide, there is no treachery in
the commission of the crime because all of these show
that the offended party was able to put up a defense no
matter how minor.
X went in the house of Y, the door was open so X
entered. When X entered, he saw Y lying on the floor
full of blood. X was shocked because he saw W about to
stab Y again. X immediately ran. W was arrested. Is the
crime committed by W qualified by treachery?
In both problems, the crime committed by the accused
would only be homicide not murder because there is no
treachery.
Insofar as treachery is concerned, it can also be present
even if the attack is done frontally. A number of cases,
the Supreme Court ruled that even if the attack was
frontal, if it is shown that the offender adopted
deliberate means and the offended party was totally
unaware such that he was rendered defenseless even if
the attack is frontal, there is still treachery.
In the first problem, the victim was already found on
the street with stab wounds. No one had seen who
committed the crime but the witness only saw the
accused running away from the scene of the crime.
If the victim in the commission of the crime is a minor,
Supreme Court said there is always treachery in the
commission of the crime. A 5 year old boy was stabbed.
A two months old child was shot, there’s always
treachery in the commission of the crime.
In the second problem, what the witness saw was that
the victim, Y was already lying on the floor full of blood
and he saw the accused about to stab again the victim.
There is no treachery because the Supreme Court said,
for treachery to be appreciated, it must be present at
the inception of the attack.
Minority here does not refer to the age of the victim. It
doesn’t mean that for as long as the victim is under 18
years of age, there’s always treachery if he is the victim.
Minority here according to the Supreme Court refers to
the sense of helplessness of the said victim.
Since in these two instances, no one had seen how the
attack commenced. What the witnesses saw was that
the victims was already lying on the floor full of blood.
No one had seen how the attack commenced. Treachery
cannot be said to be present because treachery must be
present at the inception of the attack. There must be
evidence showing that at the inception of the attack, the
victim was totally without any defense.
So even if the victim is a minor, 17 years old, he was
shot, it doesn’t mean immediately that there is
treachery. You have to consider the facts. Was he able
to put up a defense? Did the offender reflect upon the
means to be used by him in the commission of the crime?
Because although a minor, there was no showing that
he was defenseless. But if he victim of the killing was a
child, two years old, five years old, evidently, obviously,
there is immediately treachery because of the sense of
Exception to the rule is in the case of People vs.
Tabarnero58, in the case of People vs. Tabarnero, X
arrived in the house of A ,and X saw A being stabbed by
58 In People v. Alvarado, 275 SCRA 727 (1997) the accused and his
companions shouted to the victim: “Lumabas ka kalbo, kung
matapang ka.” When the victim went out of the house, the accused’s
companions held the victim’s hands while the accused stabbed him.
Despite the yelling which should have warned the victim of a possible
attack, the mere fact that the accused’s companions held the hands of
the victim while the accused stabbed him was considered by this
Court to constitute alevosia. We, therefore, rule that the killing of
Ernesto was attended by treachery. However, even assuming for the
sake of argument that treachery should not be appreciated, the
qualifying circumstance of abuse of superior strength would
nevertheless qualify the killing to murder. Despite being alleged in
the Information, this circumstance was not considered in the trial
court as the same is already absorbed in treachery. The act of the
accused in stabbing Ernesto while two persons were holding him
clearly shows the deliberate use of excessive force out of proportion to
the defense available to the person attacked. (People vs. Tabarnero,
613 SCRA 492, G.R. No. 168169 February 24, 2010)
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B while A’s hand was being held at the back by C. So
what the witness saw was that A was being stabbed by
B while the hands of A were being held at the back by
C.
treachery because there was no time for the offender to
have reflected upon the ways, means and methods to be
employed by him in the commission of the crime.
If the meeting between the accused and the victim was
casual, even if the attack was sudden, if the attack was
done impulsively or at the spur of the moment, there is
no treachery.
While C was holding the hands of A at the back, B was
repeatedly stabbing A. That was what the victim saw.
The witness did not see how the attack commenced. Yet,
in this case, the Supreme Court appreciated treachery.
Supreme Court said it is not necessary to know if there
was treachery at the inception of the attack, it is not
necessary that the witness had seen the commencement
of the attack because what the witness saw was that the
victim was under restraint. There was restraint on the
victim at the time when he was attacked. That is
sufficient to show that he was totally without any
defense.
So in the case of People vs. Vilbar, the accused was a
little bit drunk. He went on the public market, he
urinated on the table where the victim was selling
vegetables. Of course, this angered the victim and so the
victim confronted the accused. They had a heated
argument but sensing that nothing will happen to the
said argument, the victim turned his back to the
accused. And when he was about to leave, the accused
suddenly stabbed the victim. The victim died. The
accused was prosecuted for the crime of murder
qualified by treachery.
Hence, SC said there is treachery in the commission of
the crime even if the witness did not see how the attack
commenced. Reason: because what the witness saw was
that at the time of the attack, there was restraint on the
person or the victim. His hands, were being held at the
back when he was being repeatedly stabbed.
SC said there is no treachery. The meeting between the
accused and the victim was casual and the attack made
by the accused on the victim preceded by an argument
was done impulsively. Even if it was sudden, there is no
treachery because the first element was absent, there
was no time for the accused to have reflected on the
ways, means and methods employed by him in the
commission of the crime.
A went to the store. He was buying cigarette. Here
comes B. B also went to the same store buying the same
cigarette. The vendor gave cigarette first to B. This
angered A. A got pissed off so he looked sternly at B, B
also looked sternly at A. So both of them stared at each
other until A took a knife and stabbed B. B died. In the
commission of the crime, is treachery present? What
crime was committed by A? Is it murder qualified by
treachery or is it homicide?
In the case of People vs. Vilbar59, the SC held that when
the meeting between the accused and the victim was
casual, and the attack was done impulsively, even if it
was sudden, there is no treachery. Treachery cannot be
presumed from the mere suddenness of the attack
because the first element of treachery requires that the
offender must have deliberately adopted the ways,
means and methods employed by him.
A and B went to a wake. In the said wake, A and B saw
the group of X, Y and Z. They stared at each other.
Thereafter, both of them left. On the second day of the
wake, A and B went there again, X, Y and Z were there.
They had an argument and thereafter X, Y and Z left.
When A and B went out of the wake on their way home,
suddenly, X, Y and Z went in front of A and B. Then X,
Y and Z tried to hit A and B. B was able to escape. A
was hit with a lead pipe on the head. A however was
able to run. He went to the gasoline station and hid.
However, X, Y and Z followed him there. Not only that,
the barangay tanods in the area helped X, Y and Z in
mauling and hitting the victim A. The victim died.
Prosecuted for murder qualified by treachery and abuse
of superior strength, X, Y and Z said that they are not
criminally liable for murder as the said aggravating
circumstances were not present. Are the aggravating
circumstances abuse of superior strength and treachery
present?
This means, according to the Court, that the offender
must have reflected upon the ways, means and methods
employed by him in the commission of the crime. If the
meeting between the accused and the victim was done
at the spur of the moment, impulsively, if it was casual
and the attack was done out of impulse, there was no
the absence of the qualifying circumstance of treachery. In a number
of cases, surveyed in People v. Rivera, 295 SCRA 99 (1998) we ruled
that treachery cannot be appreciated simply because the attack was
sudden and unexpected. (People vs. Vilbar, 664 SCRA 749, G.R. No.
186541 February 1, 2012)
The fact that it was accused-appellant who stabbed Guilbert to
death on the night of May 5, 2000 was already established beyond
reasonable doubt. The next question is what crime for which accusedappellant should be held liable: murder as held by the RTC or
homicide as adjudged by the Court of Appeals. We agree with the
Court of Appeals that accused-appellant is guilty only of homicide in
59
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In this case of People vs. Chito Nazareno60, the SC said
there was no treachery but there was abuse of superior
strength. There was no treachery because the victim
was able to hide. The victim was able to run away.
Hence, it was a form of defense.
circumstance. Only one qualifying aggravating
circumstance is necessary to qualify the killing to
murder. If there are others present, those others shall
be merely considered as generic aggravating
circumstance except when it is absorbed like in the case
of treachery and abuse of superior strength.
There was however, an abuse of superior strength
because when the victim already went into hiding, X, Y
and Z together with the barangay tanods continuously
hit him. The accused took advantage of their superiority
and strength in killing the said victim. Hence, the crime
committed was murder qualified by abuse of superior
strength, not treachery.
In the course of the killing of the victim, the two
aggravating circumstances are present which are
treachery and abuse of superior strength. Both are
proven beyond reasonable doubt by the prosecution.
Treachery will suffice to qualify the killing to murder
but the abuse of superior strength shall not be
considered as generic aggravating circumstance
because treachery absorbs abuse of superior strength.
If in the commission of the crime of killing, A killed B,
in the said killing, there was both an abuse of superior
strength and treachery, you only need treachery to
qualify the killing to murder. How would you appreciate
abuse of superior strength?
Abuse of superior strength shall be considered as
absorbed in the crime of murder with treachery as the
qualifying circumstance. Treachery absorbs abuse of
superior strength. Hence, it is not to be considered
anymore as an aggravating circumstance.
17. That (1) means be employed or (2)
circumstances brought about which add
ignominy to the natural effects of the act.
Ignominy is the moral circumstance which adds
disgrace to the material injury brought about by the
commission of the crime. It is akin to the adding insult
to the injury. Ignominy refers to moral pain, moral
suffering inflicted on the victim which is not necessary
to the commission of the crime.
But what if in the act of killing the victim, the following
aggravating circumstances are present? We have
treachery, in consideration of a price, reward or promise
and use of a motor vehicle. All these three
circumstances are present in the commission of the
crime. All of them were proven by the prosecution
beyond reasonable doubt.
Only one would qualify the killing to murder. Treachery
is sufficient to qualify the killing to murder. So there are
other two remaining aggravating circumstance. Under
article 248, in consideration of a price, reward or
promise is also a qualifying aggravating circumstance.
Under article 248, murder, if the crime is committed by
the use of a motor vehicle, it is also considered as an
aggravating circumstance. But treachery is sufficient to
qualify the penalty in the crime of murder.
In the case of People vs Bumidang61, the accused raped
the victim in front of the father of the victim. But not
only that, before raping the victim in front of her very
own father, the accused examined the genitalia of the
victim with the use of a flashlight in front of the victim’s
father. The examination of the genetalia of the rape
victim is not necessary in the commission of the crime.
More so it was committed in the presence of the father
of the said victim. Such act added moral pain, moral
suffering on the part of the victim. It added disgrace on
the part of the victim.
So these two aggravating circumstance would be
considered merely as a generic aggravating
circumstance no longer qualifying aggravating
The offender raped the victim. During her testimony in
court, the victim stated that in raping her, the accused
use the dog style position. The entry of the penis was
from behind. The lower court did not consider ignominy.
When the case reaches the SC, People vs. Saylan62, SC
60 People vs. Nazareno, 684 SCRA 604, G.R. No. 196434 October 24,
2012
61 The aggravating circumstance of ignominy shall be taken into
account if means are employed or circumstances brought abeut which
add ignominy to the natural effects of the offense; or if the crime was
committed in a manner that tends to make its effects more
humiliating to the victim, that is, add to her moral suffering. It was
established that BALIWANG used the flashlight and examined the
genital of Gloria before he ravished her. He committed his bestial deed
in the presence of Gloria’s old father. These facts clearly show that
BALIWANG deliberately wanted to further humiliate Gloria, thereby
aggravating and compounding her moral sufferings. Ignominy was
appreciated in a case where a woman was raped in the presence of her
betrothed, or of her husband, or was made to exhibit to the rapists her
complete nakedness before they raped her. (People vs. Bumidang, 346
SCRA 807, G.R. No. 130630 December 4, 2000)
62 The trial court held that there was ignominy because the appellant
used not only the missionary position, i.e. male superior, female
inferior, but also “The same position as dogs do” i.e., entry from
behind. The appellant claims there was no ignominy because “The
studies of many experts in the matter have shown that this ‘position’
is not novel and has repeatedly and often been resorted to by couples
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said ignominy is present in the commission of the crime.
It added moral pain, moral suffering on the part of the
said victim.
crime, is the aggravating circumstance that the window
was broken as a means to commit the crime present?
What if in the same problem, X saw the cell phones in
the window seal. He looked to the window, he noticed
that there was nobody inside. And so he broke the
window sufficient for him to enter. He entered the house
through the window. Once inside, he took the bag and
the two cell phones and thereafter he left. In the
commission of the crime, is the aggravating
circumstance that the window was broken as a means
thereof present?
In the case of People vs. Fernandez63, the victim of rape
was found on the vacant lot. The genitalia of the victim
was full of mud. SC said there was ignominy in the
crime of rape. Placing mud in the genitalia of a rape
victim is not necessary to consummate the crime of
rape. It only added moral pain, moral suffering on the
part of the victim as it is a cause of disgrace on her part.
Hence, ignominy is present in the commission of the
crime.
In the first problem, the crime committed by the accused
is only theft. Since the crime that he has committed is
only theft, breaking the window is an aggravating
circumstance.
18. That the crime be committed after an unlawful
entry.
There is an unlawful entry when an entrance is
effected by a way not intended for the purpose.
19. That as a means to the commission of a crime a
19.1. wall,
19.2. roof,
19.3. floor,
19.4. door, or
19.5. window be broken.
Why only theft?
It is only theft because the offender did not enter. He
did not enter his body. He broke the window but he only
inserted his hands in order to get the said cell phones.
His body did not enter the house. As such, the crime
that he committed is only theft and the breaking of the
window would only be an aggravating circumstance
because it is the means to commit the crime.
In the 18th aggravating circumstance, it is necessary
that the crime is committed after the unlawful entry. So
the offender entered first to an opening not intended for
the same in order to commit the crime.
In the second problem however, the accused broke the
window glass sufficient for him to enter. And indeed he
entered. Once inside, he took the bags and the cell
phones. This time, the crime committed by the offender
is robbery not theft because his entire body entered.
Since the crime committed by the offender is robbery,
the breaking of the window as a means to commit the
crime is inherent in the commission of the crime. It is
an element to the commission of the crime under article
299, in case of robbery with the use of force upon things,
the breaking of the window as a means to enter is
considered as absorbed or an inherent element in the
commission of the crime.
Under the 19th aggravating circumstance, the breaking
of the wall, floor, roof or window is the means to commit
the crime.
A was passing by a big house. It has a big glass window.
When A passed by the big house, he noticed that by the
window seal, there were two cell phones lying and the
cell phones were being charged. A went back. Upon
seeing that there was no person inside the said room, he
broke the said glass, entered his hand and took the two
cell phones. Thereafter, he left. In the commission of the
in the act of copulation.” (Brief, p. 24.) This may well be if the sexual
act is performed by consenting partners but not otherwise. (People vs.
Saylan, 130 SCRA 159, No. L-36941 June 29, 1984)
63 The trial court is correct in appreciating the aggravating
circumstance of ignominy because of the greater perversity displayed
by the offenders. The testimony of the examining physician that he
did not find mud on the victim’s private organ, does not necessarily
belie the latter’s asseveration that the accused “plastered” (in the
words of the lower court) mud on her private part. It is worthwhile
mentioning that the victim was examined and treated by Dr. Claudio
at 3:55 p.m. or about almost two (2) hours after the rape was
committed. Given this circumstance, the absence of mud in the
victim’s private part when she was examined by the physician, may
be attributed to the possibility that the mud washed or fell off even
before the victim left the house for her physical examination.
Moreover, Rebecca’s testimony was corroborated by that of Amelita
Malong who swore that she saw mud smeared on Rebecca’s private
part when she (Amelita) saw Rebecca right after the incident. It is
also difficult to conceive why the offended party, young as she was,
and with a chaste reputation, would go to the extent of fabricating this
portion of her testimony notwithstanding the consequent humiliation
on her person and disgrace on her womanhood. We cannot but agree
with the trial court’s finding that the offense was aggravated by
ignominy. We are of the opinion, however that the word “cruelty” used
in the dispositive portion of the judgment, to describe an alternative
aggravating circumstance, is unnecessary. The act of “plastering”
mud on the victim’s vagina right after she was raped, is adequately
and properly described as “ignominy” rather than “cruelty or
ignominy.” (People vs. Fernandez, 183 SCRA 511, G.R. No. 62116
March 22, 1990)
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Therefore, in this case, it will no longer be considered so
as to increase the imposable penalty
21. That the wrong done in the commission of the
crime be deliberately augmented by causing
other wrong not necessary for its commission.
20. That the crime be committed
20.1. with the aid of persons under 15
years of age or
20.2. by means of
20.2.1. motor vehicles,
20.2.2. airships, or
20.2.3. other similar means
Cruelty additional physical pain inflicted on the victim
which is not necessary for the commission of the crime.
ELEMENTS (AE)
1. The victim must still be Alive at the time that the
additional physical pain had been inflicted by the
accused on the victim.
2. Upon the infliction of the physical pain, the offender
Enjoys and delights in seeing the victim suffer from
the additional physical pain inflicted on the said
victim.
If the crime is committed by the offender with the aid,
or help of a minor 15 years of age or under, it shows the
greater criminality, greater perversity on the part of the
offender. He knew these minors cannot be arrested,
cannot be prosecuted. So these use of minors to commit
the crime shows greater criminality and it will
aggravate his criminal liability.
IGNOMINY
Moral Pain or Moral
Suffering
May be inflicted when the
victim was either alive or
dead.
If the offender committed the crime by using motor
vehicles, motorized watercraft, airships or other similar
means, that will also be considered as an aggravating
circumstance.
CRUELTY
Additional Physical Pain
or physical suffering
May only be inflicted
when the victim was still
alive.
The mere fact that the victim has 25 stab wounds, it
doesn’t mean that there was already a cruelty in the
commission of the crime. You have to determine: Are all
these stab wounds inflicted while the victim was still
alive? Was the offender enjoying in inflicting the
additional physical pain? You have to consider that
before cruelty may be appreciated as an aggravating
circumstance.
A wanted to kill B he waited to the arrival of B. when
he saw B crossing the street, he stepped on the
accelerator of his vehicle and pushed it towards b
thereby hitting b, b died. What crime is committed?
The crime committed is murder qualified by use of
motor vehicle thus a qualifying aggravating
circumstance. So here the motor vehicle itself was used
as the means to commit the crime hence it will qualify
the crime in to murder it is a qualifying aggravating
circumstance.
In one case, a rape victim was full of cigarette burns.
Her body was tortured with cigarette burns. Supreme
Court said cruelty was present in the commission of the
crime. Torturing the said rape victim with cigarette
burns is not necessary in the commission of the crime of
rape. It only added physical pain on the part of the said
victim. So in this case, cruelty was appreciated by the
court as an aggravating circumstance.
A wanted to kill b. he boarded his motor vehicle and
went to the house of B around 12 o’clock in the midnight
knowing that B was already asleep. Alighted from him
motor vehicle, went directly towards the house, opened
the window and threw a grenade inside. Thereafter, he
again boarded his motor vehicle. The grenade exploded.
Hence, the victim died. Is the aggravating circumstance
that the crime was committed by the use of motor
vehicle present?
USE OF DANGEROUS DRUGS AS AGGRAVATING
CIRCUMSTANCE
In addition to the aggravating circumstances of Article
14 of the Revised Penal Code, there are also some
aggravating circumstances in special penal laws.
No. The use of the motor vehicle was not the means to
commit the crime. The motor vehicle was only used in
going to the scene of the crime and in escaping the scene
of the crime. In order for the use of vehicle to be
considered as an aggravating circumstance, it is
necessary that it must be the means to commit the
crime.
A killed B, he stabbed B and thereafter A chopped the
different parts of the body of B; because of the brutal
manner of killing B when A was arrested, the police
suspected that A was under the influence of dangerous
drugs at the time of the commission of the crime. So A
before incarcerating him was first brought to the PNP
Crime Lab for testing to determine if indeed he was
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under the influence of dangerous drugs at the time of
the commission of the crime. After testing, there was a
positive finding for the use of dangerous drugs on the
part of the said accused. What is the effect of such
positive finding for use of dangerous drugs on the
criminal liability of the offender?
threats. What is the effect of the use of the said firearm
on his criminal liability which happens to be without
license?
The use of an unlicensed firearm is considered as an
aggravating circumstance in the commission of any
crime except in cases of rebellion, and in cases of
attempted coup d’etat.
Under Section 2564 of RA 9165, the 2002 Comprehensive
Dangerous Drugs Act, a positive finding for use of
dangerous drugs in the commission of the crime shall be
considered as a qualifying aggravating circumstance.
Therefore, it will change the nature of the crime to bring
about a more serious crime with a higher penalty or
even without changing the nature of the crime, it will
bring about the imposition of higher penalty. So again,
a positive finding for use of dangerous drugs in the
commission of the crime shall be considered as a
qualifying aggravating circumstance.
USE
OF
FIREARMS
CIRCUMSTANCE
AS
Under PD 1866, that is Illegal Possession of Unlicensed
Firearm has already been amended by RA 9294. But RA
9294 was recently amended by RA 10591 which was
approved last year, May 29, 2013. So under RA 10591
Section 2965, it is provided that the use of a loose firearm
when inherent in a commission of a crime, whether
punished under the Revised Penal Code or other penal
laws, shall be considered as an aggravating
circumstance. So based on this new law, whenever a
firearm is used in the commission of a crime it is an
aggravating circumstance. And based on jurisprudence,
it is a special aggravating circumstance.
AGGRAVATING
So in the problem that I gave, A shot B with the use of
a loose firearm without license, without permit to carry.
The crime committed is homicide with the special
aggravating circumstance of the use of a loose firearm.
A shot B with the use of a firearm, B died. A was
arrested. The firearm was also confiscated and so the
said accused was charged in court. The accused was
charged with the crime of homicide plus illegal
possession of unlicensed firearm because it was found
out that he has no license and permit to carry the said
firearm. Are the charges correct?
A assaulted a person in authority in the performance of
his official function with the use of a firearm. He used
the firearm in the assault. What crime is committed?
Direct Assault and the use of the loose firearm shall be
considered as a special aggravating circumstance.
A assaulted a person in authority with the use of a
firearm? What is the effect of the said use of firearm in
the in the assault of the person in authority? Will it
constitute a separate and distinct charge? Or will it be
a mere aggravating circumstance?
A poked the gun at B to threaten him, what crime is
committed?
The crime committed is other light threats but the use
of the loose firearm shall be considered as a special
aggravating circumstance.
A pulled a gun at the victim, so he pulled a gun at the
victim who was buying at the store without saying
anything, he pulled a gun at the head of the victim. The
victim was afraid and thereafter A left, what crime is
committed by A? A was charged with other light
A took the vehicle of B. In taking the vehicle of B, A
poked the gun at B. afraid, B gave the vehicle to A. So
Section 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.
65 Section 29. Use of Loose Firearm in the Commission of a Crime. –
The use of a loose firearm, when inherent in the commission of a crime
punishable under the Revised Penal Code or other special laws, shall
be considered as an aggravating circumstance: Provided, That if the
crime committed with the use of a loose firearm is penalized by the
law with a maximum penalty which is lower than that prescribed in
the preceding section for illegal possession of firearm, the penalty for
illegal possession of firearm shall be imposed in lieu of the penalty for
the crime charged: Provided, further, That if the crime committed
with the use of a loose firearm is penalized by the law with a
maximum penalty which is equal to that imposed under the preceding
section for illegal possession of firearms, the penalty of prision mayor
in its minimum period shall be imposed in addition to the penalty for
the crime punishable under the Revised Penal Code or other special
laws of which he/she is found guilty.
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If the violation of this Act is in furtherance of, or incident to, or in
connection with the crime of rebellion of insurrection, or attempted
coup d’ etat, such violation shall be absorbed as an element of the
crime of rebellion or insurrection, or attempted coup d’ etat.
If the crime is committed by the person without using the loose
firearm, the violation of this Act shall be considered as a distinct and
separate offense.
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A was charged with the crime of carnapping. What is
the effect of the fact that he used a firearm in the
commission of the crime?
The effect of the use of the loose firearm shall be a
special aggravating circumstance. Because under
Section 29 of RA 10591, whenever a loose firearm is
inherent or used in the commission of the crime,
whatever be the crime, whether punishable by the RPC
or punishable by special penal laws, it will always be an
aggravating circumstance.
crimes of rebellion, insurreccion and attempted coup d
‘etat, that the use of the loose firearm shall be absorbed,
no longer in the crime of sedition.
So this is the new law in the use of a loose firearm as
provided for under RA 10591, PD 1866 as amended by
RA 8294 and as further amended by RA 10591. Note
that RA 10591 in its repealing clause entirely repealed
Section 1 of RA 8294 that amended PD 1866. So the
present law is Section 29 of RA 10591. So these are two
aggravating circumstances which are not under Article
14 but which are included in the bar syllabus.
But the last paragraph of Section 29 provides if the
crime is committed by a person without using the loose
firearm, the use of the loose firearm shall constitute a
distinct and separate offense.
CHAPTER FIVE
Alternative Circumstances
ART. 15. Their concept. — Alternative circumstances
are those which must be taken into consideration as
aggravating or mitigating according to (1) the nature
and effects of the crime and (2) the other conditions
attending its commission.
They are the
1. relationship,
2. intoxication and
3. the degree of instruction and education of the
offender.
The alternative circumstance of relationship shall be
taken into consideration when the offended party is the
1. spouse,
2. ascendant,
3. descendant,
4. legitimate, natural, or adopted brother or sister,
or
5. relative by affinity in the same degrees of the
offender.
A stabbed B repeatedly. B died. A was arrested. He was
frisked. He was searched. A caliber .45 pistol was found
in his possession and it has no license, it has no permit
to carry. What crime or crimes is committed by A?
Although A was in possession of a loose firearm, he did
not use it in the commission of the crime because he
killed the victim by stabbing the victim. Therefore, since
loose firearm was not used in the commission of the
crime, it will constitute a separate and distinct offense.
Here, two cases will be filed against the victim—
homicide for having killed the victim by stabbing him,
and the other one is, violation of RA 10591 for illegal use
of loose firearm.
Loose firearm, what does this include?
Loose firearm of Section 366 of RA 10591 includes an
unregistered firearm, an obliterated or altered firearm,
a firearm that has been lost or stolen, illegally
manufactured firearms, a registered firearm in the
possession of one who is not the licensee thereof, and
lastly a firearm with revoked license in accordance with
rules and regulations. All of these are included in the
meaning of a loose firearm.
What if the use of loose firearm is in connection, or in
furtherance, of incident to the crime of rebellion and
insurrection or attempted coup d’etat?
Under Section 29, second paragraph, if the use of the
loose firearm is in furtherance of, incident to, or in
connection with rebellion or insurreccion or attempted
coup d’etat, it shall be considered as absorbed element
in the commission of the crime.
The intoxication of the offender
1. shall be taken into consideration as a mitigating
circumstance when the offender has
1.1. committed a felony in a state of intoxication,
1.2. if the same is not habitual or subsequent to
the plan to commit said felony;
but when the intoxication is habitual or intentional it
shall be considered as an aggravating circumstance.
ALTERNATIVE CIRCUMSTANCES
Alternative circumstances are those circumstances
which can either be considered as a mitigating
circumstance or an aggravating circumstance
depending on the nature and the effect in the nature of
Note, under RA 8294, amending PD 1866, if the
unlicensed firearm is used even in sedition it is
absorbed but under Section 29 of RA 10591, it is in the
Loose firearm refers to an unregistered firearm, an obliterated or
altered firearm, firearm which has been lost or stolen, illegally
manufactured firearms, registered firearms in the possession of an
individual other than the licensee and those with revoked licenses in
accordance with the rules and regulations.
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the commission of the crime. They are called alternative
circumstances because they can be appreciated as
either mitigating or aggravating circumstances.
circumstance except when the offender would be the
parents of the victim.
Relationship is inherent in the crime of parricide.
Relationship is generally an aggravating circumstance
in crimes against chastity like acts of lasciviousness.
But the moment they are considered as aggravating or
as mitigating, they are no longer considered as
alternative because they are already identified as
mitigating or as aggravating.
2. INTOXICATION
THREE ALTERNATIVE CIRCUMSTANCES
There is intoxication when the offender has taken such
amount of liquor as to affect his mental capacity to
appreciate the consequences of his act.
There are three alternative circumstances under Article
15, and they are relationship, intoxication, degree of
education and instruction of the offender.
Intoxication is considered as a mitigating circumstance
when it is not habitual or when it is not subsequent to
a plan to commit a crime. On the other hand,
intoxication is an aggravating circumstance if it is done
habitually or when it is intentional, subsequent to a
plan to commit a crime.
1. RELATIONSHIP
Relationship is considered as alternative circumstance
if the offender is related to the offended party as spouse,
ascendants, descendants, legitimate, natural or adopted
brothers and sisters and relatives by affinity in the
same degree.
The offender wanted to take a revenge at B. He could
not do it. So what he did, he took liquor. He got
intoxicated so he could have the strength, the guts to
kill the victim. Is intoxication as an aggravating
circumstance present?
Intoxication is an aggravating circumstance. It was
intentional, subsequent to a plan to commit the crime.
Relationship is considered as mitigating circumstance
generally in crimes against property. In crimes against
property like robbery, usurpation of real property, we
also have arson and fraudulent insolvency. In these
crimes against property, relationship is considered as
mitigating circumstance. Why is it mitigating in crimes
against property because in certain crimes against
property like theft or estafa or swindling and malicious
mischief, relationship is an exempting circumstance
under Article 33267 of the Revised Penal Code.
3. DEGREE OF INSTRUCTION AND EDUCATION
OF THE OFFENDER
As a rule, a low degree of education or instruction is
mitigating on the part of the offender. It will mitigate
his criminal liability. Exception to the rule, if the crime
committed by the offender is a crime which is inherently
evil or wrong i.e. killing of person, molesting a woman,
these are crimes which are inherently evil or wrong. If
this is the crime committed by a person who has a low
degree of education or instruction, his low degree of
education or instruction would not mitigate his criminal
liability. Reason, since these are crimes which are
inherently evil or wrong they are as wrong to an
educated man or an ignorant man or unlettered man.
So if in the crimes against property such as theft, estafa
or swindling or malicious mischief, relationship is an
exempting circumstance or an absolutory cause but in
all other crimes against property, relationship will be a
mitigating circumstance.
In crimes against persons, relationship is mitigating ii
the offender is of high degree than that of the offended
party and the crimes committed is less physical injuries
or slight physical injuries. But if the crime committed is
serious physical injuries, relationship is an aggravating
If however the offender took advantage of his high
degree of education or his high degree of instruction in
ART. 332. Persons exempt from criminal liability. - No criminal, but
only civil liability, shall result from the commission of the crime of (1)
theft, (2) swindling or (3) malicious mischief committed or caused
mutually by the following persons:
1.
1.1. Spouses,
1.2. ascendants and descendants, or
1.3. relatives by affinity in the same line.
2.
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3.
The widowed spouse with respect to the property which
belonged to the deceased spouse before the same shall have
passed into the possession of another; and
Brothers and sisters and brothers-in-law and sisters-in-law,
if living together.
The exemption established by this article shall not be applicable to
strangers participating in the commission of the crime.
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order to commit the crime, such will aggravate his
criminal liability.
EXTENUATING CIRCUMSTANCES
Extenuating circumstances are those circumstances
which if present in the commission of a crime would
mitigate the criminal liability of the offender. It would
lower the imposable penalty. But they are not included
in Article 13 mitigating circumstances, but it has the
same effect.
A perfect example of extenuating circumstance is found
in Article 25568, in case of infanticide, killing of a child
less than 3 days old. If it is the mother as well as the
grandmother of a child less than 3 days old who killed
the said child in order to conceal the dishonor of the said
mother, such concealment of dishonor shall be an
extenuating circumstance.
A lawyer was having a drinking spree with his
neighbors when he had an argument with one of his
neighbors. As a result, he killed the neighbor. The fact
that he was a lawyer with a high degree of education or
instruction will have no effect on his criminal liability
because he did not take advantage of his high degree of
education or high degree of instruction in order to
commit the crime.
But what if the same lawyer falsified a deed in order to
deceive someone, prosecuted for estafa, falsification of a
public document, his high degree of education, high
degree of instruction shall be considered as an
aggravating circumstance. He took advantage of his
high degree of education and instruction in order to
facilitate the commission of a crime of falsifying the said
deed, in order to deceive another person.
Under Article 255, if the mother killed her own child
less than 3 days old in order to conceal her dishonor,
from the penalty of infanticide, reclusion perpetua to
death, it will be lowered only to prision mayor, two
degrees lower. Hence, it will extenuate her criminal
liability if that killing was done to conceal dishonor. It
is akin to privileged mitigating circumstance. The same
is true when the offender who killed the child less than
3 days old is the grandparent of the said child of the
mother side and the purpose was to conceal the dishonor
of mother. It will lower the imposable penalty from
reclusion perpetua to death to reclusion temporal, one
degree lower. Hence, conceal of dishonor a mitigating
circumstance, though an extenuating circumstance.
ABSOLUTORY CAUSES
So these are the three alternative circumstances under
Article 15. Aside from the justifying, exempting,
mitigating and aggravating circumstances that we have
discussed, we have these so-called absolutory causes
and the so-called extenuating circumstances.
Absolutory causes are those circumstances which would
exempt the offender from criminal liability. It will
absolve or exempt the offender from criminal liability
but it is not included in Article 12. Hence, they are
considered as absolutory causes.
TITLE TWO
Persons Criminally Liable for Felonies
ART. 16. Who are criminally liable. — The following are
criminally liable for grave and less grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.
EXAMPLES OF ABSOLUTORY CAUSES
1. Instigation
2. Mistake of fact
3. Desistance in the attempted stage
4. Accessories in light felonies, attempted and
frustrated light felonies.
The following are criminally liable for light felonies:
1. Principals.
2. Accomplices.
All of these would absolve the offender from criminal
liability.
The persons who are criminally liable are the
principals, the accomplices, and the accessories.
ART. 255. Infanticide. - The penalty provided for parricide in article
246 and for murder in article 248 shall be imposed upon any person
who shall kill any child less than three days of age.
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2.
If the crime penalized in this article be
1. committed by the mother of the child for the purpose of
concealing her dishonor, she shall suffer the penalty of
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prision correccional in its medium and maximum periods,
and
if said crime be committed for the same purpose by the
maternal grandparents or either of them, the penalty shall
be prision mayor.
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In case of light felonies, only the principals and the
accomplices are criminally liable. Accessories are not
criminally liable of light felonies because the penalty
would already be too low that’s why accessories are no
longer liable for light felonies.
ELEMENTS OF PRINCIPAL BY INDUCTION (ID)
1. His inducement must be made directly with the
Intent to procure the commission of the crime.
2. Inducement must be the Determining cause why
the crime was committed.
In case of grave and less grave felonies, the persons who
are criminally liable are the principals, the accomplices,
and the accessories.
Inducement must be the determining cause
Even if he is absent at the scene of the crime, if there is
evidence to show that he induced the principal by direct
participation in such a direct manner so as to ensure the
commission of the crime, and the said inducement is the
determining cause why the principal by direct
participation committed the crime, he can still be held
criminally liable as a principal by inducement.
In case of light felonies, only the principals and the
accomplices may be held criminally liable.
ART. 17. Principals. — The following are considered
principals:
1. Those who take a direct part in the execution of
the act;
2. Those who directly force or induce others to
commit it;
3. Those who cooperate in the commission of the
offense by another act without which it would
not have been accomplished.
DIFFERENT FORMS OF INDUCEMENT
1. Giving of a prize, reward, or promise.
2. Exercise of force employed on the principal by direct
participation.
3. Exercising moral ascendancy over the said principal
by direct participation such that the principal by
direct participation would obey.
THREE KINDS OF PRINCIPALS
A principal by indispensable cooperation must also be
present at the scene of the crime because without his
cooperation, without his participation, the crime would
not have been consummated, the crime would not have
been committed.
1. Principal by direct participation – those who take a
direct part in the execution of the crime.
2. Principal by inducement or a principal by induction
– those who directly force or induce others to commit
the crime.
3. Principal by indispensable cooperation – those who
cooperates in the commission of the crime by
another act without which the crime would not have
been committed or consummated.
In the case of People vs. Dulay69, accused Dulay
together with Speed were charged with the crime of
rape. However, Speed remained at large. He was never
arrested. If indeed there was Speed because if you will
notice, it seems like the Supreme Court did not believe
that story. In so far as Dulay is concerned, she was
charged as a principal by indispensable cooperation.
She was convicted by the trial court affirmed by the
Court of Appeals.
A principal by direct participation must necessarily be
present at the scene of the crime because he is the one
who takes a direct part in the commission of the crime;
he is the one who directly executes the crime. So without
him, no crime would be committed.
A principal by inducement or principal by induction
may or may not be present at the scene of the crime.
Even if he is absent at the scene of the crime if the
following requisites are proven by evidence, he can still
be held criminally liable as a principal by inducement.
However, when the case reached the Supreme Court,
the Supreme Court said her liability is not that by a
principal by indispensable cooperation. Supreme Court
said, her acts from the time she met the victim to the
time that she went to the Bulungan Port, to the time
that she pushed her to a kubuhan, to the time that she
brought her to Speed and allegedly she was raped. All
of these, Supreme Court said, do not show that her acts
were indispensable to the commission of the crime.
Dulay is not a principal by indispensable cooperation. To be a
principal by indispensable cooperation, one must participate in the
criminal resolution, a conspiracy or unity in criminal purpose and
cooperation in the commission of the offense by performing another
act without which it would not have been accomplished.The act of
Dulay in convincing AAA to go with her until DULAY received money
from “Speed” who raped AAA, are not indispensable in the crime of
rape. Anyone could have accompanied AAA and offered the latter’s
services in exchange for money and AAA could still have been raped.
(People vs. Dulay, G.R. No. 193854, September 24, 2012)
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Supreme Court said that any other person could have
brought the said victim to Speed or even the victim can
present herself to Speed and rape would still be
committed. So the acts performed by Dulay were not
indispensable for Speed to consummate the alleged
rape. Hence, Supreme Court said, since her acts were
not indispensable in the consummation of the crime of
rape, therefore, she cannot be held liable as a principal
by indispensable cooperation. With or without her, the
rape could still have been committed. Hence, she’s not a
principal by indispensable cooperation.
ELEMENTS FOR ONE TO BE CONSIDERED AN
ACCOMPLICE (CPR)
1. There must be a Community of design.
2. Performs acts Previous or simultaneous to the
commission of the crime.
3. There must be a Relation between the acts
performed by the principal and those attributed to
an accomplice.
So the first requisite is there must be a community of
design. The principal knows the criminal design
because the principal is the author of the criminal
design. He is the one who made the decision; he is the
author of the criminal design.
Supreme Court said that her liability would be that
under RA 7610 that is procuring a child prostitute . If
you can read between the lines, it seems like the
Supreme Court thought that the child was a prostitute,
she really presents herself to different men like that. So
the thinking of the Supreme Court based on the
evidence as the Supreme Court is analyzing, the
participation of Dina Dulay was she procured this
young prostitute and brought it to a customer. Hence,
she was held liable under RA 7610 that is as a procurer
of a child prostitute. So she is not a principal by
indispensable cooperation.
An accomplice knows the criminal designs because after
the principal has offered the criminal design, the
principal informed the accomplice and the accomplice
concurs with the said criminal design. The moment
there is concurrence on the part of the accomplice, there
is now the first element that is community of design.
And after having concurred the second element, the said
accomplice performed acts previous or simultaneous to
the commission of the crime.
ART. 18. Accomplices. — Accomplices are those persons
who, not being included in Art. 17, cooperate in the
execution of the offense by previous or simultaneous
acts.
And of course, the third requisite requires that these
acts performed by the principal must be related to the
acts performed by the accomplice.
A, B, C decided to rob a bank. So they have come up with
the said decision. On their way to the said bank, they
realized they have no vehicle to board which will bring
them to the bank. And so they flag down a taxi and they
secretly talked to the taxi driver and informed him of
their criminal design to rob a bank. The taxi driver
agreed and so A, B, and C boarded the said taxi and they
were brought near the bank. A, B, and C alighted while
the taxi driver waited in a nearby place. Then A, B, and
C realized that they have no look-out. They needed a
look-out because the police might be conducting a patrol
so they needed a look-out. They saw a balut vendor.
They talked to the balut vendor and told him to serve as
look-out promising him 5% of the loot. The taxi driver
was promised 10% of the loot. And so the look-out
agreed. He stayed near the bank as if selling balut but
in reality, he was serving as a look out. A, B, and C
entered the said bank and divested the bank its money
then all of them again boarded the taxi and later they
were arrested. What are the criminal liabilities of A, B,
C, the taxi driver and the look out?
A, B, and C are all principals. They are principals by
direct participation. They have offered the criminal
design that is to commit the crime of robbery and they
actually executed the commission of the crime. They
If the participation of an offender in the commission of
the crime is minor and is not indispensable to the
commission of the crime with or without his
participation the crime would nevertheless be
consummated, the said offender is a mere accomplice.
Accomplices are those who, without being principals,
cooperate in the execution of the crime by previous or
simultaneous acts.
It somehow facilitates the commission of the crime
So the participation of an accomplice is by previous or
simultaneous acts to that of the principal. The
participation of an accomplice is minor in character;
with or without it the crime would nevertheless be
consummated. But it somehow facilitates the
commission of the crime.
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actually executed the robbery. Hence, they are all liable
as principals by direct participation.
X, Y, and Z kidnapped the victim, the victim was loaded
inside the van and thereafter was brought to a resort
and she was placed inside the cottage of the said resort.
Inside the cottage, she was being guarded by A, B, C
and D. So X, Y, Z, A, B, C and D were inside the cottage
and the woman was there. Suddenly, here comes W, W
entered the cottage. W was a woman 17 years of age and
upon seeing A and B, W conversed with A and B. The
conversation had nothing to do with the said act of
kidnapping. So inside the cottage there was the victim,
X, Y, and Z who abducted the victim. A, B, C and D who
were guarding the victim and there is this W, the 17
year old woman who arrived and talked with A and B.
while they were all there, X, Y and Z summoned the
victim asking for ransom. Ransom was arranged and
the place where it would be given was also agreed upon.
The taxi driver as well as the balut vendor are mere
accomplices. With or without the said taxi driver, the
crime would nevertheless have been consummated
because they could have flagged down another taxi not
necessarily that taxi driver. With or without the look
out, the crime would nevertheless be consummated
because they could have used any other person not
necessarily the said balut vendor. Hence, the balut
vendor and the taxi driver are mere accomplices. They
were not part of the criminal design. Only A, B, and, C
planned and decided and authored the crime of robbery.
After they have come up with the said decision, they
informed the taxi driver. They informed the balut
vendor and both of them concurred with the said
criminal design. And they performed acts simultaneous
to the commission of crime previous and simultaneous
to the commission of the crime which are both related to
robbery. Hence, the taxi driver and the balut vendor
are both accomplices.
On the said date of the giving of ransom, there was this
entrapment operation and so X, Y and Z were all
arrested. The NBI agents also raided the cottage in the
said beach resort and the said victim was rescued. A, B,
C, and D were all arrested as well as W. All of them- X,
Y, Z, A, B, C, D and W were all charged as principals in
the crime of kidnapping for ransom.
A, B, C, D, and E they all decided to commit a bank
robbery. Based on their agreement, A, B, and C would
be the ones to enter the bank to get the money. D who
owns a vehicle would serve as their driver, in going
there, they will use his car. E would serve as look out.
So they all boarded, went there on board the vehicle of
D. A, B, C, as well as E alighted from the said car. E to
serve as look out. A, B, and C to divest the bank of its
money. After the robbery, they all boarded the car.
Later, they were arrested. What are the criminal
liabilities of A, B, C, D, and E?
A, B, C, D, and E are all authors of the criminal design.
Hence, they all served as principals. What we have here
is a conspiracy among A, B, and C. Therefore, even if the
act performed by D is that only of driving the car which
brought them to the place. If the act performed by E is
that only serving as look out which are both minor in
character, since there is conspiracy among them, the act
of one is the act of all regardless of the quantity and
quality of their participation in the commission of the
crime. Hence, they are all considered as principals by
direct participation in the commission of the crime.
During the trial of the case, in so far as W is concerned,
she stated falsities, she lied as to her name,
circumstances, address in open court testimony as
compared to her sworn statement. When she was asked
by the counsel why she lied, she said she didn’t want to
be identified with X, Y and Z, A, B, C, and D. That was
the reason why she decided to lie. She further stated in
her testimony that she just went to the said cottage in
the beach resort because she thought there was a
swimming party. She said she was not in any way part
of the said kidnapping for the merits. After the trial on
the merits, the judge convicted all the accused as
principals in the crime of kidnapping for ransom. If you
were the Justice of the Appellate Court, would you
affirm the conviction?
This is the case of People v. Gambao (2013)70. In the said
case, the Supreme Court affirmed the conviction X, Y
and Z, A, B, C and D as principals in the crime of
kidnapping for ransom. Supreme Court said A, B, and
C abducted and X, Y and Z abducted the victim and A,
B, and c guarded. There was conspiracy among all these
70 The defenses raised by Perpenian are not sufficient to exonerate her
criminal liability. Assuming arguendo that she just came to the resort
thinking it was a swimming party, it was inevitable that she acquired
knowledge of the criminal design of the principals when she saw Chan
being guarded in the room. A rational person would have suspected
something was wrong and would have reported such incident to the
police. Perpenian, however, chose to keep quiet; and to add to that,
she even spent the night at the cottage. It has been held before that
being present and giving moral support when a crime is being
committed will make a person responsible as an accomplice in the
crime committed. It should be noted that the accused-appellant’s
presence and company were not indispensable and essential to the
perpetration of the kidnapping for ransom; hence, she is only liable as
an accomplice. Moreover, this Court is guided by the ruling in People
v. Clemente, et al., 21 SCRA 267 (1967), where it was stressed that in
case of doubt, the participation of the offender will be considered as
that of an accomplice rather than that of a principal. (People vs.
Gambao, 706 SCRA 508, G.R. No. 172707 October 1, 2013)
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men in the commission of the crime of kidnapping with
ransom, a conspiracy having been established
considered as principals by direct participation.
When is a look out a principal and when is a look out a
mere accomplice?
A look out is a principal even his participation is minor
in character if he is part of the agreement, if he is among
the authors of the criminal design. On the other hand,
a look out is a mere accomplice if he is not part of the
agreement and was only informed of the agreement
after the principals have offered.
In so far as W was concerned, the Supreme Court
convicted her as an accomplice. To the crime of
kidnapping for ransom. The Supreme Court said that
the acts of the said woman pertains to that of an
accomplice.
ART. 19. Accessories. — Accessories are those who, (1)
having knowledge of the commission of the crime, and
(2)without having participated therein, either as
principals or accomplices, (3) take part subsequent to its
commission in any of the following manners:
1. By
1.1. profiting themselves or
1.2. assisting the offender to profit by the effects
of the crime.
2. By concealing or destroying
2.1. the body of the crime, or
2.2. the effects or
2.3. instruments thereof, in order to prevent its
discovery.
3. By
3.1. harboring, concealing, or assisting in the
escape of the principal of the crime,
provided the accessory acts with abuse of
his public functions or
3.2. whenever the author of the crime is guilty
of
3.2.1. treason,
3.2.2. parricide,
3.2.3. murder, or
3.2.4. an attempt to take the life of the
Chief Executive, or
3.2.5. is known to be habitually guilty of
some other crime.
All the elements are present. First, there exists a
community of design. Although there was no showing
that she was part of the agreement, Supreme Court said
that when the said woman arrived at the said cottage,
she saw that the victim was being guarded. She also
said the conversation about the said ransom. Therefore,
she was aware of the criminal designs of the principals.
Any reasonable man would have gone to the police for
the matter but she did not do so. Hence, she concurs
with the said criminal design of the principal.
Second element, the offender must perform previous or
simultaneous acts in an efficacious manner. The
presence of the said person W in the cottage showed that
she was giving moral support and aid to the commission
of the crime. She said that she stayed there overnight.
That showed that she was giving moral aid in an
efficacious but not indispensable manner.
Third element, there is a relation between the acts of
the principal and the acts of the accomplice. The acts of
the accomplice W are all related to the acts of accused.
All the elements for being an accomplice are present
hence, Supreme Court said that W is an accomplice in
the commission of the crime of kidnapping for ransom.
W, however, contended that she was only 17 years of
age at the time of the commission of the crime, and she
did not know what was happening and so she did not
act with discernment. Supreme Court said there was
discernment.
Supreme Court said the fact that W lied in her open
court testimony and when asked why she lied, she said
that she lied because she did not want to be identified
with X, Y and Z, A, B, C and D whom she knew were
committing a crime. This means that the said offender
W knew that a crime is being committed and if
identified them, she too will be punished. That means
she has discernment. She knew and she could
appreciate the consequences of her acts. As such, the
Supreme Court convicted the said girl 17 years of age at
the time of the commission of the crime as an accomplice
to the crime of kidnapping for ransom.
A principal knows the criminal design because he is the
author of the criminal design.
An accomplice knows the criminal design because after
the principal has authored the criminal design, he
informs the accomplice of the criminal design and the
accomplice concurs with criminal deign.
Accessory has no knowledge of the criminal design
An accessory however, has no knowledge of the criminal
design of the principal. What the accessory knows is
that a crime has been committed, the actual commission
of the crime, therefore his knowledge is after the crime
has already been consummated and despite knowledge
that a crime has been consummated he takes part
subsequent to the commission of the said crime. His
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participation therefore is subsequent to the commission
of the said crime.
crime or crimes is/are committed B? is B liable as an
accessory to the commission of the crime of estafa or
swindling? Is B liable of any other crime?
B is liable as an accessory to the crime of estafa or
swindling. The act of A of getting the ring of his friend
by means of deceit constituted estafa, and A informed B
that the ring was the product of a crime. So B knew that
the said ring being a product of a crime, B knew that A
has actually committed a crime. B has actual knowledge
of the commission of the crime of estafa or swindling
because it was revealed to him by A himself, the person
who committed the crime. Therefore, the first element
of an accessory is present.
Modesto and Abelardo are brothers. Sometime in
August 1998 while Abelardo was in his office, Modesto,
together with two other men in police uniform, came
with two heavy bags. Modesto asked Abelardo to keep
the two bags in his vault until he comes back to get
them. When Abelardo later examined the two bags, he
saw bundles of money that, in his rough count, could not
be less than P5 Million. He kept the money inside the
vault and soon he heard the news that a gang that
included Modesto had been engaged in bank robberies.
Abelardo, unsure of what to do under the
circumstances, kept quiet about the two bags in his
vault. Soon after, the police captured, and secured a
confession from, Modesto who admitted that their loot
had been deposited with Abelardo. What is Abelardo's
liability? (BAR 2013)
Abelardo is not criminally liable. To be criminally liable
as an accessory under Art. 19, such person must have
knowledge of the commission of the crime. The term
“knowledge “under the law is not synonymous with
suspicion. Mere suspicion that the crime has been
committed is not sufficient. Even if he can be considered
as an accessory under Art. 19(2) of RPC, Abelardo is not
liable, being the brother of Modesto under Art. 20, RPC.
And despite the fact that B has knowledge of the fact
that the ring was a product or estafa or swindling,
despite the fact that he has knowledge of the actual
commission of the crime of estafa, he assisted him to
profit by the effects of the crime because he brought the
ring at the amount of P50,000. Therefore, B is liable as
accessory to the crime of estafa or swindling.
Is B liable as a fence?
B is not liable as a fence. Because fencing under PD
1612 applies only if the crime committed is robbery or
theft. But here, the crime committed is estafa or
swindling. So B is an accessory to the crime of estafa or
swindling.
THREE ACTS FOR ONE TO BE CONSIDERED AN
ACCESSORY
A went to the house of B in the middle of the night and
opened the vault and took the jewelries inside the vault.
The jewelries inside the vault definitely would cost a
million pesos. A placed it inside a plastic bag, thereafter
A left. A went to X who has a jewelry store. A poured
the jewelries on the table of the store of X. X was
bewildered with these many jewelries. Just by looking
at it, X knew that the jewelries costs millions of pesos.
A told X, “I am selling you these jewelries for P100,000.
I know these jewelries costs millions of pesos but I am
selling it to you at only a P100,000. Just give me the
money right now, I desperately need it.” B realizing that
it was a good bargain, immediately gave P100,000 to A.
Thereafter A left and B displayed all the jewelries on
her jewelry store. Later the police arrived. B, who was
the victim of the robbery committed by A identified the
jewelries on display on the store of X as those which has
been stolen from her house. In fact, many of the
jewelries has her initials. As a result, X was arrested. Is
X liable as an accessory to the crime of robbery?
X is not liable as an accessory to the crime of robbery.
Because for one to be liable as an accessory it is
necessary that the offender must have knowledge in the
commission of the crime. X has no knowledge in the
commission of the crime of robbery. He did not know the
actual commission of the crime of robbery. Therefore, X
1. BY PROFITING THEMSELVES OR ASSISTING
THE OFFENDER TO PROFIT BY THE EFFECTS
OF THE CRIME.
Two Situations:
1. The accessory themselves profited from the said
commission of the crime.
2. The accessory helps the principal to profit from the
effects of the crime.
A swindled a diamond ring from his friend, so A, by
means of deceit was able to get the diamond ring of his
friend, but while A was in possession of the diamond
ring of his friend, he went to B. B has a jewelry store. A
told B, “how much would this diamond ring costs?” and
B said, “it will cost about P250,000. A told B, “I am
selling this to you at P50,000 but you have to give me
the money right now, I need it right now. I am selling
this to you only P50,000 because anyway I just stole this
ring from a friend without her knowledge. So you have
to give me P50,000 and this ring is yours.” Considering
that it was a good price, B immediately paid P50,000 to
A, A left the ring and A left. The ring was displayed by
B on his jewelry store and there it was found out. What
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cannot be considered as an accessory. What crime then
is committed by X?
4. That there was on the part of the offender intent to
Gain either for himself or for an amount.
X is liable as a fence under PD 1612.
All the elements are present; a crime of robbery took
place. B was found in possession of the jewelry and he
knows that it is a product of robbery because it was
shown on national TV and even if it is not shown on TV,
it should have been known to him that these jewelries
were the products of robbery because imagine it was
worth millions of pesos and yet it was only sold to him
at 50, 000 pesos. Therefore, the third element of fencing
is present. It should have been known to him that it is
a product of robbery or thievery by the fact that the said
jewelries were being sold at a very low price. He should
have already suspected that these jewelries are the
product of robbery. And the fourth element of fencing is
present, there is intent to gain on the part of B because
he displayed it on his pawnshop. All the four elements
of fencing are present. Therefore, B is also a fence.
A robbed a pawnshop he destroyed the door of the
pawnshop, entered therein took the jewelries and
placed the jewelries in the plastic bag. However,
everything was seen in a CCTV camera which was
shown in national TV. B was watching the said footage
of the said robbery and there was the face of A , the face
of A was shown in full. Then suddenly, A knocked at the
door of B and said to him “I am selling to you these
jewelries inside a plastic bag. You can take a look, this
cost millions of pesos but I am selling it only to you for
50,000 because I am in need of money. So B after
examining it and having realized that indeed it costs
millions of pesos, and after looking at the face of A who’s
face is shown on TV, he immediately bought the
jewelries for 50,000. A left, later the police arrived at
the store of B and found some jewelry stolen in the store
of B. What is the criminal liability of B? Of what crime
B should be prosecuted of? Is B an accessory to the
crime of robbery?
B is an accessory. B has knowledge of the commission of
the crime because he saw it on national TV. He took part
subsequent to the commission of the said crime. He
bought it from A for 50,000 therefore A profited from the
effects of the crime, as well as B.
So if B is both an accessory and a fence, of what crime
would you prosecute B if you were the public
prosecutor?
It is better to prosecute B as a fence because fencing is
an independent crime from the said act of robbery or act
of theft. Therefore, even without finding the thief or the
other, you can immediately prosecute B, the one whom
the police had arrested. And the crime charged would be
an independent crime of violation of a special penal law,
PD 1612 fencing.
Is B also a fence?
Yes, B is also a fence.
Prima facie evidence of fencing
It is easier to prove fencing also because under Section
571 of PD 1612, it is expressly provided mere possession
of any article, item, object, or anything of value, which
is the proceeds of the crime of robbery or thievery, shall
be a prima facie evidence of fencing. Therefore, a mere
possession of a stolen article already constitutes a prima
facie evidence of fencing. On his face he is already
presumed a fence. The burden is not on the prosecution
to prove fencing, but rather, on the defense to prove that
he has no knowledge that the thing in his possession is
a stolen article.
Under PD 1612 a fence is any person any person, firm,
association, corporation or partnership or other
organization who with intent to gain for himself or for
another shall buy, receive, sell, conceal, dispose of or in
any other manner deal with any article, item, object or
anything with value which he knows or should be
known to him could have been derive from the proceeds
of the crime of robbery or theft.
ELEMENTS OF FENCING (CP-KG)
1. That a crime of robbery or theft has been actually
Committed.
2. That the offender is found in Possession of any
article, item or object which is the proceeds of the
said robbery or theft.
3. That the offender Knows or it should have been
known to him that the things in his possession were
the proceeds of robbery or thievery.
A was caught in possession of a stolen ballpen; the law
presumes he is a fence. So by the mere possession of a
stolen article, the law presumes that the said offender
is liable and the presumption is prima facie evidence
therefore, it can only be rebutted by controverting
evidence coming from the defense. Otherwise, it stays.
Section 5. Presumption of Fencing. Mere possession of any good,
article, item, object, or anything of value which has been the subject
of robbery or thievery shall be prima facie evidence of fencing.
71
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the victim. It refers to the fact of the commission of the
crime. Therefore, it refers to the fact that A killed B and
buried his body under the ground. For as long as
someone has witnessed it, still the body of the crime can
be proven in court.
So it is easier to prove fencing than that of an accessory
to the crime of theft or robbery.
So in this case, let’s say that the pawnshop robbery took
place in Manila but the jewelry store is in Quezon City.
So from Manila, after the robbery, A went to B in
Quezon City and sold it to B in Quezon City. The police
arrived. The jewelries were there. So B was arrested. He
is to be charged under PD 1612 fencing. Where shall the
case be filed? Should the case be filed in Manila or
should it be filed in Quezon City or in any of the courts
in Manila or Quezon City?
3. BY HARBORING, CONCEALING, OR ASSISTING
IN THE ESCAPE OF THE PRINCIPAL,
PROVIDED THE ACCESSORY ACTS WITH
ABUSE OF HIS PUBLIC FUNCTIONS OR
WHENEVER THE AUTHOR OF THE CRIME IS
GUILTY OF TREASON, PARRICIDE, MURDER,
AN ATTEMPT TO TAKE THE LIFE OF THE
CHIEF EXECUTIVE OR IS KNOWN TO BE
HABITUALLY GUILTY OF SOME OTHER
CRIME.
It should be filed only in Quezon City, the place where
B took possession of the said stolen articles. Fencing is
not a continuing offense. Therefore, the offender, the
fence, can only be prosecuted in the place where he took
possession of the said stolen property or article.
TWO KINDS OF ACCESSORY UNDER THE THIRD
ACT
2. BY CONCEALING OR DESTROYING THE BODY
OF THE CRIME, OR THE INSTRUMENT OR THE
EFFECTS THEREOF IN ORDER TO PREVENT
ITS DISCOVERY.
1. Public officer. If the accessory who assisted in the
escape of the principal is a public officer, the crime
committed by the principal may be any crime but
there must be abuse of public function on the part
of the said public officer in concealing or assisting in
the escape of the principal.
2. Private individual. If he is a mere private
individual, the requisite is that the crime committed
by the principal are stated; treason, parricide,
murder, an attempt to take the life of the Chief
Executive, or is known to be habitually guilty of
some other crime. Outside these crimes mentioned,
he is not an accessory if he is a private individual.
He can be held liable under PD 1829 that is
Obstruction of Justice.
In order that the act of concealing or destroying the body
of the crime may be considered as an act of the
accessory, the purpose must be in order to prevent the
discovery of the said crime.
Body of the crime, otherwise known as the substance of
the crime, otherwise known as corpus delicti, refers to
the fact of the commission of a crime by someone.
ELEMENTS OF BODY OF THE CRIME (OL)
1. Proof of the Occurrence of a certain event.
2. Proof of a person’s criminal Liability therefor.
A was found guilty of estafa, it is not among the crimes
listed. And then thereafter, he was able to escape with
the help of his friend B who assisted him in his escape.
B cannot be held liable as an accessory because the
crime committed by A, the principal is not among those
mentioned in Article 19. Therefore, what should be the
crime against him?
It’s a violation of PD 1829, the Obstruction of Justice.
Define body of the crime. What are the requisites of the
body of the crime?
Do not say body of the crime is substance of the crime.
Body of the crime is corpus delicti. That is only the other
name. But body of the crime or substance of the crime
or corpus delicti is the fact of the commission of a crime
by someone. And then you state the two requisites: proof
of the occurrence of the certain event and proof of the
persons criminal liability therefor.
Obstruction of Justice is committed by any person who
knowingly and willfully obstructs, impedes, pampers, or
frustrates the arrest and apprehension of criminals or
the investigation and prosecution of criminal cases.
A killed B. Then he dug the ground and hid the body of
B underneath the ground. Unknown to him, X saw
everything. X saw A killed B and he saw A burying his
body. Is the body of the crime gone the moment A buried
the deceased body?
In case of homicide, murder, parricide, infanticide, the
body of the crime does not refer to the deceased body of
A and B are sisters and they were cruel to their maid.
For a minor mistake, they would slap and beat the said
maid. So one night, B arrived home. The maid was
already on the floor, dead. So both A and B placed the
deceased body of the maid inside a sack and they placed
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the sack with the deceased body inside the trunk of the
car of B. Unknown to them, while they were placing the
sack with the body of the maid inside the trunk of the
car, someone saw it and the witness called on the police.
So it was a real case. The Alabang police were called by
the witness. The witness told the police of Alabang that
he saw two women placing the sack inside the trunk of
the car and he saw feet of a person from the said sack.
And the witness gave the plate number of the car as well
as the particular place where he saw the said car.
Immediately, the police arrived. It took them some time
but they were able to find the said car because it was
already moving. So, they tried to overtake and was able
to do so. And they ordered B, the driver of the said car,
to open the trunk. At first, she did not want but later,
the police prevailed. And there, they saw the deceased
body of the maid. So A and B were both prosecuted for
the crime of murder.
5. relatives by affinity within the same degrees,
with the single exception of accessories falling
within the provisions of paragraph 172 of the
next preceding Article.
There are some persons who are exempted from
criminal liability as an accessory. Under Article 16, in
cases of light felonies, there are no accessories.
Therefore, if the crime committed is only a light felony,
no person can be punished as an accessory.
If the accessory is related to the principal as his spouse,
ascendants, descendants, legitimate, natural or adopted
brothers or sisters or relatives by affinity in the same
degree, he cannot be held liable as an accessory; except
when the act committed by the said accessory relative
is the first act under Article 19- that is by profiting or
assisting the offender to profit from the effects of the
crime. If the act performed by the relative accessory is
the first act by Article 19 by profiting or assisting the
offender to profit from the effects of the crime even if he
is a relative of the principal, he becomes criminally
liable as an accessory.
They were both convicted before the Court of Appeals.
But the case reached the Supreme Court. Supreme
Court said only A is liable and the crime is not murder
but Homicide because no one have seen how the crime
was committed. Therefore, it cannot be said that the
killing was done with treachery. Hence, A was liable for
homicide.
But note, if the acts performed by the accessory pertains
to the second or third act under Article 19—that is,
concealing or destroying the body of the crime,
harboring or concealing the escape or assisting in the
escape of the principal, then he being a relative shall not
be held liable as an accessory.
Supreme Court said that the act done by the sister B
was that of an accessory. That is, she tried to conceal
the body of the crime in order to prevent the discovery
of killing act done by the sister. However, SC said,
considering that she was related to the principal in the
crime of homicide and considering that the act
performed by the said sister is on the Second Act under
Article 19, she is exempted from criminal liability under
Article 20.
So, in what instances may an accessory be exempted
from criminal liability?
1. If the crime committed is only a light felony because
accessories are not criminally liable for light
felonies under Article 16
2. Under Article 20 if the accessory is related to the
principal as spouse, ascendants, descendants,
legitimate, natural, or adopted brothers or sisters,
or relatives by affinity in the same degree except
when the accessories’ acts is that of by profiting
himself or assisting the offender to profit from the
effects of the crime.
SC said, the fiscal should have filed the case of Homicide
against A and against B Obstruction of Justice, not that
as a principal also in the crime of murder. So B can have
herself free. He should have been held liable as an
accessory but she is exempted under Article 20.
ART. 20. Accessories who are exempt from criminal
liability. — The penalties prescribed for accessories
shall not be imposed upon those who are such with
respect to their
1. spouses,
2. ascendants,
3. descendants,
4. legitimate, natural, and adopted brothers and
sisters, or
72 Art. 19 (1) By profiting themselves or assisting the offender to profit
by the effects of the crime.
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sentenced to suffer the penalty of reclusion perpetua.
Contrary to law.
TITLE THREE
Penalties
The judge will not state that he will also suffer the
accessory penalty of perpetual absolute disqualification
and civil interdiction because the mere fact that the
principal penalty imposed upon him is reclusion
perpetua,
necessarily
civil
interdiction
and
disqualification follows this penalty.
CHAPTER ONE
Penalties in General
ART. 21. Penalties that May Be Imposed. — No felony
shall be punishable by any penalty not prescribed by
law prior to its commission.
ART. 22. Retroactive Effect of Penal Laws. — Penal
laws shall have a retroactive effect in so far as they
favor the person guilty of a felony,
1. who is not a habitual criminal74, as this term is
defined in rule 575 of Article 62 of this Code,
2. although at the time of the publication of such
laws
a. a final sentence has been pronounced and
b. the convict is serving the same.
What are penalties?
Penalties are the punishment imposed by local
authority upon a person who has committed an
intentional felony or a culpable felony.
The penalties that are imposed by the court are those
which has been provided for in the laws and enacted by
Congress. Under Article 21, only those penalties
prescribed by law prior to its commission may be
imposed by the court. This is in consonance with the expost facto law which is provided for in the Constitution.
ART. 25. Penalties which may be imposed. — The
penalties which may be imposed, according to this Code,
and their different classes, are those included in the
following:
TWO KINDS OF PENALTIES
1. Principal Penalties are those penalties which are
prescribed by law or imposed by the court in case of
conviction.
2. Accessory Penalties are penalties which are
necessarily included in the imposition of principal
penalties.
SCALE
PRINCIPAL PENALTIES
Capital punishment:
1. Death76.
Under Article 7373, accessory penalties follow the
principal penalties as a matter of law. Hence, accessory
penalties need not be stated in the judgment of the court
because they follow the principal penalties as a matter
of law.
Afflictive penalties:
1. Reclusión perpetua,
2. Reclusión temporal,
3. Perpetual or temporary absolute
disqualification,
4. Perpetual or temporary special
disqualification,
5. Prisión mayor.
The judge need not state the accessory penalties in
judgment of conviction.
ILLUSTRATION: A person is convicted by final
judgment of murder. Wherefore finding the accused
guilty beyond reasonable doubt of murder. He is hereby
ART. 73. Presumption in Regard to the Imposition of Accessory
Penalties. — Whenever the courts shall impose a penalty which, by
guilty and to the additional penalty of prisión correccional in its
medium and maximum periods;
b. Upon a fourth conviction the culprit shall be sentenced to the
penalty provided for the last crime of which he be found guilty
and to the additional penalty of prisión mayor in its minimum
and medium periods; and
c. Upon a fifth or additional conviction, the culprit shall be
sentenced to the penalty provided for the last crime of which he
be found guilty and to the additional penalty of prisión mayor in
its maximum period to reclusión temporal in its minimum period.
Notwithstanding the provisions of this Article, the total of the two
penalties to be imposed upon the offender, in conformity herewith,
shall in no case exceed 30 years.
76 Prohibited under R.A. 9346
73
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.
Art. 62. A person shall be deemed to be habitual delinquent, if
within a period of ten years from the date of his release or last
conviction of the crimes robo, hurto, estafa, or falsificacion, he is found
guilty of any of said crimes a third time or oftener.
75 Art. 62 (5) Habitual delinquency shall have the following effects:
a. Upon a third conviction the culprit shall be sentenced to the
penalty provided by law for the last crime of which he be found
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Correctional penalties:
1. Prisión correccional,
2. Arresto mayor,
3. Suspensión,
4. Destierro.
AFFLICTIVE PENALTIES
1. RECLUSION PERPETUA
Reclusion Perpetua and Life Imprisonment are two
separate and distinct penalties and should never be
used interchangeably.
Light penalties:
1. Arresto menor,
2. Public censure.
Reclusion Perpetua vis-a-vis Life Imprisonment
Reclusion Perpetua is imposed in violation of the
Revised Penal Code while Life Imprisonment is imposed
in violation of Special Penal Laws. The former carries
with it accessory penalties while the latter has no
accessory penalty. Reclusion Perpetua has a duration of
20 years and 1 day to 40 years while Life Imprisonment
has no duration.
Penalties common to the three preceding classes:
1. Fine, and
2. Bond to keep the peace.
ACCESSORY PENALTIES
1. Perpetual or temporary absolute
disqualification,
2. Perpetual or temporary special
disqualification,
3. Suspension from public office, the right to vote
and be voted for, the profession or calling.
4. Civil interdiction,
5. Indemnification,
6. Forfeiture or confiscation of instruments and
proceeds of the offense,
7. Payment of costs.
Is reclusion perpetua a divisible penalty or indivisible
penalty?
Reclusion perpetua, although under Article 27, it has
now a duration of 20 years to one day to 40 years,
reclusion perpetua remains to be an indivisible penalty.
That is so because in the case of People vs. Lucas78 and
henceforth, the Supreme Court said that when Article
27 was amended by RA 7659, there was no clear
legislative intent to alter the designation of reclusion
perpetua from an indivisible penalty to a divisible
penalty. Hence, it remains to be an indivisible penalty.
So whenever reclusion perpetua is imposed as a penalty,
the court need not state its duration. It remains to be an
indivisible penalty.
CAPITAL PUNISHMENT—DEATH
At present, death penalty cannot be imposed because
R.A 9346 prohibits the imposition of death penalty.
Under Section 2 it is provided that: In lieu of death
penalty the penalty must be commuted to reclusion
perpetua if it is a violation of RPC, it shall be commuted
to life imprisonment if it is a violation of special penal
law. Crimes with death penalty remain to be a heinous
crime. Their penalty is still death however it cannot be
imposed.
2. RECLUSION TEMPORAL
Under Article 25 it is a principal penalty and under
Article 27 it has a duration of 12 yrs. and 1 day to 20
yrs.
3. DISQUALIFICATION
Moreover, under Section 377 of RA 9346 person
convicted of offenses punished with reclusion perpetua
or whose sentence will be reduced to reclusion perpetua
shall not be eligible for parole.
Disqualification is both a principal penalty and an
accessory penalty.
If disqualification that is temporary is imposed as a
principal penalty it has a duration same with prision
mayor— 6 yrs. and 1 day to 12 yrs.
17 of R.A. No. 7659 has fixed the duration of reclusion perpetua from
twenty (20) years and one (1) day to forty (40) years, there was no
clear legislative intent to alter its original classification as an
indivisible penalty. It shall then remain as an indivisible penalty.
(People vs. Lucas, 240 SCRA 66, G.R. Nos. 108172–73 January 9,
1995)
Persons convicted of offenses punished with reclusion perpetua, or
whose sentences will be reduced to reclusion perpetua, by reason of
this Act, shall not be eligible for parole under Act No. 4103, otherwise
known as the Indeterminate Sentence Law, as amended.
78 After deliberating on the motion and re-examining the legislative
history of R.A. No. 7659, the Court concludes that although Section
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Under Article 8779 destierro is a penalty wherein the
convict is banished from a place designated by the
judgment of the court, if a convict is punished by a
penalty of destierro he is prohibited from entering the
place designated in judgment of the court. He is
prohibited to enter the place which shall not be more
than 250km and not less than 25km from the place
designated.
If, however disqualification is imposed as an accessory
penalty its duration is that of the same duration as that
of principal penalty to which it attaches.
Perpetual
Absolute
Disqualification
vis-a-vis
Temporary Absolute Disqualification
Perpetual Absolute Disqualification is effective during
the lifetime of the convict, even after the service of the
sentence whereas, Temporary Absolute Disqualification
is effective only during the term of the sentence and is
renewed after service of sentence except the right to
hold public office and employment and also the right to
retirement pay and other benefits for position
previously held.
What if a person convicted with destierro enters the
prohibited place?
He commits the crime of evasion of service of sentence
under Article 157 of the RPC. The moment he enters the
place designated by the court in the judgment which he
is prohibited from entering he commits evasion of
service of sentence as provided in Article 157 of the
RPC.
4. PRISION MAYOR
Under Article 27 it has a duration of 6yrs. and 1 day to
12 yrs.
LIGHT PENALTIES
CORRECTIONAL PENALTIES
1. ARRESTO MENOR
1. PRISION CORRECCIONAL
Has a duration of 1-30 days.
Under Article 27 it has duration of 6 months and 1 day
to 6 yrs.
2. PUBLIC CENSURE
Has no fixed duration. It is an indivisible penalty. It
cannot be divided into three periods, it has no fix
duration.
2. ARRESTO MAYOR
Under Article 27 it has duration of 1 month and 1 day
to 6 months.
PENALTIES COMMON TO THE THREE
PRECEDING CLASSES:
3. SUSPENSION
1. FINE
Under Article 25 it is both a principal penalty and an
accessory penalty. If suspension is imposed as a
principal penalty it has duration as prision
correccional— 6 months and 1 day to 6 yrs.
Fine is a pecuniary penalty it does not involve
imprisonment. It is imposed by the court in judgment
by conviction. Under Article 26 fine can be afflictive,
correccional or light.
If, however, suspension is imposed as an accessory
penalty its duration is the same duration as that of
principal penalty to which it attaches.
It is afflictive if it exceeds 6000 pesos, it is correccional
if it is from 200 pesos to 6000 pesos and it is light if it is
less than 200 pesos.
4. DESTIERRO
2. BOND TO KEEP THE PEACE.
Under Article 27 it has duration of 6 months and 1 day
to 6 yrs. which is the same with prision correccional. It
also involves deprivation of liberty but he is not
necessarily to serve sentence behind bars.
Bond to keep the peace is a principal penalty under
Article 25, the duration of which is dependent upon the
sound discretion of the court. But note it is a penalty
which cannot be imposed for any violation of the RPC
ART. 87. Destierro. — Any person sentenced to destierro shall not
be permitted to enter
1. the place or places designated in the sentence,
2. nor within the radius therein specified,
which shall be not more than 250 and not less than 25 kilometers from
the place designated.
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because in book II there is no penalty imposed into a
felony which is a bond to keep the peace.
If a person is civilly interdicted, that is among the
penalties imposed upon him, he is deprived of certain
rights provided for in Article 3482. Under Article 34 a
person who is civilly interdicted cannot exercise the
following rights the rights of parental authority, rights
of guardianship over the person or property of his wife,
rights of marital authority, right to manage his
property, right to dispose his property by any act or
conveyance inter vivos.
Do not be confused between bond to keep the peace and
bond for good behavior.
Bond to Keep the Peace vis-a-vis Bond for Good
Behavior
Bond to keep the peace is a principal penalty which
cannot be imposed for violation of RPC whereas, bond
for good behavior is akin to a bail bond, it is imposed
upon a person who is accused of grave threats or light
threats.
A is convicted of the crime of murder. The penalty
imposed is reclusion perpetua. Since the penalty
imposed upon him is reclusion perpetua, necessarily
civil interdiction attaches. He is now serving sentence
in Muntinlupa. He was terminally ill he is now
preparing his last will of testament. He therefore is
giving all his property to his driver, the person who
always visits him during his stay in prison. He has no
legal heirs. Is the last will of testament prepared by the
convict valid?
Yes. The will is still valid although he is civilly
interdicted because under Article 34 he is only deprived
of his right to dispose his property by any act or
conveyance inter vivos. A last will and testament
although prepared inter vivos during lifetime, it takes
effect only mortis causa/ after death. The disposition of
the said property will only take effect after death. He
can also make a donation provided that it will take
effect after death. Not now, but after death. It is still
valid because what is prohibited is disposing his
property by any act or conveyance inter vivos.
If a person is charge of grave or light threats he will be
asked by the court to post a bond for good behavior to
ensure that he will not do his threat. In case a person
does not want to post a bond he will be given the penalty
of destierro to ensure the safety of the person against
whom the threat is given.
ILLUSTRATION: A told B “I will kill you the next time
I see you”. B filed a case of grave threats and there was
a probable cause. Court will order A to post a bond for
good behavior.
ACCESSORY PENALTIES
1. PERPETUAL OR TEMPORARY ABSOLUTE
DISQUALIFICATION.
2. PERPETUAL OR TEMPORARY SPECIAL
DISQUALIFICATION.
3. SUSPENSION FROM PUBLIC OFFICE, THE
RIGHT TO VOTE AND BE VOTED FOR, THE
PROFESSION OR CALLING.
4. CIVIL INTERDICTION.
5. INDEMNIFICATION
These includes moral damages, actual damages,
exemplary damages, temperate damages.
Civil interdiction is an accessory penalty under Article
25. Under Articles 4080 and 4181 it is an accessory
penalty that follows the principal penalty of death if not
executed and also the principal penalty of reclusion
perpetua and reclusion temporal.
80 ART. 40. Death — Its accessory penalties. — The death penalty,
when it is not executed by reason of commutation or pardon shall
carry with it that of
1. perpetual absolute disqualification and that of
2. civil interdiction during 30 years following the date of
sentence,
unless such accessory penalties have been expressly
remitted in the pardon.
81 ART. 41. Reclusión Perpetua and Reclusión Temporal — Their
accessory penalties. — The penalties of reclusión perpetua and
reclusión temporal shall carry with them that of
1. civil interdiction
1.1. for life or
1.2. during the period of the sentence as the case may be,
and that of
perpetual absolute disqualification which the offender shall
suffer
2.1. even though pardoned as to the principal penalty,
2.2. unless the same shall have been expressly remitted in
the pardon.
82 ART. 34. Civil interdiction. — Civil interdiction shall deprive the
offender during the time of his sentence of
1. the rights of parental authority, or guardianship, either as
to the person or property of any ward,
2. of marital authority,
3. of the right to manage his property and
4. of the right to dispose of such property by any act or any
conveyance inter vivos.
2.
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6. FORFEITURE OR CONFISCATION OF
INSTRUMENTS AND PROCEEDS OF THE
OFFENSE.
Fine can either be afflictive, correctional or light. Under
Article 26, fine is afflictive, if it exceeds P6,000. Fine is
correctional if it is from P200 to P6,000. And fine is only
light if it is less than P200.
It is an accessory penalty under Article 25. Under
Article 4583 it is an accessory penalty that follows all
kinds of principal penalties except light penalties. All
the instruments and proceeds of the crime shall be
forfeited in favor of the state in favor of the government,
except if they belong to a third person who is not liable
for the crime. Exception to the exception if the said
proceeds or instruments is outside the commerce of man
then it has to be destroyed.
In the imposition of fines, under Article 66 85, it is
provided that courts shall take into consideration the
presence of mitigating and aggravating circumstances
as well as the financial capability of the accused, the
wealth and means of the said accused.
CHAPTER THREE
Duration and Effect of Penalties
7. PAYMENT OF COSTS.
SECTION ONE
Duration of Penalties
Cost refers to expenses of litigation.
What does cost include?
Under Article 3784 it includes fees and indemnities in
the course of judicial proceeding.
Reclusión
perpetua
Reclusión
temporal.
Prisión mayor
and temporary
disqualification.
Who shall pay the cost?
It will depend if the accused is convicted or acquitted.
If the accused is convicted generally cost shall be
imposed upon him. But if the accused is acquitted both
the complainant and the accused shall bear for their
own cost.
Prisión
correccional,
suspensión, and
destierro.
ART. 26. Fine — When afflictive, correctional or light
penalty. — A fine, whether imposed as a single or as an
alternative penalty, shall be considered
1. an afflictive penalty, if it exceeds 6,000 pesos;
2. a correctional penalty, if it does not exceed 6,000
pesos but is not less than 200 pesos; and
3. a light penalty, if it be less than 200 pesos.
Arresto mayor.
Arresto menor.
Bond to keep
the peace.
What is fine?
Fine is a pecuniary penalty imposed by the court in case
of a judgment of conviction. Instead of imprisonment,
fine is the penalty imposed. So it is a principal penalty,
a pecuniary penalty imposed in case of a judgment of
conviction.
3.
ART. 27.
20 years and 1 day – 40 years
12 years and 1 day – 20 years
6 years and 1 day – 12 years
except when the penalty of
disqualification is imposed as an
accessory penalty, in which case
its duration shall be that of the
principal penalty.
6 months and 1 day – 6 years
except
when
suspension
is
imposed as an accessory penalty,
in which case, its duration shall be
that of the principal penalty.
1 month and 1 day – 6 months
1 day – 30 days.
The bond to keep the peace shall be
required to cover such period of
time as the court may determine.
but those articles which are not subject of lawful commerce
shall be destroyed.
84 ART. 37. Costs — What are included. — Costs shall include fees and
indemnities in the course of the judicial proceedings, whether they be
1. fixed or unalterable amounts previously determined by law
or regulations in force, or
2. amounts not subject to schedule.
85 ART. 66. Imposition of Fines. — In imposing fines the courts may
fix any amount within the limits established by law; in fixing the
amount in each case attention shall be given,
1. not only to the mitigating and aggravating circumstances,
2. but more particularly to the wealth or means of the culprit.
ART. 45. Confiscation and Forfeiture of the Proceeds or Instruments
of the Crime. — Every penalty imposed for the commission of a felony
shall carry with it
1. the forfeiture of
1.1. the proceeds of the crime and
1.2. the instruments or tools with which it was committed.
2. Such proceeds and instruments or tools
2.1. shall be confiscated and forfeited in favor of the
Government,
2.2. unless they be the property of a third person not liable
for the offense,
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ART. 28. Computation of Penalties. —
1. If the offender shall be in prison the term of the
duration of the temporary penalties shall be
computed from the day on which the judgment
of conviction shall have become final.
2. If the offender be not in prison, the term of the
duration of the penalty consisting of deprivation
of liberty shall be computed from the day that
the offender is placed at the disposal of the
judicial authorities for the enforcement of the
penalty.
3. The duration of the other penalties shall be
computed only from the day on which the
defendant commences to serve his sentence.
or the proceeding on appeal, if the same is under
review.
Computation of preventive imprisonment for purposes
of immediate release under this paragraph shall be the
actual period of detention with good conduct time
allowance:
1. Provided, however, That if the accused is absent
without justifiable cause at any stage of the
trial,
2. the court may motu proprio order the re-arrest
of the accused:
3. Provided, finally, That
3.1. recidivists,
3.2. habitual delinquents,
3.3. escapees and
3.4. persons charged with heinous crimes are
excluded from the coverage of this Act.
Art. 29. Period of preventive imprisonment deducted
from term of imprisonment86. - Offenders who have
undergone preventive imprisonment shall be credited in
the service of their sentence consisting of deprivation of
liberty, (1) with the full time during which they have
undergone preventive imprisonment, (2) if the
detention prisoner agrees voluntarily in writing after
being informed of the effects thereof and with the
assistance of counsel to abide by the same disciplinary
rules imposed upon convicted prisoners, except in the
following cases:
In case the maximum penalty to which the accused may
be sentenced is destierro, he shall be released after 30
days of preventive imprisonment.
PREVENTIVE IMPRISONMENT
Preventive imprisonment is the detention of a prisoner
while the case filed against him is on-going trial either
because the case filed against him is a non-bailable
offense and evidence of guilt is strong or the case filed
against him is a bailable offense but he does not have
the money to post the bail.
1. When they are recidivists or have been
convicted previously twice or more times of any
crime; and
2. When upon being summoned for the execution
of their sentence they have failed to surrender
voluntarily.
Those in the city jail, municipal jail and provincial jail
they are merely undergoing detention. They are merely
undergoing preventive imprisonment. They are merely
called detention prisoner. They are not yet convicted by
final judgment, hence they are presumed innocent
unless they are proven guilty beyond reasonable doubt.
They are only there because the crime they committed
is a non-bailable offense and evidence of guilt is strong.
Murder, kidnapping for ransom and evidence of guilt is
strong or the case filed against him is a bailable offense
but he does not have the money to post the bail. Hence,
they remain behind bars while the case against them is
on-going trial. That’s why even if they escape they are
not criminally liable because they are not yet convicted
by final judgment. They are presumed innocent by the
constitution unless proven guilty beyond reasonable
doubt.
If the detention prisoner does not agree to abide by the
same disciplinary rules imposed upon convicted
prisoners, he shall do so in writing with the assistance
of a counsel and shall be credited in the service of his
sentence with 4/5 of the time during which he has
undergone preventive imprisonment.
Credit for preventive imprisonment for the penalty of
reclusion perpetua shall be deducted from 30 years.
Whenever an accused
1. has undergone preventive imprisonment for a
period equal to or more than the possible
maximum imprisonment of the offense charged
to which he may be sentenced and
2. his case is not yet terminated,
3. he shall be released immediately without
prejudice to the continuation of the trial thereof
86
Under Article 29, it has already been amended by R.A
10592 approved last May 2013. So under Article 29 as
amended the period of preventive imprisonment may be
As amended by R.A. 10592, May 29, 2013
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Under Article 29 whenever the accused has undergone
preventive imprisonment for a period equal to or more
than the maximum period of the penalty which can be
imposed upon the accused and his case is still not
decided, under article 29 he must be immediately
released without prejudice to the continuation of the
trial against him or without prejudice to appeal if the
case is under review. Therefore, the said accused must
be immediately released. Note that the penalty for
attempted homicide is prision correccional. The
maximum period of prision correccional is 6 years.
credited from the final sentence imposed upon the
accused.
There shall be full credit if the said detention prisoner
agrees voluntarily in writing in the presence of a
counsel that he shall abide by the same rules and
regulations imposed when convicted.
And there shall be 4/5 credit if the said detention
prisoner does not voluntarily agree in writing in the
presence of his counsel that he shall abide by the same
rules and regulations imposed on convicted felons.
Sentence must involve deprivation of liberty
Before a detention prisoner may avail of this credit on
his final sentence it is necessary that the final sentence
imposed upon him must involve deprivation of liberty.
Hence as a counsel you must file a petition of habeas
corpus so that he can be immediately released from
imprisonment. His continued detention is already
arbitrary in nature because he has been behind bars
equal to the penalty which may be imposed in case of
conviction.
If the final sentence impose upon him is fine how would
you deduct the duration of his preventive
imprisonment?
Definitely you cannot. So it is necessary that the final
sentence upon the detention prisoner involves
deprivation of liberty. In order to have a credit or
deduction from the preventive imprisonment that he
has undergone.
In fact if he is convicted he no longer need to serve his
sentence because it is already time-served. If there is a
mitigating circumstance you will lower it may utang pa
ang government to the said accused. That is not without
prejudice to the continuation of the trial, the trial will
go on.
A & B are husband and wife, A the husband has a
mistress and they were already living together. The
legal wife discovered, so the wife filed a case of
concubinage against the husband and the concubine.
They were arrested, placed behind bars although
concubinage is a bailable offense they cannot post bail.
So, during trial both A and the mistress was placed
behind bars. They were already behind bars for a period
of more than 30 days let us say 31 days. If you were the
counsel what would you do in order to protect your
client particularly the concubine?
You have to file a petition for habeas corpus, so as the
concubine will be immediately released from
imprisonment. This is only in so far as the concubine is
concern. Under Article 334, in case of concubinage the
penalty for the said husband is prision correccional in
its minimum and medium period, but the penalty for
the concubine is destierro. Under Article 29 if the
maximum penalty imposable is destierro the accused
must be immediately released after 30 days of
preventive imprisonment.
The accused who has served a preventive imprisonment
and he is convicted by final judgment and the penalty
impose upon him is destierro, can it be deducted from
destierro? The duration he has served during
preventive imprisonment?
Yes. Destierro is also a penalty which involves
deprivation of liberty although partial. In destierro the
convict is prevented from entering the place indicated
in the judgment of the court. Under Article 27 destierro
has duration of 6 months and 1 day to 6 years.
Therefore, you can deduct the period of preventive
imprisonment from destierro.
DISQUALIFIED TO BENEFIT FROM PREVENTIVE
IMPRISONMENT
1. A recidivist or have been convicted previously twice
or more times of any crime.
2. Those being summoned for the execution of their
sentence failed to surrender voluntarily.
A has been charged of the crime of attempted homicide?
So he was arrested, placed behind bars. Although
attempted homicide is a bailable offense he does not
have the money to post bail. So the case went into trial
he was behind bars. Due to protracted trial the case is
now on its sixth year, more than six years and it is still
on the presentation of evidence. If you were the counsel
of A what will you do to protect your client?
That is also provided for in the amendment. RA 10592,
if the penalty imposable is destierro the accused must
be released after 30 days of preventive imprisonment.
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ART. 23. Effect of Pardon by the Offended Party.
1. A pardon by the offended party does not
extinguish criminal action except as provided in
Article 34487 of this Code;
2. but civil liability with regard to the interest of
the injured party is extinguished by his express
waiver.
So here the public prosecutor can still proceed in
prosecuting A although B has already pardoned A
because the pardon has been given while the criminal
action has already been filed in court.
Exception to the Rule under Article 23 “A pardon by the
offended party does not extinguish criminal action
except as provided in Article 344”
A stabbed B, B sustained a fatal wound. B was brought
in the hospital, he survived. So A would often visit B.
He shouldered the operating expenses and the hospital
expenses. He provided medicine, everything, he will
also give fruits to B for the early recovery of him. By
reason of the said circumstances, although a case was
already filed against A, B pardoned A. The crime is
frustrated homicide. What is the effect of such pardon
granted by B to A?
The said pardon will not extinguish the criminal action
already filed. It will not extinguish the criminal liability
of the said accused A.
A pardon by the offended party does not extinguish
criminal action except as provided in Article 344. Article
344 in case of private crimes seduction, abduction, acts
of lasciviousness, adultery and concubinage— these are
private crimes because these are crimes which cannot
be prosecuted without a complaint coming from the
offended party. The state cannot on its own initiate
these crimes, these are private crimes.
Pardon by the offended party in case of private crimes
only bars criminal prosecution
In case of this private crimes pardon by the offended
party only bars criminal prosecution. It should be given
before the institution of the criminal action. Therefore
in order that a pardon by the offended party may
extinguish the criminal liability of the accused it must
be given before the filing of criminal action, because
pardon by the offended party only bars criminal
prosecution but it does not extinguish criminal action
already filed in court.
Pardon by the offended party in public crimes does not
extinguish criminal action already filed
In public crimes, it is more of a crime against the state
than against the private individual. That’s why it is
called People of the Philippines versus in this case A.
The public prosecutor can still prosecute A in so far as
the case of frustrated homicide even if B has already
pardoned A. Such pardon will have no effect against the
criminal action already filed against A. That is in case
of public crimes.
So whether it be private or public crimes pardon by the
offended party does not extinguish the criminal action.
What about in case of private crimes?
A touched the private parts of B, so B filed a case of acts
of lasciviousness against A. The case was filed by the
police before the fiscal; the fiscal filed it before the court.
While the case is on-going trial A asked for forgiveness,
B pardoned A. What is the effect of the pardon granted
by the offender in case of private crime?
Whether it be for public crimes or private crimes,
pardon granted by the offended party does not
extinguish the criminal liability of the offender.
Pardon by the wife extinguishes not only the criminal
action but also the penalty imposed by the court.
The only exception to the rule is in case of husband and
wife, particularly in case of marital rape as provided for
in Article 266-C88 of the RPC. The subsequent
forgiveness in case the accused is the legal husband, the
forgiveness by the wife shall extinguish criminal action
or penalty. That is the only exception. Pardon by the
wife extinguishes not only the criminal action but also
the penalty imposed by the court.
Whether it be for public crimes or private crimes,
pardon granted by the offended party does not
extinguish the criminal action filed against the accused.
A, the husband, raped the wife. The wife filed a case of
rape against the husband. While the case is ongoing
trial on the merits, the husband asked for the wife’s
87 Art. 344 par. 4 “In cases of seduction, abduction, acts of
lasciviousness and rape, the marriage of the offender with the
offended party shall extinguish the criminal action or remit the
penalty already imposed upon him”.
88 ART. 266-C. Effect of Pardon. - The subsequent valid marriage
between the offended party shall extinguish the criminal action or the
penalty imposed.
In case it is the legal husband who is the offender, the subsequent
forgiveness by the wife as the offended party
1. shall extinguish the
1.1. criminal action or
1.2. the penalty:
2. Provided, That the crime shall not be extinguished or the
penalty shall not be abated if the marriage is void ab initio.
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forgiveness. The wife is so firm, she has not forgiven the
husband. Now, evidence was overwhelming. Before
judgment, again the husband asked for the wife’s
forgiveness. The wife pardoned the husband. What is
the effect of such pardon granted by the wife on the
criminal action of rape already filed?
It will extinguish the criminal action already filed in the
court. Even if all evidence had already been presented,
such pardon by the wife shall extinguish the criminal
action already filed in court.
A pardon shall in no case exempt the culprit from the
payment of the civil indemnity imposed upon him by
the sentence.
Pardon by the president is an act of grace proceeding
from the power entrusted with the execution of the law
which exempts the offender to whom it is bestowed from
the penalty which the law provides from the crime he
has committed.
Pardon by the president extinguishes the criminal
liability of the offender. Under Article 89 it is one of the
modes of totally extinguishing the criminal liability of
the offender. It extinguishes the criminal action and
criminal liability however under Article 36, it does not
restore the civil rights of the accused to hold public
office and employment or to vote or be voted for unless
it is expressly restored by the terms of the pardon. Even
if the president has already granted pardon to the
offender, it does not automatically restore the rights to
hold public office and employment, or to vote or be
voted. It must be expressly granted—stated in the
terms of the pardon granted by the President.
What if in the same problem, when the husband asked
for the wife’s forgiveness, the wife did not pardon the
husband, she was so firm. So the judge rendered
judgment finding the husband guilty beyond reasonable
doubt. The husband was sentenced with reclusion
perpetua and the judgment became final and executory.
The husband is now serving his sentence in
Muntinlupa. Suddenly, its Valentine’s Day the wife did
not receive any flowers and chocolates, and so the wife
missed her husband. The wife pardoned him. What is
the effect of such pardon granted by the wife on the
husband after conviction by final judgment, after the
penalty has already been imposed by the court?
The pardon by the wife will also relieve such penalty
even though it is already granted by the court. That is
how powerful the pardon of a wife is. It can even remit
the penalty already granted by the court because if you
will look at Article 266 of RPC, the pardon by the wife
will extinguish both criminal action and penalty. So,
even if there is already conviction by final judgment
there is already a penalty the moment the wife pardon
the husband, balewala ang penalty niya, panalo parin
ang pardon ng wife, panalo parin ang Valentines. So
this is how powerful the pardon of a wife is.
Pardon by the President does not extinguish Civil
liability
Civil liability is not extinguished because such liability
is not part of the penalty of the offender, it is personal
to the victim, it is personal to the private offended party
and the pardon of the president cannot touch the civil
liability.
PARDON BY THE
PRESIDENT
ART. 36
Extinguishes the criminal
liability.
That is the only exception to the rule. Perhaps, that is
because of the relationship in order to insure harmony
in the family. So, pardon by the wife extinguishes not
only criminal action but even the penalty already
imposed by the court. That is the only exception to the
rule.
Does not extinguish civil
liability.
How about in so far as civil liability is concerned?
Pardon by the offender extinguishes the civil liability of
the offender as if it is by express waiver. The offended
party already forgiven the offender, definitely he is no
longer expecting any damages to be granted on him.
It may only be granted
after conviction by final
judgment.
ART. 36. Pardon; Its Effects. — A pardon shall not work
the restoration of the (1) right to hold public office, or
(2) the right of suffrage, unless such rights be expressly
restored by the terms of the pardon.
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PARDON BY THE
OFFENDED PARTY
ART. 23
Does
not
extinguish
criminal liability except in
case of rape wherein the
husband is the offender
and the wife is the
offended
party
who
granted pardon.
Extinguishes civil liability
as it is deemed as an
express waiver on part of
the offended party.
It may only be granted
before the institution of
the criminal proceedings
and only in cases of private
crimes, such as seduction,
abduction,
acts
of
lasciviousness,
adultery
and concubinage.
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ART. 38. Pecuniary liabilities — order of payment. — In
case the property of the offender should not be sufficient
for the payment of all his pecuniary liabilities, the same
shall be met in the following order:
1. The reparation of the damage caused.
2. Indemnification of consequential damages.
3. The fine.
4. The costs of the proceedings.
ART. 39. Subsidiary penalty89. — If the convict has no
property with which to meet the pecuniary liabilities
mentioned in paragraphs 1st, 2nd and 3rd of the next
preceding Article, he shall be subject to a subsidiary
personal liability at the rate of one day for each amount
equivalent to the highest minimum wage rate
prevailing in the Philippines at the time of the rendition
of judgment of conviction by the trial court , subject to
the following rules:
Pecuniary liabilities are those imposed by the court in
case of judgment of conviction and it shall go both to the
government and the private offended party.
1. If the principal penalty imposed be prisión
correccional or arresto and fine,
1.1. he shall remain under confinement until his
fine and pecuniary liabilities referred in the
preceding paragraph are satisfied,
1.2. but his subsidiary imprisonment shall not
exceed 1/3 of the term of the sentence, and
1.3. in no case shall it continue for more than 1
year, and
1.4. no fraction or part of a day shall be counted
against the prisoner.
2. When the principal penalty imposed be only a
fine,
2.1. the subsidiary imprisonment shall not
exceed 6 months, if the culprit shall have
been prosecuted for a grave or less grave
felony, and
2.2. shall not exceed 15 days, if for a light felony.
3. When the principal penalty imposed is higher
than prisión correccional no subsidiary
imprisonment shall be imposed upon the
culprit.
4. If the principal penalty imposed is not to be
executed by confinement in a penal institution,
but such penalty is of fixed duration,
4.1. the convict, during the period of time
established in the preceding rules,
4.2. shall continue to suffer the same
deprivations as those of which the principal
penalty consists.
5. The subsidiary personal liability which the
convict may have suffered by reason of his
insolvency shall not relieve him
5.1. from reparation of the damaged caused,
5.2. nor
from
indemnification
for
the
consequential damages
in case his financial circumstances should
improve; but he shall be relieved from pecuniary
liability as to the fine.
Pecuniary penalties are those penalties imposed by the
court in case of judgment by conviction which goes solely
to the government.
Under Article 25 pecuniary penalties include fine and
payment of cost. Whereas pecuniary liabilities as
provided for in Article 38 are as follows: reparation of
damage caused, indemnification of consequential
damages, fine and cost of proceedings.
Under Article 38 if the offender has been imposed with
pecuniary liabilities and he does not have the sufficient
property to answer all of the pecuniary liabilities, there
is the order of payment provided.
1.
2.
3.
4.
Reparation of damages.
Indemnification of consequential damages
Fine
Cost of Proceedings
The first two both goes to the offended party in the order
given priority. Those for the private offended party
must first be settled before the offender pays the
government. Fine and cost of proceedings goes to the
government.
How is pecuniary liabilities under Article 38 different
from pecuniary penalties?
When you say pecuniary penalty, this includes fine and
also costs of proceedings. These are imposed by the
court in case of a judgment of conviction and these are
all owing to the State. In case of pecuniary liabilities, it
includes
reparation
of
damage
caused
and
indemnification of consequential damages, fine and
costs of proceedings. Pecuniary liabilities are both
owing to the private offended party and to the State and
it is adjudged in case of conviction.
As amended by R.A. No. 5465, which lapsed into law on April 29,
1969; As amended by R.A. 10159, approved April 10, 2012.
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SUBSIDIARY PENALTY
RULES ON SUBSIDIARY PENALTY
Subsidiary penalty is a substitute penalty for fine and
fine alone. Subsidiary penalty can only be imposed on a
fine. The moment the penalty imposed upon him is fine
and he is insolvent to pay the fine, then judge may state
that he should suffer subsidiary penalty or subsidiary
imprisonment.
1. If the penalty imposed by the court is prision
correccional, arresto and fine his subsidiary
imprisonment shall not exceed 1/3 of his term of
sentence but it no case shall exceed one year.
2. If the penalty imposed by court is fine alone
subsidiary penalty should not be more than 6
months in case of grave and less grave felonies, and
shall not exceed 15 days in case of light felonies.
3. If the penalty imposed by court in addition to fine is
higher than prision correccional that is more than 6
years, even if the convict is insolvent to pay the fine
he cannot be made to suffer subsidiary
imprisonment.
4. If the other penalty that goes with fine is not to be
executed by confinement in a penal institution and
it is of fix duration for example destierro. Then it
shall not exceed 1/3 of the term of sentence but in
no case shall exceed one year.
5. If the other principal penalty that goes with fine is
an indivisible penalty and not to be executed in a
confinement in a penal institution there can be no
subsidiary imprisonment even if insolvent to pay
the fine.
6. Even if the accused has already suffered subsidiary
imprisonment, it does not relieve him to pay the fine
in case his financial circumstance shall improve.
Subsidiary penalty is neither a principal nor an
accessory penalty.
It is not a principal penalty it is also not an accessory
penalty. Therefore, subsidiary penalty must be
expressly stated in the judgment of the court. If not,
even if he is insolvent and should suffer subsidiary
imprisonment, he cannot be allowed to do so because it
is not stated in the judgment of the court. It is not an
accessory penalty which attaches to the principal
penalty as a matter of law. Hence, it must be expressly
stated in the judgment of the court. Otherwise he
cannot be made to suffer subsidiary penalty.
Therefore, before subsidiary penalty may be imposed on
a convict, it is necessary that first, the judgment of
conviction includes fine as a penalty. And second, in the
said judgment of conviction, there is a statement by the
court saying that in case of insolvency to pay the fine,
the said convict shall suffer subsidiary penalty. These
two must be both present before one may suffer
subsidiary penalty.
A is charge of reckless imprudence causing damage to
property. He was convicted. The penalty imposed upon
him is public censure plus fine. In the judgment the
court said, in case of non-payment of fine he shall suffer
subsidiary imprisonment, is the judge correct?
The judge is wrong because public censure, the other
principal penalty goes with fine is not to be served by
confinement in a penal institution and is without fixed
duration.
A has been convicted of a crime. The penalty impose
includes a fine. The judgment became final and
executory. A writ of execution was issued by the judge
against A. The sheriff went to A to implement the writ
of execution however, it was returned unsatisfied. He
does not have property to pay the said fine. And so, the
judge immediately issued an order stating that A should
suffer a subsidiary imprisonment. Is the judge correct?
That judge is not correct, the failure of the judge to state
in the judgment that in case of insolvency to pay fine
the offender must suffer, subsidiary liability cannot be
corrected by a mere order after the judgment became
final and executory.
The convict is not able to pay the fine and he suffered
subsidiary imprisonment of one year. After a year he
was released. Once out of prison before going home he
went to the lotto station he placed a bet. That night he
became a millionaire. Can the state go after A in order
to pay the fine?
Yes. Under Article 39 paragraph 5 as amended by RA
10159, it is provided that even if the said convict has
suffered subsidiary penalty by reason of his insolvency,
such subsidiary penalty shall not relieve him from the
payment of fine in case his financial circumstances shall
improve.
What is the rate of subsidiary imprisonment?
Article 39 8/ day amended by RA 10159 which took
effect last April 2012. 1 day imprisonment is equivalent
to the prevailing highest minimum wage rate in the
Philippines upon the judgment of the court. It is based
on the date of judgment by the trial court not the
appellate court.
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ART. 43. Prisión correccional — Its accessory penalties.
— The penalty of prisión correccional shall carry with it
that of
1. suspension from public office,
2. from the right to follow a profession or calling,
and that of
3. perpetual special disqualification from the right
of suffrage, if the duration of said imprisonment
shall exceed 18 months.
The offender shall suffer the disqualification provided
in this Article although pardoned as to the principal
penalty, unless the same shall have been expressly
remitted in the pardon.
INSTANCES WHERE SUBSIDIARY PENALTY
CANNOT BE IMPOSED BY THE COURT.
1. When the judgment of the court failed to state that
in case of insolvency the offender shall suffer from
subsidiary imprisonment.
2. When the judgment of the court does not include
fine as a penalty because subsidiary imprisonment
is a substitute penalty for fine and fine alone.
3. When the other penalty imposed by the judgment of
the court in addition to fine is higher than prision
correccional.
4. When the other imprisonment that goes with fine in
the judgment of the court is an indivisible penalty
and is not to be served behind bars.
5. When what the convict failed to pay is not fined by
reparation of damage, indemnification and cost.
ART. 44. Arresto — its accessory penalties. — The
penalty of arresto shall carry with it that of
1. suspension of the right to hold office and
2. the right of suffrage during the term of the
sentence.
SECTION THREE
Penalties in Which Other
Accessory Penalties are Inherent
ART. 45. Confiscation and Forfeiture of the Proceeds or
Instruments of the Crime. — Every penalty imposed for
the commission of a felony shall carry with it
1. the forfeiture of
1.1. the proceeds of the crime and
1.2. the instruments or tools with which it was
committed.
2. Such proceeds and instruments or tools
2.1. shall be confiscated and forfeited in favor of
the Government,
2.2. unless they be the property of a third person
not liable for the offense,
3. but those articles which are not subject of lawful
commerce shall be destroyed.
ART. 40. Death — Its accessory penalties. — The death
penalty, when it is not executed by reason of
commutation or pardon shall carry with it that of
1. perpetual absolute disqualification and that of
2. civil interdiction during 30 years following the
date of sentence,
unless such accessory penalties have been expressly
remitted in the pardon.
ART. 41. Reclusión Perpetua and Reclusión Temporal
— Their accessory penalties. — The penalties of
reclusión perpetua and reclusión temporal shall carry
with them that of
1. civil interdiction
1.1. for life or
1.2. during the period of the sentence as the case
may be, and that of
2. perpetual absolute disqualification which the
offender shall suffer
2.1. even though pardoned as to the principal
penalty,
2.2. unless the same shall have been expressly
remitted in the pardon.
CHAPTER FOUR
Application of Penalties
SECTION ONE
Rules for the Application of Penalties to the Persons
Criminally Liable and for the Graduation of the Same
ART. 46. Penalty to be imposed upon principals in
general. — The penalty prescribed by law for the
commission of a felony shall be imposed upon the
principals in the commission of such felony.
ART. 42. Prisión mayor — Its accessory penalties. —
The penalty of prisión mayor shall carry with it that of
1. temporary absolute disqualification and that of
2. perpetual special disqualification from the right
of suffrage which the offender shall suffer
2.1. although pardoned as to the principal
penalty,
2.2. unless the same shall have been expressly
remitted in the pardon.
Whenever the law prescribes a penalty for a felony in
general terms, it shall be understood as applicable to
the consummated felony.
Under Article 46, the law provides that the penalty
prescribed by the law shall be imposed on the principal
and shall be applied only to consummated felonies. So
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the penalties prescribed by law, if you look at Book II,
each crime in Book II has a corresponding penalty, those
penalties prescribed by law shall only be impose to the
principal offender and shall only be applied to the
consummated felonies.
TWO KINDS OF COMPLEX CRIMES
1. Compound crime exist under Article 48 when the
offender performs a single act and that single act
produces two or more grave or less grave felonies
Article 48 says that when a single act produces two
or more grave or less grave felonies, the crime shall
be penalized based on which of the two shall be the
most serious crime in its maximum period. So if the
crime produces two or more grave or less grave
felonies, the penalty for the most serious crime shall
be imposed in its maximum period.
2. Complex crime proper exist when an offense is a
necessary means to commit the other offense.
What if the offender is a mere accomplice? What if the
offender is a mere accessory? What if the crime is only
in the frustrated stage or in the attempted stage?
The rules for penalties for frustrated felony, attempted
felony, of an accomplice, of an accessory are provided for
in Articles 50-57.
ART. 47. In what cases the death penalty shall not be
imposed. — The death penalty shall be imposed in all
cases in which it must be imposed under existing laws,
except when the guilty person is
1. below 18 years of age90 at the time of the
commission of the crime or
2. is more than 70 years of age or
3. when upon appeal or automatic review of the
case by the Supreme Court, the required
majority vote is not obtained for the imposition
of the death penalty,
in which cases the penalty shall be reclusion perpetua.
COMPOUND CRIME
Compound crime. There is a compound crime when a
single act constitutes two or more grave or less grave
felonies.
ELEMENTS OF COMPOUND CRIME (SP)
1. The offender performs a Single act.
2. That the single act Produces two or more grave or
less grave felonies.
So the basis of a compound crime is singularity of the
act on the part of the said offender. So note, the basis of
a compound crime is the singularity of the act not the
singularity of impulse
In all cases where the death penalty is imposed by the
trial court, the records shall be forwarded to the
Supreme Court for automatic review and judgment by
the court en banc, within 20 days but not earlier than
15 days after (1) promulgation of the judgment or (2)
notice of denial of any motion for new trial or
reconsideration. The transcript shall also be forwarded
within 10 days after the filing thereof by stenographic
reporter91.
In People v. Nelmida92 Supreme Court said, “In
compound crime under Article 48, singularity of the act
is the essence of the crime. Singularity of impulse is not
written in the law”. Therefore, there must only be a
single act performed by the offender and the said single
act must produce two or more grave or less grave
felonies. Therefore, if one of the resulting felony is a
light felony, then you cannot complex it because you can
only complex in two or more grave or less grave felonies.
ART. 48. Penalty for complex crimes. — When
1. a single act constitutes two or more crimes, or
2. when an offense is a necessary means for
committing the other,
the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period.
What is the effect of a compound crime in the criminal
liability of the offender?
The penalty for the most serious crime shall be imposed
the same to be applied in its maximum period.
A placed a bomb under the car of B. The moment B
entered the said car together with two security guards
the bomb exploded, B died. The two security guards
R.A. 9344. SEC. 59. Exemption from the Application of Death
Penalty. - The provisions of the Revised Penal Code, as amended,
Republic Act No. 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.
Amended by R.A. 9346
As we observed in People v. Tabaco,102 clarifying the applicability
of Article 48 that “to apply the first half of Article 48, x x x there must
be singularity of criminal act; singularity of criminal impulse is not
written into the law. (People vs. Nelmida, 680 SCRA 386, G.R. No.
184500 September 11, 2012)
90
91
92
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were fatally wounded but they survived. What is the
crime committed by A?
The crime committed by A is murder with double
frustrated murder. So the said act, one act placing the
bomb under the car, it produces three grave felonies. We
have murder and two frustrated murder. They are all
grave felonies. Hence, it results to a compound crime of
murder with double frustrated murder.
attendant. The single act of shooting is intended to kill
B but it was C who was hit.
What if in the same problem, when A fired at B tending
to kill B the bullet hit C. B was not hit but C was fatally
wounded and he survived. What is the crime committed
based on the single act of firing?
The crime is attempted murder with serious physical
injuries. This is because A has only the intention to kill
B.
There was a rally or a meeting on a plaza. A threw a
bomb. Two persons died, five others were fatally
wounded but they survived. What crimes are committed
by A?
Two persons died, therefore we have double murder.
Five others were fatally wounded but survived, double
murder with multiple frustrated murder. It is based on
a single act. Therefore, the penalty for the most serious
crime, murder shall be imposed to be applied in its
maximum period that is double murder with multiple
frustrated murder. The basis is the singularity of the
act.
What if the sustained would is only slight? So let us say
that the bullet only hit a portion of his arm and based
on the medical certificate it would heal within 1-7 days.
So it is slight physical injuries. What is the crime
committed by A?
The crime is attempted murder against B and as
against C the crime is slight physical injury. This is
because the other crime committed is a light felony; it
cannot be a complex crime. So two cases will be filed
against A.
A was mad at B and so he wanted to kill B and his
family. A placed an explosive device under the car of B,
when his family opened the car, the bomb exploded
killing B, his wife and his three children. What crime or
crimes is committed by A?
A is liable for multiple murder, a complex crime, a
compound crime under Article 48. A performed a single
act, that of placing an explosive device under the car of
the said victims and the said single act of placing an
exploding device under the said car produces five grave
felonies, five counts of murder. Since it is the product of
the single act coming from the offender, we have a
compound crime of multiple murder.
In the case of People v. Nelmida, the accused waited in
ambush for the coming of the vehicle, the service vehicle
of Mayor Tawantawan of Lanao del Norte. So the
moment they the vehicle passed by the said waiting
shed, all the accused open fired on the vehicle of the said
mayor. So all of them simultaneously firing shots at the
said vehicle. As a result, two persons died. Two of the
security guards died and several others were wounded.
Later, the accused were arrested. And so the case filed
before the fiscal is double murder with multiple
frustrated murder and double attempted murder. That
was the case filed before the lower court, convicted. CA
convicted. But the case reached the SC.
What if in the same problem, when the car exploded,
only the husband was killed. The wife and the children
survived. They sustained fatal wounds but they
survived due to immediate medical intervention. What
crime or crimes is committed by A?
A performed a single act and this single act produces
five grave felonies, one murder and 4 frustrated murder.
Therefore A would be liable for the complex crime of
murder with multiple frustrated murder.
SC said, we believe Article 48 is not applicable in the
case. Note that the wounding and killing of the victims
were not the result of a single act, it resulted from
separate acts coming from different people, different
accused. Therefore, SC said, Article 48 is not applicable
in the instant case.
Hence, they were convicted of two counts of murder and
seven counts of attempted murder, It is not beneficial to
them. A complex crime is beneficial to the accused
because instead of being charged with so many crimes,
being prosecuted and penalized with so many crimes,
only one crime although the penalty is in its maximum
period for the most serious penalty to be applied in its
maximum period.
The best example of a compound crime is aberratio ictus
mistake in the blow.
A wanting to kill B, fired at B, however because of poor
aim he hit C who was near B. B did not sustain any
wound but C died. What is the crime committed?
It is based on a single act of shooting. So the crime is
attempted murder with murder. Treachery is
Here, SC said, since Article 48 is inapplicable, they are
held liable for two counts of murder and seven counts of
attempted murder. SC said, none of them, none of the
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other victims, sustained fatal wound. Therefore, it will
only be attempted murder. Seven counts of attempted
murder.
murder. Again, the basis was the single act, stepping on
the accelerator of vehicle and into the said seamen.
So that is the difference between People vs. Nelmida
and People vs. Punzalan. In Nelmida, SC said
compound crime is not committed. In case of Punzalan,
there is a compound crime under Article 48.
In the case of People v. Punzalan93, there were these
seamen who attended schooling in Zambales, after
schooling, they went for a drinking spree, then from the
canteen they transferred to a videoke bar. While they
were having their drinks at the videoke bar, they had
an altercation with Punzalan, the accused in this case.
So there was this altercation between one of the seamen
and Punzalan, the accused.
X barged inside a conference room. And with the use of
a high-powered firearm, pressed the gun and several
bullets came out in assault and 5 people died. What
crime or crimes is/are committed by this X?
The offender only performed a single act of pressing the
trigger but in just one single act of pressing the trigger,
five bullets came out and these five bullets killed five
people. Supreme Court said, in the case of People vs.
Mario Tabaco94, Supreme Court said that here Article
48 complexity of crimes does not apply.
There was this flickering light bulb. And so, one of the
seamen, the one who had altercation with Punzalan told
the owner, “Patayin na yan.” But he was misinterpreted
by Punzalan because he thought that “patayin mo na
yan” was being referred to him, and so he said, “Sinong
papatayin?” But he was stopped by the seamen who
tried to pacify him. And so in order to prevent further
trouble. All the seamen left. They went back to their
barracks.
Supreme Court said that when the gun used is a highpowered firearm submachine gun wherein just by one
pull of the trigger several bullets will already come out,
it is not the single act of pulling the trigger that will
bring about the crime but the number of bullets that
will be emitted and that killed the victims. Hence, in
this case, the said accused was held liable for five counts
of murder because Article 48 does not apply.
However, Punzalan followed them on board his vehicle.
So they were already walking on the right side of the
road when Punzalan stopped at the sentry but even
though there was no approval of him to enter, he
already proceeded. And then he went to the right side of
the road, bumping and hitting these seamen. As a
result, two seamen died and others were thrown away
although they were not wounded. And so he was
charged with double murder with multiple attempted
murder. Convicted RTC, convicted CA, the case reached
SC while SC says “Yes, the charge is correct.” He is
liable with double murder with multiple attempted
murder.
So it is not a complex crime of multiple murder but
rather five counts of murder separate and distinct from
each other. So in case of a high-powered firearm, it is
not the single act of pulling the trigger but rather the
number of bullets that came out and killed and wounded
the offended party that will give rise to the crimes
committed by the accused.
COMPLEX CRIME PROPER
SC says, The accused made a single act, stepping on the
accelerator of his vehicle and thereafter running the
said seamen who were walking on the right side of the
road. As a result, two died, others were wounded.
Obviously although not wounded, there was an attempt
to kill them by means of motor vehicle. Hence, the crime
committed was double murder with multiple attempted
The other kind of a complex crime is known as complex
crime proper. There is a complex crime proper when an
offense is a necessary means to commit the other
offense.
perpetua. It was duly proved beyond doubt that the gun (Exhs. ‘K,’ SN
No. 1492932, ‘K-2’—magazine of M-14 and Exh. ‘L’—Memo Receipt of
M-14 issued to Tabaco), used by the accused, is admittedly an
automatic powerful weapon, more powerful than an M-16 armalite
rifle. It is so powerful that the bullets can penetrate even more than
five (5) persons resulting to their deaths. And, this was proven when,
according to witness Rosario Peneyra, the bullets even destroyed the
cemented rail guard separating the lower and upper bleachers of the
cockpit arena, and causing wounds on his face and on his right
shoulder. Additionally, we have the used/spent empty shells. (People
vs. Tabaco, 270 SCRA 32, G.R. Nos. 100382-100385 March 19, 1997)
Appellant was animated by a single purpose, to kill the navy
personnel, and committed a single act of stepping on the accelerator,
swerving to the right side of the road ramming through the navy
personnel, causing the death of SN1 Andal and SN1 Duclayna and, at
the same time, constituting an attempt to kill SN1 Cuya, SN1 Bacosa,
SN1 Bundang and SN1 Domingo. (People vs. Punzalan, Jr., 687 SCRA
687, G.R. No. 199892 December 10, 2012)
94 The four murders which resulted from a burst of gunfire cannot be
considered a complex crime. They are separate crimes. The accusedappellant must therefore be held liable for each and every death he
has caused, and sentenced accordingly to four sentences of reclusion
93
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ELEMENTS OF COMPLEX CRIME PROPER (TNS)
1. That there be Two or more offenses
2. That one offense is Necessary to commit the other
offense.
3. All of them must be punished by the Same statute.
SPECIAL COMPLEX CRIME
When you say necessary to commit the other offense, it
is necessary that one crime facilitated the commission
of the other crime.
Special complex crime is wherein two or more crimes
were committed but in the eyes of the law there is only
one crime committed. So the resulting felony is a special
complex crime.
Third kind of complex crime is the so-called special
complex crime or composite crime or otherwise known
as single indivisible crime.
In order to rape B, A forcibly abducted B against her
will and with lewd design. What is the crime committed
by A?
The crime is rape with forcible abduction. Forcible
abduction was a necessary means in order to commit the
crime of rape.
When by reason or on the occasion of committing
robbery homicide is committed we have robbery with
homicide, when at the time of rape homicide was
committed we have rape with homicide. When robbery
was accompanied by rape, we have robbery with rape.
In kidnapping and serious illegal detention the victim
was killed as a consequence of the detention we have
kidnapping and serious illegal detention with homicide,
when by reason of the said kidnapping the victim was
raped the crime is kidnapping and serious illegal
detention with rape .
In order to swindle, A falsified a deed of absolute sale.
Deed of absolute sale is a public document. It was
committed in order to commit estafa, therefore the
crime is estafa through falsification of a public
document.
What if a cash voucher was falsified? So A falsified a
cash voucher and then he went to the customer of his
company and by means of the said falsified cash voucher
A was able to collect. So A committed estafa.
The Supreme Court said in the case of People vs.
Batulanon95 a cash voucher is merely a private
document not a commercial document.
What is the effect of special complex crime on the
criminal liability of the offender?
It is beneficial to the offender because only one crime
will be charge against the offender with only one single
penalty imposed by law.
Special Complex Crime
It is the law that provides
for the crimes which
should be combined.
Therefore since the falsification of a cash voucher was a
necessary means in order to commit estafa, is the crime
committed estafa through falsification of a private
document?
There is no crime of estafa through falsification of a
private document.
The law provides for a
single penalty.
So when what is falsified in order to swindle another
person is a private document, even if the falsification of
the private document is a necessary means to commit
estafa there is no such crime as estafa through
falsification of a private document because both estafa
and falsification of a private document have damage
ascendance. And one and the same damage cannot give
rise to two crimes. So you cannot complex the two, it can
either be estafa or falsification of a private document
but you can never complex it.
A light felony committed
in the commission of the
crime is absorbed.
Complex Crime
The law merely states
two or more grave or less
grave felonies or an
offense is necessary to
commit the other.
The penalty to be
imposed will be for the
most serious crime in its
maximum period.
A light felony committed
would
constitute
a
separate and distinct
charge.
they are private documents, which have been defined as deeds or
instruments executed by a private person without the intervention of
a public notary or of other person legally authorized, by which some
disposition or agreement is proved, evidenced or set forth. (Batulanon
vs. People, 502 SCRA 35, G.R. No. 139857 September 15, 2006)
95 The Court of Appeals correctly ruled that the subject vouchers are
private documents and not commercial documents because they are
not documents used by merchants or businessmen to promote or
facilitate trade or credit transactions nor are they defined and
regulated by the Code of Commerce or other commercial law. Rather,
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The crime committed is a continued crime or a delicto
continuado. The said offender is impelled by a single
criminal impulse that is to take amortization by means
of abuse of confidence, by means of deceit, he swindled.
And indeed the 2,000 from 1, 2, 3, 4, and 5, and these
acts violates one and the same provision of the law. And
that is estafa. So here instead of being convicted of 5
counts of estafa or swindling, the said accused shall be
convicted only of one count of estafa or swindling
because it is a continued crime or a delito continuado.
He is impelled by a single criminal impulse. He commits
a series of overt acts of the same money of about the
same time of about the same place violating one and the
same provision of the law.
CONTINUED CRIME/DELITO CONTINUADO
Fourth kind is continued crime otherwise known as
delito continuado. It is one wherein the offender
impelled by a single criminal impulse commits a series
of overt acts in about the same time in about the same
place violating one and the same provision of the law.
The basis of continuing crime is singularity of impulse.
There is one compound, and in the said compound, there
were brother A, B, C, D, and E. Five brothers. They have
different houses because they have their own families.
All of them are engaged in the business of selling
puppies. So, one night, about 12 o’ clock midnight, here
comes X. X went inside the compound and took one
puppy from A, one puppy from B, one puppy from C, one
puppy from D, and one puppy from E. He was thereafter
arrested. How many counts of theft would you file
against X?
Only one count of theft because it is a continued crime
or delito continuado. X, impelled by a single criminal
impulse, that is to take the personal property of another
with intent to gain commits a series of overt acts that is
to take puppy of A, B, C, D, and E, a series of overt act
and about the same time 12 o’ clock midnight, and about
the same place that is the compound violating one and
the same provision of the law that is Article 308 in
relation to Article 309 of the Revised Penal Code. So
here, we have only one crime committed, one count of
theft.
So those are the four kinds of complex crime.
1. Compound Crime – the penalty for the most serious
crime shall be imposed in its maximum period.
2. Complex Crime Proper – the penalty for the most
serious crime shall be imposed in its maximum
period.
3. Special Complex Crime – only a specific penalty
prescribed by law shall be the one imposed.
4. Continued Crime or Delito Continuado – the
offender despite having committed several or a
series of acts shall only be punished with only one
crime and therefore imposed with one penalty.
And then we have the transitory offense, so in effect the
complexity of offense would be favorable to the accused.
It is favorable to the accused because instead of being
convicted of separate and distinct crimes, the separate
and distinct, only one penalty shall be imposed on the
said accused. It is beneficial, in favor of the said
accused.
So again what is the effect?
It is favorable to the accused instead of being charged of
different counts of theft, he is only charged with one
count.
A has been designated by XYZ corporation to sell their
condo units in a certain building. So A is one of the
agents in selling these condo units. However, A is not
entrusted to collect their monthly fees, their monthly
payments, the monthly amortizations for the said house
of the customers or clients have bought. He is only
entrusted in order to sell the condo units. However, A
was in need of money since he was in need of money in
order to pay his indebtedness, he decided to collect
payments from five of the condo unit holders. He
decided to collect payments from 1, 2, 3, 4, and 5. So he
went to the unit of 1 and he collected the monthly
amortization in the amount of P2,000. He went to the
unit of 2, 3, and 4 and 5 and from each of them he
collected P2,000 monthly amortization. So now he has
P10,000. How many crime have been committed? How
many crimes of estafa is the said person liable of?
CONTINUING CRIME/TRANSITORY OFFENSE
There is another one, but this is more of remedial law,
a continuing crime or a transitory offense.
Transitory crime is one wherein the offender can be
prosecuted in any of the courts of the place where the
elements of the crime happened.
So if any of the elements of the crime had happened, the
offender can be prosecuted in the courts of the said
place. Example of some continuing or transitory crimes
we have under Article 315 estafa or postdating a check.
We have kidnapping under Article 267. We have also
violation of BP 22, the Bouncing Check Law. These are
examples of transitory crimes. We have also rebellion.
We have also a violation of service of sentence. It is a
continuing crime.
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Violation of BP 22. A issued the check to B in Manila, B
deposited the check in his depository bank in Quezon
City the drawee bank is in Caloocan City. The drawee
bank dishonored the cheque. Where may B file a case
against A?
In any of the MTC of the three cities because it is a
continuing offense.
provided for a frustrated or attempted felony, or to be
imposed upon accomplices or accessories.
Even if Articles 50-57 provides for the rules for the
application of penalty to accomplices and accessories
and in cases of frustration or an attempt if the law
expressly provides for this accomplices and accessories
or for the frustration or attempt then the said law shall
prevail.
A is kidnapped in Manila he was brought in Quezon
City, Bulacan, Pampanga, Baguio. He was arrested in
Baguio, can the case be filed in Baguio?
Yes because kidnapping is a transitory offense.
ART. 62. Effects of the attendance of mitigating or
aggravating
circumstances
and
of
habitual
delinquency96.
—
Mitigating
or
aggravating
ARTICLES 50-57
Principals
Accomplices
Accessories
Consummated
Frustrated
Attempted
Penalty
prescribed by
law.
1 degree
lower than
the penalty
prescribed
by law.
1 degree lower
than the
penalty
prescribed by
law.
2 degrees
lower than
the penalty
prescribed
by law for a
frustrated
felony.
2 degrees
lower than the
penalty
prescribed by
law.
3 degrees
lower than
the penalty
prescribed
by law for
an
attempted
felony.
2 degrees
lower than
the
penalty
prescribed
by law
3 degrees
lower than
the
penalty
prescribed
by law for
a
frustrated
felony.
4 degrees
lower than
the
penalty
prescribed
by law for
an
attempted
felony.
circumstances and habitual delinquency shall be taken
into account for the purpose of diminishing or
increasing the penalty in conformity with the following
rules:
1. Aggravating
circumstances
which
in
themselves constitute a crime specially
punishable 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.
1(a). When in the commission of the crime,
advantage was taken by the offender of his
public position, the penalty to be imposed shall
be in its maximum regardless of mitigating
circumstances.
The maximum penalty shall be imposed if the
offense was committed by any group who
belongs to an organized/syndicated crime group.
An organized/syndicated crime group means
i.
a group of two or more persons (1)
collaborating, (2) confederating or (3)
mutually helping one another
ii.
for purposes of gain in the commission
of any crime.
2. The same rule shall apply with respect to any
aggravating circumstances inherent in the
crime to such a degree that it must of necessity
accompany the commission thereof.
3. Aggravating or mitigating circumstances which
arise
3.1. from the moral attributes of the offender, or
3.2. from his private relations with the offended
party, or
3.3. from any other personal cause,
shall only serve to aggravate or mitigate the
liability of the principals, accomplices and
If the offender is merely an accomplice you go one
degree lower from the penalty prescribed by law. If the
offender is merely an accessory you go two degrees lower
from the penalty prescribed by law.
If the crime is committed in the frustrated stage you go
one degree lower from the penalty prescribed by law. If
the crime is committed in the attempted stage you go
two degrees lower from the penalty prescribed by law.
ART. 60. Exceptions to the Rules Established in Articles
50 to 57. — The provisions contained in Articles 50 to
57, inclusive, of this Code shall not be applicable to
cases in which the law expressly prescribes the penalty
96
As amended by R.A. 7659 Sec. 23
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public position. It is the first aggravating circumstance
in Article 14. Under Article 62, as amended by RA 7659.
accessories as to whom such circumstances are
attendant.
4. The circumstances which consist in the material
execution of the act, or in the means employed
to accomplish it, shall serve to aggravate or
mitigate the liability of those persons only who
had knowledge of them at the time of the
execution of the act or their cooperation therein.
5. Habitual delinquency shall have the following
effects :
If the offender public officer took advantage of his
position to the commission of the crime, it is a special
aggravating circumstance because the law provides the
maximum period of the penalty prescribed by law shall
be the one imposed. Hence, it is not a mere generic
aggravating circumstance.
Another aggravating circumstance mentioned in Article
62 is being a member of a syndicated or organized crime
group.
a. Upon a third conviction the culprit shall be
sentenced to the penalty provided by law for
the last crime of which he be found guilty
and to the additional penalty of prision
correccional in its medium and maximum
periods;
b. Upon a fourth conviction, the culprit shall
be sentenced to the penalty provided for the
last crime of which he be found guilty and to
the additional penalty of prision mayor in
its minimum and medium periods; and
c. Upon a fifth or additional conviction, the
culprit shall be sentenced to the penalty
provided for the last crime of which he be
found guilty and to the additional penalty of
prision mayor in its maximum period to
reclusion temporal in its minimum period.
A syndicate or organized crime group is a group of two
or more persons collaborating, confederating, or
mutually helping one another for purposes of gain in the
commission of a crime.
So, there must be two or more persons, they
collaborated, they confederated, and they mutually
helped one another. Note, for purposes of gain in the
commission of the crime.
The law provides that if the offender is a member of a
syndicate or organized crime group, the effect is that the
maximum penalty prescribed by law shall be the one
imposed to them, it is a special aggravating
circumstance which cannot be offset by any mitigating
circumstance the maximum penalty prescribed by law
shall be the one imposed regardless of any mitigating
circumstances.
Notwithstanding the provisions of this article,
the total of the two penalties to be imposed upon
the offender, in conformity herewith, shall in no
case exceed 30 years.
A, B, C, and D? A, B, C, and D they killed X. After killing
X, they also took the personal property of X. Hence, they
were charged with murder and also with the crime of
theft. In the information filed in court, it was alleged
therein that they belong to a syndicate or organized
crime group because they collaborated with one
another. After trial on the merits, the judge convicted
the four accused and the judge considered them as
conspirators and the judge considered them to be a
member of a syndicate or organized crime group. Hence,
the maximum penalty prescribed by law was the one
imposed by the court. Is the judge correct?
The judge is wrong. According to the SC, when two or
more persons committing a crime collaborated,
confederated, or helped one another in the commission
of the crime that does not immediately give rise to being
a member of a syndicate or organized crime group.
For purposes of this article, a person shall be
deemed to be a habitual delinquent,
i.
if within a period of ten years from the
date of his release or last conviction of
the crimes of serious or less serious
physical injuries, robo, hurto, estafa or
falsification,
ii.
he is found guilty of any of said crimes a
third time or oftener.
So under Article 62, we have different aggravating
circumstances. It is stated there that:
1. If there are mitigating circumstances, the effect is
to lower the imposable penalty.
2. If there are aggravating circumstances, the effect is
to increase the imposable penalty without, however,
going beyond the maximum penalty prescribed by
law.
Another special aggravating circumstance mentioned in
Article 62 is that if having taken advantage of one’s
There must be evidence to show that their group was
particularly formed for purposes of committing crimes
involving gain. Absent that evidence that their group
was particularly formed in order to commit crimes
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circumstance. It provides for the imposition of an
additional penalty.
involving gain, being a member of a syndicate or
organized crime group cannot be considered as a special
aggravating circumstance. So it is not necessary that
they collaborated and confederated and that they belong
to this group, there must be evidence that the said group
was primarily formed in order to commit crimes
involving gain.
RULES FOR THE APPLICATION OF PENALTIES
When you say degree of penalty it refers to the penalty
prescribed by law or imposed by the court.
When you say period of penalty, it refers to the division
of a divisible penalty into three portions. The first 1/3
first portion is known as the minimum period, the
second 1/3 portion is known as the medium period, and
the third 1/3 portion is known as the maximum period.
Another aggravating circumstance in Article 62 is
habitual delinquency.
A person is deemed to be a habitual delinquent if within
the period of ten years from the date of his last
conviction or release for any of the crimes of serious
physical injuries, less serious physical injuries, robbery,
theft, estafa, or falsification he is found guilty of any of
these crimes a third time or oftener.
Indivisible penalties are those penalties which cannot
be divided into periods. Under Article 25, the following
are the so-called indivisible penalties:
So in case of habitual delinquency, the crimes are
specified. It must be serious physical injuries, less
serious physical injuries, robbery, theft, estafa, and
falsification. Likewise, it is necessary that there must
be at least three convictions and each conviction must
come within ten years from the date of the last
conviction or last release of the said person.
1.
2.
3.
4.
5.
6.
Death or capital punishment
Reclusion perpetua
Perpetual absolute disqualification
Perpetual special disqualification
Public Censure
Fine
These are all indivisible penalties. They cannot be
divided into periods.
What is the effect of habitual delinquency on the
criminal liability of the offender?
Recidivism is a generic aggravating circumstance; it can
be offset by a mitigating circumstance, if not offset the
maximum period of the penalty.
Divisible penalties are those penalties which can be
divided into three periods, minimum, medium, and
maximum.
Reiteracion is also considered as a generic aggravating
circumstance, it can be offset by a mitigating
circumstance. If not offset, then the maximum period of
the penalty shall be imposed.
Article 63 provides for the rules for the imposition of
indivisible penalties whereas Article 64 provides for the
rules for the imposition of divisible penalties.
Reclusion perpetua has a duration of 20 years and 1 day
to 40 years under Article 37. Yet, it is considered as an
indivisible penalty. The reason is that in the case of
People vs. Lucas (G.R. Nos. 108172-73, May 25, 1994)
and all other cases in the court the SC said that in
amending Article 27, Congress did not have any
intention of altering the nature of reclusion perpetua
from an indivisible penalty to a divisible penalty. There
is no clear intention on the part of Congress to alter its
original nature of being an indivisible penalty. Hence,
reclusion perpetua remains to be an indivisible penalty
which cannot be divided into period.
Habitual delinquency is an extraordinary aggravating
circumstance, it provides for the imposition of an
additional penalty on the part of the said convict and
this additional penalty increases the number of his
conviction third, fourth, and fifth conviction. Provided
that if you add the penalty for the crime that he has
committed and the additional penalty for being habitual
delinquent, it must not exceed thirty years.
So, if a person is found to be a habitual delinquent, aside
from the penalty for the crime that he has committed,
there is an additional penalty imposed on him for being
a habitual delinquent.
ART. 63. Rules for the application of indivisible
penalties. — In all cases in which the law prescribes a
single indivisible penalty, it shall be applied by the
If you add these two penalties, the penalty for the crime
and the additional penalty for being habitual
delinquent, they must not exceed thirty years. So,
habitual delinquency is an extraordinary aggravating
courts regardless of any mitigating or aggravating
circumstances that may have attended the commission
of the deed.
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In all cases in which the law prescribes a penalty
composed of two indivisible penalties, the following
rules shall be observed in the application thereof:
present, the greater penalty, death shall be the one
imposed.
So if there is one aggravating circumstance present
only with no mitigating circumstance, you apply
death.
1. When in the commission of the deed there is
present only one aggravating circumstance, the
greater penalty shall be applied.
2. When there are neither mitigating nor
aggravating circumstances in the commission of
the deed, the lesser penalty shall be applied.
3. When the commission of the act is attended by
some mitigating circumstance and there is no
aggravating circumstance, the lesser penalty
shall be applied.
4. When both mitigating and aggravating
circumstances attended the commission of the
act,
4.1. the courts shall reasonably allow them to
offset one another in consideration of their
number and importance,
4.2. for the purpose of applying the penalty in
accordance with the preceding rules,
according
to
the
result
of
such
compensation.
2. If there is only mitigating circumstance present
with no aggravating circumstance present, the
lesser penalty shall be the one imposed which is
reclusion perpetua if there is one mitigating
circumstance.
If there is only one mitigating circumstance with no
aggravating circumstance, you apply the lesser
penalty which is reclusion perpetua.
3. If there are no aggravating circumstances and no
mitigating circumstances, the lesser of the two
penalties which is reclusion perpetua shall be the
one imposed.
4. If there are aggravating circumstances and
mitigating circumstances present, you offset the
two then you apply the rules.
RULES FOR THE IMPOSITION OF INDIVISIBLE
PENALTY
Let’s say there are two aggravating and one
mitigating, so you offset one, you offset one, there is
a remainder of one, therefore, the greater penalty
shall be the one imposed. So this are the rules for
the imposition of indivisible penalties.
Let us say that the penalty prescribed by law is a single
indivisible penalty, reclusion perpetua. If it is a single
indivisible penalty like reclusion perpetua, this can be
imposed regardless of any mitigating or aggravating
circumstance.
ART. 64. Rules for the application of penalties which
contain three periods. — In cases in which the penalties
prescribed by law contain three periods, whether it be a
single divisible penalty or composed of three different
penalties, each one of which forms a period in
accordance with the provisions of Articles 7697 and 7798,
the courts shall observe for the application of the
penalty the following rules, according to whether there
are or are not mitigating or aggravating circumstances:
1. When there are neither aggravating nor
mitigating circumstances, they shall impose the
penalty prescribed by law in its medium period.
2. When only a mitigating circumstance is present
in the commission of the act, they shall impose
the penalty in its minimum period.
Let’s say in the commission of the crime, the penalty
prescribed by law is reclusion perpetua, there is an
aggravating circumstance, there is a mitigating
circumstance, you do not consider this because under
Article 63, if the penalty prescribed by law is a single
indivisible penalty, it shall be applied regardless of any
mitigating or aggravating circumstance.
If, however, the penalty prescribed by law consists of
two indivisible penalties, let’s say reclusion perpetua to
death. These are two indivisible penalties. The
following are the rules.
1. If there is only one aggravating circumstance
present without any mitigating circumstance
97 ART. 76. Legal period of duration of divisible penalties. The legal
period of duration of divisible penalties shall be considered as divided
into three parts, forming three periods, the minimum, the medium,
and the maximum(in the manner shown in the following table).
98 ART. 77. When the penalty is a complex one composed of three
distinct penalties. — In cases in which the law prescribes a penalty
composed of three distinct penalties, each one shall form a period; the
lightest of them shall be the minimum, the next the medium, and the
most severe the maximum period.
Whenever the penalty prescribed does not have one of the forms
specially provided for in this book, the periods shall be distributed,
applying by analogy the prescribed rules.
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Let’s say the penalty prescribed by law is prision
mayor, there are two mitigating, no aggravating
circumstance, you lower it by one degree, it becomes
prision correccional. So here it is necessary that
there must be no aggravating circumstance. Even if
there are two or more mitigating if there is one
aggravating, you cannot lower the penalty by one
degree, you have to offset. But this can only be
applied, the lowering of the penalty by one degree
will only apply if there is no aggravating
circumstance present and there are two or more
mitigating circumstances present.
6. Whenever there is a privileged mitigating
circumstance, it shall first be applied before
computing the penalty.
7. No matter how many aggravating circumstance
attended the commission of the crime, the court
cannot impose a penalty beyond the maximum
penalty prescribed by law.
3. When only an aggravating circumstance is
present in the commission of the act, they shall
impose the penalty in its maximum period.
4. When both mitigating and aggravating
circumstances are present, the court shall
reasonably offset those of one class against the
other according to their relative weight.
5. When there are two or more mitigating
circumstances
and
no
aggravating
circumstances are present, the court shall
impose the penalty next lower to that prescribed
by law, in the period that it may deem
applicable, according to the number and nature
of such circumstances.
6. Whatever may be the number and nature of the
aggravating circumstances, the courts shall not
impose a greater penalty than that prescribed
by law, in its maximum period.
7. Within the limits of each period, the courts shall
determine the extent of the penalty according to
7.1. the number and nature of the aggravating
and mitigating circumstances and
7.2. the greater or lesser extent of the evil
produced by the crime.
INDETERMINATE SENTENCE LAW
In applying Article 64, we have to take into
consideration the so-called Indeterminate Sentence
Law.
RULES FOR THE IMPOSITION OF DIVISIBLE
PENALTY
The Indeterminate Sentence Law is the law which
modifies the imposition of penalty both in the RPC and
in special penal laws.
In case of rules for the imposition of divisible penalties,
these are penalties which can be divided into periods,
minimum, medium, maximum period, Under Article 64:
Under the Indeterminate Sentence Law, courts are
mandated in imposing a penalty to fix a minimum term
of the sentence and a maximum term of the sentence.
So that the convict, after serving the minimum term of
the sentence, he becomes eligible for parole. Once on
parole, it doesn’t mean that he is already totally free.
He is not serving the sentence inside the prison cell but
he must report to the parole officer based on the term of
the said parole. So, it doesn’t mean that once release on
parole he is totally a free man. It suggests that instead
of serving his sentence behind bars, he is released but
he still has to report to the parole officer.
1. If there are no mitigating, no aggravating
circumstance, the penalty shall be in its medium
period,
2. If there is only one aggravating circumstance
without any mitigating circumstance, the penalty
shall be in its maximum period.
3. If there is one mitigating circumstance with no
aggravating circumstance, penalty shall be in its
minimum period.
4. If there are both mitigating and aggravating
circumstances, you offset the two and then you
apply the rules.
4.1. If after offsetting, no more, then it is in its
medium period.
4.2. If after offsetting there is still mitigating, then
it is in its minimum period.
4.3. If after offsetting, there is still one aggravating,
then it is in its maximum period.
5. If there are two or more mitigating circumstances
with no aggravating circumstance, you lower the
penalty by one degree.
The main objective of the Indeterminate Sentence Law
is to uplift and redeem valuable human materials and
prevent unnecessary and prolonged deprivation of
liberty.
How is this objective/purpose of Indeterminate
Sentence Law achieved?
It is achieved because the moment the offender has
already served the minimum term of his sentence. He is
released by reason of parole. Therefore, instead of
prolonged imprisonment, he is outside prison cell.
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What is the benefit of an indeterminate sentence?
The minimum term of the sentence, the maximum term
of the sentence. The moment you serve the minimum
term of the sentence, you become eligible for parole if
you have shown that you have reformed.
7. Those who have been given conditional pardon by
the Chief Executive but violated the terms of the
pardon.
8. Those who have been sentenced to serve the
maximum term of imprisonment which does not
exceed one year.
If, however, you are disqualified to avail of an
indeterminate sentence, then you will be given a
straight penalty. If the penalty given to you is straight
penalty, there is no minimum. Therefore, you cannot be
eligible for parole. So those given with straight penalty
without minimum term of the sentence cannot avail of
the benefit of parole.
Therefore, for an offender to avail of an Indeterminate
Sentence, it is necessary that the sentence imposed on
him must exceed one year. If it will not exceed one year,
it will always be a straight penalty. Because if it will not
exceed one year, if you get the minimum, it is already so
low. What else shall be served by the said convict? If we
will still go by the minimum. So, therefore, if it does not
exceed one year, it shall be a straight penalty, it will not
be an indeterminate sentence.
How is a straight penalty different from an
indeterminate penalty?
An indeterminate penalty is one with a minimum term
of the sentence and a maximum term of the sentence.
Such that when the minimum is served, the offender
becomes eligible for parole. On the other hand, a
straight penalty is one which has no minimum and
maximum term of the sentence. The offender has to
serve the sentence as is because he is not eligible for
parole, there being no minimum term of the sentence.
Person is convicted of murder, penalty imposed is
reclusion perpetua, he cannot avail of the benefit of an
indeterminate sentence, it shall be a straight penalty of
reclusion perpetua.
A person has been convicted of conspiracy to commit
treason, the penalty prescribed by law is prision
correcional to prision mayor, can he avail of the benefit
of an indeterminate sentence? Can he be given an
indeterminate sentence?
No because among those disqualified is a person
convicted of conspiracy to commit treason. That’s why
you have to know who are disqualified because if given
a problem the question is, how would you compute the
penalty? Compute ka nang compute yun pala
disqualified.
Because you have to know first, is he among those
disqualified? You began computing; you have already
consumed 15 minutes in computing, then it is wrong.
Why? The only answer is that he is not qualified. He is
disqualified because he is among those enumerated
under Section 2 of ISLAW. So make sure that you know
who are disqualified.
What is parole?
Parole is the conditional release of a person convicted
from the penal institution after serving the minimum
term of the sentence and after showing that he has
reformed.
REQUISITES FOR THE GRANT OF PAROLE (SMB)
1. The said convict must be Serving a sentence in jail
or in prison cell an indeterminate sentence which
must exceed one year based on the final conviction.
2. The convict has served the Minimum term of the
sentence.
3. Board of Pardons and Parole finds that his release
will not be inconsistent with the interest and
welfare of the State and that once released, he will
be a law abiding citizen.
In the bar, it was asked in the multiple choice. A person
was convicted of proposal to commit treason, the
penalty prescribed by law is prision correcional to
prision mayor. If you were the judge, would you give
him an indeterminate sentence? What is the
inderterminate sentence?
A , B, C, and D, may mga one year etc and then the last
one, I will not give him an indeterminate sentence
because he is among those disqualified. That is the
correct answer. He cannot be given an indeterminate
sentence because he is among those disqualified.
THE FOLLOWING ARE DISQUALIFIED TO BE
GIVEN AN INDETERMINATE SENTENCE
1. Those convicted of an offense punished by death, life
imprisonment, or reclusion perpetua.
2. Those convicted of treason, conspiracy or proposal
to commit treason,
3. Those convicted of misprision of treason, rebellion,
sedition, espionage.
4. Those convicted of piracy
5. Those who are habitual delinquent
6. Those who have evaded the service of their
sentence, or those who have escape from
confinement.
If it is given in the problem, you have been computing
where the answer is simple because he is disqualified.
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That’s why you have to know who are disqualified to be
given an indeterminate sentence.
What if in the commission of the crime there are both
mitigating and aggravating circumstance? So the crime
was committed in the dwelling of the offended party,
and the offender voluntarily surrendered; the offender
said he committed the crime in immediate vindication
of a grave offense, so immediate vindication of a grave
offense. So we have one aggravating circumstance, two
mitigating circumstances. Under Article 63, if in the
commission of the crime wherein the penalty prescribed
by law consists of two indivisible penalties, there are
both mitigating and aggravating circumstance, offset
the two, then apply the rules. So you have to offset
dwelling with voluntary surrender; there still remains
one mitigating circumstance. Therefore, the lesser
penalty – reclusion perpetua– shall be the one imposed.
How do you compute the maximum term of the sentence
and the minimum term of an indeterminate sentence?
If it is a violation of the Revised Penal Code , the
maximum term of the sentence shall be the penalty
prescribed by law taking into consideration the
presence of mitigating and aggravating circumstances
in accordance with the rules of Article 64.
How do you get the minimum term of the sentence?
After getting the maximum term of the sentence, you go
one degree lower without taking into consideration the
mitigating and aggravating circumstance that is the
minimum term of the sentence.
A person has been convicted of forcible abduction. The
penalty prescribed by law for forcible abduction is
reclusion temporal. Let us say that there is the
aggravating circumstance of dwelling, and there is one
mitigating circumstance of voluntary surrender. How
do you get the maximum term of the sentence, how do
you get the minimum term of the sentence?
You take into consideration the penalty prescribed by
law, reclusion temporal, and the mitigating and
aggravating circumstances in accordance with the rules
provided for in Article 64.
If it is a violation of special penal law, the maximum
term of the sentence shall not exceed the maximum
penalty prescribed by law and the minimum term of the
sentence shall not be less than the minimum penalty
prescribed by law.
So if it is a violation of special penal law, it is very easy.
It depends on the judge for as long as the penalty must
not be more than the maximum penalty prescribed by
law and the penalty must not be less than minimum
penalty prescribed by law.
The penalty prescribed by law reclusion temporal,
mitigating, aggravating circumstances, under Article
64, if there are mitigating and aggravating, what do you
do?
You offset. Therefore, there is no more mitigating and
no more aggravating circumstances. Therefore, it shall
be reclusion temporal in its medium period. And this is
the maximum term of the sentence.
The offender committed the crime of murder, under
Article 248, the penalty for murder is reclusion
perpetua to death. So we have here 2 indivisible
penalties - one is reclusion perpetua, and the other is
death. Let us say that in the commission of the crime,
the said crime was committed in the dwelling of the
offended party. So we have one aggravating
circumstance. Under Article 63, if in the commission of
the crime wherein the penalty prescribed by law
consists of 2 indivisible penalties, the presence of an
aggravating circumstance would mean the imposition of
the greater penalty - death.
How do you get the minimum term of the sentence?
You just go one degree lower, it will now become prision
mayor. So prision mayor will be the minimum term of
the sentence.
If, however, in the commission of the crime, what is
present is the modifying circumstance, the mitigating
circumstance of voluntary surrender with no
aggravating circumstance. So only one mitigating
circumstance is present with no aggravating
circumstance, Article 63 says the lesser penalty –
reclusion perpetua - shall be the one imposed.
What is the range?
Under section 1, it is dependent on the sound discretion
of the judge, we do not consider mitigating and
aggravating circumstance in getting the minimum term
of the sentence. So the range is dependent on the judge.
If the judge sentences the accused, then it is in its
minimum period, if not, it is in its maximum period, or
safe, medium period.
What if in the commission of the crime, there are both
no
mitigating
circumstance,
no
aggravating
circumstance, Article 63 says the lesser penalty shall be
imposed.
So let’s say it is in its medium period. So finding the
accused guilty beyond reasonable doubt, he is thereby
sentenced to suffer the penalty of prision mayor in its
medium period as the minimum term of sentence to
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reclusion temporal in its medium period as the
maximum term of the sentence. Period, contrary to law,
signed by the judge. So that is how you get the penalty.
its medium period as the maximum term of the
sentence.
Let us add facts. Let us say that the person who
committed frustrated homicide is a minor. So we have
here minority, he acted with discernment. Let’s say he
is 17 years of age, acting with discernment, therefore, it
is no longer exempting. If minority is not exempting, it
is always and always a privileged mitigating
circumstance. It is never an ordinary mitigating
circumstance. So the penalty prescribed by law is
prision mayor. If there is privileged mitigating
circumstance, you consider it first before computing. It
should be the first thing that should be applied before
computing, that’s why you call it privileged, it takes
preference over all other things. So let’s say there is
incomplete self-defense, incomplete defense of a
relative, you always consider it first.
What if there are three mitigating circumstances? So let
us say we have voluntary surrender, we also have
immediate vindication of a grave offense, and then we
also have praeter intentionem. So we have here three
mitigating circumstances. So let us say the crime was
attended by three mitigating circumstances. So we have
three ordinary mitigating circumstances with no
aggravating circumstance. How do you get the penalty?
Article 64 provides when there are two or more
mitigating circumstances with no aggravating
circumstance, lower the penalty by one degree. So here,
there are three. Since there are three mitigating with
no aggravating, you lower the penalty by one degree.
NOTE: The law says two or more mitigating with no
aggravating circumstance. So, whenever there are two
or even more than two mitigating for as long as there is
no aggravating circumstance, the lowering of the
penalty is by degree.
So minority, since it is a privileged, you will go one
degree lower, it will now become prison correccional, but
that is not yet the maximum term. So you have already
considered this. Now, there are two mitigating, no
aggravating, you again have to lower it. This time it will
become arresto mayor. This is now the maximum term
of the sentence, arresto mayor in its medium period.
How do you get the minimum term of the sentence? You
go one degree lower. Do you go one degree lower? Are
we going to go one degree lower?
You will not go one degree lower. He will be given a
straight penalty of arresto mayor in its medium period.
The offender committed the crime of frustrated
homicide. The penalty prescribed by law for homicide is
reclusion temporal under Article 249. Now this is a
frustration. Under Articles 50-57, how do you get the
penalty for frustrated, that is one degree lower. What is
the one degree lower of reclusion temporal?
Prision mayor. Therefore, the prescribed penalty by law
for frustrated homicide is prison mayor.
Why?
The maximum period of arresto mayor is 6 months. It
does not exceed one year. Among those disqualified
those who have been sentenced to serve a maximum
term imprisonment which does not exceed one year.
This does not exceed one year, therefore, since it does
not exceed one year, he is not entitled to an
indeterminate sentence.
Let us say that the killing was done based on passion
and obfuscation and not only that, he also voluntary
surrendered. So we have two ordinary mitigating
circumstances. So there are no aggravating
circumstances, so no aggravating circumstances
present. How do you get the maximum term of the
sentence?
When there are two mitigating, and no aggravating, you
go one degree lower. So this will become prision
correccional. You have already considered all.
Therefore, prision correccional in its medium period.
This is the maximum term of the sentence.
A committed the crime of rape. And so, because of that,
the penalty prescribed by law is reclusion perpetua, he
voluntarily surrendered. He was so sorry for what he
had done and he said that it was only based on passion
and obfuscation, so there are two ordinary mitigating
but let’s say that the rape was committed in the
dwelling, so there is one aggravating circumstance.
How do you get the maximum term of the sentence?
Offset, you have to offset dwelling from passion,
obfuscation or voluntary surrender?
No because it is single indivisible. Therefore, you do not
consider this. Since it is single indivisible, you do not
consider any mitigating or aggravating circumstances
therefore even if there are ten aggravating
How do you get the minimum term of the sentence?
You go one degree lower, this will be arresto mayor.
Within the range of arresto mayor, let’s say you are a
good judge, it is medium period, this is the minimum
term of the sentence. For having been found guilty of
frustrated homicide, he is thereby sentenced to suffer
the penalty of arresto mayor in its medium period as a
minimum term of the sentence to prision correccional in
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who attacked Bruno first, unlawful aggression without
any provocation coming from Bruno, Bruno prevailed
upon the man because he made use of a knife and
stabbed the man. While the man attacked Bruno by
means of his fist, it is not reasonably necessary for
Bruno to make use of a knife in killing the man. So what
we have is an incomplete self-defense. And under
paragraph 1 of Article 13, in case of incomplete selfdefense, if aside from unlawful aggression, another
element is present but not all, we have a privileged
mitigating circumstance. Therefore, this incomplete
circumstances, the penalty shall still be reclusion
perpetua because it is a single indivisible penalty.
But let us add facts. Let us say that there was minority,
a privileged mitigating circumstance.
Since there is now privileged mitigating circumstance,
a privileged mitigating circumstance can defeat even a
single indivisible penalty. Since there is now a privilege,
you now have to lower it to reclusion temporal, you have
to lower it by one degree. Note that it is reclusion
temporal, it is now a divisible penalty. Now that it is a
divisible penalty, Article 64 in relation to the
indeterminate sentence law shall now be the one
applied, no longer Article 63. So you again this time
compute, two mitigating, one aggravating, you can
offset, there is still a remainder of one mitigating, so
reclusion temporal in its minimum period. This is the
maximum term of the sentence, and then you go one
degree lower, this is the prision mayor medium period
and this is the minimum term of the sentence.
self-defense shall be treated as a privileged mitigating
circumstance.
Now, the problem says that Bruno was convicted of the
crime of homicide. If you were the judge who convicted
him of the crime of homicide, how would you impose the
penalty?
The Bar examiner says the penalty for homicide is
reclusion temporal. So we have here the penalty for
homicide, according to the bar examiner, reclusion
temporal.
Bruno was charged with homicide for killing the 75-year
old owner of his rooming house. The prosecution proved
that Bruno stabbed the owner causing his death; and
that the killing happened at 10 in the evening in the
house where the victim and Bruno lived. Bruno, on the
other hand, successfully proved that he voluntarily
surrendered to the authorities; that he pleaded guilty to
the crime charged; that it was the victim who first
attacked and did so without any provocation on his
(Bruno's) part, but he prevailed because he managed to
draw his knife with which he stabbed the victim. The
penalty for homicide is reclusion temporal.
Let us now compute the penalty by taking into
consideration the presence of mitigating and
aggravating circumstances.
So the prosecution was able to prove that the man is 75
years old. Would you consider the aggravating
circumstance of disrespect of age?
The answer is no. Even if Bruno killed the said 75 yearold man, there was no showing in the problem that he
disrespected the age of the man.
Assuming a judgment of conviction and after
considering the attendant circumstances, what penalty
should the judge impose? (BAR 2013)
Arresto Mayor in its medium period (or in any of its
period) to Prision Correccional in its medium period.
How about nighttime, would you consider nighttime as
an aggravating circumstance?
The answer is no. Even if the problem says that the
crime was committed at 10 in the evening, it did not say
whether the house was lighted or not. There was also no
showing that the offender deliberately sought nighttime
to commit the crime.
So when the Bar examiner stated these facts, what does
the Bar examiner want from you?
The Bar examiner wants you to determine if there was
self-defense or no self-defense. The problem says the
defense was able to prove that it was the man who first
attacked Bruno; therefore, there was unlawful
aggression. But there was no provocation coming from
Bruno, lack of sufficient provocation. So two elements of
self-defense are present.
Would you consider dwelling?
The problem says that although Bruno killed the man
in the said dwelling, in the said dwelling both Bruno
and the victim are residing. Therefore, dwelling is not
an aggravating circumstance because since both of them
are living in the same dwelling, it cannot be said that
when Bruno killed the man, he disrespected the
dwelling of the said man. Therefore, we have no
aggravating circumstance present.
How about the 3rd element of self-defense, reasonable
necessity of the means employed to prevent or repel the
attack, is this present?
The 3rd element of self-defense is absent because based
on the facts proven by Bruno, although it was the man
How about the defense of Bruno?
He was able to prove voluntary surrender, voluntary
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defense which happens to be a privileged mitigating
circumstance.
court. If he applies for probation that means he is
amenable to the decision of the court.
Applying these, we have two ordinary mitigating
circumstances with one privileged mitigating
circumstance with no aggravating circumstance. So we
have these two ordinary mitigating circumstances. Let
us compute the penalty.
OBJECTIVES OR PURPOSES OF PROBATION
1. To promote the correction and rehabilitation of the
said offender.
2. To provide an opportunity for the reformation of the
penitent offender
3. To prevent further commission of crimes because
the offender is placed under the supervision of a
probation officer.
4. To decongest jails,
5. To save the government that much needed fund this
will be incurred if a convict is kept in jail.
Whenever there is a privileged mitigating circumstance
present, apply it first before computing the penalty. So
we have incomplete self-defense, therefore you have to
lower the penalty by one degree, since it is a privileged
mitigating circumstance, it will lower the imposable
penalty by one degree. So it will become prision mayor.
So you have already applied the privileged mitigating
circumstance. So now, there are two ordinary
mitigating circumstances with no aggravating
circumstance. Article 64 says when there are two
mitigating with no aggravating, lower the penalty by
one degree, so again you lower it by one degree, it is now
prision correccional. You have already applied
everything so it will become prision correccional in its
medium period. This is the maximum term of the
sentence.
So all in all we have five purposes or objectives of
probation. The first 3 are stated in PD 968 as amended
and the other two are jurisprudential.
Is probation a matter of right? Can a convict apply for
probation as a right?
Probation is not a matter of right. It is a mere privilege.
Only those who are qualified may apply for probation.
Even if the convict is not disqualified, not among those
listed as disqualified, in section 9 of PD 968, if upon
application for probation the trial court deems it proper
to deny the said application for probation then so be it,
because the grant or denial of an application for
probation is based solely on the sound discretion of the
judge. That's why under Section 4 99, last paragraph, it
is provided that an order denying or granting an
application for probation is not appealable, because it is
dependent on the sound discretion of the trial court.
How do you get the minimum term of the sentence?
You go one degree lower and that is arresto mayor,
arresto mayor in its medium period, this is the
minimum term of the sentence.
These are some examples of how to compute the penalty
in case of violation of the Revised Penal Code under the
Indeterminate Sentence Law.
PROBATION LAW
DISQUALIFIED TO AVAIL OF THE BENEFIT OF
PROBATION
Probation is a disposition, under which a defendant
after conviction and sentence, is released based on
conditions imposed by court and subject to supervision
by a probation officer.
1. Those who have been sentenced to serve a
maximum term of imprisonment of more than six
years.
So what is the probationable penalty?
Six years or below. The moment the penalty
imposed on the convict is above six years, six years
and one day, he can no longer apply for probation.
Probation is not an appeal. Probation and appeal are
mutually exclusive remedies. Once you appeal you
cannot apply for probation. Probation and appeal are
diametrically opposed with each other. If the offender
appeals therefore he is questioning the judgment of the
99 Section 4. Grant of Probation. Subject to the provisions of this
Decree, the court may, after it shall have convicted and sentenced a
defendant and upon application at any time of said defendant,
suspend the execution of said sentence and place the defendant on
probation for such period and upon such terms and conditions as it
may deem best.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed
with the trial court, with notice to the appellate court if an appeal has
been taken from the sentence of conviction. The filing of the
application shall be deemed a waiver of the right to appeal, or the
automatic withdrawal of a pending appeal.
An order granting or denying probation shall not be appealable.
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2. Those who have been convicted of subversion or any
of the crimes against national security or public
order.
3. Those who have been convicted by final judgment of
an offense to which the law imposes a penalty of less
than one month and one day or less than 200 pesos.
4. Those who have been once on probation because
probation can be availed of by public only once.
The Supreme Court said that that is but right because
the rationale behind probation and the rationale behind
appeal are diametrically opposed each other.
If a person appeals, it means he is questioning the
decision of the court on the merits of the case. He is
insisting on his innocence on the case.
On the other hand, if the said accused or the said
offender, files an application for probation, it means he
is amenable to the decision of the court but he doesn't
want to serve his sentence behind bars. Therefore it is
clear that he is amenable to the decision of the court, it
is as if he has already admitted the commission of the
crime. Therefore the reasons behind appeal and
probation are opposed each other. That's why if you
appeal, you cannot apply for probation and vice versa.
That is only the general rule. If you appeal, you cannot
apply for probation and vice versa.
These are the offenders disqualified under Section 9, of
PD 968 as amended.
In other laws, there are also other persons who are
disqualified.
1. Under the Omnibus Election Code, under Section
264 of the Omnibus Election Code, any person who
has been convicted of an election offense cannot
avail the benefit of probation.
2. Under Section 24 of RA 9165, the Comprehensive
Dangerous Drugs Act, those persons who have been
convicted of drug trafficking or drug pushing cannot
avail of the benefit of probation.
EXCEPTIONS TO THE RULE
1. If the appeal is only for purposes of questioning the
sentence imposed on him which is not a
probationable penalty. If the only purpose of the
appeal is to question the penalty granted by the
court which is not within the probationable penalty,
then the said offender can still go back to the trial
court and file an application for probation. It is
necessary that he is not questioning the merits of
his case.
Where do you file an application for probation?
Under Section 4, you file it with the RTC that is the trial
court, the MTC or the RTC the trial court that heard the
case.
When do you file for an application for probation?
You file an application for probation within the period
for perfecting an appeal. Therefore within 15 days from
the promulgation of judgment.
A has been convicted. The penalty imposed to him
by the court is 8 years. The counsel knows that it
was an erroneous penalty because based on the law,
it should only be five years, yet the judge imposed
upon him the maximum of 8 years. And so they
question it before the Court of Appeals, the only
reason for appeal, the only issue is that the lower
court judge rendered an erroneous penalty on the
said accused. They are not questioning the merits of
the case, they are not questioning the conviction,
they are only questioning the penalty imposed
which is beyond what the law provides. So on appeal
the court affirmed the conviction but lowered the
penalty to a maximum of 4 years. Can he go back to
lower court and apply for an application for
probation?
The answer is yes, because he merely appeals in so
far as the penalty is concerned. Therefore he can go
back to the lower court and apply for probation.
In case the application for probation is granted, what is
the legal effect of probation?
The only legal effect of probation is to suspend the
execution of the sentence and nothing more. Probation
does not extinguish the criminal liability of the offender;
probation does not extinguish the civil liability of the
offender. Its only legal effect is to suspend the execution
of the sentence, nothing more.
Appeal and probation are mutually exclusive remedies
Under Section 4, it is provided that no application for
probation shall be entertained or granted the moment
the defendant has perfected an appeal from the
judgment of conviction. So based on this, the moment
the offender appeals, he can no longer apply for
probation. The moment he applies for probation, he can
no longer appeal. So appeal and probation are mutually
exclusive remedies; one bars the other.
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2. In case of minor offenders. Under section 42100 of RA
9344, in case of minor offenders, they can appeal at
any time. Therefore even after conviction by the
Supreme Court even affirmation by the Supreme
Court of the said conviction, even after appeal,
minor offenders can still apply for probation.
restrictive, it must not be unduly restrictive of the
liberty and freedom of the said person granted
probation.
In one case a teacher was convicted of a crime. The
penalty imposed was within the probationable penalty
so he applied for probation. Among the conditions
imposed was that he cannot teach during the said
period of probation. He has to undergo probation for a
period of 2 years. And during those two years based on
the terms of said grant of probation, he could not teach.
He questioned it, is the said condition imposed by the
trial court valid?
Supreme Court said it is not valid because it is unduly
restrictive of the right of the said convict. The Supreme
Court said, teaching is the only means of livelihood that
he knows. If you will deprive him of the right to teach,
during the time that he is under probation, how can he
survive? How can he live in liberty and freedom? How
can he live as a good law abiding citizen if you do not
give him the right to earn a livelihood. Hence said
condition rendered by the Supreme Court is invalid. So
it is necessary that these discretionary conditions
although dependent solely upon the judge it must not be
unduly restrictive on the liberty and freedom of the said
defendant.
And under Section 42 of RA 9344 last sentence, it is
provided that this amends section 4 of PD 968 as
amended that probation. Therefore the fact that the
offender is a minor offender it means even after
appeal he can still apply for probation. The only
limitation is that the penalty imposed to him must
be within the probationable penalty of 6 six years or
below.
What if a person is charged with many crimes. Let us
say that a person is charged with 5 counts of violation
of BP 22, or a person is charged with 5 counts of slander
or oral defamation. For each count, he was convicted.
Can he apply for probation?
Yes, he can apply for probation for as long as none of the
penalties imposed on him exceeds 6 years. For as long
as none of the penalties imposed on him exceeds 6 years.
If a person is convicted or is given multiple sentences,
whether or not he can apply for probation, it is not the
totality of the sentence imposed on him that shall be
considered. It is the fact that each of the penalties
imposed on him does not exceed 6 years. You do not
consider the totality or the sum, it suffices that none of
the sentences imposed on him exceeds 6 years. He can
still very well apply for probation, and the court may
grant him at the discretion of the said court.
TWO CONDITIONS IMPOSED IN
PERSONS GRANTED PROBATION
CASE
For how long should probation be?
1. If the penalty imposed on the said accused is
imprisonment of not more than one year, probation
shall not exceed two years.
2. If in any other case however, probation shall not
exceed six years.
A has been convicted of reckless imprudence resulting
in homicide. He was convicted, the penalty imposed was
within the probationable penalty so he applied for
probation. Granted. After his application for probation
was granted, he now files a notice of appeal before the
same court. He is appealing the civil indemnity imposed
on him by the court, the damages, the civil indemnity
imposed on him by the court. The court denied to give
due course to the said notice of appeal because
according to the court, I have already granted your
application for probation, therefore you can no longer
appeal. Is the court correct?
The court is wrong because the appeal is only in so far
as the civil indemnity is concerned. Probation has
nothing to do with the civil liability of the offender.
Because the civil liability of the offender is not part of
OF
1. General conditions— include the reporting to the
probation officer within 72 hours upon receipt of the
order of probation. And then we have the continuous
reporting to the probation officer usually once every
month or depending on the terms of the sentence.
These are the two mandatory or general conditions.
2. Special or discretionary conditions – are
determinative on the sound discretion of the judge.
It is dependent solely on what the judge wants to
impose as a condition taking into consideration the
crime committed. The only limitation is that this
special or discretionary condition must not be
SEC. 42. Probation as an Alternative to Imprisonment. - The 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 No. 968, otherwise known as the "Probation Law of 1976", is
hereby amended accordingly.
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his penalty hence it can never be affected by probation.
The civil liability is not a part of a penalty of the said
convict, civil liability is personal to the private offended
party or victim. Hence the said convict can still appeal
the said civil liability.
offended party and not part of the penalty of said
defendant.
In the case of Colinares vs. People101, Colinares was
charged of the crime of frustrated homicide. Colinares
was convicted by the trial court of frustrated homicide.
He appealed to the Court of Appeals. The Court of
Appeals affirmed the said conviction. When the case
reached the Supreme Court, the Supreme Court said
that the said accused Colinares only committed the
crime of attempted homicide.
A has been convicted, he applied for probation, granted,
the probation was granted by the court. Among the
conditions imposed of the said probation was during the
period of probation, he cannot change his place of
residence. He has to live in the same place; he cannot
change his place of residence. The said probation was
for a period of 2 years. So for 2 years he religiously
complied with all the conditions imposed in his
probation. He did not change his place of residence.
However after that period of two years, the following
day he immediately changed his place of residence.
When the. Probation officer learned about this, the
probation officer immediately went to court and filed a
motion to revoke the said probation. The judge granted
the said motion to revoke the probation. And the said
probation was revoked. Is the judge correct?
Yes, the judge is correct. Supreme Court said the period,
the termination, or the lapse of the period of probation
does not ipso facto mean the termination of probation.
Period of probation is not coterminus with the term of
probation.
Why attempted homicide?
The Supreme Court said that the injuries sustained by
the victim was not a mortal wound, not a fatal wound,
not susceptible of bringing about death. Therefore, since
the wound sustained by the victim was not a mortal nor
fatal wound, or susceptible to bring about death,
Supreme Court said that the accused Colinares was
only guilty of attempted homicide and not frustrated
homicide.
Now that the Supreme Court has convicted the said
accused of attempted homicide, and not frustrated
homicide, can the said accused go back to the trial court
and apply for probation? From frustrated homicide, the
Supreme Court downgraded the crime to only
attempted homicide. Can he avail of the right to apply
for probation?
In its decision, the Supreme Court said that yes, the
said accused, the said convict can still apply for
probation. The Supreme Court said in this case that
what is only being granted to the said convict is the
right to apply for probation, but still whether the said
application for probation will be granted or denied shall
be based on the sound discretion of the trial court.
If the period of probation has already lapsed still the
said person or offender has to comply with all the
conditions imposed upon him until the court has issued
an order of final discharge. It is only then that he
discharged of the said probation.
What is this order of final discharge? And how it will be
granted?
After the lapse of the period of probation the probation
officer shall file a report to the court reporting therein
that this accused, this convict has complied with all the
conditions of probation. And the judge after reviewing
the same will now issue an order of final discharge.
Supreme Court said, we are not granting him probation,
we are only giving him the right to go back to the trial
court and apply for probation. Whether that application
for probation will be granted or not will still depend on
the sound discretion of the trial court judge. Hence, the
Supreme Court granted this person the right to apply
for probation. There are many dissenting opinion in this
case penned by Justice Abad. Many justices dissented
because the justices stated or contended that this
decision will be contradictory, in violation of Section 4
of PD 968 which provides that no application for
probation shall be entertained or granted the moment
an offender has perfected an appeal. In this case, the
What is the effect such order of final discharge?
The order of final discharge shall restore to him all civil
rights lost or suspended by reason of the sentence,
likewise he will no longer be required to pay the fine.
The only liability remaining of him is to pay the civil
liability to the private offended party or the victim.
Because said civil liability is personal to the private
In a real sense, the Court’s finding that Arnel was guilty, not of
frustrated homicide, but only of attempted homicide, is an original
conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have
found him guilty of the correct offense and imposed on him the right
penalty of two years and four months maximum. This would have
afforded Arnel the right to apply for probation. (Colinares vs. People,
662 SCRA 266, G.R. No. 182748 December 13, 2011)
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offender perfected an appeal so why grant him the right
to apply for probation.
Under Article 66, in the imposition of fine as a penalty,
you consider the following:
The Supreme Court said that in this case, there were
actually two decisions. One is the erroneous decision of
the RTC, of the trial court; and the other one is the
decision of the Supreme Court. If the Supreme Court
will deny on this accused the right to apply for
probation, it means such denial of the right to apply for
probation is founded on the erroneous decision of the
trial court; hence, the decision of the trial court would
prevail over the correct decision of the Supreme Court.
1. The presence of aggravating and mitigating
circumstances and the wealth.
2. Financial capability of the accused,
So these are the two circumstances which must be
considered by the court in the imposition of fine as
provided for in Article 66.
ART. 75. Increasing or reducing the penalty of fine by
one or more degrees. — Whenever it may be necessary
to increase or reduce the penalty of fine by one or more
degrees,
1. it shall be increased or reduced, respectively, for
each degree, by one-fourth of the maximum
amount prescribed by law,
2. without, however, changing the minimum.
The same rules shall be observed with regard to fines
that do not consist of a fixed amount, but are made
proportional.
Supreme Court said, why punish this accused for an
erroneous decision made by the trial court. The
Supreme Court even said in this case, “ang kabayo ang
nagkasala, ang hagupit ay sa kalabaw’’.
It is the said trial court judge that committed error in
its decision yet the penalty, the consequence will be on
the accused. As such, the Supreme Court granted the
said accused the right to go back to the trial court and
apply for probation.
What if fine has to be lowered because the convict or the
accused is a mere accomplice or he is a mere accessory,
or the crime is in the frustrated stage or the crime is in
the attempted stage? So you have to lower it by one
degree or lower it by two degrees. How do you lower it
by one degree?
ART. 65. Rule in cases in which the penalty is not
composed of three periods. — In cases in which the
penalty prescribed by law is not composed of three
periods,
1. the courts shall apply the rules contained in the
foregoing Articles,
2. dividing into three equal portions the time
included in the penalty prescribed, and
3. forming one period of each of the three portions.
In what we have studied in case of impossible crime, the
penalty of fine is from 200 to 500 pesos. So let us say
that the offender is a mere accomplice or the offender is
a mere accessory. Therefore, you have to lower it by one
degree. How do you lower the fine?
Under Article 75, you take one-fourth of the maximum
fine and deduct it therefrom. What is one-fourth of 500?
It is 125. You take one-fourth of the maximum amount
and deduct it therefrom. Therefore, you minus 125. So,
the next lower penalty prescribed for an accomplice is
200 to 375 if you have to lower it by one degree.
ART. 66. Imposition of Fines. — In imposing fines the
courts may fix any amount within the limits established
by law; in fixing the amount in each case attention shall
be given,
1. not only to the mitigating and aggravating
circumstances,
2. but more particularly to the wealth or means of
the culprit.
He is a mere accessory, you have to lower it for another
degree, two degrees lower. How do you it?
Again, take one-fourth of the maximum fine and deduct
it therefrom. Again, minus 125. So this will be 200-250.
So this is the penalty prescribed by law for an accessory,
the penalty prescribed by law for an accomplice.
What if the penalty prescribed by law is fine?
So the penalty prescribed by law is fine. Fine is a
pecuniary penalty imposed by the court upon a person
who has been convicted of a felony. So under Article 26,
fine can either be afflictive if it exceeds 6,000 pesos. It
is correccional if it is from 200 to 6,000 pesos. It is light
if it is less than 200 pesos.
You have to take one-fourth from the maximum fine and
deduct it therefrom without reducing the minimum fine,
without changing the minimum fine prescribed by law.
You can never change the minimum fine prescribed by
law.
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ART. 70. Successive service of sentences; Exception. —
When the culprit has to serve two or more penalties,
1. he shall serve them simultaneously if the
nature of the penalties will so permit;
2. otherwise, said penalties shall be executed
successively,
following the order of their respective severity, which
shall be determined in accordance with the following
scale:
sentence. But if the nature of the penalty does not allow
simultaneous service of sentence, he shall serve them
successively.
So if the nature of the penalty allows simultaneous
service of sentence, he shall serve them simultaneously,
sabay-sabay. If the nature of the penalty does not allow
simultaneous service of sentence, he shall serve them
successively, sunud-sunod.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Death.
Reclusión perpetua.
Reclusión temporal.
Prisión mayor.
Prisión correccional.
Arresto mayor.
Arresto menor.
Destierro,
Perpetual absolute disqualification,
Temporal absolute disqualification.
Suspension from public office, the right to vote
and be voted for, the right to follow a profession
or calling, and
12. Public censure.
If all of the penalties imposed on the said convict is
imprisonment, all of the penalties imposed on him is to
serve the sentences behind bars, the said convict
definitely cannot serve the sentences simultaneously.
Therefore, he has to serve them successively.
What are the sentences, penalties, which may be
served simultaneously?
Imprisonment
and
fine,
imprisonment
and
disqualification, imprisonment and
suspension,
imprisonment and public censure, fine and destierro,
fine and disqualification, they can be served
simultaneously.
What is the limit for the successive service of sentence?
Under Article 70, we have the so-called three-fold rule.
Under the so-called three-fold rule, the maximum
duration of a convict sentence shall not exceed three
times the length of the most severe penalty but in no
case to exceed 40 years.
Notwithstanding the provisions of the rule next
preceding,
1. 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.
2. No other penalty to which he may be liable shall
be inflicted after the sum total of those imposed
equals the same maximum period.
3. Such maximum period shall in no case exceed
40 years.
So here, five reclusion perpetua. What is the maximum
duration of reclusion perpetua?
Under Article 37, 20 years and one day to 40 years.
Therefore, its 40 years. So this will be 200 years. He
cannot serve the sentence. He is no longer alive. So let
us apply the three-fold rule. The maximum duration of
a convict sentence shall not exceed three times the
length of the most severe penalty. That is the most
severe, reclusion perpetua, what is the maximum
duration for two years. It shall not exceed three times,
times three. So this is 120 years. But in no case to
exceed 40 years.
In applying the provisions of this rule the duration of
perpetual penalties (pena perpetua) shall be computed
at 30 years.
A, the father, raped the child 5 times. In case of rape,
one carnal knowledge, one sexual intercourse equals to
one count of rape. The father raped the child five times
so it will be 5 counts of rape. So the father was charged
with 5 counts of rape because he raped the child five
times. The judge convicted him on all counts and
imposed upon him the penalty of reclusion perpetua for
each count. So, for each count, reclusion perpetua.
Therefore, five reclusion perpetua. So if the penalty
imposed by the court or if the convict is given multiple
sentences, how shall he serve the penalty?
Under Article 70, if the said convict is imposed multiple
sentences, he shall serve them simultaneously if the
nature of the penalty allows simultaneous service of the
Therefore, for having been convicted of five counts of
rape, he’s only to serve sentence for 40 years of
imprisonment based on the so-called three-fold rule. So,
it shall only be 40 years of imprisonment.
NOTE: The three-fold rule refers to the service of the
sentence, it is not for the judge to apply, but rather it is
for the Director of Prisons to compute.
So, let’s say you were the judge, the person was
convicted of five counts of rape. The penalty you will
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impose reclusion perpetua. Do not say that “he is
thereby sentence 40 years applying the three-fold rule”
That is not for the judge to apply that is for the Director
of Prisons.
TITLE FOUR
Extinction of Criminal Liability and of Civil Liability
Resulting from Crime
CHAPTER ONE
Extinction of Criminal Liability
As a judge, you can only impose the penalty as
prescribed by law. And for rape, the penalty prescribed
is reclusion perpetua. Five counts, therefore, five
reclusion perpetua. That will be the sentence that you
will impose.
SECTION ONE
Total Extinction of Criminal Liability
ART. 89. How criminal liability is totally extinguished.
— Criminal liability is totally extinguished:
The offender has been accused of 20 counts of estafa. He
issued a check and the check bounced. Therefore, there
are 20 counts of estafa. And for each count of estafa, the
judge sentenced him with arresto mayor plus fine. Let’s
say the fine is 250 pesos. So, 20 counts of estafa. For
each count, he was sentenced with arresto mayor plus
fine. So, arresto mayor, what is the maximum duration?
Six months, so one month and one day to 6 months. So,
if we will not apply the three-fold rule, it will be 6
months. So 20 na 6 months. So this will be 120 months,
therefore it is equivalent to 10 years.
1. By the death of the convict, as to the personal
penalties; and as to pecuniary penalties,
liability therefor is extinguished only when the
death of the offender occurs before final
judgment;
2. By service of the sentence;
3. By amnesty, which completely extinguishes the
penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty102;
7. By the marriage of the offended woman, as
provided in Art. 344 of this Code.
So, if you will not apply the three-fold rule for having
been convicted of the crime of 20 counts of estafa and
sentenced with arresto mayor and fine for each count,
he shall serve ten years.
What are the modes of extinguishing criminal liability?
First is death, then the service of sentence, absolute
pardon, amnesty, prescription of crimes, prescription of
penalty and the subsequent valid marriage between the
offender and the offended party.
But let us apply the three-fold rule. Because he was
given multiple sentences, what is the maximum
duration?
Six months. It shall not exceed three times the length of
the most severe penalty but in no case to exceed 40
years. 6 times 3, we have here 18 months. Therefore, it
shall only be one year and six months.
1. DEATH.
When does death extinguishes criminal liability?
Death extinguishes criminal liability at any stage of
the proceedings, be it before trial, during trial,
before conviction or after conviction. Death
extinguishes criminal liability at any stage of the
proceedings, because the moment the said offender
dies, there's nobody to serve the personal penalty,
therefore death extinguishes criminal liability at
any stage of the proceedings.
So, imagine for being convicted of 20 counts of estafa,
mahigit lang siyang isang taon because you have to
apply the three-fold rule, because he is given multiple
sentences. So, instead of serving 10 long years, paglabas
niya mag-eestafa nanaman yan. Sasabihin niya, one
year lang, kayang-kaya yan. So this is applying the socalled three-fold rule.
The fine will be the same. So let’s say 250. 250 times 20,
you have to take it as is. So there will be 20, 250. You
cannot apply the three-fold rule.
102
How about in so far as the civil liability is
concerned? When does death extinguish the civil
liability?
Death extinguishes civil liability if the said offender
dies before conviction by final judgment. It is
necessary that the said offender must die before
conviction by final judgment. In that case, the civil
liability is totally extinguished.
Discussed under Article 92
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This civil liability that is totally extinguished is civil
liability ex delicto that is the civil liability arising
from the crime itself.
2. SERVICE OF SENTENCE.
When you say service of sentence the offender has
already satisfied the penalty. If it is imprisonment,
he has already served out the sentence. If it is fine,
he had already paid the fine.
Even if the said convict dies before the conviction by
final judgment his civil liability survives if the said
civil liability is based on other sources of obligations
such as law, contracts, quasi-contracts or quasidelict. So the civil liability that is only extinguished
if the offender dies before conviction by final
judgment is the civil liability that is based solely
and arising from the crime itself.
3. ABSOLUTE PARDON AS WELL AS AMNESTY
they are both acts of grace proceeding from the
power entrusted to the execution of the law which
exempts the offender from the penalty which the
law imposed for the crime that he has committed.
There is a difference however in the sense that in case
of amnesty, it is not limited only to the penalty, amnesty
also obliterates all the effects of the crime as if no crime
had been committed by the offender. But both will be
granted by the President.
If the said convict or if the said offender dies after
conviction by final judgment his civil liabilities
survive. And the case has to be filed against the
executor or administrator of the estate of the said
offender.
PARDON
May be granted only
after conviction by final
judgment
X has been charged with the crime of rape, convicted
by the RTC, he appealed to the Court of Appeals,
the Court of Appeals affirmed the conviction, and so
he again appealed to the Supreme Court. The
Supreme Court affirmed the conviction in its
decision dated January 9, 2013. However, on
February 7, 2013 the Supreme Court received a
letter coming from the Bureau of Corrections saying
that this accused had already died on December
2012. What is the effect of such death of the offender
on his criminal liability as well as on his civil
liability?
In the case of People vs. Amistoso103, the Supreme
Court said the death of the offender Amistoso on
December 2012 before the affirmation by the
Supreme Court of his conviction on January 9, 2013,
extinguishes both his criminal liability as well as
his civil liability. Supreme Court said although they
received the said letter coming from the Bureau of
Corrections only on February 7, 2013, time after
they have already affirmed the conviction on
January 9, 2013, Supreme Court said the fact that
the offender died before the affirmation of the said
conviction means that the affirmation of said
conviction is already moot and academic because
the said death of the offender extinguishes both his
criminal as well as his civil liability. Because the
offender dies before conviction by final judgment.
Only excuses the service
of sentence.
A private act of the
President, therefore the
person granted pardon
must plead it before the
courts because courts do
not take judicial notice of
pardon.
Can be granted to any
offender and to any crime
committed.
AMNESTY
May be granted at any
stage
of
the
proceedings—be it before
judgment
or
after
judgment.
Obliterates all the effects
of the crime as if no crime
had been committed.
Usually done through a
proclamation with the
concurrence of Congress,
hence courts take judicial
notice of amnesty.
Generally granted to
those
who
have
committed
political
offenses and generally to
a
community
of
offenders.
What has been granted by the President, the former
President GMA to former President Estrada is absolute
pardon. What has been granted by Pnoy to Senator
Trillanes is amnesty.
If you had watched the TV, the moment former
President Erap was granted pardon, then DILG
Secretary Puno still has to go first to him, to the place
only the civil liability directly arising from and based solely on the
offense committed, i.e., civil liability ex delicto in senso strictiore.”
(People vs. Amistoso, G.R. 201447, August 28, 2013)
103Death
of the accused pending appeal of his conviction extinguishes
his criminal liability as well as the civil liability based solely thereon.
As opined by Justice Regalado, in this regard, “the death of the
accused prior to final judgment terminates his criminal liability and
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ART. 91. Computation of prescription of offenses. — The
period of prescription
1. shall commence to run from the day on which
the crime is discovered by the
1.1. offended party,
1.2. the authorities, or
1.3. their agents, and
2. shall be interrupted by the filing of the
complaint or information, and
3. shall commence to run again when such
proceedings
3.1. terminate without the accused being
convicted or acquitted, or
3.2. are unjustifiably stopped for any reason not
imputable to him.
where he was incarcerated. There must be a signature
coming from Erap. And after that it is only the time
that he went to the Sandiganbayan to show it to the
court, to prove that your honor the President has
granted pardon to the former President Erap. Why?
Because it is a private act of the President. The
Sandiganbayan will not take judicial notice of the said
grant of pardon.
But in case of amnesty it is on the basis of the
proclamation requiring the concurrence of Congress,
hence courts take judicial notice of amnesty. It is not
necessary for Senator Trillanes to plead it before the
RTC of Makati. It suffices that he has been granted of
amnesty, courts of Makati should take judicial notice
of the fact that he was among those who availed and
was given the benefit of an amnesty.
The term of prescription shall not run when the offender
is absent from the Philippine Archipelago.
4. PRESCRIPTION OF CRIMES is the loss of the
right of the State to prosecute an offense punishable
by law. It is the loss or forfeiture of the right of the
State to prosecute an offender who has committed a
violation of the law. The moment the crime has
already prescribed it is not even necessary for the
accused or defense counsel to plead it. The moment
the crime has prescribed, the only jurisdiction of the
court is to dismiss the case. The court can no longer
hear the case motu proprio. The court must dismiss
the case because the crime has already prescribed.
The State has loss the right to prosecute the
offender.
When do you start counting the running of the period of
the prescription of a crime?
You start counting the running of the period of
prescription of the crime from the time the crime has
been committed, that is if it is known.
If it is not known then from the time it has come to the
knowledge of the offended party, the authorities, or the
agents of the authorities. That is the time you start
counting the running of the period of prescription of
crime.
Husband and wife quarreled, and then the husband
killed the wife and buried the wife. A witness, the
neighbor, a witness saw the incident. However he kept
silent of the said incident as he was afraid of the said
husband. 25 years thereafter he went to the police and
he divulged what he saw 25 years ago. The police went
to the place and indeed the said incident was true after
they have dug the ground. Can the State still prosecute
the said husband for the crime of parricide, or has the
crime prescribed?
The crime has not yet prescribed. The State can still
prosecute the husband for the crime of parricide
because although the said neighbor had witnessed the
commission of the crime, the neighbor cannot be said to
be an offended party. The neighbor cannot be said to be
an authority or an agent of the authority. Therefore
despite the knowledge of the said neighbor of the said
commission of the crime, the running of the period of
prescription of the crime has not yet commenced. It is
only upon the time that he divulged to the authorities
that you start counting the running of the period of
ART. 90. Prescription of crimes.
Prescribed Penalty
Death, reclusión perpetua or
reclusión temporal
Other afflictive penalties104
Correctional penalty105, with the
exception of those punishable by
arresto mayor, which shall prescribe
in five years.
Libel or other similar offenses
Oral defamation and slander by deed
Light offenses
Prescription
20 years
15 years
10 years
5 years
1 year
6 months
2 months
When the penalty fixed by law is a compound one the
highest penalty shall be made the basis of the
application of the rules contained in the first, second
and third paragraphs of this Article.
105 Correctional Penalties – Prisión correccional, Arresto mayor,
Suspensión, Destierro.
Perpetual or temporary absolute disqualification, Perpetual or
temporary special disqualification, Prisión mayor.
104
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prescription of crime. Therefore the crime has not yet
prescribed.
registered with the Register of Deeds such registration
constituted constructive notice to the whole world. It is
as if the whole world has been informed including the
private offended party. Hence that is the start of the
running of the period of prescription of crime so it was
too late for him to file a case of falsification.
Two friends, A and B, A went to Mindanao and so A
entrusted the titles of his properties to B. The moment
A left, B looked at the titles of the properties and he
became interested in one of the properties. So what he
did, he executed a falsified deed of absolute sale stating
that A sold the property to B. Thereafter, after falsifying
the signature of A in the said deed of absolute sale, he
had the same registered at the Register of Deeds and
thereafter the said property was transferred to him. 20
years thereafter, here comes A. He came back to Manila.
He went to B and he asked him for the return of the said
titles of properties. B gave it. However, when A
reviewed it, one title was missing that is the title of one
property in Makati. So A called his friend, he could not
be located. A went to the house of his friend, he had
already changed residence. So he went to the office of
Register of Deeds in Makati and there he discovered the
said falsified deed of absolute sale. As a result, he
wanted to file a case of falsification of public documents
committed by a private individual under Article 172 of
the RPC which is punishable by prision correccional.
Has the crime prescribed? He has only discovered it on
the twentieth year. Although it should prescribe in 10
years. Has the crime prescribed? Or can he still file the
case of falsification of public document because he
discovered it only on the twentieth year?
He can no longer file a case because the crime has
prescribed. Upon the filing of the falsified deed of
absolute sale with the Register of Deeds upon its
registration with the Register of Deeds it constituted
constructive notice to the whole world. Since there is
constructive notice to the whole world, the law
presumes that even A has knowledge of the said
registration. Therefore that is the start of the counting
of the running of period of prescription of crime.
What about the suspension of the running of period of
prescription of crime? When is the running of
prescription of crime suspended? When it is
interrupted?
It is interrupted upon the filing of the case with the
office of the public prosecutor even for purposes of
preliminary investigation. The running of the period of
prescription of crime will already be suspended.
In the case of People v. Bautista106, so a case of slight
physical injuries was filed before the barangay. No
amicable settlement before the barangay and so within
the two months prescriptive period the said victim was
able to file the case before the office the fiscal's office,
office of the public prosecutor. So upon the filing of the
case the public prosecutor resolved the case however it
took the public prosecutor more than a year before they
were able to file a case before the appropriate or proper
metropolitan trial court. So upon the filing of the case
before the MTC or the METC here comes the counsel of
the accused, moving for the quashal of the said
information on the ground that the crime has already
prescribed. Has the crime prescribed?
Supreme Court said the crime has not yet prescribed
because upon the filing of the case with the office of the
public prosecutor the running of the period of
prescription of crime is suspended and it remains
suspended until the said accused has been convicted or
acquitted or the case has been dismissed.
Therefore from the time that it has been filed before the
fiscal's office up to the time that it was filed before the
MeTC, the running of the period of prescription of crime
remains to be suspended until a decision has been
rendered by the said court. Hence the crime has not yet
prescribed.
This constructive notice to the whole world is peculiar
only to transactions with the Register of Deeds.
Transactions involving real property. It is not related or
this does not apply to registration of marriage
certificates, registration of birth certificate. It only
applies to registration of any transactions conveyance
disposition involving real properties. The moment it is
In the case of People vs. Maria Theresa Pangilinan107,
two cases Estafa and violation of BP 22, they were filed
that respondent is either convicted or acquitted by the proper court.
(People vs. Bautista, 522 SCRA 742, G.R. No. 168641 April 27, 2007)
107 There is no more distinction between cases under the RPC and
those covered by special laws with respect to the interruption of the
period of prescription. The ruling in Zaldivia v. Reyes, Jr., 211 SCRA
277 (1992), is not controlling in special laws. In Llenes v. Dicdican,
260 SCRA 207 (1996), Ingco, et al. v. Sandiganbayan, 272 SCRA 563
(1997), Brillante v. CA, 440 SCRA 541 (2004), and Sanrio Company
Limited v. Lim, 546 SCRA 303 (2008), cases involving special laws,
this Court held that the institution of proceedings for preliminary
The CA and respondent are of the view that upon approval of the
investigating prosecutor’s recommendation for the filing of an
information against respondent, the period of prescription began to
run again. The Court does not agree. It is a well-settled rule that the
filing of the complaint with the fiscal’s office suspends the running of
the prescriptive period. The proceedings against respondent was not
terminated upon the City Prosecutor’s approval of the investigating
prosecutor’s recommendation that an information be filed with the
court. The prescriptive period remains tolled from the time the
complaint was filed with the Office of the Prosecutor until such time
106
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before the Quezon City public prosecutor's office. It was
filed on 16 September 1997. From that time many
things happened. A case was filed with the RTC, then
there was a filing of suspension of proceedings because
of prejudicial question, and then there was a petition for
review before the DOJ until the DOJ has said “no the
cases has to be filed”.
municipal ordinance. In case of violation of municipal
ordinance, as held in Act 3326, which provides for the
prescription of penalties and suspension in case of
violation of special penal laws and ordinances.
According to Supreme Court, in Act 3326, in case of
violation of municipal ordinance the running of the
period of prescription of crime is only suspended upon
the institution of the judicial proceedings that is upon
the filing of the case before the trial court. Because you
start the institution of judicial proceedings if the case is
filed before the trial court that is for the violation of
municipal ordinance.
So when was the case filed? The case was filed was
received by the METC of Quezon City only on 3
February 2000. Therefore has the crime already
prescribed? So upon the filing on 3 February 2000 before
the MeTC here comes the counsel of the accused in June
2000 immediately filed a motion to quash the said
violation of BP 22 information or cases. The METC
dismissed the case. Granted the motion to quash. The
crime has already prescribed.
But what is involved in this case is not a violation of a
municipal ordinance but a violation of BP 22 which is a
special penal law.
On appeal to the RTC, no the crime has not yet
prescribed. On appeal to the Court of Appeals, yes the
crime has already prescribed. According to the Court of
Appeals the crime has already prescribed because you
start counting the running of the period of prescription
of crime on the latter part of 1995 the date the said
drawer of the cheque received the notice of dishonor.
And according to the Court of Appeals, based on the
ruling of the Supreme Court on the case of Saldivia v.
Reyes, in case of violations of special penal laws the
running of period of prescription of crime will only be
suspended upon the institution of judicial proceedings.
The institution of judicial proceedings is upon the filing
of the case before the court, not before the fiscal's office,
because the fiscal is not within the judiciary. Therefore
it is upon the filing of the case before the appropriate or
the proper court.
So in case of violations of special penal laws, when is the
running of period of prescription of crime suspended?
Supreme Court said there is no distinction between
RPC and special penal laws. If the case involves
violation of the Revised Penal Code or violation the RPC
the running of period of prescription of crime is
suspended upon the filing of the case before the office of
the public prosecutor.
So that is the start. There is no distinction. And so in
this case, Supreme Court said when the said victim filed
the case before the Quezon City public prosecutor on 16
September 1997, the running of period of prescription of
crime is suspended. Therefore the crime has not yet
prescribed when the case was filed on 3 February 2000.
In Act 3326, it is provided that the period of prescription
for violation of BP 22 is four years. When do you start
counting it? Latter part of 1995, that is the time the
drawer of the cheque received the notice of dishonor.
That is the period of prescription of crime in case of
violation of BP 22.
If you count latter part of 1995 to February 3, 2000, it is
already more than 4 years. Latter part of 1995, 96, 97,
latter part of 1995 to 1996, 97, 98, 99. So according to
the Court of Appeals, it should be filed on the latter part
of 1999. But since it was filed on 3 February 2000, the
crime has already prescribed. Therefore the Court of
Appeals said the crime has already prescribed. And so
the case was now on appeal before the Supreme Court.
When is it suspended?
Whether it is a violation of special penal laws or
violation of the Revised Penal Code the running of
period of prescription of crime is suspended upon the
filing of the case before the office of the public
prosecutor. But if it is a case of violation of municipal
ordinance, the running of period of prescription of crime
is suspended upon the institution of judicial proceedings
that is the filing of the case before the trial court.
What did the Supreme Court say?
The Supreme Court said the ruling of the Court of
Appeals is wrong. It is erroneous. And the basis Saldivia
v. Reyes was also wrong. Supreme Court said that in
Saldivia vs. Reyes what is dealt with is a violation of a
investigation against the accused interrupts the period of
prescription. In Securities and Exchange Commission v. Interport
Resources Corporation, et al., 567 SCRA 354 (2008), the Court even
ruled that investigations conducted by the Securities and Exchange
Commission for violations of the Revised Securities Act and the
Securities Regulations Code effectively interrupts the prescription
period because it is equivalent to the preliminary investigation
conducted by the DOJ in criminal cases. (People vs. Pangilinan, 672
SCRA 105, G.R. No. 152662 June 13, 2012)
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ART. 92. When and how penalties prescribe. — The
penalties imposed by final sentence prescribe as follows:
Prescribed Penalty
Death and reclusión perpetua
Other afflictive penalties108
Correctional penalty109, with the
exception of those punishable by
arresto mayor, which shall prescribe
in five years.
Light penalties
A has been charged with the crime of homicide. So it is
a bailable offense, he posted bail. So he is now on
temporary liberty. During the arraignment he appeared
he pleaded not guilty, during the preliminary
conference he also appeared, during the pre-trial he also
appeared however during the start of the trial of the
merits of the case he already failed to appear, he already
junked bail. So he already went into hiding. Trial on the
merits ensued in absentia. After trial on the merits the
judge rendered the judgment convicting the said
accused A, he is convicted of the crime of homicide. He
did not appeal therefore judgment became final and
executory. Therefore a warrant of arrest was now issued
by the court against A. The police officers armed with
the warrant of arrest tried to look for A but they could
not locate A. They could not find A. And then they got a
tip one time from an informant as to the location of A
but that was already 20 years from the time the said
judgment had been rendered. So 20 years had elapsed
before they were able to arrest A. They placed A behind
bars. Upon the time that they placed behind bars here
comes the counsel of A filing a motion before the court
petition for habeas corpus. According to the counsel his
client accused A convicted A can no longer be placed
behind bars because the penalty has already prescribed.
Has the penalty already prescribed?
Not yet, in fact it has not even begin to run. It has not
even begun to run because you only start counting the
period from the time he escaped from the penal
institution. From the time he evaded the service of
sentence. Here he has not yet even started serving the
sentence; therefore the said running of period of
prescription of penalty has not even commenced to run.
Therefore it cannot be said that it has already elapsed.
Prescription
20 years
15 years
10 years
5 years
1 year
5. PRESCRIPTION OF PENALTY is the loss of the
State of its right to execute the final sentence. The
moment the penalty has already prescribed, the
State loses the right to have the said convict to
execute the final sentence.
So note the distinction between the period of
prescription of penalties versus the period of
prescription of crimes they differ.
ART. 93. Computation of the prescription of penalties.
— The period of prescription of penalties
1. shall commence to run from the date when the
culprit should evade the service of his sentence,
and
2. it shall be interrupted if the defendant
2.1. should give himself up,
2.2. be captured,
2.3. should go to some foreign country with
which this Government has no extradition
treaty, or
2.4. should commit another crime before the
expiration of the period of prescription.
What if in the same problem, let us say A has been
convicted of homicide. He was placed behind bars.
Judgment became final and executory he is now in
Muntinlupa serving his final sentence. Then there was
a riot. During the time of the said riot he took it as an
opportunity to escape. So the police officers the jail
warden tried to look for him but they could not locate
him. It took then 25 years before they were able to locate
A. He was already old by that time. But still they were
able to recognize A's face. So they arrested A and placed
A behind bars. The counsel filed a petition for habeas
corpus. If you were the judge, would you grant it would
you deny it?
Grant it. The penalty has already prescribed.
When do you start counting the running of period of
prescription of penalty?
You shall start counting the running of period of
prescription of penalty from the time the accused
evaded the service of sentence. From the time the
accused has escaped from the penal institution.
So it is necessary that the said accused or the said
convict must serve the sentence and while serving the
sentence he escaped, that is the time that you start
counting the running of period of prescription of
penalty.
108Reclusion
Temporal,
Perpetual or temporary absolute
disqualification, Perpetual or temporary special disqualification,
Prisión mayor.
[Crimes punishable by reclusion temporal prescribes in 20 years, but
with respect to Prescription of Penalty, it prescribes in 15 years.]
109 Correctional Penalties – Prisión correccional, Arresto mayor,
Suspensión, Destierro.
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Why has the penalty prescribed?
The penalty has already prescribed because you count
it from the time he evaded the service of sentence and it
took the police officers 25 years before they were able to
locate him. Therefore it was too late for them. They
could no longer make A execute the said final sentence.
A raped B. While the case was on going they fell in love
with one another they got married. What is the effect of
such valid marriage on the criminal liability of the
offender?
It will extinguish the criminal liability of the offender.
No more criminal action even if the penalty had already
been imposed that is even the penalty had already
imposed by the court that is a valid marriage.
When is the running of the period of prescription of
penalty suspended or interrupted?
1. The moment the said convict is captured.
2. The moment he surrender or he gave himself up
to the proper authorities.
3. The moment he went to another country in which
the Philippines has no extradition treaty.
4. In case he shall commit another crime before the
expiration of the period of prescription of penalty.
SECTION TWO
Partial Extinction of Criminal Liability
ART. 94. Partial extinction of criminal liability. —
Criminal liability is extinguished partially:
1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit
may earn while he is undergoing
3.1. preventive imprisonment111 or
3.2. serving his sentence.
6. VALID SUBSEQUENT MARRIAGE BETWEEN
THE OFFENDER AND THE OFFENDED PARTY.
This is applicable only in case of private crimes,
seduction, abduction acts of lasciviousness. These are
private crimes because they are crimes which cannot be
prosecuted without the complaint coming from the
victim or the complainant.
CRIMINAL LIABILITY IS PARTIALLY
EXTINGUISHED
1. By conditional pardon
2. By commutation of sentence
3. By good conduct allowance
A seduced B and so B filed a case of seduction qualified
seduction against A. Later while the case was on going
they fell in love with one another they got married.
What is the effect of such valid marriage on the criminal
liability of the offender?
It will extinguish the criminal liability of A.
ART. 95. Obligation incurred by person granted
conditional pardon. — Any person who has been
granted conditional pardon shall incur the obligation of
complying strictly with the conditions imposed therein;
otherwise, his non-compliance with any of the
conditions specified shall result in
1. the revocation of the pardon and
2. the provisions of Article 159112 shall be applied
to him.
What if A had already been sentenced. Penalty has
already been imposed on him. What is the effect of such
valid marriage on the penalty already imposed by the
court?
It shall be remitted based on Article 344110.
So a subsequent valid marriage will extinguish both the
criminal action and the penalty. It will remit the
penalty already imposed by the court in case of private
crimes seduction abduction acts of lasciviousness and in
one public crime rape.
1. Conditional pardon is granted by the president only
after conviction by final judgment. It differs from
absolute pardon in the sense that it has subject to
strict terms and conditions which the offender must
comply. The offender must have to comply no matter
how strict the conditions are. It only partially
extinguishes criminal liability because the said
convict must comply with the conditions of the
pardon otherwise he can be immediately brought
back to incarceration plus he will be charged by
Rape is not a private crime. Rape is no longer under title
11 crimes against chastity, it is already under Title 8
crimes against persons. So it is now a public crime.
112 Article 159. Other cases of evasion of service of sentence. - The
penalty of prision correccional in its minimum period shall be imposed
upon the convict who, having been granted conditional pardon by the
Chief Executive, shall violate any of the conditions of such pardon.
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.
xxx In cases of seduction, abduction, acts of lasciviousness and
rape, the marriage of the offender with the offended party shall
extinguish the criminal action or remit the penalty already imposed
upon him.
110
111
As amended by R.A. 10592, May 29, 2013
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evasion of service of sentence provided in Article
159 of RPC.
3. In good conduct allowance, if the convict by final
judgment behaves in the prison cell, and it is shown
that he has reformed there will be a deduction
which will be done by the director of prisons.
ART. 96. Effect of commutation of sentence . — The
commutation of the original sentence for another of a
different length and nature shall have the legal effect of
substituting the latter in the place of the former.
ART. 98. Special time allowance for loyalty114. — A
deduction of 1/5 of the period of his sentence shall be
granted to any prisoner who,
1. having evaded his preventive imprisonment or
the service of his sentence under the
circumstances mentioned in Article 158115 of
this Code,
2. gives himself up to the authorities within 48
hours following the issuance of a proclamation
announcing the passing away of the calamity or
catastrophe referred to in said article.
A deduction of 2/5 of the period of his sentence shall be
granted in case said prisoner chose to stay in the place
of his confinement notwithstanding the existence of a
calamity or catastrophe enumerated in Article 158 of
this Code.
2. In commutation of sentence, the new sentence is in
lieu of the original sentence. It is the new sentence
now which will be served by the convict.
ART. 97. Allowance for good conduct113. – The good
conduct of any offender qualified for credit for
preventive imprisonment pursuant to Article 29 of this
Code, or of any convicted prisoner in any penal
institution, rehabilitation or detention center or any
other local jail shall entitle him to the following
deductions from the period of his sentence:
1. During the first two years of imprisonment, he
shall be allowed a deduction of 20 days for each
month of good behavior during detention;
2. During the third to the fifth year, inclusive, of
his imprisonment, he shall be allowed a
reduction of 23 days for each month of good
behavior during detention;
3. During the following years until the tenth year,
inclusive, of his imprisonment, he shall be
allowed a deduction of 25 days for each month
of good behavior during detention;
4. During the eleventh and successive years of his
imprisonment, he shall be allowed a deduction
of 30 days for each month of good behavior
during detention; and
5. At any time during the period of imprisonment,
5.1. he shall be allowed another deduction of 15
days,
5.2. in addition to numbers one to four hereof, f
5.3. or each month of
5.3.1. study,
5.3.2. teaching or
5.3.3. mentoring service time rendered.
An appeal by the accused shall not deprive him of
entitlement to the above allowances for good conduct.
This Article shall apply to any prisoner whether
1. undergoing preventive imprisonment or
2. serving sentence.
SPECIAL ALLOWANCE FOR LOYALTY
This so-called special allowance for loyalty is the
allowance given to a convict, who in times of calamaties
escapes or evades his service of sentence, but he returns
or gives himself up to the proper authorities within 48
hours following the declaration of the Chief Executive
that the said calamity had already lapsed.
There is an earthquake, the said offender escapes the
penal institution. Now, he heard the Chief Executive
declaring that the calamity had already lapsed. Within
48 hours, he gave himself up to the authorities, within
48 hours, he returned to the authorities. What is the
effect on his criminal liability?
There is this so called special allowance for loyalty as
provided for under Article 98. There should be a credit,
a deduction of 1/5 on the term of his sentence.
As amended by R.A. 10592, May 29, 2013
As amended by R.A. 10592, May 29, 2013
115 Article 158. Evasion of service of sentence on the occasion of
disorder, conflagrations, earthquakes, or other calamities. - A convict
who shall evade the service of his sentence, by leaving the penal
institution where he shall have been confined, on the occasion of
disorder resulting from a conflagration, earthquake, explosion, or
similar catastrophe, or during a mutiny in which he has not
participated, shall suffer an increase of one-fifth of the time still
remaining to be served under the original sentence, which in no case
shall exceed six months, if he shall fail to give himself up to the
authorities within forty-eight hours following the issuance of a
proclamation by the Chief Executive announcing the passing away of
such calamity.
113
114
Convicts who, under the circumstances mentioned in the preceding
paragraph, shall give themselves up to the authorities within the
above mentioned period of 48 hours, shall be entitled to the deduction
provided in Article 98.
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What if the said offender did not leave the said penal
institution at the time of the said calamity? Can he also
be given credit?
Yes because Article 98 in relation to Article 158 of Book
II had already been amended by RA 10592 which was
approved last May 29, 2013. And under this new law
amending Article 98 in relation to Article 158, it
provides that if the convict, in times of calamities or
disorder, did not leave the penal institution, there shall
be a 2/5 credit on the term of his sentence. So there is a
greater deduction, a deduction of 2/5 from the term of
his sentence that is if the said offender would not leave
the penal institution in times of calamity and disorder.
So he is more loyal, so he is granted more deduction
than one who leaves the penal institution and returns.
judge will impose the penalty of imprisonment, but
aside from that he will also impose civil indemnity on
the part of the accused. If the victim dies the civil
indemnity goes to the heir of the victim. If the victim
survives the indemnity goes to him.
INSTANCES WHERE THE FILING OF CRIMINAL
ACTION, THE CIVIL ACTION DOES NOT GO WITH
IT
1. When the private offended party waived the right to
file a civil action.
2. When the private offended party reserves the right
to file a civil action which must be made before the
presentation of evidence for the prosecution.
3. When the private offended party instituted a
separate civil action ahead of the criminal action.
ART. 99. Who grants time allowances116. — Whenever
lawfully justified,
1. the Director of the Bureau of Corrections,
2. the Chief of the Bureau of Jail Management and
Penology and/or
3. the Warden of a provincial, district, municipal
or city jail shall grant allowances for good
conduct.
Such allowances once granted shall not be revoked.
In these three instances the filing of the criminal action
does not include with it the civil action to recover civil
indemnity. For every criminal action filed in court the
civil action goes with it.
What if in the criminal action the offender is acquitted?
Does it mean the private complainant can no longer
recover from the civil action?
It depends on the judgment of the court.
TITLE FIVE
INSTANCES WHERE ACQUITTAL IN CRIMINAL
ACTION TOTALLY BARS RECOVERY IN THE CIVIL
ACTION.
1. If the judgment of the court states that the act
imputed against the accused were not committed by
him.
2. If the judgment of acquittal states that the offender
is not guilty of either criminal or civil negligence.
Civil Liability
CHAPTER ONE
Persons Civilly Liable for Felonies
ART. 100. Civil liability of person guilty of felony. —
Every person criminally liable for a felony is also civilly
liable.
ACQUITTAL IN THE CRIMINAL ACTION DOES
NOT BAR RECOVERY FROM THE CIVIL ACTION
1. When the judgment of acquittal is based on
reasonable doubt, because in civil action all you
need is preponderance of evidence.
2. When the judgment of acquittal states that the
liability of the offender is not criminal but civil in
nature. (This usually happens in cases of estafa
wherein there is a breach of contract)
3. When the civil liability of the offender arises from
other sources of obligation.
Whenever a crime has committed there are two injuries
caused. We have two injuries one against the state for
the disturbance of public order and the personal injury
as against the private offended party. Social injury and
personal injury respectively. That is why for every
criminal action filed in court the civil action goes with
it.
Civil liability is against the private offended party and
the criminal liability is against the state.
ILLUSTRATION: A stabbed B, B survived so he filed a
case of frustrated homicide against A. In the criminal
action it is not necessary for the fiscal to state in the
information that the private offended party also wanted
to recover civil indemnity because civil indemnity is
deemed included in the filing of the criminal action. The
116
As amended by R.A. 10592, May 29, 2013
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ART. 101. Rules regarding civil liability in certain
cases. — The exemption from criminal liability
established in subdivisions 1, 2, 3, 5, and 6 of Art. 12
and in subdivision 4 of Art. 11 of this Code does not
include exemption from civil liability, which shall be
enforced subject to the following rules:
Who shall shoulder civil liability in case the offender is
an imbecile or an insane, or a minor?
The person who has custody and control over the
imbecile, insane or minor who shall shoulder primarily
the civil liability. The person who has legal authority to
the imbecile, insane or a minor. Exception to the rule is
when it is proven that there is no fault or negligence on
the part of the person who has control or custody over
the offender. If that is the case, it will devolve to the
property of the imbecile, insane or minor.
First. In cases of subdivisions 1, 2, and 3 of Art. 12, the
civil liability for acts committed by an (1) imbecile or
insane person, and (2) by a person under nine years of
age, or (3) by one over nine but under fifteen years of
age, who has acted without discernment,
1. shall devolve upon those having such person
under their legal authority or control,
2. unless it appears that there was no fault or
negligence on their part.
Secondary liability is on their property except
properties which cannot be attached in the judgment of
the court like conjugal dwelling.
What if it a case of state of necessity?
Under Article 11 par. 4 state of necessity is a justifying
circumstance but in case of state of necessity although
there is no criminal liability there is civil liability.
Should there be no person having such insane, imbecile
or minor under his authority, legal guardianship, or
control, or if such person be insolvent, said insane,
imbecile, or minor
1. shall respond with their own property,
2. excepting property exempt from execution, in
accordance with the civil law.
So who shall shoulder civil liability?
All the persons who have been benefitted of the said
state of necessity shall be civilly liable. If they are many,
the court shall divide the civil liability proportionately.
Second. In cases falling within subdivision 4 of Art. 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.
What if the offender, he was charge in the court and it
was proven that he acted upon the compulsion of
irresistible force or an impulse of uncontrollable fear for
an equal or greater injury? This exempts him from
criminal liability but under Article 12 there is civil
liability, so who shall shoulder civil liability?
Civil liability shall be shouldered primarily by the
person who employed force on the said offender.
Secondary liability is on the offender himself.
The courts shall determine, in their sound discretion,
the proportionate amount for which each one shall be
liable.
1. When the respective shares cannot be equitably
determined, even approximately, or
2. when the liability also attaches
2.1. to the Government, or
2.2. to the majority of the inhabitants of the
town, and,
3. 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.
ART. 102. Subsidiary civil liability of Innkeepers,
Tavernkeepers and Proprietors of establishments. — In
default of the persons criminally liable, innkeepers,
tavernkeepers, and any other persons or corporations
shall be civilly liable
1. for crimes committed in their establishments,
2. in all cases where a violation of
2.1. municipal ordinances or
2.2. some general or special police regulation
shall have been committed by them or their
employees.
Third. In cases falling within subdivisions 5 and 6 of
Art. 12,
1. the persons using violence or causing the fear
shall be primarily liable and secondarily, or,
2. if there be no such persons,
2.1. those doing the act shall be liable,
2.2. saving always to the latter that part of their
property exempt from execution.
Innkeepers are also subsidiarily liable for the
restitution of goods taken by robbery or theft within
their houses from guests lodging therein, or for the
payment of the value thereof,
1. provided that such guests shall have notified in
advance
1.1. the innkeeper himself, or
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1.2. the person representing him, of the deposit
of such goods within the inn; and
2. shall furthermore have followed the directions
which such innkeeper or his representative may
have given them with respect to the care of and
vigilance over such goods.
3. No liability shall attach in case of robbery with
violence against or intimidation of persons
unless committed by the innkeeper’s employees.
guard was hit and died. Later the robber was arrested
and he was charged with robbery with homicide.
Convicted by final judgment. A writ of execution is
issued in so far as civil liability is concerned and he was
found to be insolvent. Who shall shoulder subsidiary
civil liability? Is the proprietor of the hotel liable?
No he is not liable because the crime committed is
robbery with violence against or intimidation against
persons. They shall not be held civilly liable for such
kind of crime except when the offender himself is an
employee of the hotel.
ART. 103. Subsidiary civil liability of other persons. —
The subsidiary liability established in the next
preceding Article shall also apply to
1. employers, teachers, persons, and corporations
engaged in any kind of industry
2. for felonies committed by their servants, pupils,
workmen, apprentices, or employees in the
discharge of their duties.
Based on the municipal ordinance A’s establishment
may be opened only during weekdays. It cannot be
opened on weekends. However, one Saturday since
there is so many customers A opened his establishment
in violation of law and in violation of rules and
regulation. It so happened, on that day a crime was
committed in the said place. Later, the offender was
arrested, convicted by final judgment and later on he
was found insolvent. In so far as the civil liability is
concerned he cannot pay the civil liability, who shall
shoulder subsidiary civil liability?
Whatever be the crime committed since the
establishment operated in violation of a municipal
ordinance, rules and regulations of the police the said
owner shall always be subsidiarily civilly liable because
the operation was in violation of the said ordinance.
How about subsidiary civil liability of the minor, a
pupil, an employee, after conviction by final judgment
they were found to be insolvent, who shall shoulder
subsidiary civil liability?
In case of children the parents. In case of the pupil the
teacher, in case of the employee the employer. In case of
crime committed within their establishment, the
innkeeper, tavernkeeper, proprietors of the said
establishment.
The person primarily liable must be convicted by final
judgment and found to be insolvent
In order for the teacher, parent, employer, proprietor
can be made subsidiarily civilly liable, it is necessary
that the person primarily liable is convicted by final
judgment and he was found to be insolvent. Then
subsidiary liability rests on these persons.
A, an employee of XYZ corporation. A was a driver, so
the business of XYZ corporation is distribution of goods.
A while driving to deliver goods from a supermarket to
another trying to beat time, he was driving recklessly.
So he bumped he hit another car. The car was seriously,
gravely totally damaged. So A was charged with
reckless imprudence causing to damage to property.
After trial under merits, he was found guilty beyond
reasonable doubt. He did not appeal, judgment became
final and executory. A writ of execution was ordered it
was returned unsatisfied. The offender is found to be
insolvent. What now is the remedy of the owner of the
car that was totally damaged? How can he recover from
XYZ Corporation the employer of A?
It is not necessary for him to file a separate civil action.
In the very same criminal action for reckless
imprudence causing to damage to property which held
A guilty beyond reasonable doubt. All the private
complainant needs to do is to file a motion for the
issuance of subsidiary writ of execution against the XYZ
Corporation.
A guest checked in in a hotel. He had valuables with
him. He informed the proprietor of the hotel that he has
valuables with him. The proprietor told him regarding
the rules and regulations of the hotel as to the care and
vigilance of the said valuables and the guess complied.
However, that night a robbery took place and among the
things taken where the valuables of the guest. Later the
robber was arrested convicted by final judgment. A writ
of execution was issued and he was found to be
insolvent. So he cannot return the valuables stolen,
likewise he could not return the value thereof. Who
shall shoulder subsidiary civil liability?
The proprietor of the said hotel, the innkeeper, the
tavernkeeper of the said hotel.
This motion is a litigated motion it is not an ex parte
motion, therefore XYZ must be given a copy of the said
motion and he must be given his day in court in the
name of due process. It is not to be decided by the judge
In the said course of robbery there was exchange of
gunfire between the robber and the security guard of
the hotel? And in the said exchange of gun fires the said
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ex parte but it is going to be litigated. There must be
notice on the part of XYZ corporation in the nameof due
process so that he can say “no he is not my employee”,
“no he was not at the time of his job while the incident
happened”.
The thing itself shall be restored,
1. even though it be found in the possession of a
third person who has acquired it by lawful
means,
2. saving to the latter his action against the proper
person, who may be liable to him.
The moment that evidence is enough to show that the
employer can be held subsidiarily civilly liable, the
subsidiary liability of the employer is absolute in
nature. The moment that the employee is convicted by
final judgment and found to be insolvent, the subsidiary
liability of the employer is absolute. It is absolute but it
is not automatic. It is not automatic because there
should be a motion for the issuance of subsidiary writ
execution which is litigated. The moment that the
requisites are present the liability of the said employer
is absolute in nature.
This provision is not applicable in cases in which the
thing has been acquired by the third person in the
manner and under the requirements which, by law, bar
an action for its recovery.
Restitution is the return of the very thing taken.
What if the thing taken is already in the possession of a
third person? Can it still be recovered and be returned
to the rightful owner?
Yes. It can still be recovered from the purchaser of good
faith and returned to the rightful owner except when
the innocent purchaser bought it in a public sale like
market fair. Then it can no longer be taken from him to
be returned to the lawful owner.
REQUISITES FOR AN EMPLOYER TO BECOME
SUBSIDIARILY LIABLE (EI-FG)
1. There
must
exist
an
Employee-employer
relationship.
2. That the employer is engaged in some kind of
Industry.
3. That at the time of the commission of the crime the
employee is in the performance of his Function.
4. That the employee was found Guilty beyond
reasonable doubt by final judgment and was found
insolvent to pay the civil liability.
So restitution is impossible, what now is the remedy?
We have the so-called reparation of damages.
ART. 106. Reparation — How Made. — The court shall
determine the amount of damage,
1. taking into consideration the price of the thing,
whenever possible, and
2. its special sentimental value to the injured
party, and reparation shall be made
accordingly.
If these four are present, then the liability if the
employer is absolute in nature. The said owner of the
car can recover from the employer.
Reparation of damages is next, the judge shall
determine the actual value of the thing taken into
consideration its actual value plus the special
sentimental value to the owner thereof and the same
will be imposed against the said accused.
CHAPTER TWO
What Civil Liability Includes
ART. 104. What is Included in Civil Liability. — The
civil liability established in Art.s 100, 101, 102, and 103,
of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
In addition there is the so-called indemnification of
consequential damages.
ART. 107. Indemnification — What is included. —
Indemnification for consequential damages
1. shall include not only those caused the injured
party,
2. but also those suffered (1) by his family or (2) by
a third person by reason of the crime.
The civil liability includes:
1. Restitution
2. Reparation of damage caused
3. Indemnification of consequential damages
ART. 105. Restitution — How Made. — The restitution
of the thing itself must be made whenever possible, with
allowance for any deterioration or diminution of value
as determined by the court.
Indemnification of consequential damages, this is more
on torts in civil code. These includes:
1. Actual damages.
2. Moral damages.
3. Exemplary damages.
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In the case of People v. Quiachon. (See People vs.
Gambao, 2013) The father raped the daughter eight
years old. The penalty is death but by reason of RA
9346, death was commuted to reclusion perpetua. The
father was convicted of qualified rape and the penalty
imposed was commuted to reclusion perpetua. The
judge also imposed upon him the following civil liability
75,000 civil indemnity ex-delicto, 75,000 moral damages
and 25,000 exemplary damages. The counsel of
Quaichon filed a motion for reconsideration saying that
the judge committed an error stating that the civil
liability must be in the amount of 75,000 pesos. He
contended that the civil liability must only be in the
amount of 50,000 pesos. Because according to him based
on jurisprudence the civil liability which is 75,000 can
only be imposed if the penalty imposed is death. Here
he contended that although death penalty is the penalty
prescribed by law it was commuted to reclusion
perpetua therefore the appropriate civil indemnity
should only be 50,000 and not 75,000. Is the contention
of the counsel correct?
The Supreme Court said, as early as the case of People
v. Victor (G.R 127904, December 5, 2002) the imposition
of 75,000 as civil liability is not dependent on the actual
execution of the death penalty rather it is dependent on
the presence of any qualifying circumstance which
would merit the imposition of death penalty even if
death was not executed. In this case there is a
qualifying circumstance of relationship and the age of
the victim for the imposition of death as a penalty.
Therefore the appropriate civil liability is 75,000 pesos.
How much would these damages be?
In the case of People v. Gambao117, in that case, the
crime committed is kidnapping and serious illegal
detention for ransom. So if the crime committed is a
heinous crime, one punishable by death, but death
commuted to reclusion perpetua, the Supreme Court
said the following would be the amount for civil liability:
first, civil liability in the amount of P100,000; second,
moral damages in the amount of P100,000, this moral
damages shall be imposed on the said accused in favor
of the victim without need of proof, except of the fact
that the crime had been committed; and the last one
exemplary damages also in the amount of P100,000.
So in this case of People v. Gambao (2013), the Supreme
Court said these shall be the award of damages in case
of heinous crimes, wherein the penalty imposable was
death, but death cannot be imposed by reason of RA
9346.
Moral damages is for the tension, sleepless nights, the
pain— this shall be paid.
In trial so the fiscal asked the witness. How do you feel
when your husband died? I cannot eat, I cannot sleep
there is so much pain in my heart. If you are going to
quantify your emotional pain how much would it be?
Will you tell the court? The witness answered “walang
katumbas your honor” “hindi kayang bayaran your
honor”. But in the end it will only be 100,000.
An exemplary damages is imposed by the court in the
commission of the crime there is an aggravating or
qualifying circumstance, it is impose to set an example.
The imposition of 75,000 pesos civil indemnity is not
dependent on the actual imposition of death penalty but
on the presence of qualifying circumstances which
would provide for the imposition of death penalty.
Civil indemnity may be imposed absent evidence
because it is civil indemnity ex-delicto, arising from the
crime itself. Even if there is no evidence presented,
except for the fact that the crime is committed there is
always civil indemnity. In the crime of rape, murder
civil liability is always imposed on the accused no need
for other evidence, all that is needed is the accused is
found guilty because it is civil indemnity based on the
commission of the crime.
respective responsibilities and actual participation. Hence, each
principal accused-appellant should shoulder a greater share in the
total amount of indemnity and damages than Perpenian who was
adjudged as only an accomplice. (People vs. Gambao, 706 SCRA 508,
G.R. No. 172707 October 1, 2013)
The ruling of this Court in People v. Montesclaros, 589 SCRA 320
(2009) is instructive on the apportionment of civil liabilities among all
the accused-appellants. The entire amount of the civil liabilities
should be apportioned among all those who cooperated in the
commission of the crime according to the degrees of their liability,
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2.2 For the victims who suffered mortal/fatal wounds and could
have died if not for a timely medical intervention, the following
shall be awarded:
The case of People vs. Ireneo Jugueta118 summarized
the damages for civil indemnity that may be awarded:
Civil
Indemnity
Moral
Damages
Exemplary
Damages
Consumated
50,000
50,000
50,000
2.3 For the victims who suffered non-mortal/non-fatal injuries:
I. For those crimes like, Murder, Parricide, Serious Intentional
Mutilation, Infanticide, and other crimes involving death of a
victim where the penalty consists of indivisible penalties:
1.1 Where the penalty imposed is death but reduced to reclusion
perpetua because of RA 9346
Consumated
25,000
25,000
25,000
V. In other crimes that result in the death of a victim and the
penalty consists of divisible penalties
Consumated
50,000
50,000
Consumated
100,000
100,000
100,000
Frustrated
30,000
30,000
Frustrated
75,000
75,000
75,000
Attempted
20,000
20,000
Attempted
50,000
50,000
50,000
2.1 Where the penalty imposed is reclusion perpetua, other than
the above-mentioned:
VI. A. In the crime of Rebellion where the imposable penalty is
reclusion perpetua and death occurs in the course of the rebellion,
the heirs of those who died are entitled to the following
Consumated
75,000
75,000
75,000
Consumated
Frustrated
50,000
50,000
50,000
Attempted
25,000
25,000
25,000
Consumated
II. For Simple Rape/Qualified Rape:
100,000
100,000
100,000
Attempted
50,000
50,000
50,000
75,000
75,000
75,000
Attempted
25,000
25,000
25,000
Consumated
100,000
100,000
75,000
75,000
100,000
100,000
75,000
75,000
50,000
50,000
75,000
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75,000
75,000
50,000
ART. 110. Several and subsidiary liability of principals,
accomplices, and accessories of a felony — Preference in
payment. — Notwithstanding the provisions of the next
preceding Article, the principals, accomplices, and
accessories,
1. each within their respective class,
2. shall be liable severally (in solidum) among
themselves for their quotas, and
3. subsidiarily for those of the other persons liable.
100,000
75,000
50,000
2.1 Where the penalty imposed is reclusion perpetua, other than
the above-mentioned:
Consumated
50,000
ART. 109. Share of each person civilly liable. — If there
are two or more persons civilly liable for a felony, the
courts shall determine the amount for which each must
respond.
100,000
1.3 For the victims who suffered non-mortal/non-fatal injuries:
Consumated
50,000
The action to demand restoration, reparation, and
indemnification likewise descends to the heirs of the
person injured.
1.2 For the victims who suffered mortal/fatal wounds and could
have died if not for a timely medical intervention, the following
shall be awarded:
Consumated
75,000
it devolves. — The obligation to make restoration or
reparation for damages and indemnification for
consequential damages devolves upon the heirs of the
person liable.
IV. For Special Complex Crimes and other crimes with death,
injuries, and sexual abuse as the composite crimes, where the
penalty consists of indivisible penalties:
1.1 Where the penalty imposed is Death but reduced to reclusion
perpetua because of RA 9346:
Consumated
75,000
for damages, or indemnification for consequential
damages and action to demand the same — Upon whom
1.2 Where the penalty imposed is reclusion perpetua, other than
the above-mentioned:
Consumated
75,000
ART. 108. Obligation to make restoration, reparation
III. For Complex crimes under Article 48 of the Revised Penal
Code where death, injuries, or sexual abuse results, the civil
indemnity, moral damages and exemplary damages will depend
on the penalty, extent of violence and sexual abuse; and the
number of victims where the penalty consists of indivisible
penalties:
1.1 Where the penalty imposed is Death but reduced to reclusion
perpetua because of RA 9346:
Consumated
100,000
C. For the victims who suffered non-mortal/non-fatal injuries:
2.1 Where the penalty imposed is reclusion perpetua, other than
the above-mentioned:
Consumated
100,000
B. For the victims who suffered mortal/fatal wounds in the course
of the rebellion and could have died if not for a timely medical
intervention, the following shall be awarded:
1.1 Where the penalty imposed is Death but reduced to reclusion
perpetua because of RA 9346:
Consumated
100,000
75,000
G.R. No. 222702. April 5, 2016
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The subsidiary liability shall be enforced,
1. first against the property of the principals;
2. next, against that of the accomplices, and,
3. lastly, against that of the accessories.
CHAPTER THREE
Extinction and Survival of Civil Liability
ART. 112. Extinction of Civil Liability. — Civil liability
established in Articles 100, 101, 102, and 103 of this
Code shall be extinguished in the same manner as other
obligations, in accordance with the provisions of the
Civil Law.
Whenever the liability in solidum or the subsidiary
liability has been enforced, the person by whom
payment has been made shall have a right of action
against the others for the amount of their respective
shares.
ART. 113. Obligation to Satisfy Civil Liability. —
Except in case of extinction of his civil liability as
provided in the next preceding Article, the offender
shall continue to be obliged to satisfy the civil liability
resulting from the crime committed by him,
notwithstanding the fact that
1. he has served his sentence consisting of
deprivation of liberty or other rights, or
2. has not been required to serve the same by
reason of (1) amnesty, (2) pardon, (3)
commutation of sentence, or (4) any other
reason.
A, B, and C conspired with each other and they were
convicted by final judgment, and civil liability was
imposed by the court. How shall the civil liability be?
The civil liability must be divided by the court
proportionately.
But what if A is a principal, B is an accomplice, C is an
accessory they differ in their participation in the
commission of the crime. How should they divide civil
liability among themselves in so far as to the recovery
of the damages to the complainant?
Among themselves their liability is severally- in
solidum, on the other hand the said offended party can
recover from them subsidiarily. So among A, B and C
their liability is in solidum, severally therefore they are
liable for their own cause for being a principal,
accomplice or accessory.
How is civil liability extinguished?
It is more on civil law; it is extinguished in the same
manner provided for in the civil code.
1.
2.
3.
4.
From whom can the private complainant recover? Let’s
say based on the judgment of the court civil indemnity
is in the amount of 50,000. From whom shall the private
complainant recover?
From A first, the principal. If A is insolvent the
principal he can recover from B the accomplice. If B the
accomplice is insolvent he can recover from C the
accessory the entire 50,000.
5.
6.
7.
8.
9.
10.
Should the principal pay the entire 50,000 he acquires
the right of action as against the accomplice and against
the accessory as to their respective share.
By payment of performance.
By the loss of the thing due.
By the condonation or remission of the debt.
By the confusion or merger of the rights of creditor
and debtor
By compensation.
By novation.
Annulment
Rescission
Fulfillment of a resolutory condition
Prescription (Article 1231, Civil Code)
What about the grant of pardon? Valid marriage?
Prescription of crimes? Probation? Isn’t it that this all
extinguishes criminal liability; will this also extinguish
civil liability?
No. It cannot be extinguished. Civil liability can only be
extinguished in the same manner as in civil code but it
cannot be extinguished by pardon, by probation, even by
a subsequent valid marriage, the civil indemnity
remains.
ART. 111. Obligation to make restitution in certain
cases. — Any person who has participated gratuitously
in the proceeds of a felony shall be bound to make
restitution in an amount equivalent to the extent of
such participation.
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a war time crime. It can only be committed in times of
war. In times of peace, treason remains to be a dormant
crime but the moment emergency arises, the moment
war erupts, treason is immediately put into effect as a
crime, as a means of self-defense for self-preservation
on the part of the Philippine government.
BOOK TWO
Crimes and Penalties
TITLE ONE
Crimes Against National Security and
the Law of Nations
Treason is a war time offense because there are only
CHAPTER ONE
Crimes Against National Security
enemies, there are only traitors in times of war. In times
if peace, there are no enemies. The Philippines have no
enemies. When you say enemies, it means the citizens
SECTION ONE
of another country in which the Philippines is at war.
Treason and Espionage
The NPA’s, the MNLF they are not considered as
enemies of the state because they are also Filipino
citizens. What you consider as enemies are the enemy
troops that belongs to another country. And in times of
peace, there are no enemies. The Philippines have no
enemies, hence treason will never be put into effect.
ART. 114. Treason. - Any Filipino citizen who
1. levies war against the Philippines or
2. adheres to her enemies,
3. giving them aid or comfort within the
Philippines or elsewhere
shall be punished by reclusion perpetua to death and
shall pay a fine not to exceed P100,000 pesos.
The second element refers to the offenders who may
commit the crime of treason. He could either be a
Filipino citizen because he owes permanent allegiance
to the Philippine government or he could also be a
foreigner even he is temporarily residing in the
Philippines he becomes liable for the crime of treason
the moment he commits treasonable acts.
No person shall be convicted of treason unless
1. on the testimony of two witnesses at least to the
same overt act or
2. on confession of the accused in open court.
Likewise, (1) an alien, (2) residing in the Philippine
Islands, who commits acts of treason as defined in
paragraph 1 of this Article shall be punished by prision
mayor to death and shall pay a fine not to exceed
P100,000 pesos
This is so because while this foreigner or alien is in the
Philippines, the Philippine government also gives him
the same protection the government is giving to his own
citizens. Hence, in return these foreigners owe
temporary allegiance to the Philippine government.
Treason is committed by any Filipino citizen who in
times of war in which the Philippines is involved either
levies war against the Philippine Government or
adheres to the enemy by giving them aid or comfort.
The third element of treason provides for the means of
committing treason. And there are two means of
committing treason:
1. By levying war against
government and the other
ELEMENTS
1. There is a war in which the Philippines is
involved.
2. Offender is either a Filipino citizen or a
foreigner, an alien residing in the Philippines.
3. Offender either levies war against the
Philippine government or adheres to the enemy
by giving them aid or comfort.
the
Philippine
Levying of war requires the concurrence of two
elements. First, there must be an actual
assembly of men and second, it is for a
treasonable
design by means of force.
So it is necessary that Filipinos must be in
collaboration with the enemy troops. That is
levying war against the Philippine government.
The first element requires that the Philippines must be
at war. So the Philippines is involved in the said war.
The Philippines is a party to the said war.
The Filipinos who wants to commit treason
connives or conspire with the enemy troops in
order to hand over the Philippine government
to the enemy troops. There is levying of war
against the Philippine government.
Treason therefore is a war time offense. In the old case
of Laurel v. Singson, the Supreme Court said, treason is
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2. By adhering to the enemy by giving them aid or
comfort.
Extra-judicial confession is not a means of proving
treason
Likewise, treason can be proven by means of confession
given by the accused in open court. So extra-judicial
confession is not a means of proving treason. It must be
a judicial confession made in open court.
The other mode of committing treason is by
adhering to the enemies by
giving them aid
or comfort. Adherence to the enemy means that
the Filipinos who is committing treason,
emotionally and intellectually favor the enemy.
What if in times of war in which the Philippines is
involved, in the course of committing treason the
offender killed another Filipino? So in effect he
committed murder, he committed homicide or inflicted
physical injuries on another Filipino? Will such act of
injuring another person, killing another person give rise
to a separate and distinct crime aside from treason?
No. These common crimes committed in furtherance of
treason are absorbed in the crime of treason because
they are known as atrocities of war. Hence, you only
charge the offender with one crime and that is treason.
The murder, the killing, the physical injuries, the
burning of houses committed, they are considered as
part and parcel and therefore, they are absorbed in the
crime of treason.
So it’s an internal state of the mind. So how do you show
it? How do you manifest it?
It is manifested by means of acts of giving aid or comfort
to the enemies. So both adherence to the enemies and
giving aid or comfort must concur, must be together.
Mere adherence to the enemies will not give rise to
treason.
Strengthen the defense of the enemy and weaken the
defense of the Philippines
Mere giving aid or comfort to the enemies will not give
rise to treason. It is necessary that giving of aid or
comfort must be the manifestation of the adherence to
the enemies. When you say giving aid or comfort to the
ART. 115. Conspiracy and proposal to commit treason;
Penalty. - The conspiracy or proposal to commit the
crime of treason shall be punished respectively, by
prision mayor and a fine not exceeding P10,000 pesos,
and prision correccional and a fine not exceeding P5,000
pesos.
enemy, it means giving the enemies information, giving
them transportation, arms and other things which will
strengthen the defense of the enemy and weaken the
defense of the Philippines.
In the old case of People v. Perez, the Supreme Court
has ruled that the act of commandeering women giving
women to the enemy troops is not considered as a
treasonable act. It may have strengthened the enemy
but such effect is only medial in nature, it will not
weaken the defense of the Philippines. Hence, the act of
commandeering women in times of war according to the
Supreme Court is not a treasonable act.
What if there is a war in which the Philippines is
involved, A, B, C and D conspired with one another in
order to commit treason against the Philippine
government. After their agreement, A went to his friend
X and he told X about his conspiracy together with B, C
and D to commit the crime of treason against the
Philippine government. After divulging the same plan
to X, A left. X, despite knowledge of such conspiracy to
commit treason of A, B, C and D did not disclose it to
the proper authorities. What is/are the crime/crimes
committed by A, B, C, and D as well as X?
A, B, C and D are all liable for conspiracy to commit
treason, whereas X will be liable for Misprision of
Treason. A, B, C and D are all liable for conspiracy to
commit treason because they conspired with one
another to commit the crime of treason.
TWO WAYS OF PROVING TREASON
1. Testimony of two witnesses, at least to the same
overt act which is otherwise known as the “two
witness rule”.
2. Confession made by the accused in open court.
So it must be a judicial confession made in open
court.
Treason cannot be proven by mere circumstantial
evidence
The first way of proving treason requires two witnesses.
Therefore, treason cannot be proven by mere
circumstantial evidence. There must be direct evidence;
someone had seen the perpetrators of the crime doing
the same overt act.
There is conspiracy to commit treason when two or more
persons come to an agreement concerning the
commission of treason and they decide to commit it.
There is proposal to commit treason when a person who
decided to commit the crime of treason proposes its
execution to another person.
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ART. 116. Misprision of treason. –
Every person owing allegiance to (the United States)
the Government of the Philippine Islands,
1. without being a foreigner, and
2. having knowledge of any conspiracy against
them,
3.
3.1. conceals or
3.2. does not disclose and
3.3. make known the same,
4. as soon as possible to the
4.1. governor or
4.2. fiscal of the province, or
4.3. the mayor or
4.4. fiscal of the city in which he resides, as the
case may be,
shall be punished as an accessory to the crime of
treason.
1.1.4.
military
1.1.1.4.1. establishment or
1.1.1.4.2. reservation
1.2. to obtain any
1.2.1. information,
1.2.2. plans,
1.2.3. photographs, or
1.2.4. other data of a confidential nature
relative to the defense of the
Philippine Archipelago; or
2. Being in possession, by reason of the public
office he holds, of the articles, data, or
information referred to in the preceding
paragraph, discloses their contents to a
representative of a foreign nation.
The penalty next higher in degree shall be imposed if
the offender be a public officer or employee.
There is misprision of treason when a Filipino citizen
who has knowledge of a conspiracy to commit treason
failed to divulge it, failed to disclose it to the proper
authorities as soon as possible.
TWO WAYS OF COMITTING ESPIONAGE
1. By entering any warship, fort, naval, military
establishment or reservation without authority
therefor for the purpose of obtaining any
information, plans, photographs or other data of
confidential nature relative to the defense of the
Philippines.
2. By disclosing to a representative of a foreign
nation the contents of the articles, data or
information of confidential nature relative to
the defense of the Philippines which he has in
his possession by reason of the public office that
he holds.
Who can commit misprision of treason?
Misprision of treason can only be committed by a
Filipino citizen, one owing permanent allegiance to the
Philippine government.
Treason can be committed both by a Filipino citizen and
an alien or foreigner but misprision of treason can only
be committed by a Filipino citizen, one owing
permanent allegiance to the Philippine government. It
cannot be committed by an alien residing in the
Philippines. The moment he fails to disclose a
conspiracy to commit treason of which he is
knowledgeable of as soon as possible to the proper
authorities then he becomes liable for misprision of
treason.
Treason, conspiracy or proposal to commit treason, as
well as misprision of treason they can be committed only
in times of war but espionage can be committed both in
times of peace and in times of war.
Under the first mode of committing espionage, the
offender can be any person. He can be a public officer or
employee. He can be a private individual. He can be a
foreigner. He can be a Filipino citizen. The gravamen,
the essence of the crime is the act of entering a military,
fort, naval, establishment for the purpose of obtaining
information, plans, photographs or other data of
confidential nature relative to the defense of the
Philippines.
Misprision of treason is a crime independent of treason.
When the law says that he should be punished just like
an accessory to the crime of treason, it means that the
penalty will be equivalent to that of an accessory to the
crime of treason. Therefore, two degrees lower from that
of the penalty prescribed for the crime of treason.
ART. 117. Espionage. - The penalty of prision
correccional shall be inflicted upon any person who:
What if a Filipino citizen enters a Filipino warship, you
do not know his intention, the moment he enters the
said warship without any authority therefor, of course
the law presumes that his intention is to obtain such
information of confidential nature relative to the
defense of the Philippines.
1. Without authority therefor,
1.1. enters a
1.1.1. warship,
1.1.2. fort, or
1.1.3. naval or
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The fact that he enters the said place without authority
therefor means there is a presumption that his
cruelly by the Malaysian government. Based on the
news, that sultanate of Sulu has died a month ago. So
among that crimes which could have been filed against
him is inciting to war and giving motives for reprisals
because he performed acts would make liable to cause
the Philippines to enter into war with the Malaysian
government and not only that, Filipino citizens in
Sabah suffered reprisals on the persons or property by
reason of his acts. Hence, he can be held liable for this
crime.
intention is to obtain this confidential nature relative to
the defense of the Philippines.
Under the second mode of committing espionage, the
offender can only be a public officer or employee but not
any public officer or employee can commit the crime
because the public officer or employee must be in
possession of articles, data or information of a
confidential nature relative to the defense of the
Philippines by reason of his public office that he holds.
So he has the authority to possess these data or
information. He is the kind of public officer who can
commit the crime. And the essence of the crime is the
act of disclosure, divulging to a representative of a
foreign nation the contents of these data which are of
confidential nature relative to the defense of the
Philippines.
ART. 119. Violation of neutrality. - The penalty of
prision correccional shall be inflicted upon anyone who,
1. on the occasion of a war in which the
Government is not involved,
violates any regulation issued by competent authority
for the purpose of enforcing neutrality.
Violation of Neutrality is committed when there is a war
and the Philippines is not a party to the said war. So the
Philippines is not involved in the said war but the
Philippine government, a competent authority coming
from the Philippine government issued a declaration, a
revelation saying that the Philippines shall stay neutral
in the said war.
Section Two.
Provoking war and disloyalty in case of war
ART. 118. Inciting to war or giving motives for reprisals.
- The penalty of reclusion temporal shall be imposed
upon any public officer or employee, and that of prision
mayor upon any private individual, who,
1. by unlawful or unauthorized acts
2. provokes or gives occasion for a war
2.1. involving or
2.2. liable to involve the Philippine Islands or
3. exposes Filipino citizens to reprisals on their
3.1. persons or
3.2. property.
The moment any person violates this declaration of
neutrality, he becomes liable for violation of neutrality.
Essence of the crime is the violation of the regulation
issued by competent authority enforcing neutrality
So in the crime of violation of neutrality the crime will
only arise if there is a declaration or regulation issued
by a competent authority and forcing neutrality in a war
between two countries. Even if there is a war with two
Inciting to War or Giving Motives for Reprisals is
committed when the offender performs unlawful or
unauthorized acts, and these acts provoke or give
occasion to war involving or liable to involve the
Philippines or give occasion or reprisals on the persons
or property of Filipino citizens in another country.
countries and the Philippines is not a party to the said
war, if there is no declaration coming from the
Philippine government that he should stay neutral, any
Filipino citizen who would side with one country is not
liable because the essence of the crime is the violation
of the regulation issued by competent authority
enforcing neutrality.
So here the offender performs acts which are unlawful
and unauthorized by the Philippine government and
these acts that he performs may give occasion to war,
may get the Philippines into war.
ART. 120. Correspondence with hostile country . - Any
person who (1) in time of war, (2) shall have
correspondence with an enemy country or territory
occupied by enemy troops shall be punished:
Remember the news before about the sultanate of Sulu
who went to Sabah without the authority of the
Philippine government claiming that based on heritage,
this Sabah belongs to his family. That was his claim.
Whether his claim is valid or not, his acts are
unauthorized by the Philippine government. He has no
right to just go there and claim that Sabah is ours. As a
result, our Filipino citizens in Sabah were treated
1. By prision correccional, if the correspondence
has been prohibited by the Government;
2. By prision mayor, if such correspondence be
carried on in ciphers or conventional signs; and
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ART. 121. Flight to enemy country. - The penalty of
arresto mayor shall be inflicted upon any person who,
1. owing allegiance to the Government,
2. (2.1.) attempts to flee or (2.2) go to an enemy
country when prohibited by competent
authority.
3. By reclusion temporal, if notice or information
be given thereby which might be useful to the
enemy.
4. If the offender intended to aid the enemy by
giving such notice or information, he shall
suffer the penalty of reclusion temporal to
death.
Again, there is a war in which the Philippines is
involved and a competent authority of the Philippine
government issued a regulation prohibiting flight to the
enemy country and the offender attempts to flee or to go
to the enemy state.
Correspondence with Hostile Country is committed
when there is a war in which the Philippines is involved
and the offender makes correspondence with the enemy
country or a territory occupied by the enemy troops and
the said correspondence is either prohibited by the
Philippine government or carried on in ciphers or
conventional signs or contains notices or information
which may be useful to the enemy state.
Again, the essence of the crime is the violation of the
regulation issued by the competent authority
prohibiting flight to the enemy country. Therefore, even
if the Philippines is at war with another country, any
Filipino citizen may go to that country provided that
there is no regulation issued by competent authority
prohibiting such flight to the enemy state. It is only
when there is a prohibition which wherein the crime
will arise.
In case of correspondence with hostile country it is
necessary under the:
1.
2.
First mode that is making correspondence is
totally
prohibited
by
the
Philippine
government, there must be a regulation coming
from the Philippine government that totally
there is no correspondence between the
Philippines and the enemy state.
If there is no regulation prohibiting
correspondence the crime will only arise if the
said correspondence is carried out in ciphers or
conventional signs or if it contains notices or
information which may be useful to the enemy.
There is a war in which the Philippines is involved and
a competent authority issued a prohibition of making
any correspondence. So the Philippines is at war with
country A then a Filipino citizen, X, has a pen pal who
lives in country A and so he wrote a small note and that
small note only says “Hi! I miss you! Mwa mwa” Is he
liable for the crime?
Yes. He is liable for the crime because there is a
prohibition coming from the Philippine government to
make any correspondence. If there is a prohibition
coming from the Philippine government to make any
correspondence even if the correspondence contains
nothing but a simple “Hi” the crime will arise, but if
there is no regulation coming from the Philippine
government prohibiting the making of correspondence,
the crime will only arise if carried out in ciphers or
conventional signs and contains notices and
information which may be useful to the enemy.
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Essence of piracy is that of robbery
Based on these elements, it is evident that the
gravamen or essence of piracy is that of robbery , there
is a thing or property and it is done with force or
intimidation and it is committed with violence against
persons or properties or use of force upon things.
Section Three.
Piracy and mutiny on the high seas or
in Philippine waters
ART. 122. Piracy in general and mutiny on the high seas
or in Philippine waters119. - The penalty of reclusion
perpetua shall be inflicted upon
1. any person who,
1.1. on the high seas, or
1.2. in Philippine waters, shall attack or seize a
vessel or,
2. not being a member of its complement nor a
passenger,
2.1. shall seize the
2.1.1. whole or part of the cargo of said
vessel,
2.1.2. its equipment or
2.1.3. passengers.
The same penalty shall be inflicted in case of mutiny on
the high seas or in Philippine waters.
In robbery the thing taken is the personal property of
the offended party whereas in case of piracy the thing
taken is either the vessel itself or the cargo, equipment
in the vessel or personal properties inside the said
vessel.
On the other hand, in case of mutiny the elements are:
ELEMENTS OF MUTINY
1. The vessel is also either on Philippine waters or
on the high seas
2. The offenders must necessarily be members of
the complement or passengers of the vessel.
3. Offenders cause an unlawful resistance on the
Under title one, there are only four crimes committed
on high seas or in Philippine waters. We have Piracy,
Qualified Piracy, Mutiny and Qualified Mutiny.
lawful command of the captain of the ship,
bringing about a commotion at the circumstance
inside the ship.
Under Article 122, there is piracy when the following
elements are present.
Essence of mutiny is that of sedition
So if the essence of piracy is that of robbery, in case of
mutiny, the essence is that of sedition. There is a
commotion. There is a disturbance against the lawful
demand of the captain of the ship. In case of piracy, the
offenders must be strangers to the vessel but in case of
mutiny, the offenders are necessarily members of the
complement and passengers of the vessel because only
they may disagree to the lawful command of the captain
of the ship.
ELEMENTS OF PIRACY
1. The vessel is on Philippine waters or in the high
seas.
2. The offender is not a member of its complement
or passenger of the vessel.
3. The offender either attack or seize the vessel or
seize the whole or a part of the cargo, equipment
or personal belongings inside the said vessel.
What if the vessel is on Philippine waters. While the
vessel is on Philippine waters, suddenly there were four
men. The four men boarded the said vessel and at gun
point they took the cargo, the equipment of the said
vessel. Thereafter they boarded another vessel. What
is/are crime/s committed these four men?
These four men are liable for piracy under Article 122.
All the elements are present. The vessel is in Philippine
waters. The offenders, the four men are not members of
the complement or passengers of the vessel. And last
element, they seized the cargo, the equipment of the
said vessel. Hence, the crime committed is piracy under
article 122.
So the vessel in piracy is either on Philippine waters or
on the high seas. Who may be the offenders?
The offenders must be persons coming outside the
vessel. They must not be members of the complement or
passengers of the vessel. Therefore, they must be
strangers to the said vessel.
The third element provides that offenders either attack
or seize the vessel itself or the offender either seize the
whole or part of the cargo, the equipment or personal
belongings inside the said vessel.
As amended by R.A. 7659 Sec. 2, December 13, 1993, and is now
considered as act of terrorism under R.A. 9372
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What if the vessel is on Philippine waters then the
members of the complement and the passengers of the
vessel, in conspiracy with one another took away the
cargo and the equipment inside the said vessel and
boarded another vessel. What crime/s is/are committed
by these members of the complement or passengers of
the vessel?
It cannot be piracy under article 122 because the second
element of Article 122 provides that the offenders must
not be members of the complement of the said vessel. In
the problem, the offenders are members of the
complement of the vessel. Hence it cannot be piracy
under article 122.
vessel in conspiracy with one another took the cargo and
equipment of the said vessel then they boarded another
vessel. What crime is committed by the conspirators,
members of the vessel as well as the passengers of the
vessel?
It cannot be piracy under article 122 because under
article 122 piracy is committed by strangers to the
vessel. In the problem, the offenders are members of the
complement and passengers of the vessel. So article 122
would not apply.
Is it piracy under article 532?
It is not piracy under PD 532 because in 532 the vessel
must be on Philippine waters and in the problem that I
gave the vessel is on the high seas.
So what is the crime committed?
The crime committed is still piracy. It is piracy under
PD 532, the Anti-Piracy Law of 1974.
Therefore, PD 532 does not apply. So since article 122
of the Revised Penal Code and PD 532 do not apply, the
crime committed is robbery in an uninhabited place
because as I said piracy is akin to robbery. So since
piracy involved does not fall in the RPC and PD 532 will
not apply, the crime committed will be Robbery.
UNDER PD 532, piracy is committed by attacking or
seizing the vessel or seizing in whole or in part the
cargo, equipment or personal belongings therein
irrespective of the value thereof, and is committed by
means of violence against person by use of force upon
things by any person, including members of the
complement, passengers of the vessel while the vessel is
What if the vessel is on Philippine waters on its way to
Mindoro? While on its way to Mindoro suddenly there is
a huge wave. As a result, the big wave endangered the
said vessel. So the captain of the ship decided to rest the
vessel near the seashore. However, the members of the
complement and passengers of the vessel did not agree
with the captain of the ship. And so they tied the
captain of the ship and directed the vessel towards
Mindoro. What crime is then committed by members of
the complement and passengers of the vessel?
The crime committed is mutiny. The vessel is on
Philippine waters, the offenders are members of the
complement and passengers of the vessel and there was
a commotion, a disturbance in the vessel against the
lawful command of the captain of the ship. So the crime
committed is Mutiny.
in Philippine waters.
So in case of piracy under Article 122, the vessel must
be on Philippine waters and acts of piracy may be
committed by any person. Since article 122 punishes
acts of piracy committed by persons who are outsiders
to the said vessel then in order to reconcile PD 532
punishes offenders who are members of the complement
and passengers of the vessel while the vessel is on
Philippine waters. So in the problem that I gave, in the
said problem the crime it still piracy, but it is piracy
under PD 532.
What if the vessel is on the high seas. While the vessel
is on the high seas suddenly four men entered the said
vessel and at gun point they took the cargo and
equipment of the said vessel. What crime is committed
by the four men?
The crime committed by four men will still be piracy and
it is piracy under article 122 because all the elements
are present. The vessel is on the high seas. Second, the
offenders are not members of the complement or
passengers of the vessel and the offenders took the cargo
and the equipment of the vessel. So the crime
committed is piracy under article 122.
Art. 123. Qualified piracy120. - The penalty of reclusion
perpetua to death shall be imposed upon those who
commit any of the crimes referred to in the preceding
article, under any of the following circumstances:
1. Whenever they have seized a vessel
1.1. by boarding or
1.2. firing upon the same;
2. Whenever the pirates have abandoned their
victims without means of saving themselves or;
3. Whenever the crime is accompanied by
3.1. murder,
3.2. homicide,
3.3. physical injuries or
3.4. rape.
Same problem, the vessel is on the high seas but this
time, members of the complement and passengers of the
120
Only reclusion perpetua may be imposed under R.A. 9346
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ELEMENTS OF QUALIFIED-PIRACY
because physical injuries was used by law in its generic
sense.
1. Whenever the offenders seize a vessel by
boarding or firing upon the same
2. Whenever the pirates have abandoned their
victims without means of saving themselves
3. Whenever the crime is accompanied by murder,
homicide, physical injuries or rape
What if in the same problem, when the said lady
passenger who did not want to give the necklace but one
of the men did was that before taking the said necklace
he first touch the breast of the woman with lewd design
and thereafter forcibly took the said necklace. What
crime/s is/are committed by the said men?
Both men are liable for piracy. They both are liable for
piracy because they boarded the vessel and they took
the valuables. The other man, who aside from piracy
also touched the private parts of the woman, the breast
of the woman with lewd design shall be liable for
additional crime of acts of lasciviousness. It will not
qualify piracy because acts of lasciviousness is not
among the crimes under article 123 that will qualify
piracy. So both will be liable for piracy but that other
man who touched the breast of the woman this time
aside from piracy will be also liable for another crime
and that is acts of lasciviousness.
Under the first qualifying circumstance, whenever the
offenders have seized a vessel by boarding of firing upon
the same, for piracy to be qualified under the first
circumstance, it is necessary that it is the vessel itself
that must be seized. Even if there is boarding or firing
of the said vessel, if what they seize is only cargo, the
equipment or personal belongings, it cannot be qualified
piracy. What the law says is whenever they have seized
a vessel. So it is necessary that the vessel itself must be
seized for the circumstance would qualify as piracy.
Under the second qualifying circumstance, whenever
the offenders have abandoned their victims without
means of saving themselves. The offenders have
committed piracy and they left the victim without
means of saving themselves. Piracy would be qualified.
What circumstances that would qualify mutiny?
According to Reyes and according to the book of legal
luminaries, the following circumstances would qualify
mutiny, (1) first whenever the offenders have
abandoned their victims without means of saving
themselves; and (2) lastly whenever the crime is
accompanied by murder, homicide, physical injuries or
rape.
Third circumstance, whenever the crime is
accompanied by murder, homicide, physical injuries or
rape. If any of these following crimes have been
committed by the offenders while committing the crime
of piracy, the crime committed is qualified piracy. They
will not constitute separate and distinct crimes. They
will not be also complex. They are absorbed in the
commission of the crime of piracy because they are only
treated as circumstances which would qualify piracy.
According to legal luminaries, the first circumstance
that will qualify piracy will no longer qualify mutiny
because in mutiny, offenders are necessary inside the
said vessel. So they will not board the said vessel.
Hence, only the second and the third circumstances will
qualify mutiny.
So the vessel was on Philippine waters. Two men
boarded the said vessel and at gun point. These two men
point the gun to the passengers of the vessel to give to
them their valuables. One of the passengers did not
want to give her necklace and so what the man did was
he slapped the woman after then they forcibly took the
said necklace. What crime/s is/are committed by the
said men?
The men are liable for qualified piracy.
Related to these crimes against National Security is
Republic Act 6235 otherwise known as An Act
Prohibiting Certain Acts Inimical to Civil Aviation more
popularly known as the ANTI-HIJACKING LAW.
Under RA 6235, the following acts are punished as
inimical civil aviation:
4 ACTS PUNISHED UNDER ANTI-HIJACKING LAW
In qualifying piracy when it is accompanied by murder,
homicide, physical injuries or rape. Physical injuries is
used in its generic terms. It does not state whether it is
serious, less serious or slight. Therefore, whatever
crime of physical injuries accompanied piracy it will
already become qualified piracy. So even if the physical
injury that accompanied the commission of piracy is
slight, is less serious it is already qualified piracy
1. By compelling the pilot of an aircraft of
Philippine registry to change its course or
destination or by seizing or usurping control
thereof while it is in flight.
2. By compelling the pilot of an aircraft of foreign
registry to land in Philippine territory or by
seizing or usurping control thereof while the
same is in Philippine territory.
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These are the first two acts. Let’s first distinguish the
first acts.
Philippines materials or substances which are
flammable, explosive, corrosive or poisonous.
Under the FIRST ACT by compelling the pilot of an
aircraft of Philippine registry to change its course or
destination or by seizing or usurping control thereof
while it is in flight, if the aircraft is of Philippine
registry it is necessary that the seizure or usurpation
must take place while the aircraft is in flight.
Where lies the difference?
If the aircraft is a passenger aircraft, the mere act of
carrying or loading flammable and explosive substances
will already give rise to the crime but if the aircraft is a
cargo aircraft the carrying or loading of poisonous or
corrosive substances, flammable substances, is allowed.
The crime will only arise if the said carrying or loading
of these substances is not in accordance with the rules
and regulations issued by the Air Transportation Office
or the Civil Aviation Aeronautics Board. There lies the
difference between the third and the fourth act.
An aircraft must is said to be in flight the moment all
external doors had been closed following the
embarkation until all of these external doors been
opened for purposes of disembarkation.
On the other hand, in case of an aircraft which is of
foreign registry, there is no requisite that it is in flight
at the time of the seizure or usurpation. It suffices that
the said aircraft of foreign registry is within Philippine
territory and the seizure and usurpation thereof will
already give rise to a violation of RA 6235.
What if there is a bus and the bus is full of children. It
was parked in Luneta Park and suddenly there comes
X. He had arms, ammunitions, guns all over his body at
gunpoint he boarded the bus and hijacked the bus, the
children were forced to board the bus. Upon entry, X
told the children to stay inside the bus and nothing will
happen to them. Thereafter X placed cartolinas on the
windows of the said bus. And on the cartolinas were his
demands from the government. First, for the
government to release his brother who is a member of
the NPA who is being incarcerated by the military be
released. Second, to recover and transfer funds to his
account in the amount of 2M. As a result the media
came, the parents of the children came, people from all
walks of life came, the members of the cabinet arrived.
So there was chaos everywhere. The PNP was trying to
mediate so he will surrender but it took them 12 hours.
X was arrested. Is X liable for terrorism? How is
terrorism committed?
In so far as these two acts are concerned, under RA 6235
these first two acts will be qualified by the following
circumstances.
1. By firing upon the pilot or the member of the
crew or passenger of the aircraft
2. By exploding or attempting to explode any bomb
or explosives for the purpose of destroying the
aircraft.
3. Whenever the act of hi-jacking is accompanied
by murder, homicide, serious physical injuries
or rape
Under Sec.3 of RA 9372—Human Security Act of 2007,
terrorism is committed when the offender commits any
of the following acts punishable under the RPC:
 Art. 122 – Piracy
 Art. 134 – Rebellion
 Art. 134 A – Coup d’ Etat
 Art. 248 - Murder
 Art. 267 - Kidnapping and Serious Illegal
Detention
 Art. 324 - Crimes involving Destruction
If the offender commits any of these acts punishable
under the RPC or any of the following crimes
punishable under special penal laws:
These three acts will qualify the first two punishing
acts. We will notice that third following circumstances,
the law is specific; the law says serious physical
injuries. If what accompanied the commission of
hijacking is only slight physical injury and not serious
physical injury the crime will not then be qualified
because the law specifies that it must be serious
physical injuries. That is in case of hijacking. But in
case of piracy, physical injuries is used in its generic
term
3. The third act punishable under anti-hi jacking
law is by carrying or loading on board a
passenger aircraft operating as public utility in
the Philippines materials or substances which
are flammable, explosives, corrosives or
poisonous.
4. And lastly, by carrying or loading on board a
cargo aircraft operating as a public utility in the
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PD 1613 – Law on Arson
RA 6969 – The toxic Substances and hazardous
and Nuclear Waste Control Act
RA 5207 – Atomic Energy Regulatory and
Liability Act
RA 6235 – Anti- Hijacking Law
CRIMINAL LAW REVIEWER
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John Ree Esquivel-Doctor |2016
PD 532 – Anti- Piracy and Anti- Highway
Robbery Law of 1974
PD 1866 as amended – Decree Codifying the
Laws on Illegal and Unlawful Possession,
Manufacture, dealing in , Acquisition or
Disposition of Firearms, Ammunitions or
Explosives
Therefore, this is known as the THEORY OF
ABSORPTION in terrorism. The absorption is involved
in terrorism. A person who has been acquitted for the
case of terrorism or dismissal of the case, he can no
longer be prosecuted of any crime, of any offense or
felony necessarily included therein.
What are these crimes, offenses or felonies necessarily
included therein?
The predicate crimes that were mentioned. Therefore,
among the predicate crimes that were mentioned,
illegal possession of unlicensed firearms, hence he can
no longer be prosecuted because illegal possession of
unlicensed firearms is among the predicate crimes
mentioned stated in section 3, kidnapping and serious
illegal detention. It is absorbed. Therefore, he can no
longer be prosecuted of serious illegal detention.
If the offender commits any of these crimes that are
mentioned, thereby sowing or creating a condition of
widespread and extraordinary fear and panic among
the populace in order to coerce the government to give
in to an unlawful demand, the crime committed is
terrorism and the penalty is 40 years imprisonment
without the benefit of parole.
So that is how terrorism is committed. He must first
commit any of these predicate crimes but such
commission of these predicate crimes created, sow fear
and panic among the populace because these are
coupled with a demand from the government, an
unlawful demand to the government. Hence, it becomes
terrorism.
What if in the same problem, one of the minors was
found by X beautiful and so X raped the said Girl. Can
the state after X was acquitted of the crime of terrorism
prosecute him for the crime of rape? Can the state
prosecute him of violation of RA 7610?
The answer is yes because rape and RA 7610 are not
among the predicate crimes mentioned in section 3.
Therefore, they are not crimes necessary included
therein. Hence, the state can still prosecute him of the
crimes which are not necessarily included in terrorism.
In case of terrorism not only the principal is liable.
Under section 4, a conspirator will also be liable. Under
sections 5 and 6, even an accomplice and an accessory
in the crime of terrorism will be held liable.
What if in the same problem, so let us say that X was
charged with the crime of terrorism. During the
arraignment he pleaded not guilty. Prior to the next
hearing the judge acted upon on the merits of the case
and rendered a decision. The judge acquitted X of the
crime of terrorism. Upon his acquittal, can the state still
file a case of illegal possession of unlicensed firearms
against him because all the ammunitions and firearms
in his body were unlicensed?
Can the state charge him with serious illegal detention
because he detained the children minors for a period of
12 hours? Can the state prosecute him for these crimes
considering that he has been acquitted of the crime of
terrorism?
The answer is no more. The reason is provided for in
section 49 of RA 9372, under section 49 of RA 9372,
whenever a person is charged of an act under RA 9372
based on a valid complaint or information, sufficient
information and substance to bring about and
thereafter he is acquitted or the case is dismissed, he
can no longer be subsequently prosecuted for any other
felony or offense necessarily included in the crime
charged. Such acquittal or dismissal of the case shall be
a bar to another prosecution or any other offense or
felony necessarily included therein.
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THREE KINDS OF ARBITRARY DETENTION.
Title Two
CRIMES AGAINST THE FUNDAMENTAL LAWS
OF THE STATE
1. Arbitrary detention by detaining a person without
legal ground under Article 124
2. Arbitrary detention by failing to deliver the
detained person to the proper judicial authorities
within 12,18, 36 hours under article 125
3. Arbitrary detention by delaying the release of
prisoners despite the judicial or executive order to
do so under article 126
Chapter One
ARBITRARY DETENTION OR EXPULSION,
VIOLATION OF DWELLING, PROHIBITION,
INTERRUPTION, AND DISSOLUTION OF
PEACEFUL MEETINGS AND
CRIMES AGAINST RELIGIOUS WORSHIP
ELEMENTS OF ARBITRARY DETENTION UNDER
ARTICLE 124
Section One.
Arbitrary detention and expulsion
1. Arbitrary detention is committed by any public
officer or employee
2. Offender detains a person
3. Detention is without a valid ground
ART. 124. Arbitrary detention. – Any (1) public officer
or employee who, (2) without legal grounds, (3) detains
a person, shall suffer;
Under Article 124, arbitrary detention is committed by
any public officer or employee. The second element
requires that the offender detains a person and the
third element that detention is without a valid ground.
1. The penalty of arresto mayor in its maximum
period to prision correccional in its minimum
period, if the detention has not exceeded 3 days;
2. The penalty of prision correccional in its
medium and maximum periods, if the detention
has continued more than 3 but not more than 15
days;
3. The penalty of prision mayor, if the detention
has continued for more than 15 days but not
more than 6 months; and
4. That of reclusion temporal, if the detention
shall have exceeded 6 months.
Who is the offender?
The offender is a public officer or employee. Not any
public officer or employee can commit the crime. He
must be a public officer or employee who is vested with
authority to effect arrest and detain a person. Police
officers, members of congress, judges, barangay captain
they can be held for liable arbitrary detention. Even if
the offender is a public officer or employee, if he acted
in his private capacity, the liability is either under
Article 267, serious illegal detention or 268 slight illegal
detention. So in arbitrary detention, the offender must
The
1. commission of a crime, or
2. violent insanity or
3. any other ailment requiring the compulsory
confinement of the patient in a hospital,
shall be considered legal grounds for the detention of
any person.
be a public officer or employees vested with the
authority to effect arrest and detain a person.
The second element requires that the said offender
detains another. There is detention when the said
offended party is in incarceration, in captivity or
whenever there is restraint of his person or liberty. So
the intent to restraint of his person or liberty must be
manifest, evident or otherwise it could be any other
crime but not arbitrary detention.
When you say fundamental laws of the state it is the
Constitution, because the Constitution is the highest
law of the land. So the acts punished under title two are
acts in violation of the Bill of Rights inscribed in our
Constitution. The first among these is Arbitrary
Detention.
The third element requires that detention was without
legal grounds. Detention is without legal grounds if
detention is not based on a warrant of arrest or when
the said offended party was arrested and his arrest does
not fall under the circumstance of a valid warrantless
arrest or when the said offended party is suffering from
insanity or any other ailment which requires
compulsory confinement. In all these instances, there is
no valid ground for detention.
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VALID GROUNDS FOR DETENTION
was released. Are the arresting officers liable for
arbitrary detention?
Again the answer is no because there is no
manifestation to detain the person.
1. Detention is by virtue of a warrant of arrest
2. If the detention is based on the circumstances of a
valid warrantless arrest
3. If a persons is suffering from violent insanity or any
other ailment requiring compulsory confinement
Next question suppose we are in the latter part of book
II, what crime then is committed by the arresting police
officers?
The arresting police officers are liable for grave
coercion. He was being compelled to do something
against his will. He was being compelled to admit to the
commission of the crime against his will. So for
arbitrary detention to lie there must be a manifestation
on the part of the public officer to detain a person.
Absent that, it could be any other crime but not
arbitrary detention.
What if the police officers were conducting a patrol and
they saw X near the lamp post. X was a suspect for
snatching cellphones and a person attested that he is
always snatching cellphone. At the time the police saw
him, he was just there near the lamp post. After which,
he was arrested by the police officers and he was
brought to the nearest police station. Thereafter, the
arresting police officer said he must be investigated
however the investigating officer was not around. So he
was brought to the investigation room however, since
the investigating officer was not around so the arresting
officer told him that he needs to be investigated and
that he can leave but he must make sure to come back
for purposes of investigation otherwise if he does not
come back the next time they see him they will kill him.
So because of that, X would get out of the precinct and
ask if the investigator is in but if the investigator is out
he would again leave. Are the police officers liable for
arbitrary detention?
The arresting officers are not liable for arbitrary
detention. The second element is wanting. There is no
detention. He was not placed in captivity. He was not
restrained of his person or liberty. Hence, it cannot be
said that there is arbitrary detention.
What if a driver entered a one way street? Despite the
sign in the street that entry is prohibited he entered the
street, and a traffic enforcer arrested him, placed him
behind bars. That was in the morning. The police left.
He came back in the afternoon and released the said
person. Is the police officer liable for the crime of
arbitrary detention?
Yes. The police officer is liable for arbitrary detention.
He is a public officer vested with authority to effect
arrest. He detains a driver, the detention is without
legal ground. Having violated LTO rules and
regulations is not a valid ground for incarceration or
being placed behind bars. Under the LTO rules and
regulations he must only be given a ticket but that is
not sufficient for him to be placed behind bars. Hence,
the incarceration is without valid ground. The police
officer is liable of arbitrary detention. The obvious
intent is to detain him.
What if we are in the latter part of book two. The next
question if he is not liable for arbitrary detention, what
then is the crime committed?
The crime committed is grave threats. The crime
committed by the said arresting officers was grave
threats because they threatened to kill him if he will not
come back. It is the fact that is imposed in him that if
he does not come back to be investigated they will kill
him.
ART. 125. Delay in the delivery of detained persons to
the proper judicial authorities121. - The penalties
provided in the next preceding Article shall be imposed
upon the (1) public officer or employee who (2) shall
detain any person for some legal ground and (3) shall
fail to deliver such person to the proper judicial
authorities within the period of;
1. 12 hours, for crimes or offenses punishable by
light penalties, or their equivalent;
2. 18 hours, for crimes or offenses punishable by
correctional penalties, or their equivalent and
3. 36 hours, for crimes, or offenses punishable by
afflictive or capital penalties, or their
equivalent.
What if in the same problem, he was investigated by the
investigator. The said investigator told him to admit the
said commission of snatching cellphones but he will not
do it. So the arresting police officer told him unless he
will going to admit the crime he will stay in the precinct.
Thereafter, he told the police officers and investigators
that he will return after two hours asking X if he is
ready to admit the commission of the crime, X however
was firm he did not admit the said snatching and so he
As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25,
1987, respectively.
121
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transferred from one penal institution to another
(Escapee)
In every case, the person detained
1. shall be informed of the cause of his detention
and
2. shall be allowed upon his request, to
communicate and confer at any time with his
attorney or counsel.
The third element requires that the public officer fails
to deliver the detained person to the proper judicial
authorities.
ELEMENTS OF ARBITRARY DETENTION
UNDER ARTICLE 125
The word DELIVER, delivery means legal, constructive
delivery. It does not mean physical delivery of the body
of the accused. It refers to delivery, the filing of the
appropriate charge, information or complaint before the
proper court. The delivery must be done with the proper
judicial authority.
1. The offender is a public officer or employee
2. He detains a person for some legal ground
3. The said public officer fails to deliver the detained
person to the proper judicial authorities within 12
hours for the crime punishable by light felonies or
their equivalent; 18 hours for crimes punishable by
correctional penalties or their equivalent; 36 hours
for crimes punishable by afflictive penalties or their
equivalent
Judicial authority refers to courts of justices, judges of
courts that have the power to order the arrest of the
offender or releasing of the person upon the posting of
bail.
Is the fiscal within the meaning of judicial authority?
A fiscal a public prosecutor is not within the meaning of
judicial authority. The fiscal doesn’t belong to the
judiciary. The head of the fiscal is Secretary De Lima
and the President and not Chief Justice Sereno. So the
fiscal does not belong to the judiciary.
Again, the offender is a public officer or employee vested
with authority to effect arrest and detains a person. The
second element requires that the offender arrest and
detains a person for some legal ground.
What are these legal grounds being referred to in
Article 125?
The legal grounds being referred to under article 125
are circumstances for a valid warrantless arrest. Note
this does not differ to a circumstance wherein
incarceration is by virtue of a valid warrant of arrest.
Because if a person is arrested by virtue of warrant of
arrest he need not be delivered to proper judicial
authority. So the detention referred herein is by virtue
of a valid warrantless arrest.
The fiscal can only recommend bail. But the fiscal
cannot accept the bail and order the release of the
accused for temporary liberty. Only the judges are
allowed to fix the bail and order the temporary liberty
of the accused until upon the posting of the said bail.
What if the crime committed of the person arrested is a
violation of a special penal law? Is the arresting police
officer mandated to follow article 125? Is the arresting
police officer required to deliver the accused to the
proper judicial authorities?
Yes, because the law says “or their equivalent”. 12
hours, for crimes punishable by light penalties, or their
equivalent. That means all their equivalent refers to
their equivalent even in cases of violation of special
penal laws. Therefore, even if the crime committed or
the crime for which the offender is being arrested is
based on violation of special penal laws, the arresting
police officer has the obligation to deliver the person
arrested to the proper judicial authorities in consonance
with Article 125 of the Revised Penal Code.
So what are these valid warrantless arrest
circumstances?
Under section 5 of rule 113 of Rules of court, under the
following circumstance, a peace officer may even
without a warrant arrest a person:
1. That in his presence the person to be arrested has
committed, is actually committing or is attempting
to commit a crime (In flagrante Delicto)
2. When a crime in fact has just been committed and
the police officer has probable cause based on
personal knowledge of facts and circumstances that
the person to be arrested is the one who committed
the crime (Hot Pursuit)
3. When the person to be arrested is an escapee from
a penal institution or a place where he is serving
final sentence or temporarily detained while his
case is pending or has escaped while being
What if the police officers were conducting a patrol and
they saw X in the act of stabbing Y. and so they arrested
X, placed him behind bars. That was Friday evening.
The following day, Saturday they could not file a case
courts are closed. Sunday, courts are also closed.
Monday was declared a special non-working holiday
courts are close so the arresting police officers filed the
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case Tuesday only 8 oclock in the morning. Are the
police officers liable for arbitrary detention under
article 125?
No. The filing of the case, the delivery was made beyond
36 hours under Article 125. The police officers are not
liable under article 125. The department of justice has
issued an administrative circular interpreting 12, 18, 36
hours. These 12, 18, 36 hours refers to working hours.
It refers only to time that courts are open to receive the
complaint or information. So whenever the courts are
closed to receive the complaint filed against them, you
do not include that to the 12, 18 and 36 hours.
for the director of prisons or jail warden to abide to such
order will make them liable for delaying release.
Example of an executive order issued for the release of
a prisoner. After a preliminary investigation the fiscal
finds no probable cause against the accused and the
fiscal will order the release of the said prisoner, failure
of the jail warden to do so will make them criminally
liable under Article 126.
What if a person is accused of two crimes? One is for
illegal possession of dangerous drugs and the other is
selling of dangerous drugs. The illegal possession of
dangerous drugs is raffled to RTC Branch 6 and the
selling of dangerous drugs is raffled in RTC Branch 83.
In so far as illegal possession of dangerous drugs is
concerned the fiscal failed to present any witnesses, the
PDEA agent who tested the dangerous drugs did not
appear, and so the judge provisionally dismissed the
case and in the said order of dismissal the judge ordered
the immediate release of the accused. The jail warden
upon receipt of such order did not release the prisoner,
is he liable of delaying release?
The answer is no because he still has a pending case
before Branch 83 and the case is selling of dangerous
drugs which is a non-bailable offense. Therefore, even if
the other case was already been provisionally dismissed
the jail warden has all the right to continuously detain
him because he is still holding trial for another case—
sale of dangerous drugs. So the crime will only arise if
the delay in the performance of the judicial order or the
executive order of release is only without valid reason.
ART. 126. Delaying release. - The penalties provided for
in Article 124 shall be imposed upon
any public officer or employee
1. who delays for the period of time specified
therein
1.1. the performance of any judicial or executive
order
1.2. for the release of a prisoner or detention
prisoner,
2. or unduly delays
2.1. the service of the notice of such order to said
prisoner or
2.2. the proceedings upon any petition for the
liberation of such person.
ELEMENTS OF DELAYING RELEASE
1. Offender is a public officer or employee.
2. There is a judicial or executive order for the
release of the prisoner or detention prisoner, or
that there is a proceeding upon a petition for the
liberation of such person.
3. Offender unduly delays the:
a. Service of notice of such order to the prisoner
b. Performance of such judicial or executive order
for the release of the prisoner
c. Proceedings upon the petition for the release of
such prisoner
ART. 127. Expulsion. - The penalty of prision
correccional shall be imposed upon any public officer or
employee who, not being thereunto authorized by law,
1. shall expel any person from the Philippine
Islands or
2. shall compel such person to change his
residence.
Expulsion is committed by any public officer or
employee who expels any person from the Philippines or
compels a person to change residence when in fact he is
not authorized by law to do so.
The crime will only arise when the said public officer or
employee without valid reason delays the performance
of the judicial or executive order for the release of a
prisoner. Therefore, if the said public officer has a
reason for such non-performance to the said judicial
order he cannot be held liable.
ELEMENTS
1. Offender is a public officer or employee
2. He either:
a. Expels any person from the Philippine
b. Compels a person to change residence
3. Offender is not authorize do so by law
An example of a judicial order for the release of a
prisoner let say for example the judge because of the
failure of the fiscal to produce any witness, the judge
provisionally dismiss the case. In this case the judge
will issue an order for the release of the accused. Failure
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PERSONS GIVEN THE AUTHORITY TO EXPEL A
PERSON FROM THE PHILIPPINES OR COMPEL A
PERSON TO CHANGE HIS ADDRESS
ELEMENTS
1. The offender is a public officer or employee
2. That he is not authorize by judicial authority to
enter the dwelling of another
3. He enters the dwelling of another either:
a. Against the will of the latter
b. He searches papers or effects found therein
without previous consent of such owner
c. Having surreptitiously entered said dwelling
and being required to leave but he refuses to
leave
There are certain public officers or employees who are
given the authority to expel a person from the
Philippines or to compel a person to change his
residence.
1. President who has the inherent deportation power,
he can deport a person from the Philippines to
another country. This power is exercised by the
Bureau of Immigration as the alter ego of the
President, they are authorized by law to do so.
2. A judge can compel a person to change his
residence, for example a person who is convicted of
a crime wherein the penalty imposed upon him is
destierro where the convict is prohibited from
entering a place entered in the judgment of the
court. If the place where he is compelled not to enter
is his place of residence, therefore he can be
compelled to change his residence.
So who may be the offender?
The offender is a public officer or employee but not all
public officer or employee can commit the crime. He
must be a public officer acting under color of authority,
that means that the public officer or employee has the
authority, the power to implement a search but at the
time of the search he is not armed with the search
warrant.
If the offender is a public officer or employee but he
acted under his private capacity the crime is not
violation of domicile rather it can be trespass to
dwelling or trespass to property under Article 280 or
281.
Section Two.
Violation of domicile
ART. 128. Violation of domicile. - The penalty of prision
correccional in its minimum period shall be imposed
upon (1) any public officer or employee who, (2) not
being authorized by judicial order,
1. shall enter any dwelling against the will of the
owner thereof,
1.1. search papers or other effects found therein
1.2. without the previous consent of such owner,
or
2. having surreptitiously entered said dwelling,
and
2.1. being required to leave the premises,
2.2. shall refuse to do so.
So, in order for the crime of violation of domicile be
committed the offender must be a public officer or
employee acting under colors of authority.
The second element provides that the offender is not
authorized by judicial authority to enter the dwelling of
another.
Judicial authority means a judicial order, it is a search
warrant. Before a public officer or employee may
conduct a search he must present to the owner or the
possessor of the house or the dwelling.
If the
1. offense be committed in the night-time, or
2. if any papers or effects not constituting evidence
of a crime be not returned immediately after the
search made by the offender,
the penalty shall be prision correccional in its medium
and maximum periods.
The third element provides for the ways of committing
the crime of violation of domicile.
1. By entering the dwelling of another against the will
of the latter.
2. Searches papers or effects found therein without
previous consent of such owner
3. Having surreptitiously entered said dwelling and
being required to leave but he refuses to leave.
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FIRST ACT: By entering the dwelling of another
against the will of the latter.
No. He is not liable for violation of domicile because the
door is open. There is no prohibition or opposition to
enter, hence it cannot be said to be against the will of
the owner of the house. Second act is also not present he
has not yet conducted a search. The third act is not also
present since the door is open anybody can enter. The
Under the first act, entry against the will means the act
of entering which does not mean without the consent of
the owner. Entry against the will means there is an
opposition; there is a prohibition from entering. This
opposition or prohibition can either be implied or
express.
moment the door is open, it means anybody may enter.
It means anybody is welcomed to enter the said house.
Therefore the said police officer is not liable for violation
of domicile.
1. Implied Prohibition— an implied prohibition or
opposition is when the door of the house is close, this
means nobody is allowed to enter.
2. Express Prohibition—an express prohibition or
opposition is when the said owner of the house told
the public officer that he cannot enter the house, or
when there is a note which states that “no entry” or
no one is allowed to enter, these are express
prohibition to enter.
What if in the same problem the door is open, the police
officer entered, he went to the second floor of the house
and the owner saw him and asked him to leave. But the
police officer did not leave but he stayed put in the
house. This time, is the police officer liable for violation
of domicile?
Still, he is not liable for violation of domicile; there is no
opposition to enter. The door is open therefore anybody
can enter; therefore it is not an entry against the will.
He has not yet conducted a search.
SECOND ACT: Searches papers or effects found therein
without previous consent of such owner
What about the fact that he refuses to leave?
The fact that he refuses to leave only annoyed the owner
of the house. Therefore, there is no violation of domicile.
Under the second act, the offender searches papers or
effects found therein without previous consent of such
owner. Even if the public officer is allowed to enter the
dwelling by the owner of the house that doesn’t mean
that he is also allowed to initiate the search, before
conducting the search he must first seek the previous
consent of the owner. Without the previous consent of
the owner having granted him to search, any conduct of
search would amount to violation of domicile.
Permission to enter does not mean that it is also a
permission to allow the public officer to conduct a
search.
Let us say we are in the latter part of book II, the second
question is what is the crime committed?
The crime committed is only unjust vexation, it is any
act which would irritate or annoys the said owner of the
house but it is not violation of domicile.
The door of the house is close but it was not locked. The
police officer who wanted to conduct a search open the
door and having realized that it is not locked, he
entered. Once inside the house before conducting a
search the owner of the house saw the police officer and
the owner of the house told him to leave and he left. Is
the police officer liable for violation of domicile?
Yes. He is already liable because the door is close,
therefore there is an implied opposition to enter his
entry therefore is against the will of the owner. The first
act is already committed which constituted violation of
domicile even if he left the house.
THIRD ACT: Having surreptitiously entered said
dwelling and being required to leave but he refuses to
leave
Under the third act, it is necessary that the entry is
done surreptitiously, entering surreptitiously mean
that the entry is done candidly, secretly. It is not
however mean that entering surreptitiously will give
rise to violation of domicile; rather it is the refusal of the
public officer to leave when the owner of the house
discovered the entry and asked the public officer to
leave after the surreptitious entry.
The police officer knocked at the door, the owner opened
it and allowed the police officer to enter. The police
officer said they are looking for stolen car stereo in the
area, and then the owner of the house said “you cannot
conduct any search because you are not armed with a
search warrant”. Nevertheless the police officer
conducted a search. Are the police officers liable for
violation of domicile?
The door of the house is open and a police officer who
wanted to conduct a search entered the house all the
way to the second floor of the house. The owner of the
house saw him and the owner told him to leave and he
left. Is the police officer liable for violation of domicile?
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Yes they are liable for violation of domicile. Although
they were permitted, allowed to enter the house, they
were not allowed to conduct a search, they were not
given consent to conduct a search. The owner of the
house refused their conduct of search, hence such search
is illegal in nature and they may be held for violation of
domicile.
A police officer has been conducting surveillance on the
house of X, a well-known drug pusher. So one time it
was the birthday of X, so the gate of the house and the
door of the house were both open where guests can come
in and out. The said police officer disguised himself as
one of the guest so he entered together with the other
guest. While inside the house he tried to look for the
area to conduct a search, while his eyes is roaming
around to look for the area where he should search, the
owner of the house saw him and went after him and told
him “I know you, you are the police officer in the area
even if you are in disguise I recognize you, get out of my
house right now” and the police officer left the house. Is
the police officer liable for violation of domicile?
He is not liable for violation of domicile; entry is not
against the will. The gate and the door are open so
anybody can enter. He is not yet in the act of conducting
a search. The third act, his entry is done surreptitiously
because he was in disguise; however the moment he was
recognized and ordered to leave, he left. Hence, violation
of domicile is not committed. If when he was ordered to
leave but he never left, he can be held liable for violation
of domicile.
What if in the same problem the owner of the house told
them that they cannot conduct search there is no stolen
car stereo inside my house. And the police officers
obeyed, and they are about to leave and did not proceed
with the search but on their way out, they saw a table.
The said table is near the door where they will pass by
and it can be evident that there is a drug paraphernalia
in the table. And so, before leaving the police officers
ceased and confiscated the said drug paraphernalia. Are
the police officers liable for violation of domicile? How
about the drug paraphernalia, is it admissible as an
evidence to be used against the owner of the house?
The police officer is not liable for violation of domicile.
The entry is not against the will, they were allowed to
enter and they did not conduct the search because they
were not given permission and they were about to leave.
There is no violation of domicile, they did not conduct
the search when they were not allowed to search by the
owner of the house but they confiscated drug
paraphernalia on their way out.
Please note that this three acts are separate and
distinct from each other so if the entry is against the
will you need not answer the second and the third act.
It suffices that entry is against the will, violation of
domicile is already committed. Note that in the second
problem that I gave he was allowed to enter but
violation of domicile is still committed because he
conducted a search without the precious consent of the
owner.
Are these drug paraphernalia admissible as evidence
against the owner?
Yes, because they were taken under the so-called ‘plain
view doctrine’ under constitutional law. In your
constitutional law you have studied under the bill of
rights that even if they have not conducted a search, a
police officer would see a contraband— drug
paraphernalia is a drug per se. They saw drug
paraphernalia; they are authorized mandated by law to
seize this drug paraphernalia.
Again, these three acts are separate and distinct from
each other. The commission of any of these acts will
already give rise to violation of domicile.
If the said entry to the house of another is without being
armed with a search warrant is done in the nighttime
or any instruments or effects found therein which does
not constitute as evidence, were not immediately
returned that will be considered as circumstances to
qualify the crime.
Note, that they saw it inadvertently when they are not
conducting a search. It is a different story if they
conducted a search and they saw drug paraphernalia,
they can be held liable for violation of domicile and the
drug paraphernalia cannot be admitted as evidence
against the owner of the house. The search was not
conducted when they were about to leave, “hindi
sinasadya, nakita sa table, drug paraphernalia” These
police officers are authorized by law, mandated by law
to seize the drug paraphernalia under the plain view
doctrine, because they are contrabands in their very
own eye.
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ART. 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 maximum period to prision correccional in
its minimum period and a fine not exceeding P1,000
pesos shall be imposed upon
1. any public officer or employee who shall procure
a search warrant without just cause, or,
2. having legally procured the same,
2.1. shall exceed his authority or
2.2. use unnecessary severity in executing the
same.
owner of the house or any member of the family or
any two persons residing in the same locality.
In these four instances under article 129 and 130, even
if the public officer is judicially authorized, or is armed
with a search warrant, still violation of domicile is
committed by the said public officer.
A search warrant is an order in writing issued in the
name of the people of the Philippines signed by the
judge directing for peace officer or public officers to
search particular things stated in the particular
address and to bring it before the court.
ART. 130. Searching domicile without witnesses. - The
penalty of arresto mayor in its medium and maximum
periods shall be imposed upon
1. a public officer or employee
2. who, in cases where a search is proper,
3. shall search the (1) domicile, (2) papers or (3)
other belongings of any person,
4. in the absence of the
4.1. latter,
4.2. any member of his family, or
4.3. in their default, without the presence of two
witnesses residing in the same locality.
REQUISITES OF A VALID SEARCH WARRANT:
1. The search warrant must be for one specific offense.
2. There must exist probable cause.
3. The probable cause must be determined personally
by the issuing judge.
4. The issuing judge has determined probable cause
through searching questions and answers under
oath and affirmation in writing as the testimony
named by the applying police officer or his
witnesses.
5. The police officer and the witnesses must testify
only as to facts personally known to them.
6. The search warrant must specify the place to be
searched and the persons or things to be seized.
Article 128 punishes violation of domicile because the
public officer in entering the dwelling of another and in
conducting a search they are not armed with a search
warrant.
So these are the requisites for the issuance of a valid
search warrant. If any of this requisite is absent then
the search warrant is procured without just cause. The
search warrant was maliciously procured and a conduct
of a search with a maliciously procured search warrant
is akin to a search without a search warrant.
Article 129 and 130 provides for instances wherein
violation of domicile is still committed even if the public
officer is armed with a search warrant.
In the following instances violation of domicile is still
committed in the conduct of a search.
A police officer is said to exceed the authority of the
search warrant when he goes beyond what is stated in
the search warrant.
UNDER ARTICLE 129
1. When the search warrant was maliciously procured
without just cause
2. When the search warrant even if legally procured,
the public officer exceeded the authority in the
search warrant.
3. When the search warrant even if legally procured,
the public officer exercised unnecessary severity in
the implementation of the said warrant.
A public officer is said to have exercised unnecessary
severity in the implementation of the said warrant
when in the conduct of the search he exercised such
physically injurious or any acts which will not be in
accordance with law.
A police officer is mad at his neighbor B. So the police
officer applied for a search warrant against neighbor B.
he told the judge “Judge I am asking a search warrant,
based on my surveillance there are dangerous drugs
inside his house” and the judge believed him and so the
judge issued a search warrant against B. Police officer
A armed with a search warrant proceeded to the house
UNDER ARTICLE 130
4. When the search warrant even if legally procured,
the search was conducted in the absence of the
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of B and showed it to B. B knew that it was an illegally
procured search warrant, B knew it was procured
without just cause because he knew that there is no
dangerous drugs inside his house. Should B allow the
police officer to conduct the search?
Yes. Even if the said search warrant was maliciously
procured still the owner should allow him to conduct the
search because it has been issued by the judge in the
exercise of his function. Hence it must be given respect.
B should allow the police officer to conduct the search.
So the police officer conducted the search.
Pedro. And it was at 321 Balukbaluk Street. When the
police officer went to the said place he knocked at the
door and Pedro opened the door, and Pedro read the
search warrant. And Pedro said, “I am Pedro but I have
different address than that which is stated in the search
warrant, therefore I am not allowing you to conduct a
search inside my house” Nevertheless, the police
officers proceeded with the search. They conducted a
search and they found drug paraphernalia, they found
dangerous drugs inside. So are the police officers liable
for violation of domicile under Article 129? Are the
evidence obtained in the house admissible in the court
as evidence against the owner of the house?
Yes they are liable for violation of domicile because they
exceeded the authority in the said search warrant
because the said search warrant stated that the said
house is located at 123 but they conducted a search at
321.
So what now is the remedy of B against the said police
officer?
B may file a motion to quash the search warrant or a
motion to suppress the evidence in case pieces of
evidence are found inside his house. Aside from this
motion B can also file the following cases against police
officer A. He may file a case for violation of domicile
under article 129 because the search warrant is
procured without just cause and second he can also file
a case of perjury against the police officer because he
testified falsely against him before the judge. The police
officer perjured himself in order to be able to get a
search warrant. Therefore, B may also file perjury
against the police officer.
The Supreme Court said, the search warrant is
specifically stated. The police officers cannot exercise
any discretion in the conduct of the search. Police
officers have to follow the search warrant through the
letter. If they go beyond from what is stated from the
search warrant, they exceeded the authority in the said
search warrant So here, having conducted a search
different from the address stated in the search warrant,
the police officers may be held liable for violation of
domicile.
Are you going to complex violation of domicile and
perjury? Considering that without the forgery violation
of domicile has not been committed, right? Without
perjuring himself before the judge the police officer
could not have been able to get the search warrant and
conduct the search. Therefore, perjury is a necessary
means to commit violation of domicile. Under Article 48,
if an offense is a necessary means to commit the other,
you complex the two. So are you going to complex it?
No. Because even if they should be complex because the
one is necessary to commit the other, Article 129 does
not allow complexity of crime. It is expressly provided
that the liability of violation of domicile is in addition to
the liability attaching to the offender for the commission
of any other crime. Therefore, complexity of crime is
prohibited by the law by Article 129 in case of violation
of domicile.
Are the evidence admissible against the owner of the
house?
No they are not because under the constitutional law
they are considered fruits of the poisonous tree because
it was confiscated after an invalid search therefore;
these pieces of evidence, dangerous drugs are not
admissible as evidence against the owner of the house.
The police officers is armed with a search warrant and
went to the house of A and showed the search warrant,
A allowed them to enter the house and conduct the
search. In conducting the search the police officers
turned upside down each and every furniture and every
appliance looking for dangerous drugs. The wife of the
owner of the house could no longer control herself and
so he told the police officer to stop because almost
everything has already been broken but the police
officer slapped the wife of the owner of the house. The
wife suffered slight physical injuries and the furniture
were destroyed. What crime or crimes may be filed by
the owner of the house against the police officer?
First, the police officer may be held liable for violation
of domicile under Article 129 because they exercised
unnecessary severity in the implementation of the
search warrant. Third act has been violated. Not only
A search warrant is issued against Pedro. It was stated
that Pedro is living at 123 Balukbaluk Street. So the
police officer went to the house of Pedro and knocked on
the door, the owner of the house which is Juan opened
the door he told to the police officer that “this is my
address but I am not Pedro I am Juan, therefore I will
not allow you to conduct a search inside my house” So
the police officer asked Juan, where is the house of
Pedro? And Juan pointed the house of Pedro to the
police officer, so the police officer went to the house of
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be held liable for violation of domicile and the evidence
confiscated is inadmissible as an evidence for being
fruits of poisonous tree.
that, the owner of the house may also file malicious
mischief because they deliberately caused damaged to
the properties of the owner of the house. They are also
liable for slight physical injuries because of slapping the
owner of the house. Therefore they are liable for three
crimes.
Section Three.
Prohibition, interruption and
dissolution of peaceful meetings
Should the owner of the house file separate charges of
these crimes? Or should they complex them considering
that malicious mischief and slight physical injuries are
manifestation of the exercise of unnecessary severity in
the implementation of the search warrant.
Although malicious mischief and slight physical
injuries are manifestation of the implementation of the
search warrant it cannot be complex. Complexity of
crime is prohibited by the law itself under article 129.
Article 129 states that the liability for violation of
domicile shall be in addition to the liability attaching to
the offender for the commission of any crime. Therefore
three cases should be filed separately, independently
against the police officers.
ART. 131. Prohibition, interruption and dissolution of
peaceful meetings. - The penalty of prision correccional
in its minimum period shall be imposed upon
1. any public officer or employee who,
2. without legal ground,
2.1. shall prohibit or
2.2. interrupt the holding of a peaceful meeting,
or
2.3. shall dissolve the same.
The same penalty shall be imposed upon a public officer
or employee who shall hinder any person
1. from joining any lawful association or
2. from attending any of its meetings.
A search warrant was issued against A, so the police
officers went to the house of A, together with them are
two barangay tanods brought by the police officers. And
upon reaching the house they showed to A the search
warrant and they told A his wife and his children, you
remain in the sala why we conduct a search inside your
bedroom. So the police officers conducted a search inside
the bedroom of A and it was witnessed by two barangay
tanods residing in the same locality. Thereafter they
found two plastics of shabu underneath the pillow in the
bed. Are the police officers liable for violation of
domicile? Are the two plastic sachets of shabu
admissible as evidence against the owner of the house
A?
Yes, the police officers may be held liable for violation of
domicile. Article 130 provides for a hierarchy of
witnesses who must be present in the conduct of the
search.
The same penalty shall be imposed upon any public
officer or employee who
1. shall prohibit or hinder any person
2. from addressing, either alone or together with
others,
3. any petition to the authorities for the correction
of abuses or redress of grievances.
ELEMENTS
The offender must be a public officer and performs any
of the following acts:
1. Prohibiting or interrupting, without legal ground,
the holding of a peaceful meeting, or by dissolving
the same.
2. Hindering any person from joining any lawful
association or from attending any of its meetings.
3. Prohibiting or hindering any person from
addressing, either alone or together with others,
any petition to the authorities for corrections of
abuses or redress of grievances.
First it must be witnessed by the owner of the house, If
the owner of the house is absent, it must be conducted
in the presence of any member of the family.
If any of the members of the owner of the house is not
present it must be witnessed by two persons coming
from the same locality.
So under Article 131 the intention of the offender is to
prevent a person to exercise his rights under the Bill of
Rights. To exercise his freedom of speech, freedom of
expression or any freedom to join any lawful
organization, his freedom to petition the government for
redress of grievances. So these are felonies that go
against the rights installed in the 1987 Constitution.
Therefore, if the owner of the house is present he shall
be the one to witness the conduct of the search. So in
this case the owner of the house is present but he is not
allowed to witness the search instead the barangay
tanods witnessed the search. That did not cure their
violation under Article 130, hence, the police officer may
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For the crime to arise it is necessary that the meeting
that has been dissolved or prohibited by the said public
officer or employee must be a meeting that is peaceful
and for a lawful purpose. If the meeting is not peaceful,
unruly or illegitimate or for illegal purpose the public
officer has all the right to dissolve, to prohibit the said
meeting.
He cannot be held liable for grave threats but rather he
must only be held liable for interruption of religious
worship. The fact that he used threat and threatened
the priest will only aggravate the penalty to be imposed
upon him; hence, it will not constitute a separate and
distinct charge.
The commission of the public officer of any of these acts
would constitute a crime because the acts would be in
violation of the Bill of Rights under the 1987
Constitution. It is in violation of a personal freedom of
speech, freedom of expression, freedom to join a local
association as well as the freedom to peaceably
assemble. Since these acts would constitute a violation
of these constitutional rights, they are made criminal in
nature under Art 131.
ART. 133. Offending the religious feelings. - The
penalty of arresto mayor in its maximum period to
prision correccional in its minimum period shall be
imposed upon
1. anyone who,
1.1. in a place devoted to religious worship or
1.2. during the celebration of any religious
ceremony
shall perform acts notoriously offensive to the feelings
of the faithful.
Section Four.
ELEMENTS
Crimes against religious worship
1. Acts complained of were performed:
a. In a place devoted to religious worship (It is not
necessary that there is religious worship)
b. During the celebration of any religious
ceremony
2. Acts must be notoriously offensive to the feelings of
the faithful.
ART. 132. Interruption of religious worship. - The
penalty of prision correccional in its minimum period
shall be imposed upon any public officer or employee
who
1. shall prevent or disturb
1.1. the ceremonies or
1.2. manifestations of any religion.
It is committed by any public officer or employee or
private individual who performs acts notoriously
offensive to the feelings of the faithful. And the said acts
is performed either in the place dedicated to religious
worship or during the celebration of a religious
ceremony.
If the crime shall have been committed with violence or
threats, the penalty shall be prision correccional in its
medium and maximum periods.
Interruption of religious worship is committed by public
officers or employee and there is a religious ceremony or
a manifestation of any religion that is ongoing or is
about to take place and the offender prohibits or
interrupts the same.
Who is the offender in offending the religious feelings?
Article 133 is the only crime under title 2 wherein the
offender is both a public officer or employee and a
private individual. From Article 124 to Article 132 the
offender is always a public officer or employee, but in
Article 133 it may be committed by a public officer or
employee and also a private individual.
If the said act of prohibiting or interrupting is done by
means of violence or by means of threats. The use of
violence or threats shall not constitute a separate and
distinct crime but rather they shall aggravate or qualify
the crime of interruption of religious worship.
The second element requires that the offender performs
acts which are notoriously offensive to the feelings of the
faithful. When you say acts that are notoriously
offensive to the feelings of the faithful it refers to the
ritual, the dogma, the belief of a religion, and the
offender attack, slaps of the said dogma of the religion
or attempt to damage the object of veneration of the said
religion.
There is a mass to be celebrated, here comes a public
officer who does not belong to the same religion so the
police pointed a pistol to the priest and said that “if you
are going to conduct a mass I will kill you” so the priest
did not proceed in the conduct of the mass so the patrons
inside the church left. So what is the crime committed
if there is any? Is he liable aside from interruption of
religious worship for grave threats because he
threatened to kill the priest?
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Legal luminaries are one in saying that for it to be said
a notoriously offensive to the feelings of the faithful it
must offend the feelings not only a particular religion
but all kinds of religion if the same happens to them.
The third element is also present, the crime or act was
done in a place devoted to religious worship, a Catholic
church. Therefore, there is no need that there is a
religious ceremony ongoing. It suffices that the said acts
were notoriously offensive to the feelings of the faithful
were performed in a place devoted to religious worship.
The third element provides that the said act must be
performed in a place devoted to religious worship or
during celebration of any religious ceremony.
The law uses the disjunctive word “or.” Therefore, when
the act is committed in a place devoted to religious
worship, it is not necessary that there be a religious
ceremony ongoing. It suffices that it be committed in a
place devoted to religious worship.
At the PICC there is this art exhibit, among the arts
exhibited is the painting of Jesus Christ and there was
a thing (condom) attached in the face of Jesus Christ. It
was a controversy before. Is the artist or painter liable
under Article 133?
The artist is not liable under Article 133, although it
offended the feeling of the Catholics, PICC is not a place
devoted to religious worship and the said art exhibit is
not a religious ceremony, hence, the crime under Article
133 is not committed by the said offender.
X, a private individual, went inside a Catholic church.
He went near the altar, and then thereafter saw the
crucifix, the symbol of Jesus Christ. He put down the
said crucifix, he stepped on it and then thereafter, with
the use of a lead pipe, he broke the same. Then he went
to the tabernacle, he opened the same realizing that it
was not closed. He took the chalice that contains the
host which are being received by the Catholics as the
representation of the body of Christ during the Holy
Communion. He spread and poured the host on the
floor, then he spat on them and stepped on them. Is A
liable under Art 133, offending religious feelings?
The offender is a private individual, the act was said to
be notoriously offensive to the feelings of the Catholic.
There was causing of damage to Jesus Christ and to the
body of Christ which are venerated by the Catholics.
Is the act notoriously offensive to the feelings of the
people?
I would say yes because if the same acts would be done
on the object of veneration of the Muslims, Buddhists,
they would also feel offended. Therefore, it is
notoriously offensive to the feelings of the faithful
because it will apply to any religion.
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Title Three
CRIMES AGAINST PUBLIC ORDER
4.
Chapter One
REBELLION, SEDITION AND DISLOYALTY
5.
6.
ART. 134. Rebellion or insurrection; How committed. The crime of rebellion or insurrection is committed
1. by rising publicly and taking arms against the
Government
2. for the purpose of removing from the allegiance
to said Government or its laws,
2.1. the territory of the Philippine Islands or any
part thereof,
2.2. of any body of
2.2.1. land,
2.2.2. naval or
2.2.3. other armed forces,
depriving the Chief Executive or the Legislature,
wholly or partially, of any of their powers or
prerogatives.
7.
8.
3.2.2. communications network,
3.2.3. public utilities or other facilities
needed for the exercise and continued
possession of power,
singly or simultaneously carried out anywhere
in the Philippines
by any person or persons,
6.1. belonging to the military or police or
6.2. holding any public office or employment
with or without civilian support or participation
for the purpose of seizing or diminishing state
power.
Coup D’etat is committed when any person who is a
member of the military or the police or those holding
public office or employment with or without civilian
support commits a swift attack accompanied by
violence, intimidation, threat, strategy or stealth
directed against the duly constituted authorities of the
Republic of the Philippines, or any military camp or
installation, communication networks, or any public
utilities or other facilities needed for the exercise and
continued possession of power of the government turned
out singly or simultaneously in any part of the
Philippines for the purpose of seizing or diminishing
state power.
ELEMENTS
1. That there be:
1.1. Public uprising, and;
1.2. Taking of arms against the Government
2. Purpose of uprising or movement is either to:
2.1. Remove from the allegiance to said
government or its laws
2.1.1. The territory of the Philippines or
any part thereof, or:
2.1.2. Any body of land, naval or other
armed forces,
2.2. Deprive the Chief Executive or Congress,
wholly or partially, any of their
powers
or prerogatives
The essence of rebellion is an armed public uprising. So
aside from public uprising there must be the taking of
arms.
The essence of Coup D’état is there is a swift attack
against the duly constituted authorities committed by
the military, police or those holding public office or
employment.
Coup D’etat v. Rebellion
Civilian support is not an element in case of coup D’etat
whereas civilian support is a necessary element in
rebellion because rebellion is a crime of the masses it
involves a multitude of people. Whereas, coup d’état
does not involve a multitude of people it suffices that it
is committed by the military, the police or those holding
public office or employment.
ART. 134-A. Coup d'etat; How committed122. - The crime
of coup d'etat is
1. a swift attack
2. accompanied by
2.1. violence,
2.2. intimidation,
2.3. threat,
2.4. strategy or
2.5. stealth,
3. directed against
3.1. duly constituted authorities of the Republic
of the Philippines, or
3.2. any
3.2.1. military camp or installation,
What if in the course of commission of rebellion or in the
course of commission of coup d’etat common crimes such
as killing of person, murder, homicide, burning of
houses, assault, inflicting of physical injuries had been
committed by the participants to the said rebellion.
What case or cases should be filed against the offender?
As amended by R.A. 6968, October 24, 1990 and is now considered
as acts of terrorism under R.A. 9372
122
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Only one case that is rebellion or coup d’etat. Under the
theory of absorption in rebellion common crimes which
are committed in furtherance of, incident to or in
connection to the crime of rebellion or coup d’etat are
considered absorbed in these crimes. Therefore, there is
no separate and distinct charge for murder, homicide,
physical injuries or arson. They are absorbed in the
commission of the crime of rebellion or coup d’etat.
charge. It will not be considered absorbed in the crime
of rebellion.
A was among the participants in a rebellion, he was
arrested, and he was arrested in the act of killing
another person in the course of rebellion. What crime or
crimes should be filed against him?
The crime to be charge against A is rebellion. The killing
is absorbed by the crime of rebellion under the theory of
absorption in rebellion because obviously the said
killing was done in connection with the commission of
rebellion.
What if, the crime committed by the participant in the
said rebellion is a violation of a special penal law?
Violation of PD 1829 Obstruction of justice, so a
participant concealed and harbored another rebel. Is
violation of PD 1829 Obstruction of Justice also
absorbed in the crime of rebellion?
A police officer was on his way home. While on his way
home a member of the NPA saw him, and then the NPA
followed him and then thereafter the NPA shot him, the
police officer died. What is the crime to be charge
against the said person?
Yes, according to the Supreme Court in the case of
Enrile vs. Amin123, in this case during the time of Cory
Aquino, Senator Enrile was charged with many cases,
rebellion, murder, multiple frustrated murder and
violation of PD 1829 because he harbored then Col.
Gringo Honasan now Senator Honasan. So he was
charged with many cases, Supreme Court said, only one
case and it should be rebellion because the murder,
multiple frustrated murder and even violation of PD
1829 a special penal law are all committed allegedly by
him in furtherance of rebellion. Hence they are
absorbed in the crime of rebellion under the theory of
absorption in rebellion.
The said person will be charge the case of murder. He
contended that he is liable for the crime of rebellion and
not murder. Supreme Court in a case in your book,
appropriate charge should be murder and appropriate
conviction should be murder. Supreme Court said there
is no evidence showing in what way the said killing has
promoted the ideals of the NPA. Mere membership in a
rebel group like NPA, mere self-serving testimony that
the killing is done to foster the ideals of the rebels will
not suffice. There must be additional evidence to show
in what way the said killing has promoted the ideals of
the NPA. Absence of such evidence the appropriate
charge and conviction is murder.
So, even violation of special penal laws if they are
committed in furtherance of rebellion they are also
absorbed. Before however the theory of absorption in
rebellion may lie in favor of the offender, it is necessary
that there is evidence to show that the said killings, the
said infliction of physical injuries the said burning of
houses committed in furtherance to or in connection
with rebellion. There must be an evidence to show in
what way that the commission of these common crimes
had promoted, espoused and fostered the ideas of the
accused. Absence of such connection between the
common crime and rebellion or coup d’etat as the case
may be, then it will constitute a separate and distinct
There was an armed encounter between the members of
the military and members of the NPA in Lanao Del
Norte. It was an armed encounter and so there was an
exchange of gunfire. As a result one public officer died
and
several
others
were
fatally
wounded.
Reinforcement arrived, the NPA’s were arrested. They
were charged with murder and multiple frustrated
murder. The NPA filed their counter-affidavit; they
contended that they should be charged with rebellion
not murder. They stated that what happened is not an
ambush but rather an armed encounter where there
The prosecution tries to distinguish by contending that harboring
or concealing a fugitive is punishable under a special law while the
rebellion case is based on the Revised Penal Code; hence, prosecution
under one law will not bar a prosecution under the other. This
argument is specious in rebellion cases. In the light of the Hernandez
doctrine the prosecution’s theory must fail. The rationale remains the
same. All crimes, whether punishable under a special law or general
law, which are mere components or ingredients, or committed in
furtherance thereof, become absorbed in the crime of rebellion and can
not be isolated and charged as separate crimes in themselves. Thus:
“This does not detract, however, from the rule that the ingredients of
a crime form part and parcel thereof, and hence, are absorbed by the
same and cannot be punished either separately therefrom or by the
application of Article 48 of the Revised Penal Code. xxx (People v.
Hernandez, supra, at p. 528) The Hernandez and other related cases
mention common crimes as absorbed in the crime of rebellion. These
common crimes refer to all acts of violence such as murder, arson,
robbery, kidnapping etc. as provided in the Revised Penal Code. The
attendant circumstances in the instant case, however, constrain us to
rule that the theory of absorption in rebellion cases must not confine
itself to common crimes but also to offenses under special laws which
are perpetrated in furtherance of the political offense. (Ponce Enrile
vs. Amin, 189 SCRA 573, G.R. No. 93335 September 13, 1990)
123
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was exchange of gunfire’s. Despite their confession, the
fiscal of Lanao filed a case of murder and multiple
frustrated murder. And so, before the arraignment of
the case the members of the NPA who were the accused
filed a motion to quash or to dismiss the said
information of murder and multiple frustrated murder.
Should the said information for murder and multiple
murder be quashed? In that case the RTC of Lanao
denied the said motion to quash and so the case reached
the Supreme Court via a petition for certiorari. What
did the Supreme Court said?
The Supreme Court said that the appropriate charge
should be murder and multiple frustrated murder.
Supreme Court said the hearing is still in its initial
stage, therefore no evidence has yet been presented by
the defense in order to show in what way the said killing
and wounding has fostered and promoted the ideals of
the NPAs. Absent that evidence, the charge would be
murder and multiple frustrated murder.
Can violation of Articles of War be absorbed in the crime
of Coup D’etat?
In the case of Gonzales vs. Abaya124, Trillanes and
company where charged before the RTC the crime of
coup d’etat and in the Military Court particularly in
violation of Articles of War particularly acts
unbecoming of an officer and a gentleman.
While the case was in trial, they filed a motion before
the RTC of Makati contending that violations of
Articles of War is already absorbed in the crime of coup
d’etat, the RTC of Makati granted the motion saying
that indeed violation of Articles of War is absorbed in
the crime of Coup D’etat.
The case reached the Supreme Court, Supreme Court
said the RTC was wrong, according to the Supreme
Court; coup d’etat cannot absorb violation of the Articles
of War. The theory of absorption in rebellion and Coup
d’etat would lie only in cases which could be heard by
the same court.
Supreme Court further said if let us say the case was
put into trial, murder and multiple frustrated murder
and then during the trial of the case the defense
presented evidence that indeed it was committed for
purposes of rebellion.
It refers only to cases or crimes which are under the
jurisdiction of the same court. In this case, the crime
coup d’etat is under the jurisdiction of civilian court
RTC of Makati, whereas violation of the Articles of War
is only under the jurisdiction of the Military Court.
Violation of Articles of War cannot be heard, it is not
within the jurisdiction of any civilian court, hence, coup
d’etat cannot absorb violation of articles of war.
Therefore Supreme Court said what the fiscal should do
is to withdraw the case for murder and multiple
frustrated murder and add a new case of rebellion in
consonance with the evidence presented by the defense.
So the initial case to be filed is murder and multiple
frustrated murder.
Further Supreme Court Said violation of Articles of War
is sui generis, it is a crime on its own, nothing compares
it, no one is the same as violation of the Articles of War
hence, unlike any other law it cannot be absorbed by
coup d’etat or rebellion.
So before a person may be charged with rebellion
absorbing the commission of common crimes, it is
necessary that there must be an evidence to show in
what way the commission of the common crimes has
promoted, espoused or fostered the ideals of the
accused.
124 There is no merit in petitioners’ argument that they can no longer
be charged before the court martial for violation of Article 96 of the
Articles of War because the same has been declared by the RTC in its
Order of February 11, 2004 as “not service-connected, but rather
absorbed and in furtherance of the alleged crime of coup d’etat,”
hence, triable by said court (RTC). The RTC, in making such
declaration, practically amended the law which expressly vests in the
court martial the jurisdiction over “service-connected crimes or
offenses.” What the law has conferred the court should not take away.
It is only the Constitution or the law that bestows jurisdiction on the
court, tribunal, body or officer over the subject matter or nature of an
action which can do so. And it is only through a constitutional
amendment or legislative enactment that such act can be done. The
first and fundamental duty of the courts is merely to apply the law “as
they find it, not as they like it to be.” Evidently, such declaration by
the RTC constitutes grave abuse of discretion tantamount to lack or
excess of jurisdiction and is, therefore, void. (Gonzales vs. Abaya, 498
SCRA 445, G.R. No. 164007 August 10, 2006)
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ART. 135. Penalty for rebellion, insurrection or coup
d'etat125. - Any person who promotes, maintains, or
heads rebellion or insurrection shall suffer the penalty
of reclusion perpetua.
There is proposal to commit rebellion when a person
who decided to commit rebellion proposes its execution
to some other person or persons.
The same way in the manner of committing conspiracy
and proposal to commit coup d’etat
Any person merely participating or executing the
commands of others in a rebellion shall suffer the
penalty of reclusion temporal.
ART. 137. Disloyalty of public officers or employees . The penalty of prision correccional in its minimum
period shall be imposed upon public officers or
employees
1. who have failed to resist a rebellion by all the
means in their power, or
2. shall continue to discharge the duties of their
offices under the control of the rebels or
3. shall accept appointment to office under them.
Any person who leads or in any manner directs or
commands others to undertake a coup d'etat shall suffer
the penalty of reclusion perpetua.
Any person in the government service who participates,
or executes directions or commands of others in
undertaking a coup d'etat shall suffer the penalty of
prision mayor in its maximum period.
ART. 138. Inciting a rebellion or insurrection. - The
penalty of prision mayor in its minimum period shall be
imposed upon
1. any person who, without taking arms or being
in open hostility against the Government,
2. shall incite others to the execution of any of the
acts specified in Article of this Code,
3. by means of
3.1. speeches,
3.2. proclamations,
3.3. writings,
3.4. emblems,
3.5. banners or
3.6. other representations tending to the same
end.
Any person not in the government service who
participates, or in any manner supports, finances, abets
or aids in undertaking a coup d'etat shall suffer the
penalty of reclusion temporal in its maximum period.
When the rebellion, insurrection, or coup d'etat shall be
under the command of unknown leaders,
1. any person who in fact
1.1. directed the others,
1.2. spoke for them,
1.3. signed receipts and other documents issued
in their name, or
1.4. performed similar acts, on behalf of the
rebels
shall be deemed a leader of such a rebellion,
insurrection, or coup d'etat.
ELEMENTS
ART. 136. Conspiracy and proposal to commit coup
d'etat, rebellion or insurrection. - The conspiracy and
proposal to commit coup d'etat shall be punished by
prision mayor in minimum period and a fine which shall
not exceed eight thousand pesos (P8,000.00).
1. Offender does not take arms or is not in open
hostility against the Government.
2. He incites others to rise publicly and take arms
against the Government for any of the purposes of
the rebellion
3. The inciting is done by means of speeches,
proclamations, writings, emblems, banners or other
representations tending to the same end
The conspiracy and proposal to commit rebellion or
insurrection shall be punished respectively, by prision
correccional in its maximum period and a fine which
shall not exceed five thousand pesos (P5,000.00) and by
prision correccional in its medium period and a fine not
exceeding two thousand pesos (P2,000.00).
There is conspiracy to commit rebellion when two or
more persons come to an agreement concerning the
commission of rebellion and they decide to commit it.
As amended by R.A. 6968, October 24, 1990 and is now considered
as acts of terrorism under R.A. 9372
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ART. 139. Sedition; How committed. - The crime of
sedition is committed by persons
1. who rise
1.1. publicly and
1.2. tumultuously
2. in order to attain by
2.1. force,
2.2. intimidation, or
2.3. by other means outside of legal methods,
any of the following objects:
What is the essence of sedition? What is the gravamen
of sedition?
The gravamen of sedition is a public uprising against
what the government wants to implement, it is akin to
any protest, any rally.
Illustration: There is a new law; let say the TRO of the
RH Bill has been lifted. And then those against the RH
Bill held rally, they were against the implementation of
the RH Law, if they carried out this rally in such a way
that it disturbs public peace and order. In such away it
is done by force or intimidation or any other unlawful
methods it is now considered as a seditious act.
1. To prevent
1.1. the promulgation or execution of any law or
1.2. the holding of any popular election;
2. To prevent the (1) National Government, or (2)
any provincial or municipal government or (3)
any public officer thereof
2.1. from freely exercising its or his functions, or
2.2. prevent the execution of any administrative
order;
3. To inflict any act of hate or revenge upon the
person or property of any public officer or
employee;
4. To commit,
4.1. for any political or social end,
4.2. any act of hate or revenge against
4.2.1. private persons or
4.2.2. any social class; and
5. To despoil, for any political or social end,
5.1. any person,
5.2. municipality or province, or
5.3. the
National
Government
(or
the
Government of the United States),
of all its property or any part thereof.
So just like rebellion, in sedition, there must also be
public uprising, so again, it is a crime of the masses.
There must be public uprising, it involves multitude of
people but unlike rebellion, sedition does not require
that the said uprising must be with the use of arms. It
only requires public uprising but does not require that
there be use of arms. It suffices that the said uprising
must be done tumultuously that is carried out by means
outside the legal methods.
And if you will look in the purposes of sedition, if the
purpose of rebellion is to overthrow the government and
replace it with the government of the rebels, the
purpose of sedition is either political or social in nature.
The purpose of sedition is not to overthrow the
government, not to destabilize the government. The
purpose of sedition is to go against what the government
wants to implement, to go against what the government
wants to enforce, or to inflict any act of hate or revenge
upon any public officer, or employee or national
government or any local government. These are the
purposes of sedition.
Sedition is committed when there is public uprising
done tumultuously and it is done by means of fraud,
force, intimidation or by any other means outside the
legal methods for any of the following purposes:
So the purpose of sedition can either be political or
social in nature. Sedition is a crime of protest and
dissent against what the government wants to
implement. It is a crime of protest or dissent against
lawful authorities, against superior authority, that is
sedition.
1. To prevent the promulgation or execution of any law
or the holding of any popular election;
2. To prevent the National Government, or any
provincial or municipal government or any public
officer thereof from freely exercising its or his
functions, or prevent the execution of any
administrative order;
3. To inflict any act of hate or revenge upon the person
or property of any public officer or employee;
4. To commit, for any political or social end, any act of
hate or revenge against private persons or any
social class; and
5. To despoil, for any political or social end, any
person, municipality or province, or the National
Government of all its property or any part thereof.
So sedition is just like an ordinary rally except that it is
committed through unlawful means. Hence, it will
become a seditious act. The intention in case of sedition
is not to overthrow the government. The intention is to
prevent the government from promulgating something
or that is to promulgate or to uphold. So the intention
in case of sedition is not primarily political in nature it
can also be social in nature.
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ART. 140. Penalty for sedition. - The leader of a sedition
shall suffer the penalty of prision mayor in its minimum
period and a fine not exceeding 10,000 pesos.
2.5. which lead or tend to stir up the people
against the lawful authorities or
2.6. to disturb
2.6.1. the peace of the community,
2.6.2. the safety and order of the
Government, or
2.7. who shall knowingly conceal such evil
practices.
Other persons participating therein shall suffer the
penalty of prision correccional in its maximum period
and a fine not exceeding 5,000 pesos.
ART. 141. Conspiracy to commit sedition. - Persons
conspiring to commit the crime of sedition shall be
punished by prision correccional in its medium period
and a fine not exceeding 2,000 pesos.
There is no such crime as inciting to coup d’etat but
there is a crime as inciting to sedition.
Inciting to sedition is committed by an offender who is
not a party to sedition incites others to uprise for the
purposes of sedition and the said inciting is done by the
said speeches, proclamations, writings, emblems,
banners or other representations tending to the same
end.
ELEMENTS
Conspiracy to commit sedition is committed when two
or more persons come to an agreement concerning the
commission of sedition and decide to commit it. But,
there is no such crime as proposal to commit sedition.
ART. 142. Inciting to sedition126. - The penalty of prision
correccional in its maximum period and a fine not
exceeding 2,000 pesos shall be imposed upon
1. any person who, without taking any direct part
in the crime of sedition,
1.1. should incite others to the accomplishment
of any of the acts which constitute sedition,
1.2. by means of
1.2.1. speeches,
1.2.2. proclamations,
1.2.3. writings,
1.2.4. emblems,
1.2.5. cartoons,
1.2.6. banners, or
1.2.7. other representations tending to the
same end, or
2. upon any person or persons
2.1. who shall
2.1.1. utter seditious words or speeches,
2.1.2. write,
2.1.3. publish, or
2.1.4. circulate
scurrilous
libels
against
the
Government (of the United States or
the
Government
of
the
Commonwealth) of the Philippines
or any of the duly constituted
authorities thereof, or
2.2. which tend to disturb or obstruct any lawful
officer in executing the functions of his
office, or
2.3. which tend to instigate others to cabal and
meet together for unlawful purposes, or
2.4. which suggest or incite rebellious
conspiracies or riots, or
126
1. Inciting others to the accomplishment of any acts
which constitute sedition by means of speeches,
proclamations, writings, emblems, etc.
2. Uttering seditious words or speeches which tend to
disturb the public peace.
3. Writing, publishing, or circulating, scurrilous libels
against the government or any of the duly
constituted authorities thereof, which tend to
disturb the public peace.
Who is the offender in inciting a rebellion? Inciting
sedition?
Whether it be inciting to rebellion or sedition the
offender must not be a participant to the rebellion or
sedition. Because if he is a party to a rebellion or
sedition then the appropriate charge is sedition or
rebellion as the case may be and not merely inciting
rebellion or inciting to sedition. So he must not be a
participant, he merely incites others to uprise for any of
the purposes of rebellion or sedition.
Inciting to rebellion the offender induces people to rebel
against the government, in proposal to commit rebellion
a person also induce another to rebel against the
government. How then they differ? From proposal to
commit rebellion distinguish from inciting to rebellion?
Reinstated by E.O. No. 187, June 5, 1987
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Only attempted coup d’etat. There is no separate and
distinct charge of illegal possession of unlicensed
firearm under PD 1866 as amended by RA 8294.
Inciting to Rebellion v. Proposal to Commit Rebellion
In case of inciting to rebellion the person who incites has
not yet decided to commit rebellion whereas in proposal
to commit rebellion the offender already decided to
commit rebellion and he proposes its execution to
another. In case of inciting to rebellion the inducement
is done publicly whereas in case of proposal to commit
rebellion the inducement is done secretly.
A shot B. A was arrested B died. A, in committing the
act of killing be used an unlicensed firearm. What case
or cases should be filed against A?
Only one case and that is homicide and the use of
unlicensed firearm shall be a special aggravating
circumstance.
Under PD 1866127 as amended by RA 8294 if an
unlicensed firearm is used in the commission of the
crime of rebellion or insurrection, sedition, attempted
coup d’etat such use of unlicensed firearm shall be
absorbed in the commission of the crime of rebellion or
insurrection, sedition or coup d’etat. There is only one
charge, rebellion, sedition or attempted coup d’etat.
There is no separate and distinct charge for illegal
possession of unlicensed firearm, it is absorbed.
So if the act committed with the use of unlicensed
firearm is any act of killing, whether it be homicide,
whether it be murder, whether it be parricide, whether
it be infanticide all acts of killing the use of unlicensed
firearm shall be considered a special aggravating
circumstance as provided for under PD 1866 as
amended.
In PD 1866 as amended the law says that when
homicide or murder such use of unlicensed firearm shall
be considered as an aggravating circumstance. Why it
is a special aggravating?
A was among the participants in a rebellion, he was
apprehended then he was frisked, he was searched and
an unlicensed firearm was found in his possession.
What case or cases should be filed against A?
Rebellion. The act of possessing unlicensed firearm is
absorbed in the crime of rebellion.
Because the Supreme Court said so. According to the
Supreme Court in People vs. Malinao128 the use of an
unlicensed firearm in the act of killing shall be
considered a special aggravating circumstance.
Therefore, it cannot be offset by any mitigating
circumstance.
A is a participant to sedition and he has arrested, he
was found in possession of unlicensed firearm while
participating in the said sedition. What case or cases
should be filed against A?
Only one case that is sedition. Sedition is the only
charge because the use of unlicensed firearm is
considered as absorbed in the crime of sedition.
In the case of People vs. Mendoza129 the Supreme Court
said that the word murder is used in its generic sense
therefore it includes parricide and all other kinds of
killing wherein the penalty is reclusion perpetua to
death. So as long as the unlicensed firearm is used in
killing a person, it is a special aggravating
circumstance.
What if there is a participant in attempted coup d’etat
he was arrested and an unlicensed firearm was found in
his possession. What case or cases should be filed
against him?
What if the crime committed is another crime? Not
homicide, not murder, not parricide, not rebellion, not
Further Amended by R.A. 10591. SEC. 29. Use of Loose Firearm in the Commission of a
Crime. – The use of a loose firearm, when inherent in the commission of a crime punishable
127
because under R.A. No. 8294, the use of an unlicensed firearm in a
murder or homicide case is considered simply as a special aggravating
circumstance in the crime of homicide or murder and no longer treated
as a separate offense in its aggravated form. It should be noted
however that in either case, whether for illegal use of firearm in its
aggravated form under P.D. No. 1866 as discussed in the Barros case
or whether Murder or Homicide is committed with the use of an
unlicensed firearm, the imposable penalty is death. (People vs.
under the Revised Penal Code or other special laws, shall be considered as an aggravating
circumstance: Provided, That if the crime committed with the use of a loose firearm is
penalized by the law with a maximum penalty which is lower than that prescribed in the
preceding section for illegal possession of firearm, the penalty for illegal possession of firearm
shall be imposed in lieu of the penalty for the crime charged: Provided, further, That if the
crime committed with the use of a loose firearm is penalized by the law with a maximum
penalty which is equal to that imposed under the preceding section for illegal possession of
firearms, the penalty of prision mayor in its minimum period shall be imposed in addition to
the penalty for the crime punishable under the Revised Penal Code or other special laws of
which he/she is found guilty.
Malinao, 423 SCRA 34, G.R. No. 128148 February 16, 2004)
The word “homicide” used in the special complex crime of Robbery
with Homicide is to be understood in its generic sense as to include
murder and parricide. (People vs. Manalang, 170 SCRA 149 [1989])
(People vs. Mendoza, 301 SCRA 66, G.R. Nos. 109279-80 January 18,
1999)
129
If the violation of this Act is in furtherance of, or incident to, or in connection with the crime
of rebellion of insurrection, or attempted coup d’ etat, such violation shall be absorbed as an
element of the crime of rebellion or insurrection, or attempted coup d’ etat.
If the crime is committed by the person without using the loose firearm, the violation of this
Act shall be considered as a distinct and separate offense.
Applied to the present case, appellant may not now be convicted of
illegal possession of firearm in its aggravated form by considering the
commission of Murder or Homicide as an aggravating circumstance
128
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sedition, not attempted coup d’etat. What if in the case
of People vs. Ladjaalam the crime committed with the
use of unlicensed firearm is direct assault with multiple
attempted homicide. Can both cases prosper?
Yes, both cases can prosper. Direct assault with
multiple attempted homicide and also illegal possession
of unlicensed firearm.
Court means that there is conviction by final judgment
brought about by successful prosecution or a judicial
admission.
In the case of Celino Sr. the Supreme Court said your
motion to quash the information should be denied
because according to the Supreme Court you are only
being accused of having committed violation of
COMELEC gun ban. You are not yet convicted for
violation of COMELEC so both cases can still prosper.
It is only upon conviction by final judgment of the
violation of COMELEC gun ban that the said conviction
for illegal possession unlicensed firearm must be set
aside.
Both cases will prosper, however, the moment there is
conviction by final judgment in the case of direct assault
with multiple homicide, the conviction for illegal
possession of unlicensed firearm the Supreme Court
said must be set aside. So the proper term is, it must be
set aside. Yes, the Supreme Court also affirmed the
conviction on unlicensed firearm; however, that
conviction must be set aside.
UPDATES
The same thing happened in the case of Sison vs.
People130. The said woman was raped, at gun point. So
while she was being raped a gun was pointed at her, and
so the charged filed was kidnapping and serious illegal
detention with rape and also illegal possession of
unlicensed firearm. When the case reached the
Supreme Court, the Supreme Court said the illegal
possession of unlicensed firearm conviction must be set
aside, however the use of unlicensed firearm shall be
considered a qualifying circumstance in the crime of
rape. Hence, the conviction made by the Supreme Court
in this case is qualified rape under Article 266-B under
the RPC because the said rape was committed with the
use of unlicensed firearm.
What if the offender who is a participant in the rebellion
was arrested and then thereafter was frisked, he was
bodily searched, and a .45 caliber pistol was found on
his waist, he was asked to produce the license, he could
not produce any license as well as permit to carry. What
crime/s are committed by the said offender?
What about in the case of Celino Sr. vs. People131 and
also in the case of Escalante vs. People in both cases the
accused were charged with violation of gun ban and the
other charge is illegal possession of unlicensed firearm.
Will both cases prosper?
Yes it will both prosper. However, the Supreme Court
said the moment there is conviction for the violation of
COMELEC gun ban then the conviction for illegal
possession of unlicensed firearm must be set aside.
What if the offender was found in possession of these
unlicensed firearm in a sedition? So the offender was a
participant in the sedition, in a protest carried out
outside the legal methods against the government. So
the offender was found as a participant in a seditious
act. He was frisked, he was searched and a .45 cal pistol
was found in his possession without license and permit
to carry. What crime/s are committed by the said
offender?
The Supreme Court interpreted the term “was
committed” under Section 1of PD 1866 as amended by
RA 8294 the law says that a person can only be
convicted of simple possession of illegal firearms
provided that no other crime was committed. The
phrase “was committed” according to the Supreme
PD 1866 has been amended by RA 8294 which provides
that, if the use of an unlicensed firearm is in
furtherance of, incident to, or in connection with the
crime of rebellion, insurrection, sedition or attempted
coup d’ etat, such use of unlicensed firearm shall be
absorbed as an element of the crime.
What if in the same problem the offender was a
participant in coup d’ etat, in an attempted coup d’ etat
against the government. And the said offender was
bodily searched, frisked and a .45 caliber pistol was
found in his possession. It has no license, it has no
permit to carry. What crime/s are committed by the said
offender?
“other crime” is murder or homicide, illegal possession of firearms
becomes merely an aggravating circumstance, not a separate offense.
Since direct assault with multiple attempted homicide was committed
in this case, appellant can no longer be held liable for illegal
possession of firearms. (Celino, Sr. vs. Court of Appeals, 526 SCRA
130If
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. (Sison vs. People, 666 SCRA 645, G.R. No.
187229 February 22, 2012)
“x x x A simple reading [of RA 8294] shows that 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
131
195, G.R. No. 170562 June 29, 2007)
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Chapter Two
But PD 1866 as amended by RA 8294, was further
amended by RA 10591, which was approved last year,
May 29, 2013.
CRIMES AGAINST POPULAR REPRESENTATION
Section One.
Crimes against legislative bodies and similar bodies
Under these new laws, RA 10591 Sec 29 (2) if the use of
a loose firearm is in furtherance of, incident to, or in
connection with the crime of rebellion or insurrection or
attempted coup d’ etat, such use of loose firearm shall
be absorbed in the crime of rebellion, insurrection or
attempted coup d’ etat. Note that the crime of sedition
had been deleted.
ART. 143. Act tending to prevent the meeting of the
Assembly and similar bodies132. - The penalty of prision
correccional or a fine ranging from 200 to 2,000 pesos,
or both, shall be imposed upon
1. any person who,
1.1. by force or fraud,
1.2. prevents the meeting
1.2.1. of the National Assembly (Congress
of the Philippines) or
1.2.2. of any of its committees or
subcommittees,
1.2.3. constitutional
commissions
or
committees or divisions thereof, or
1.2.4. of any provincial board or city or
municipal council or board.
Therefore, it is only the commission of the crimes of
rebellion, insurrection or attempted coup d’ etat that the
use of a loose firearm shall be considered as an element
of the crime.
If the offender committed the crime of sedition, and he
was found in possession of a loose firearm, then this use
of loose firearm shall be considered as an aggravating
circumstance. The reason is that under Sec 29 (1) it is
provided that when the use of a loose firearm is inherent
in the commission of the crime, whether it is a crime
punishable under the RPC or crime punishable by SPL,
it shall be considered as an aggravating circumstance.
In case of acts tending to prevent the meeting of
Congress, it is committed when there is a projected
meeting of the Congress, or any of its committees,
constitutional commissions or divisions thereof or any
of the provincial board or city or municipal council or
board and the offender who may be any person prevents
such meetings either by force or by fraud.
But if the crime was committed without the using the
loose firearm, the loose firearm shall constitute a
separate and distinct charge.
ELEMENTS
So again note, based on RA 10591, amending PD 1866
as amended by RA 8294, in fact under the repealing
clause of RA 10591, Section 1 of PD 1866 as amended by
RA 8294 had been totally repealed. Under this new law,
it is only when the loose firearm is in furtherance of,
incident to, or in connection with the crime of rebellion,
insurrection, or attempted coup d’ etat, that shall be
considered as absorbed in the said crimes. Sedition is no
longer included.
1. That there be a projected or actual meeting of the
Congress of the Philippines or any of its committees
or subcommittees, constitutional commissions or
divisions thereof, or any of the provincial board or
city or municipal council or board.
2. Offender who may be any person prevents such
meeting by force or fraud.
Who is the offender?
The offender is any person. The offender may be a public
officer or employee or even a private person as long as
he prevents the meeting by force or fraud he becomes
liable under Article 143.
So if the offender who is a participant in the crime of
sedition was found in possession of a loose firearm, if
the loose firearm was inherent in the commission of the
crime, it shall constitute as a special aggravating
circumstance. But if the said loose firearm has nothing
to do with the commission of the crime, it will constitute
a separate and distinct charge.
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Reinstated by E.O. No. 187, June 5, 1987
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ART. 144. Disturbance of proceedings133. - The penalty
of arresto mayor or a fine from 200 to 1,000 pesos shall
be imposed upon
1. any person who disturbs the meetings of
1.1. the National Assembly (Congress of the
Philippines) or
1.2. of any of its committees or subcommittees,
1.3. constitutional commissions or committees
or divisions thereof, or
1.4. of any provincial board or city or municipal
council or board, or
2. in the presence of any such bodies should
behave in such manner as
2.1. to interrupt its proceedings or
2.2. to impair the respect due it.
farmers and they arrested them. Aside from being cited
in contempt of court, are they criminally liable?
They are liable under Art 144. There is a meeting, a
session of Congress ongoing and the offenders behaved
in such a manner as to interrupt the proceedings or
impair the respect due to the said Congressmen. The
farmers are liable under Art 144.
Section Two.
Violation of parliamentary immunity
ART. 145. Violation of parliamentary immunity134. The penalty of prision mayor shall be imposed upon
1. any person who shall use
1.1. force,
1.2. intimidation,
1.3. threats, or
1.4. fraud
2. to prevent any member of the National
Assembly (Congress of the Philippines)
2.1. from attending the meetings of
2.1.1. the Assembly (Congress) or
2.1.2. of any of its committees or
subcommittees,
2.1.3. constitutional
commissions
or
committees or divisions thereof,
2.2. from expressing his opinions or casting his
vote; and
3. the penalty of prision correccional shall be
imposed upon
3.1. any public officer or employee who shall,
3.2. while the Assembly (Congress) is in regular
or special session,
3.3. arrest or search any member thereof,
3.4. except in case such member has committed
a crime punishable under this Code by a
penalty higher than prision mayor.
ELEMENTS
1. There is a meeting of Congress or any of its
committees, constitutional commissions or divisions
thereof or any of the provincial board or city or
municipal council or board
2. The offender commits any of the following acts:
a. Disturbs any of such meetings.
b. Behaves while in the presence of any such
bodies in such a manner so as to interrupt its
proceedings or to impair the respect due it.
What if there is a senate committee hearing about the
illegal use of the pork barrel some Senators and
Congressman. So resource persons were invited, there
were also audience who are listening. While Senator A
was asking the resource person suddenly five women
from the gallery stood up and held up a banner saying
“NO TO PDAF” they shouted no to PDAF several times,
the security forces of the senate arrested them. Aside
from being cited in contempt these five women persons
has been prosecuted for violation of Article 144
Disturbance of Proceedings. They can be held liable for
disturbance of proceedings because they behave in such
a manner as to incur the respect due the said senate
committee hearing and also disturbed the said
proceeding.
There was this session ongoing in the House of
Representatives, a bill has to be passed saying there
will be an extension of the Comprehensive Agrarian
Reform Program. And there was this votation ongoing
as to whether it will be extended or not. Suddenly, a
group of farmers who served as audience in the gallery
stood up, they raised a placard and they shouted at the
same time “no to the extension of the CARP law!” They
shouted the same several times. The Sergeant at Arms
of the House of Representatives went to the group of
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There are two kinds of violation of parliamentary
immunity. There are two acts punish under Article 145.
One is punish by prision mayor then the other one is
punish by prision coreccional.
The first act punish of prision mayor is (1) when the said
offender who can be any person prevents any member
of Congress from attending its meeting, expressing his
opinion or casting his vote. The offender can be any
person, the moment he prevents a member of Congress
from expressing his opinion, casting his vote or from
attending his meeting he becomes liable for violation of
parliamentary immunity.
Reinstated by E.O. No. 187, June 5, 1987
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penalty higher than prision mayor. The penalty for
murder is reclusion perpetua to death therefore, since
the crime he has committed carries a penalty higher
than prision mayor, then the said Congressman may be
arrested anytime even if Congress is in its regular or
special session.
In so far as the second act is concern, the offender can
only be a public officer or employee. The (2) second act
of violation of parliamentary immunity is committed by
any public officer or employee. Who shall arrest, or
search any member of congress while Congress is in
session or special session. When the crime committed by
the said member of Congress is penalized by a penalty
not higher than prision mayor.
Congressman A was charged with attempted homicide.
The judge found probable cause and a warrant of arrest
was issued against Congressman A. The police officers
looked for Congressman A but they could not locate him
so they decided to serve the warrant of arrest inside his
house on Christmas day. So they went on December 25
on the house of Congressman A and they arrested
Congressman A. Are the police officers liable under Art
145, violation of parliamentary immunity?
The police officers are liable under Art 145 for violation
of parliamentary immunity. Congress was in its regular
session even if they were on Christmas break. Congress
was in its regular session despite the break because
these breaks constituted only recess of Congress but
they’re still on the regular session. Second, the crime
committed is attempted homicide, the penalty for
attempted homicide is only prision correccional which is
not beyond prision mayor. Therefore, the police officers
in arresting Congressman A, would be liable for
violation of parliamentary immunity.
Who is the offender?
The offender is only a public officer or employee and he
either arrest or makes a search of a member of Congress
REQUISITES OF THE SECOND OF VIOLATION OF
PARLIAMENTARY IMMUNITY
1. It is necessary that the crime of the said arrest or at
the time of the said search , that member of
Congress has committed a crime which is
punishable by a penalty not higher than prision
mayor
2. Congress is on its special or regular session.
Senator A was charged with the crime of libel. So a
private individual, a businessman against Senator A.
The fiscal found probable cause and filed a case before
the RTC. The RTC judge found probable cause and so, a
warrant of arrest was issued against Senator A. The
police officers, armed with the said warrant of arrest
went to the halls of Congress and they went to the
session hall of the senate and while attending the
session, the police officers went to Senator A and they
served the said warrant of arrest. They arrested
Senator A. Are the said police officers liable for violation
of parliamentary immunity under Art 145?
They are liable for violation of parliamentary immunity
under Art 145. Congress was in its regular session and
the crime of libel is punished by prision correccional in
its minimum and medium period. It is not beyond
prision mayor therefore, the public officers’ arrest of
Senator A constituted violation of parliamentary
immunity under Art 145.
Chapter Three
ILLEGAL ASSEMBLIES AND ASSOCIATIONS
ART. 146. Illegal assemblies. - The penalty of prision
correccional in its maximum period to prision mayor in
its medium period shall be imposed upon the organizers
or leaders
1. of any meeting
1.1. attended by armed persons
1.2. for the purpose of committing any of the
crimes punishable under this Code, or
2. of any meeting in which the audience is incited
to the commission of the crime of
2.1. treason,
2.2. rebellion or
2.3. insurrection,
2.4. sedition or
2.5. assault upon a person in authority or his
agents.
Congressman A was charged with the crime of double
murder. And so the RTC found probable cause on this
crime of double murder filed against Congressman A.
The court issued a warrant of arrest. The police officers
upon the receipt of the warrant of arrest went to the
session hall of congress and there they arrested
Congressman A. Are the police officers liable for
violation of parliamentary immunity under Art 145?
They are not liable for violation of parliamentary
immunity under Art 145 because although the arrest
was done while Congress is in its regular session, the
crime committed by the said Congressman A carries a
Persons merely present at such meeting shall suffer the
penalty of arresto mayor,
1. unless they are armed,
2. in which case the penalty shall be prision
correccional.
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If any person present at the meeting carries an
unlicensed firearm,
1. it shall be presumed that the purpose of said
meeting,
2. insofar as he is concerned,
3. is to commit acts punishable under this Code,
and
4. he shall be considered a leader or organizer of
the meeting within the purview of the preceding
paragraph.
A MEETING IN WHICH THE AUDIENCE,
WHETHER ARMED OR NOT, IS INCITED TO THE
COMMISSION OF THE CRIME OF TREASON,
REBELLION OR INSURRECTION, SEDITION OR
ASSAULT TO PERSONS IN AUTHORITY.
ELEMENTS
1. There is a meeting, gathering or group of persons,
whether in a fixed placed or moving.
2. The audience, whether armed or not, is incited to
the commission of the crime of treason, rebellion or
insurrection, sedition or direct assault.
As used in this article, the word "meeting" shall be
understood to include a gathering or group, whether in
a fixed place or moving.
A MEETING ATTENDED BY ARMED PERSONS FOR
COMMITTING ANY OF THE CRIME PUNISHABLE
UNDER THE RPC.
In either kind of illegal assembly the offenders can be
both the leaders, and the organizers of the said
assembly as well as persons merely present at the said
meeting.
ELEMENTS
A, B and C all armed gathered 20 people in order to
propose to them the commission of simultaneous bank
robberies around Metro manila. So A, B and C met these
people in a secluded place, they propose this idea to
these 20 people. And they all agreed to commit
simultaneous bank robberies on a particular day and
time. After their agreement here comes the police, the
police arrived because they got a tip that there is that
agreement on-going. The police officers arrested A,B,C
and the 20 persons. Are they liable of illegal assembly?
Yes they are liable for illegal assembly there is this
meeting and the said meeting was attended by armed
persons A,B,C and the purpose is to commit robbery. It
is a crime a felony punishable under the RPC. All the
elements are present therefore; they are liable for illegal
assembly.
1. There is a meeting, a gathering, or group of persons,
whether in a fixed placed or moving.
2. The meeting is attended by armed persons.
3. The purpose of the meeting is to commit any of the
crimes punishable under the Code.
So the first element requires that there be a meeting,
gathering of a group of persons whether in a fixed place
or moving and it is necessary that it be attended by
armed persons. What do you mean by armed persons?
Armed persons mean that the said meeting must be
attended by any person who are in possession of arms.
When you say arms, it does not only mean firearms or
pistols. It could be knives, lead pipes, or even stones.
Anything which can be used to cause injury or violence
on another that is considered as arms.
I said in the problem that only A, B and C are armed
the 20 men are not armed. Are these 20 men also liable?
Yes, because if you will look into Article 146 the law
says that persons who are merely present shall suffer
the penalty of arresto mayor unless they are armed the
penalty will be prision correccional. So if they are not
armed the penalty is lower only arresto mayor, but if
they are armed the penalty is higher that is prision
correccional.
What would bring about the crime is when the audience
is incited. Take note “is incited” to commit the crime of
treason, rebellion or insurrection, sedition or direct
assault.
What if in the same problem. The problem did not state
that A, B and C are armed they gathered 20 persons for
purpose of committing robbery and there was an
agreement, the police arrived. Can they be held liable
for any crime?
This time no because what they have is conspiracy to
commit robbery and there is no such crime as conspiracy
to commit robbery. Here as you have studied in book I,
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conspiracy is only a mode of committing a crime and it
is not punishable, there is no such crime as conspiracy
to commit robbery. In the first problem it only becomes
illegal assembly because it was attended by armed
persons.
Under the first kind of illegal association, note that the
intention in forming the said association is to commit a
crime punishable under the RPC.
In the second kind of illegal association the purpose is
for committing any of the crimes which is in violation of
public morals. Therefore even if the purpose intended
by the association is to commit a crime that is fined or
punished by a special penal law there is still illegal
association if the said special penal law involves
violation of public morals.
A, B and C gathered 500 men and women in Quezon
City and the purpose of A, B and C is to incite this
people to rebel against the government because of the
anomalies of the government. And so this 500 men
arrived they seated and upon sitting, here comes
Colonel X, Colonel X went to the platform and took the
microphone and started inciting the people to uprise, go
out of the streets, overthrow the government and
because of his speech, his proclamation, the audience
were indeed incited to commit rebellion. The police
arrived they were all arrested. What is/are the criminal
liability of A.B and C Colonel X as well as the 500
people?
A, B, C and Colonel X as well as the 500 people are all
liable for illegal assembly under Article 146, under the
second act because the audience were incited to commit
rebellion even if none of them is armed. Being armed is
immaterial in the second act of illegal assembly. What
matters is the audience is incited to commit rebellion or
sedition.
The jueteng lords of Southern Tagalog region. These
jueteng lords met in a certain hotel and their purpose is
to form an association and their objective is to
propagate and to spread jueteng to the provinces
despite the campaign of the government against
jueteng. Their idea is to use minors as kubradors so that
they could not be arrested or if arrested would soon be
released and then in the said meeting they elected their
officers, and so an association was formed. What crime
is committed?
Violation of Article 147 illegal associations the second
form of illegal association because jueteng is an illegal
gambling and jueteng is considered as against public
morals. In case of illegal associations not only members
are liable but also the founders, the president and
organizers.
How about Colonel X?
Colonel X uses speech proclamation to incite the people
to rebel, he is not a party to rebellion therefore the crime
committed by Colonel X is inciting to rebellion. So those
were the crimes committed.
Chapter Four
ASSAULT UPON, AND RESISTANCE AND
DISOBEDIENCE TO, PERSONS IN AUTHORITY
AND THEIR AGENTS
ART. 147. Illegal associations. - The penalty of prision
correccional in its minimum and medium periods and a
fine not exceeding 1,000 pesos shall be imposed upon
the founders, directors, and presidents
1. of associations totally or partially organized for
the purpose of committing any of the crimes
punishable under this Code or
2. for some purpose contrary to public morals.
Mere members of said associations shall suffer the
penalty of arresto mayor.
ART. 148. Direct assaults. - Any person or persons who,
1. without a public uprising
1.1. shall employ force or intimidation
1.2. for the attainment of any of the purpose
enumerated in defining the crimes of
rebellion and sedition, or
2. shall
2.1. attack,
2.2. employ force, or
2.3. seriously intimidate or resist
2.3.1. any person in authority or
2.3.2. any of his agents,
2.4. while
2.4.1. engaged in the performance of
official duties, or
2.4.2. on occasion of such performance,
shall suffer the penalty of prision correccional in its
medium and maximum periods and a fine not exceeding
P1,000 pesos,
1. when the assault is committed with a weapon or
Under Article 147 we have illegal association, just like
in illegal assembly there are,
TWO KINDS OF ILLEGAL ASSOCIATION
1. Association totally or partially organized for the
purpose of committing any of the crimes punishable
under the Code.
2. Associations totally or partially organized for some
purpose contrary to public morals.
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If you will notice whatever kind of direct assault there
is no public uprising, because whenever there is
rebellion, whenever there is sedition wherein a
principal element is that there be a public uprising
direct assault cannot be committed. An element which
is inconsistent with each other. So in times of rebellion,
in times of sedition, direct assault cannot be committed
because rebellion and sedition requires public uprising
whereas, direct assault does not require public uprising.
2. when the offender is a public officer or
employee, or
3. when the offender lays hands upon a person in
authority.
If none of these circumstances be present , the penalty
of prision correccional in its minimum period and a fine
not exceeding P500 pesos shall be imposed.
ART. 149. Indirect assaults. - The penalty of prision
correccional in its minimum and medium periods and a
fine not exceeding P500 pesos shall be imposed upon
1. any person who shall make use of
1.1. force or
1.2. intimidation
2. upon
2.1. any person coming to the aid of the
authorities or
2.2. their agents
3. on occasion of the commission of any of the
crimes defined in the next preceding article.
The first element of the second form of direct assault:
offender (a) makes an attack, (b) employs force, (c)
makes a serious intimidation, or (d) makes a serious
resistance.
If the person attacked is a person in authority it is not
necessary that the attacked or force employed is serious,
because if you were to look Article 148 the mere laying
of hands to a person in authority already qualifies direct
assault, hence the mere act of pushing a person in
authority is already a direct assault because a hand has
been laid to a person in authority.
TWO WAYS OF COMMITTING DIRECT ASSAULT
1. Without public uprising, by employing force or
intimidation for the attainment of any of the
purpose enumerated in defining the crimes of
rebellion and sedition.
2. Without public uprising , by attacking, by
employing force or by seriously intimidating or by
seriously resisting any person in authority or any of
his agents, while engaged in the performance of
official duties, or on the occasion of such
performance.
But if the subject of the assault is only an agent of
person in authority the attacked or the force employed
must be serious in nature so as to show defiance of
authority. In case of intimidation, in case of resistance
both must be serious to amount to direct assault.
The second element provides that: person assaulted is a
person in authority or an agent of persons in authority.
So who are the persons in authority for purposes of
Article 148 or 149? The answer is under Article 152.
Under Article 152 the following persons are deemed to
be persons in authority.
The more popular form of direct assault is the second
form.
First, any person directly vested with jurisdiction
whether as an individual or as a member of some court
or government corporation board or commission.
ELEMENTS OF THE SECOND FORM OF DIRECT
ASSAULT
1. Offender (a) makes an attack, (b) employs force, (c)
makes a serious intimidation, or (d) makes a serious
resistance.
2. Person assaulted is a person in authority or an
agent of persons in authority.
3. That at the time of the assault the person in
authority or his agent was (a) engaged in the
performance of official duties or that the assault is
done on (b) occasion of such performance of his
official duty.
4. The offender knows that the one he is assaulting
is a person in authority or his agent in the
exercise of his duties.
5. There is no public uprising.
Second, a barangay chairman or a barangay captain is
deemed to be a person in authority.
Under the third paragraph Article 152 teachers,
professors, persons in charge with the maintenance of
public and duly recognized private schools, colleges and
universities and lawyers in the actual performance of
their professional duties or on occasion of the
performance of their professional duties are deemed to
be persons in authority. So these are the persons who
are deemed to be persons in authority.
Now, you include under Article 3 Section 388 of the
Local Government Code for purposes of article 148 and
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of that person in authority pass performance of his
official duty, direct assault is committed.
But if at the time of the said assault the person in
authority was not engaged in the performance of his
official duty and the reason behind the assault was of
personal motive a personal vendetta it is plain murder,
plain homicide, plain serious physical injuries, and
plain less serious physical injuries but not direct
assault.
149 not only is a barangay captain or chairman but also
the members of the Sangguniang Barangay and the
members of the Lupong Tagapamayapa are considered
as persons in authority within their jurisdiction.
A barangay captain is always a person in authority in
whatever jurisdiction but, a member of Sangguniang
Barangay or a member of the Lupong Tagapamayapa is
a person in authority within his jurisdiction. Pag
lumabas na siya sakanyang jurisdiction, hindi na siya
person in authority that is in case of Sangguniang
Barangay and Lupong Tagapamayapa.
So when you say on occasion of such performance of
official duty it means the assault was by reason of,
because of the past performance of his official duty. It
will only apply when the person in authority was
assaulted while he is not in the performance of his
official duty.
How about agents of person in authority? Who are
agents of person in authority?
The answer is also under Article 152, under Article 152
second paragraph any person who by direct provision of
the law by election or by appointment by competent
authority is charge with the maintenance of public
order and the protection of life and property such a
councilman, a police officer or a person who comes to the
aid of a person in authority are deemed to be agents of
person in authority.
The fourth element requires that: the offender knows
that the one he is assaulting is a person in authority or
his agent in the exercise of his duties.
The third element provides that: at the time of the
assault the person in authority or his agent was (a)
engaged in the performance of official duties or that the
assault is done (b) on occasion of such performance of
his official duty.
Knowledge is important on the part of the offender
because the essence of direct assault is defiance of
authority. How can you say attacking another is defying
authority when in the first place he did not know that
the person he assaulted is a person in authority. Does
that mean one has to memorize Article 152 to know who
are persons in authority or agents of persons in
authority? No. It suffices that at the time of the assault,
that person, the victim was in the performance of his
official duty.
So there are TWO SITUATIONS under the third
element.
The fifth element requires that: there is no public
uprising.
Under the (1) first situation the person in authority or
his agent was engaged in the performance of official
duties. If at the time of the assault the persons in
authority or his agent is in the performance of his
official duties, it is always and always direct assault
therefore, regardless of the motive behind the said act
because the person in authority is engaged in the actual
performance of his official duties.
Whenever direct assault is committed and there is a
resulting felony you always complex. Direct assault
with the resulting felony.
So these are said to be agents of person in authority.
Direct assault is the reason behind the resulting felony
If the victim died direct assault with murder or direct
assault with homicide. You always complex it because
the direct assault is the reason behind the resulting
felony, hence they must be always complex except when
the resulting felony is only a light felony like slight
physical injuries.
The (2) second situation is the assault is done on
occasion of performance of official duty. When you say
“is done on occasion of performance of official duty” it
means that the attack was by reason of, because of the
pass performance of his official duty.
You cannot complex slight physical injuries with direct
assault. First because under Article 48 you cannot
complex a light felony right? You cannot complex a light
felony under Article 48 and second, in case of direct
assault slight physical injury is already absorbed. When
you assaulted a person somehow definitely that person
So if the person in authority or his agent at the time of
the assault was not engaged in the performance of his
official duty determine the motive behind the assault. If
the offender assaulted the person in authority because
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will be injured no matter how slight. Slight physical
injury is absorbed in direct assault.
What if in the same problem, X is a person who tried to
obtain a loan from the mayor a day prior to the killing
but the mayor denied his loan, therefore the reason of X
for killing the mayor was of personal reason. He killed
the mayor out of personal motive, out of personal
vendetta. What is the crime committed?
The crime committed is still qualified direct assault
with murder. Note that the mayor was at that time
engaged in the performance of his official duties,
therefore regardless of the motive behind the assault it
is always and always direct assault.
What are the circumstances which would qualify direct
assault?
1. Assault is committed with a weapon
2. The offender is a public officer or employee
3. Offender lays hands upon a person in authority
The first qualifying circumstance refers to the use of
weapon. Weapon refers to anything that can cause
injury or harm; it does not only mean firearms. Knifes
bolos lead pipes and anything which can cause injury.
You do not consider the motive behind the assault the
moment the person in authority or agents of persons in
authority is engaged in the actual performance of his
official duties. So same crime committed qualified direct
assault with murder.
A public officer attacking another public officer that will
qualify direct assault. The first two qualifying
circumstance would apply even if the person assaulted
is either a person in authority or agent of persons in
authority, but the third qualifying circumstance
specifically states whenever the offender lays hand
upon a person in authority.
What if the mayor just heard the mass together with his
family. The mayor was about to board the vehicle, here
comes X on board of a motorcycle. X shot the mayor, the
mayor died. X was a former employee of the mayor at
the city hall who was dismissed due to anomalous
transaction. What is the crime committed by X?
In the problem the mayor was not engaged in the
performance of his official duties. Since the mayor is not
in the performance of his official duty you have to know
the motive behind the assault. What is the motive
behind the assault? The mayor’s past performance of his
duty therefore the crime committed is direct assault. It
is direct assault because the attack was done on
occasion of the performance of official duty. The mayor
died so it is direct assault with murder obviously there
was treachery. The offender used a weapon, qualified
direct assault with murder.
So, laying of hands as a qualifying circumstance will
only apply if the victim is a person in authority. If the
victim is a mere agent of person in authority laying of
hands will not qualify direct assault.
The mayor is in his actual performance of his duty. The
mayor was delivering a speech after the flag ceremony
explaining something to his constituents. Here comes X,
X was able to get near the mayor and then he fired shots
at the head of the mayor. The mayor died, what is the
crime committed?
The mayor is in the actual performance of his duty he is
a person in authority. Therefore, the crime committed
is direct assault, the mayor died. Obviously in
committing the crime, there is treachery; hence there is
another crime of murder. So you complex direct assault
with murder. Now in killing the said mayor, in
assaulting the mayor, the offender makes use of a
weapon, he used a firearm.
What if in the same problem, this time, the reason of X
for shooting the mayor after coming out of the church
was that X was a former gardener of the mayor. In
gardening he cut a forbidden rose, so he was discharged
from the household chores. So the reason for the assault
was a personal vendetta, in the assault he killed the
mayor. What crime is committed by X?
The mayor is not engage in the performance of his
official duty. Know the motive, what is the motive?
Personal vendetta. Therefore the crime committed is
not direct assault but plain murder because obviously
there was treachery. So if the person in authority or the
agent is not in the performance of his official duty know
the motive. If the person in authority or the agent is in
the performance of his official duties always direct
assault regardless of the motive.
The judge has just rendered judgment convicting the
accused in the case. So after the hearing the judge
locked his chamber, the accused was brought out of the
So what is the crime committed?
Qualified direct assault with murder.
So in the exam, what is the crime committed?
Qualified direct assault with murder, second paragraph
it is direct assault because, third paragraph, it is
complex with murder because…Last paragraph; it is
qualified because the offender used a weapon. So that is
how you get perfect points.
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chamber. Then the judge went out of the office, the
accused saw the judge still filled with anger because of
his conviction. The accused although was in handcuff
went to the judge and box the face of the judge several
times until the judge fell on the ground. Y saw the
situation and so he came to the aid of the said judge. As
a result the accused also got mad of Y and so the accused
also box Y until the security guard arrived and the
accused was arrested. What crime or crimes is/are
committed by the accused against the judge and against
Y the person who came to the aid of the said judge?
As against the judge, the judge is a person in authority
based on Article 52 3rd paragraph, so the judge is a
person in authority. At the time of the assault he was
not in the actual performance of his official duty, so
know the motive. Obviously the motive of the said
accused was because of the judge conviction against
him, because of the judge performance of his official
duty. Therefore the crime committed is direct assault.
The judge suffered serious physical injuries, so you
complex it with serious physical injuries because the
direct assault was the reason behind serious physical
injuries. So there is direct assault with serious physical
injuries. Now, the said accused box the judge, therefore
he laid hands upon a person in authority. Therefore the
crime committed is qualified direct assault with serious
physical injury.
The police officer is manning traffic. Despite his
presence, traffic was heavy, cars were not moving and
so X one of the driver of a car caught in the traffic was
so mad. He alighted from his vehicle and went directly
to the police officer and boxed the police officer several
times. The police officer fell on the ground. A pedestrian
crossing the street saw the situation, so the pedestrian
immediately went to help the said policeman. And so
this angered X, so X thereafter, box the pedestrian. The
police officer suffered less physical injuries while the
pedestrian suffered slight physical injuries. What crime
or crimes are committed by X?
The police officer who was box was an agent of persons
in authority who at the time of the assault was engage
in the performance of his official duty, therefore the
crime is direct assault. He suffered less serious physical
injuries so you complex it so therefore Direct Assault
with Less Serious Physical Injuries. Even if X laid
hands upon him since he is a mere agent of persons in
authority it will not qualify direct assault. So as against
the police the crime committed is direct assault with
less serious physical injuries.
What about as against Y, the person who come to the
aid of the judge?
Who is the victim of direct assault? It is the judge a
person in authority. When Y came to the aid of this
person in authority who is the victim of direct assault.
Under Article 152 he becomes an agent of persons in
authority.
What about the pedestrian? Who was the subject of the
assault?
The subject was an agent of persons in authority. A
pedestrian came to his aid. When the pedestrian came
to his aid he did not become an agent of person in
authority, he remains to be a private individual, hence
when he too was assaulted the crime committed as
against him is indirect assault under Article 149 of the
RPC. The said pedestrian suffered slight physical
injuries again you cannot complex it because it is a light
felony and it is considered as absorbed. Therefore as
against the pedestrian it is indirect assault.
So Y, when he came to the aid of the judge becomes an
agent of persons in authority. When the accused attacks
Y he attacks an agent of person in authority. Under
Article 148 when you assault an agent of persons in
authority the crime committed is direct assault. So the
crime committed as against Y who came to the aid of the
judge who is a person in authority is direct assault
under article 148. Now, Y suffered only slight physical
injury, it is absorbed in the crime of direct assault.
So you now ask, how come under Article 149 INDIRECT
ASSAULT the ELEMENTS are:
1. A person in authority or his agent is the victim of
any of the forms of direct assault.
2. A person comes to the aid of such authority or his
agent.
3. That the offender makes use of force or intimidation
upon such person coming to the aid of the authority
or his agent.
So only one crime that is direct assault. But isn’t it that
the accused laid hands upon Y?
Yes but the said laying of hands will not qualify direct
assault because Y is only an agent of persons in
authority.
How come in the problem in so far as the judge is
concern the person who comes to his aid the crime
committed as I said is direct assault not indirect
assault. The reason is because Article 152 was amended
by Congress without amending Article 149.
So what are the crimes committed as against the judge?
Qualified direct assault with serious physical injuries.
As against Y, the crime committed is direct assault.
Congress amended Article 152 by saying that one who
came to the aid of the person in authority becomes an
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agent of person in authority without correspondingly
amending Article 149.
What about the crime committed by the driver with
respect to the pedestrian who came to the aid of the
MMDA officer?
When the MMDA officer was being mauled by the
driver, a pedestrian came to his aid. When the
pedestrian came to the aid of the MMDA officer who is
an agent of a person in authority, a victim of Direct
Assault, he remains to be a private individual. When he
too was assaulted by the driver, the crime committed by
the said driver is Indirect Assault. The pedestrian
suffered only Slight Physical Injuries therefore you
cannot complex it. It being a light felony. It is absorbed
in the crime of Indirect Assault. In so far as the
pedestrian is concerned, the crime committed by the
driver is Indirect Assault.
So, if there is inconsistency what should you do
according to the rules on statutory construction? You
reconcile the two, in reconciling Article 149 and Article
152, indirect assault will only apply if the victim of
direct assault is a mere agent of person in authority and
someone came to his aid and that someone was also
assaulted. The crime committed against that someone
is only indirect assault.
The MMDA officer stopped the driver of the car who
beat the red light. The vehicle stopped the MMDA
officer went to him. The MMDA officer will be issuing a
ticket to him so he asked for his license so that he can
get his name but the driver instead of giving his license
alighted from the car and without warning boxed the
MMDA officer several times until the MMDA officer
was already lying on the ground. A pedestrian passing
saw the incident, the public officer being attacked, and
so this pedestrian came to the aid of the MMDA officer.
He tried to stop the drive from pursuing his attacks on
the MMDA officer. So the driver got mad at the
pedestrian, he kicked the pedestrian thereafter he
boarded the vehicle and left. The MMDA officer suffered
Serious Physical Injuries while the pedestrian who was
kicked suffered Slight Physical Injuries. What crime or
crimes were committed by the said driver?
The MMDA officer is an agent of person in authority.
He is deemed an agent of person in authority because
he is charged by provision of the law or by appointment
of a competent authority to maintain order and the
protection of life and security. So he is deemed an agent
of a person in authority.
So again under Article 149, Indirect Assault would only
result if the victim of the direct assault is an agent of a
person in authority, and someone came to his aid and
that someone was also subjected with force and
intimidation by the offender. The crime committed is
indirect Assault.
If the victim of Direct Assault is a person in authority
and someone came to his aid that someone is deemed an
agent of a person in authority. So when that someone is
also assaulted, he being deemed an agent of a person in
authority, Article 149 do not apply instead it is Article
148 because an assault upon an agent of a person in
authority is Direct Assault under Article 148.
Miss Reyes, a lady professor, caught Mariano, one of her
students, cheating during an examination. Aside from
calling Mariano's attention, she confiscated his
examination booklet and sent him out of the room,
causing Mariano extreme embarrassment. In class the
following day, Mariano approached MissbReyes and
without any warning, slapped her on the face. Mariano
would have inflicted grave injuries on Miss Reyes had
not Dencio, another student, intervened. Mariano then
turned his ire on Dencio and punched him repeatedly,
causing him injuries. What crime or crimes, if any, did
Mariano commit? (BAR 2013)
Mariano is liable for two counts of direct assault135.
He was attacked by the driver in the performance of his
official function. Therefore the crime committed against
the MMDA officer is Direct Assault. The MMDA officer
suffered Serious Physical Injuries by reason of the said
assault therefore you have to complex it so the crime
committed is Direct Assault with Serious Physical
Injuries.
Even if the offender laid hands on him, it will not qualify
Direct Assault because he is a mere agent of Person in
Authority. Laying of hands qualify Direct Assault only
if the victim is a person in authority. So in so far as the
MMDA officer is concerned the crime committed is
Direct Assault with Serous Physical Injuries.
135
First, when he slapped Miss Reyes, who is a person in
authority expressly mentioned in Art. 152 of the RPC,
who was in the performance of her duties on the day of
the commission of the assault. Second, when he
repeatedly punched Dencio, who became an agent of the
person in authority when he came to the aid of a person
in authority, Miss Reyes.
Celig v. People, G.R. No. 173150, July 28, 2010.
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Explained further
crime committed by Mario in so far as Pedro is
concerned is also Direct Assault.
In so far as Ms. Reyes is concerned, Ms. Reyes was a
teacher in the performance of her official function.
Therefore under Article 152, third paragraph, Ms.
Reyes is considered as a person in authority. At the time
of the assault she was engaged in the performance of his
official function. Therefore, the crime committed by
Mario was Direct Assault.
Article 149 Indirect Assault only applies if the victim of
Direct Assault is a mere agent of Person in Authority
and someone came to his aid, and that someone was
subjected to force employed by force and intimidation by
the offender. If the victim of Direct Assault is a person
in authority, Article 149 will not apply because that
someone who came to the aid of the person in authority
who is the victim of Direct Assault under Article 152 is
deemed to be an agent of a Person in Authority.
Mario slapped the teacher and the teacher suffered Less
Serious Physical Injuries, a less grave Felony; therefore,
he should be charged with Direct Assault with Less
Serious Physical Injuries, Mario when he slapped the
face of the teacher, Mario laid hands upon the said
person in authority; therefore the crime committed is
Qualified Direct Assault with Less Serious Physical
Injuries.
The reason for this conflict is that congress amended
Article 152 without likewise amending Article 149, and
so it is provided in Statutory Construction that when
there are two conflicting provisions what you do is that
you reconcile. Therefore, Article 149 with Article 152, in
order for Direct Assault to arise it is necessary that the
victim of Direct Assault is only an agent of a person in
authority and someone came to his aid. That someone
who came to the aid of an agent of a person in authority
who is the victim of Direct Assault remains to be private
individual, when he too was attacked, when he too was
assaulted, the crime committed is Indirect Assault.
How about the crime committed by Mario in so far as
Pedro is concerned?
When Ms. Reyes was being attacked by Mario, Pedro
came to the aid of Ms. Reyes, the moment Pedro came
to aid of Ms. Reyes, under Article 152 2nd paragraph,
Pedro became an agent of a person in authority. Pedro
is deemed an agent of a person in authority. Pedro being
deemed as an agent of a person in authority, when he
too was being boxed by Mario, Mario committed the
crime of Direct Assault because under Article 148, an
attack on an agent of person in authority is considered
as Direct Assault; hence, Mario also committed Direct
Assault against Pedro who was deemed to be an agent
of a person in authority when he came to the aid of Ms.
Reyes, a person in authority, who was a victim of Direct
Assault.
ART. 150. Disobedience to summons issued by the
National Assembly, its committees or subcommittees,
by the Constitutional Commissions, its committees,
subcommittees or divisions. - The penalty of arresto
mayor or a fine ranging from two hundred to one
thousand pesos, or both such fine and imprisonment
shall be imposed upon
1. any person who, having been duly summoned to
attend as a witness before the
1.1. National Assembly, (Congress),
1.2. its special or standing committees and
subcommittees,
1.3. the Constitutional Commissions and
1.4. its committees,
1.5. subcommittees, or
1.6. divisions, or
1.7. before any commission or committee
chairman or
1.8. member authorized to summon witnesses,
refuses, without legal excuse, to obey such
summons, or
2. being present before any such legislative or
constitutional body or official,
2.1. refuses to be sworn or
2.2. placed under affirmation or
2.3. to answer any legal inquiry or
2.4.
2.4.1. to produce any
2.4.1.1. books,
Pedro suffered Slight Physical injuries, a light felony,
therefore it cannot be complexed with Direct Assault. It
is absorbed by Direct Assault. Mario laid hands upon
Pedro deemed to be an agent of a person in authority.
Such laying of hands will not qualify Direct Assault
because laying of hands will only qualify Direct Assault
if it is made on a Person in Authority. Therefore, in so
far as Pedro is concerned the crime committed by Mario
is Direct Assault.
But why is the crime committed by Mario, in so far as
Pedro is concerned. Why the crime is committed Direct
Assault? Why not Indirect Assault?
The reason is that under Article 152 2nd paragraph, any
person who comes to the aid of a person in authority is
deemed to be an agent of a person in authority and
under Article 148 an attack on an agent of a person in
authority is also Direct Assault. Hence, in that case, the
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2.4.1.2. papers,
2.4.1.3. documents, or
2.4.1.4. records in his possession,
2.4.2. when required by them to do so in
the exercise of their functions.
3. The same penalty shall be imposed upon any
person
3.1. who shall restrain another from attending
as a witness, or
3.2. who shall induce
3.2.1. disobedience to a summon or
3.2.2. refusal to be sworn by any such body
or official.
charged in the hospital, so therefore he has a valid, a
legal excuse for not appearing.
Under the second act the offender receives the summon
and he appeared during the said hearing, however, once
he is asked to raise his hand in order to swear to tell the
truth and nothing but the truth he refuses to be sworn
he also becomes liable under Article 150.
Under the third act punished, he appeared, he allowed
himself to be sworn in, however when the Senate chair
or members began asking questions he began saying
that he does not know or he does not want to answer
any of this questions then he became liable under
Article 150.
A Senate hearing about anomaly in the DENR. And one
of the person who got an invitation, a summon from the
Senate Committee Chair was X. X received the summon
however, upon receipt of the summon he immediately
suffered hypertension and he was brought to St. Lukes
Hospital. So on the day of the said hearing he was not
able to appear. Is he liable under Article 150?
The answer is no because he has a valid excuse he has
a legal excuse for not appearing in the said committee
hearing.
What if he refuses to answer because his answer would
incriminate him into the commission of the crime. What
if he is being asked to produce a book but the producing
of the book will incriminate him for the commission of
the crime, is he liable under Article 150?
The answer is no, because under your constitution bill
of rights “no person can be compelled to be a witness
against himself” therefore if the production of the said
books, if the said answer to the question would
incriminate the said person then he has all the right not
to answer the said questions.
So under Article 150 the following acts are considered
as disobedience to summons issued by Congress.
1. Refusing without legal excuse, to obey summons of
the Congress, its special or attending committees
and
subcommittees,
the
Constitutional
commissions and its committees, sub-committees or
divisions, or by any commission or committee
chairman or member authorized to summon
witnesses.
2. Refusing to be sworn or placed under affirmation
while being before such legislative or constitutional
body or official.
3. Refusing to answer any legal inquiry or to produce
any books, papers, documents, or records in his
possession, when required by them to do so in the
exercise of their functions.
4. Restraining another from attending as a witness in
such legislative or constitutional body.
5. Inducing disobedience to a summons or refusal to be
sworn by any such body or official.
Under the fourth act, the offender restrain another from
attending as a witness, he does not only want not to
appear to the said hearing he also restrains other
persons who are being invited by the said committee
hearing not to appear.
And fifth act he induces disobedience to a summons.
ART. 151. Resistance and disobedience to a person in
authority or the agents of such person. - The penalty of
arresto mayor and a fine not exceeding 500 pesos shall
be imposed upon any person who
1. not being included in the provisions of the
preceding articles
2. shall resist or seriously disobey
2.1. any person in authority, or
2.2. the agents of such person,
3. while engaged in the performance of official
duties.
These acts are punished under disobedience to
summons.
When the disobedience to an agent of a person in
authority is not of a serious nature, the penalty of
arresto menor or a fine ranging from 10 to P100 pesos
shall be imposed upon the offender.
Under the first act for one to be liable under Article 150,
it is necessary that he has no legal excuse for his
disobedience to the said summons. In the problem that
I gave the said person who received the summon was
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There was this fiesta and there was this singing contest.
There were so many audience. While the singing contest
was ongoing. Suddenly here comes Mang Pedro who
went on stage, he was shouting and shouting. He had
taken a bottle of beer and he kept shouting and
shouting, roaming around the stage. Police officer X
who was manning the said event in order to ensure
Peace and Order went to Mang Pedro. He ordered Mang
Pedro to go home. Mang Pedro, instead of obeying police
officer X, Mang Pedro sat on the floor. Mang Pedro just
sat on the stage looking at the audience. Is Mang Pedro
liable of any crime?
Mang Pedro is liable under Article 151 that is simple
disobedience.
Article 151 punishes two acts we have resistance and
serious disobedience. And the other one is simple
disobedience.
In the problem that I gave the person who gave the
order was only an agent of person in authority , the
police officer the offender disobeyed him he just sat on
the near the canal it is not serious disobedience, Hence
crime committed is simple disobedience.
ART. 152. Persons in authority and agents of persons in
authority; Who shall be deemed as such136. - In applying
the provisions of the preceding and other articles of this
Code,
1. any person directly vested with jurisdiction,
whether as an
1.1. individual or
1.2. as a member of
1.2.1. some court or
1.2.2. governmental corporation,
1.2.3. board, or
1.2.4. commission,
shall be deemed a person in authority.
2. A barrio captain and a barangay chairman shall
also be deemed a person in authority.
TWO ACTS PUNISHED
1. Resistance and serious disobedience
2. Simple disobedience.
ELEMENTS OF SERIOUS DISOBEDIENCE
1. A person in authority or his agent is engaged in the
performance of official duty or gives a lawful order
to the offender.
2. The offender resists or seriously disobeys such
person in authority or his agent.
3. That the act of the offender is not included in the
provisions of Arts. 148, 149, and 150.
A
1. person who,
1.1. by direct provision of law or
1.2. by election or
1.3. by appointment by competent authority,
2. is charged with
2.1. the maintenance of public order and
2.2. the protection and security of life and
property,
3. such as a
3.1. barrio councilman,
3.2. barrio policeman and
3.3. barangay leader and
3.4. any person who comes to the aid of persons
in authority,
shall be deemed an agent of a person in authority.
ELEMENTS OF SIMPLE DISOBEDIENCE
1. An agent of person in authority is engaged in the
performance of official duty or gives a lawful order
to the offender.
2. The offender disobeys such agent of person in
authority.
3. Such disobedience is not of a serious nature.
The act of Mang Pedro disobeying an order made by an
agent of a person in authority police officer X cannot be
considered as serious in nature. When ordered to go
home, he just sat on the stage in front of the audience.
Such disobedience is not serious in nature, hence, he is
liable under Article 151 2nd paragraph Simple
Disobedience.
In applying the provisions of articles 148 and 151 of this
Code,
1. teachers,
2. professors and
3. persons charged with the supervision of
3.1. public or duly recognized private schools,
3.2. colleges and
3.3. universities, and
Note that in Article 151, 1st paragraph, in case of
Resistance and Disobedience the order may be given
either by a Person in Authority or an Agent of a Person
in Authority. But in case of Simple Disobedience, the
order is given only by an agent of a person in authority.
As amended by PD No. 299, Sept. 19, 1973 and Batas Pambansa
Blg. 873, June 12, 1985
136
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4. lawyers
4.1. in the actual performance of
professional duties or
4.2. on the occasion of such performance,
shall be deemed persons in authority.
What are the acts punish under tumults and other
disturbance of public orders?
their
ACTS PUNISH UNDER TUMULTS AND
OTHER DISTURBANCE OF PUBLIC ORDERS
1. Causing any serious disturbance in a public place,
office or establishment
2. Interrupting or disturbing public performances,
functions or gatherings or peaceful meetings if the
act is not included Arts. 131 and 132
3. Making any outcry tending to incite rebellion or
sedition in any meeting association or public place
4. Displaying placards or emblems which provoke a
disturbance of public disorder in such place.
5. Burying with pomp the body of a person who has
been legally executed.
Chapter Five
PUBLIC DISORDERS
ART. 153. Tumults and other disturbance of public
orders; Tumultuous disturbance or interruption liable
to cause disturbance. - The penalty of arresto mayor in
its medium period to prision correccional in its
minimum period and a fine not exceeding 1,000 pesos
shall be imposed upon
1. any person who shall cause any serious
disturbance in a
1.1. public place,
1.2. office, or
1.3. establishment, or
2. shall interrupt or disturb
2.1. public
2.1.1. performances,
2.1.2. functions or
2.1.3. gatherings, or
2.2. peaceful meetings,
3. if the act is not included in the provisions of
articles 131 and 132.
So these are the five acts punished as tumults and other
disturbance of public orders.
Under the first act: Causing any serious disturbance in
a public place, office or establishment. The act of
causing such disturbance must be planned, there must
be the deliberate intent to cause disturbance, otherwise,
Article 153 is not committed
Under the second act: Interrupting or disturbing public
performances, functions or gatherings or peaceful
meetings if the act is not included Arts. 131 and 132
The penalty next higher in degree shall be imposed
upon persons causing any disturbance or interruption
of a tumultuous character.
There is a qualification “if the act is not included in
Articles 131 that is Prohibition, Interruption and
Dissolution of Peaceful Meetings and 132 Interruption
of Religious Worship.
The disturbance or interruption shall be deemed to be
tumultuous
1. if caused by more than three persons
2. who are
2.1. armed or
2.2. provided with means of violence.
There was this rally in EDSA, the rally in EDSA was
against the pork barrel and it was attended by private
individuals and public officer and by many people. Then
suddenly X went to the stage and took the microphone
and as the leader, he began attacking the use, the
anomalous use of pork barrel by Congressmen’s, by
Senators. And he also begun attacking the pork barrel
of the President but he went beyond the limit, he also
attacked the president below the belt saying personal
things negative to the president. One of the public
officers in attendance heard this and that is not the
reason why he is there, he is there for purposes of the
pork barrel, he was against the pork barrel but he was
not against the President. And so what he did, he told
person X, to stop. When X did not stop he brought out
his gun and fired shots in the air so the meeting was
dissolved. The meeting was interrupted, the meeting
was disturbed. What crime or crimes are committed by
The penalty of arresto mayor shall be imposed upon
1. any person who in any
1.1. meeting,
1.2. association, or
1.3. public place,
2. shall make any outcry tending to incite
rebellion or sedition or
3. in such place shall display placards or emblems
which provoke a disturbance of the public order.
The penalty of arresto menor and a fine not to exceed
P200 pesos shall be imposed upon these persons who in
violation of the provisions contained in the last clause
of article 85, shall bury with pomp the body of a person
who has been legally executed.
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A person is said to be legally executed when he
committed a heinous crime wherein the penalty
prescribe by law is death, death penalty was imposed on
him because he was convicted and the said death
penalty has to be implemented and so he died by lethal
injection. Now after his death he was being buried as if
he was a hero, with all the extravagance of a hero, then
it is considered as violation of Article 153 because if this
criminal is buried as if he was a hero it will arose public
sympathy against the government as if the government
has committed a grave mistake in killing or legally
executing this person. You cannot bury this person as if
he is a hero with all the extravagance otherwise Article
153 is violated.
the said public officer? Is the public officer liable under
Article 131?
Prohibition, Interruption and Dissolution of Peaceful
Meetings or under Article 153 that is tumults and other
disturbances of public order.
How would you distinguish Article 131 and Article 153?
Articles 131 and 132 can be committed only by public
officers or employees, whereas Article 153 Tumults and
other disturbances of public order can be committed
both by public officers or employees and private
individuals.
So what if the offender is a public officer? How would
you distinguish if the crime committed is Article 131 or
Article 153?
If the offender is a public officer the crime commited is
Article 131 if the said public officer is not a participant
in the said meeting. The public officer must be an
outsider in so far as the said meeting is concern. If the
said public officer is one among those who participated
in the said meeting then the crime committed is
violation of Article 153.
ART. 154. Unlawful use of means of publication and
unlawful utterances. - The penalty of arresto mayor and
a fine ranging from P200 to P1,000 pesos shall be
imposed upon:
1. Any person who by means of (1) printing, (2)
lithography, or any other means of publication
shall publish or cause to be published as news
any false news
1.1. which may endanger the public order, or
1.2. cause damage to the interest or credit of the
State;
2. Any person who by the (1) same means, or by (2)
words, (3) utterances or (4) speeches
2.1. shall encourage disobedience
2.1.1. to the law or
2.1.2. to the constituted authorities or
2.2. praise, justify, or extol any act punished by
law;
3. Any person who shall maliciously publish or
cause to be published any official resolution or
document
3.1. without proper authority, or
3.2. before they have been published officially;
or
4. Any person who shall print, publish, or
distribute or cause to be printed, published, or
distributed (1) books, (2) pamphlets, (3)
periodicals, or (4) leaflets
4.1. which do not bear the real printer's name,
or
4.2. which are classified as anonymous.
Another distinction, in case of Article 131 the intention
of the offender is to prevent a person from freely
exercising his freedom of speech, freedom of expression
whereas, under Article 153 the intention of the offender
is to cause disturbance to public order.
In the example the public officer is a member was a
participant of the said meeting or assembly therefore,
the liability is under Article 153 not Article 131.
The third and the fourth act making any outcry tending
to incite rebellion or sedition in any meeting association
or public place related to the fourth act and that is,
displaying placards or emblems which provoke a
disturbance of public disorder in such place.
Unconscious outburst of emotion
In both acts, it is necessary that the act of making an
outcry the act of displaying placards or emblems must
be some unconscious outburst of emotion not
intentionally calculated to incite the people to rebellion
or sedition because if the act of the offender is
intentionally calculated to incite the people to rebel
against the government then the crime committed is
inciting to rebellion or inciting to sedition and not under
Article 153. So it must be an unconscious outburst of
emotion not intentionally calculated to incite the people
to commit sedition or rebellion.
A newspaper provides or has stated in its headline
tomorrow at exactly 12:00 noon the biggest mall in the
country, Mall of Asia, will be bombed. Because of this
headline, the people believed and the no persons went
to MOA, and so as a result thereof there was decrease
in sales. The economy was affected. No foreigners also
arrived on that day because they believed what was
The last act punish is: Burying with pomp the body of
a person who has been legally executed.
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written as headline in the said newspaper. The
publisher of the newspaper knew that it was false news
but nevertheless they published the said newspaper
because they have already printed it. Is the said
publisher of the leading newspaper liable under Article
154, Unlawful Use of Means of Publication?
The said publisher is liable under Article 154 Unlawful
Use of Means of Publication.
Under the last act punish, it is necessary that whenever
you make printing it must contain the real printers
name and it must not be classified as anonymous. Even
if it is classified as anonymous then Article 154 is
violated. So you will notice during election time there
would be this publication by members of those
candidates there is always at the bottom the name of
the publisher, the name of the printer because
otherwise they can be held liable under Article 154.
ACTS PUNISHED
ART. 155. Alarms and scandals. - The penalty of arresto
menor or a fine not exceeding P200 pesos shall be
imposed upon:
1. By publishing or causing to be published, by means
of printing, lithography or any other means of
publication, as news any false news which may
endanger the public order, or cause damage to the
interest or credit of the State.
2. Encouraging disobedience to the law or to the
constituted authorities or by praising, justifying or
extolling any act punished by law, by the same
means or by words, utterances or speeches.
3. Maliciously publishing or causing to be published
any official resolution or document without proper
authority, or before they have been published
officially.
4. Printing, publishing or distributing books,
pamphlets, periodicals, or leaflets which do not bear
the real printer’s name, or which are classified as
anonymous.
1. Any person who within any town or public
place,
1.1. shall discharge any
1.1.1. firearm,
1.1.2. rocket,
1.1.3. firecracker, or
1.1.4. other explosives
1.2. calculated to cause alarm or danger;
2. Any person who shall instigate or take an active
part in
2.1. any charivari or
2.2. other disorderly meeting
2.2.1. offensive to another or
2.2.2. prejudicial to public tranquility;
3. Any person who,
3.1. while wandering about at night or
3.2. while engaged in any other nocturnal
amusements,
shall disturb the public peace; or
4. Any person who,
4.1. while intoxicated or otherwise,
4.2. shall cause any disturbance or scandal in
public places,
4.3. provided that the circumstances of the case
shall not make the provisions of article 153
applicable.
The problem that I gave falls under this first act. The
publisher of the said newspaper knew that their news
was false news but nevertheless they published the
same causing damage to said interest or damage to the
state. As such, they are liable under Article 154.
Let us say that the RH Law is already been enforced by
the government and there is this group of people giving
leaflets to any person who gets out of the church, and
these leaflets encourages the people, tells the people not
to follow the provisions of the RH bill. Can these people
be held liable under Article 154?
The answer is yes by encouraging disobedience to the
law. The said law has been enacted by Congress it has
to be followed. If you are questioning a law go to the
Supreme Court, but it must be followed because it has
been enacted by Congress and it has been approved by
the President.
PUNISHABLE ACTS
1. Discharging any firearm, rocket, firecracker, or
other explosive within any town or public place
calculated to cause alarm or danger.
2. Instigating or taking an active part in any charivari
or other disorderly meeting offensive to another or
prejudicial to public tranquility.
3. Disturbing public peace while wandering about at
night or while engaged in any other nocturnal
amusements.
4. Causing any disturbance or scandal in public places
while intoxicated or otherwise, provided Article 153
is not applicable. Therefore, provided that it is not
Under the third act punished, in case of official
resolution or document note that for the publication of
this official resolution to be punishable under Article
154 it must be done maliciously. Therefore, if there was
no malice on the part of the offender in publishing the
said official resolution then the crime is not committed.
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serious in nature, because if it is serious in nature
the violation is Article 153 not Article 155. The
intention of the offender is to cause disturbance of
public peace and order.
said bar exams but in real life you should just patiently
ignore the irritating voice.
A person was drunk so from a drinking spree he is now
on his way home. He is not in his own self he is singing
on his own his way home. But what if aside from singing
he took hold a bat and he would bang all the gates of the
house repeatedly, all the gates of the house?
He would pass-by he would bang he becomes liable for
alarms and scandals because he causes disturbance of
public peace and tranquility. Provided that it is not
serious in nature otherwise Article 153 is the one
violated.
There were so many people in the park here comes X, X
went in the middle of the park where this people are
having merry making and then thereafter X pulled out
his firearm and fired shots in the air. The people were
so afraid. What crime is committed?
The crime committed is alarms and scandals; the
intention is to disturb public peace and order.
What if in the same problem, there were so many people
in the park X went there, when X went there he saw his
enemy Y so he pulled-out his firearm and with intent to
kill he shot Y, Y however was not hit. What crime is
committed by X?
X is liable for attempted murder. Even if Y is not hit,
the fact that he fired the said firearm with intent to kill
there is already an attempted felony because the said
charging the said firearm with intent to kill against Y
is an overt act directly connected to murder. Therefore
the crime committed is attempted murder.
Alarms and Scandals under Article 155 is a light felony.
The penalty under the law is only Arresto Menor. But
note even if the penalty is only of Arresto Menor, it
being a light felony, the offender convicted of Alarms
and Scandals cannot avail the benefit of probation
under P.D. 968 because among those disqualified to
avail the benefit of probation is any person who has
been convicted of the crime involving public order.
Alarms and Scandals under Title 3 is against public
order is one such penalty, even if the penalty prescribe
by law is a light penalty of Arresto Menor. The offender
has to execute the said sentence. He cannot avail of the
benefit of probation.
What is charivari?
It is a mock serenade. When you do a serenade for the
ladies, you use guitars you put your best foot forward,
you make good music in order to encourage the said
woman. However when it is charivari, instead of using
musical instrument we make use of broken cans kettles,
therefore, what is produce instead of music is noise. You
are creating noise disturbing public peace and order.
Crime committed is alarms and scandals.
ART. 156. Delivery of prisoners from jails. - The penalty
of arresto mayor in its maximum period or prision
correccional in its minimum period shall be imposed
upon
1. any person who shall remove from any jail or
penal establishment any person confined
therein or
2. shall help the escape of such person, by means
of
2.1. violence,
2.2. intimidation, or
2.3. bribery.
If other means are used, the penalty of arresto mayor
shall be imposed.
What if you have a neighbor and it was the birthday of
your neighbor and your neighbor rented a videoke and
then your neighbor together with the guest is singing on
top of their voice. So it was okay, however it was already
3 o’clock in the morning, all guest were gone only your
neighbor is singing on top of his voice. You cannot sleep
the voice was so ugly irritating to the ears. So you
cannot sleep you are so irritated. Can the said person be
held liable for alarms and scandals?
Yes it is disturbance of public peace and tranquility. It
is only for purpose of the bar and the exam, who is liable
under alarms and scandals? But in real life do not file a
case of alarms and scandals because you will just be
wasting your time.
If the escape of the prisoner
1. shall take place outside of said establishments
2. by taking the guards by surprise,
the same penalties shall be imposed in their minimum
period.
So under Article 156 that is delivery of prisoners from
jail. It is committed when there is a prisoner convicted
by final judgment or a detention prisoner but who must
be in jail or in a penal institution and the offender
removes or helps in the escape of the prisoner.
The penalty for alarms and scandals is only arresto
menor, it is a light felony. So it is just waste of time,
waste of money of paying a lawyer because you are
irritated by the said voice. It is only for the purpose of
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ELEMENTS
Chapter Six
EVASION OF SERVICE OF SENTENCE
1. There is a person confined in a jail or penal
establishment
2. That the offender removes therefrom such person,
or helps the escape of such person
ART. 157. Evasion of service of sentence. - The penalty
of prision correccional in its medium and maximum
periods shall be imposed upon
1. any convict who shall evade service of his
sentence
2. by escaping during the term of his
imprisonment by reason of final judgment.
Who is the prisoner being referred to under Article 156?
He can be a detention prisoner or prisoners convicted by
final judgment. Prisoners convicted by final judgment
are those serving in Muntinlupa in the new bilibid
prison. Detention prisoners those in the city jail, Manila
City Jail, Quezon City Jail or those in the Municipal
Jail, Provincial jail they are merely detention prisoners.
Detention prisoners are not yet convicted by final
judgment, hence, they are still presumed innocent
unless they are proven guilty beyond reasonable doubt.
In case of delivering prisoners from jail the prisoner can
either be a detention prisoner or a prisoner convicted by
final judgment.
However, if such evasion or escape shall have taken
place
1. by means of unlawful entry,
2. by breaking (1) doors, (2) windows, (3) gates, (4)
walls, (5) roofs, or (6) floors, or
3. by using (1) picklocks, (2) false keys, (3) deceit,
(4) violence or (5) intimidation, or
4. through connivance with other convicts or
employees of the penal institution,
the penalty shall be prision correccional in its maximum
period.
Who is the offender who may commit the crime?
The offender can be any person he can be a public officer
or employee, he can be a private individual, he can be
an insider in the penal institution, he can be an outsider
to the said penal institution except the custodian.
In case of evasion of sentence the offender is a prisoner
convicted by final judgment and he must be serving a
sentence which involves deprivation of liberty and the
said offender evades the service of sentence by escaping
during the term of his sentence.
The custodian cannot commit delivering prisoners from
jail because in so far as the custodian is concern when
he helps in the escape of the prisoner the liability is
infidelity in the custody of prisoners under Article 223.
The government entrusted upon him the custody of the
said prisoner and therefore the moment he helps in the
escape of a prisoner there is breach of trust and
confidence repose by him by the authorities. Hence
crime committed will be infidelity in the custody of
prisoners under Article 223 and not delivering of
prisoners from jail under Article 156.
Article 156 is the crime committed by the person who
assist in the escape of the prisoner or those who removes
the prisoner from jail. What about the crime committed
by the prisoner who is removed from the penal
institution? Or what is the crime committed by said
prisoner who escapes from the penal institution?
If the prisoner is a prisoner convicted by final judgment,
he becomes liable under Article 157. Article 157
punishes Evasion of Service of Sentence.
The circumstances which may qualify the penalty in
delivering of prisoners from jail are: If the said act of
helping in the escape of prisoner is committed by means
of violence, intimidation or by using bribery.
ELEMENTS
1. Offender is a convict by final judgment.
2. He is serving his sentence which consists in
deprivation of liberty.
3. He evades the service of his sentence by escaping
during the term of his sentence.
In evasion of service of sentence who is the offender?
The offender is a prisoner convicted by final judgment.
A mere detention prisoner those in the city jail,
provincial jail, municipal jail they cannot commit
evasion of sentence because they are only there because
they have no money to post bail or the crime they are
accused of is a non-bailable offense and the evidence of
guilt is strong but they are not yet proven guilty.
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talked to the guard at the front gate of the penal
institution. Y asked the guard to allow his friend to
escape. According to him, the custodian already agreed
to allow his friend X to leave that night, and if this
guard in the front gate of the penal institution would
also allow his friend to leave he would give him
P100,000. The guard agreed and so a check in the
amount of P100,000 was issued by Y in favor of the said
guard. That night, X was able to escape from the penal
institution. What crime or crimes is/are committed by
X, by Y, by the said custodian of X and by the said guard
at the front gate of the penal institution?
X is convicted by a prisoner of final judgment. His
sentence, Reclusion Perpetua, involves deprivation of
liberty, and he escapes during the term of his sentence;
hence, he is liable under Article 157 Evasion of Service
of Sentence but such escape was done in connivance
with the employees of the penal institution; therefore,
the Evasion of Service of Sentence will be qualified by
the act being in connivance with the employees of the
Penal institution.
Therefore the law recognizes the fact that if such person
behind bars of course he wants to get out he does not
become liable for evasion of service of sentence the
moment he leaves. You always hear from the news,
three prisoners escape from Palawan provincial jail,
three prisoners escaped from Quezon provincial jail in
case they are arrested can they be held liable of evasion
of sentence? The answer is no, because they are not
persons convicted by final judgment.
The second element requires that he must be serving a
sentence that involves deprivation of liberty; therefore
for evasion of sentence to arise it is not necessary that
the prisoner be behind bars even if the prisoner is
convicted by destierro. Destierro as you have studied in
Book I is a penalty which does not include
imprisonment the offender is only prohibited from
entering a place stated in the judgment of the court, it
also involves deprivation of liberty because there is a
prohibition for him to enter a certain place. Hence there
is a deprivation of liberty although partial not total in
nature. When the convict sentenced with destierro
enters the place which he is prohibited from entering
based on the judgment of the court he becomes liable for
evasion of service of sentence.
In so far as Y is concerned, he is liable under Article 156,
Delivering Prisoners from Jail. His friend was inside
the jail or penal institution, and Y assist in the escape
of his friend. Since Y assisted in the escape of his friend
by means of giving bribe money, the fact that bribery
was used would qualify the imposable penalty. It will
not constitute a separate of distinct charge but it would
be a circumstance that would qualify the imposable
penalty in Delivering Prisoner from Jail. So Y is liable
for Delivering Prisoners from Jail under Article 156
qualified by bribery.
What are the circumstances which will qualify the
penalty for evasion of service of sentence?
1. If the escape is done through an unlawful entry;
2. Breaking door, windows, gates, walls, roofs or
floors;
3. Using picklocks, false keys, disguise, deceit,
violence or intimidation;
4. Conniving with other convicts or employees of the
penal institution;
In so far as the custodian is concerned, he being given
custody of prisoner X, he being the custodian, he
connives in escape of the prisoner under his custody.
The custodian is liable under Article 223, Infidelity in
the custody of Prisoners by connivance with the escape
of the said prisoner. But since the custodian received
bribe money from Y, the custodian becomes liable for
another crime, and that is Direct Bribery under Article
210. So the custodian would be liable for 2 crimes, one
Infidelity with the Custody of Prisoners by consenting
or conniving with the escape of the Prisoner under
Article 223, and the other one is under Article 210,
Direct Bribery because he received Bribe money in
order to allow the escape of the said prisoner.
X is a prisoner convicted by final judgment, the penalty
imposed on him was Reclusion Perpetua, and so he was
serving his sentence. One day during his visiting hours,
his best friend visited him, Y. After their conversation,
X informed Y that he already wanted out of the penal
institution. That he is tired of his life inside, and that
he was begging Y for help. Y happens to be a rich man.
To help his friend, Y before leaving the penal institution
talked to the custodian of prisoner X. He told the
custodian that if he would allow his friend to leave that
night, he would give the said custodian P 500,000. When
the custodian agreed, Y gave to the said custodian a
check in the amount of P 500,000. Y did not only talk to
the said custodian because he knew that even if the said
custodian would allow him to leave the penal
institution, his friend X would still pass by the guard
and the front gate of the penal institution. So Y also
In infidelity in the Custody of Prisoners, under Article
223, Bribery is not a qualifying circumstance. Hence
when the custodian received bribe money, he becomes
liable for a separate and distinct charge of Direct
Bribery.
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c.
In so far as the guard at the front gate of the penal
institution is concerned, the crime committed is
violation of Article 156 Delivering Prisoners from Jail.
The guard at the front gate of the penal institution is
not the custodian of prisoner X, and he helps or assist
in the escape of prisoner X and he did so by receiving
bribe money. Therefore, he is liable under Article 156,
Delivering Prisoners from Jail qualified by Bribery.
Bribery if used in removing a prisoner from Jail under
Article 156 is a qualifying Circumstance.
2.
3.
So to summarize the crimes committed are as follows:
1. X, the prisoner by final judgement committed
Evasion of Service of Sentence qualified by the
escape being in connivance with the employee of the
penal institution that is under Article 157;
2. Y is liable for Delivering prisoners from jail
qualified by Bribery under Article 156;
3. The custodian is liable for Infidelity in the Custody
of Prisoners under Article 223 by conniving and
consenting the escape of the prisoner , and further
he is liable for the crime of Direct Bribery cause in
order to allow the escape, he received bribe money;
4. The guard at the front gate of the Penal Institution
is liable also of Delivering Prisoners from Jail under
Article 156 qualified by bribery.
4.
To secure a release of his brother Willy, a detention
prisoner, and his cousin Vincent, who is serving
sentence for homicide, Chito asked the RTC Branch
Clerk of Court to issue an Order which would allow the
two prisoners to be brought out of jail. At first, the Clerk
refused, but when Chito gave her P50,000.00, she
consented. She then prepared an Order requiring the
appearance in court of Willy and Vincent, ostensibly as
witnesses in a pending case. She forged the judge's
signature, and delivered the Order to the jail warden
who, in turn, allowed Willy and Vincent to go out of jail
in the company of an armed escort, Edwin. Chito also
gave Edwin P50,000.00 to leave the two inmates
unguarded for three minutes and provide them with an
opportunity to escape. Thus, Willy and Vincent were
able to escape. What crime or crimes, if any, had been
committed by Chito, Willy, Vincent, the Branch Clerk of
court, Edwin, and the jail warden? Explain your
answer. (BAR 2014)
5.
6.
Falsification of Public Documents, as a principal
by inducement (Art. 172[1], RPC);
Willy committed the crime of Delivery of Prisoners
from Jail (Art. 156, RPC) as a principal by
indispensable cooperation if he was aware of the
criminal plan of Chito to have them escape from
prison and he did escape pursuant to such criminal
plan; otherwise, he would not be liable for said
crime if he escaped pursuant to human instinct
only;
Vincent, being a prisoner serving sentence by final
judgment, committed the crime of Evasion of
Service of Sentence (Art. 157, RPC) for escaping
during the term of his imprisonment;
The Branch Clerk of Court committed the crimes of:
a. Direct Bribery (Art. 210, RPC) for accepting the
P50,000.00 in consideration of the order she
issued to enable the prisoners to get out of jail;
b. Falsification of Public Document for forging the
judge's signature on said Order (Art. 171, RPC);
c. Delivery of Prisoners from Jail (Art. 156, RPC),
as a co-principal of Chito by indispensable
cooperation for making the false order and
forging the judge's signature thereon, to enable
the prisoners to get out of jail;
d. Evasion of Service of Sentence (Art. 157, RPC);
as a co-principal of Vincent by indispensable
cooperation for making the false Order that
enabled Vincent to evade service of his sentence;
Edwin, the jail guard who escorted the prisoners in
getting out of jail, committed the crimes of:
a. Infidelity in the Custody of Prisoners,
specifically conniving with or consenting to
Evasion for leaving unguarded the prisoners
escorted by him and providing them an
opportunity to escape (Art. 223, RPC);
b. Direct Bribery for receiving the P50,000.00 as
consideration for leaving the prisoners
unguarded and allowing them the opportunity
to escape (Art. 210, RPC); and
The jail warden did not commit nor incur a crime,
there being no showing that he was aware of what
his subordinates had done, nor of any negligence on
his part that would amount to infidelity in the
custody of prisoners.
ART. 158. Evasion of service of sentence on the occasion
The crimes committed in this case are as follows:
of disorder, conflagrations, earthquakes, or other
calamities. - A convict who shall evade the service of his
1. Chito committed the crimes of:
a. Delivery of Prisoners from Jail (Art. 156, RPC)
for working out the escape of prisoners Willy
and Vincent;
b. Two counts of Corruption of Public Officials
(Art. 212, RPC); and
sentence, by leaving the penal institution where he
shall have been confined,
1. on the occasion of disorder resulting from a
1.1. conflagration,
1.2. earthquake,
1.3. explosion, or
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1.4. similar catastrophe, or
1.5. during a mutiny in which he has not
participated,
2. shall suffer an increase of
2.1. 1/5 of the time still remaining to be served
under the original sentence,
2.2. which in no case shall exceed 6 months,
3. if he shall fail to give himself up to the
authorities
3.1. within 48 hours following the issuance of a
proclamation by the Chief Executive
3.2. announcing the passing away of such
calamity.
to give him up to the authorities that will give rise to
the crime.
A is a prisoner convicted by final judgment and then
there was this earthquake. He is serving his sentence
at the new bilibid prison. There was this earthquake
magnitude 7 so everything was shaking. So X together
with the other prisoners left the penal institution.
Hours later he saw the President in TV announcing that
the earthquake had already lapsed and there will be no
more aftershocks. He gave himself up to the proper
authorities within 48 hours after hearing the
announcement from the chief executive. What is the
effect of his criminal liability of his act of returning to
the penal institution?
There will be a deduction, there will be a deduction of
1/5 form his term of original sentence. So he is given a
credit a premium by the state for he already left, he left
and then returned. This is known under Book I article
98 as special allowance for loyalty. He was so loyal to
the government that after leaving he still returned.
Therefore he is given a prize, a reward and that is
deduction of 1/5 form his original sentence.
Convicts who, under the circumstances mentioned in
the preceding paragraph, shall give themselves up to
the authorities within the above mentioned period of 48
hours, shall be entitled to the deduction provided in
article 98137.
Under Article 158 there is another kind of evasion of
service of sentence. Again the offender is a prisoner
convicted by final judgment and he is serving his
sentence in a penal institution.
What if in the same problem despite the fact that he
heard the President announced that the calamity had
already lapsed he did not returned within 48 hours. So
the authorities looked for him and he was arrested.
What is the effect on his criminal liability?
There is an additional 1/5 from the remainder of his
sentence which shall not exceed 6 months. So there will
be an additional 1/5 on the remainder of his sentence.
He is given an additional penalty of 1/5 from the
remainder of his sentence but shall not exceed 6
months.
This time the law requires that he must be serving a
sentence in a penal institution. And there is a disorder
conflagration, earthquake explosion or any other
calamity or there is a mutiny in which he has not
participated. The fourth element requires that the said
prisoner escapes during this calamity or disorder. And
the fifth element requires that he failed to give himself
up to proper authorities despite the fact that the
President has already announced the passing away of
this calamity. He failed to give himself up within 48
hours from the said announcement by the chief
executive that the said calamity has already lapsed had
already passed away.
What if he is so loyal to the government that he did not
leave the penal institution? He just heed under the table
while the earthquake was ongoing, and later on he
discovered that everybody had left he is the only one
who stayed there. What is the effect on his criminal
liability?
This has been amended by Republic Act 10592 which
was approved last May 29, 2013 and based on this
amendment by Congress the said person who did not
leave the penal institution in times of calamity will be
given a deduction of 2/5 from his sentence.
Again the offender is a prisoner convicted by final
judgment. Always a prisoner by final judgment but by
this time he must be serving his sentence in a penal
institution and then there was this calamity and he
escapes at the time of this calamity.
The mere act of leaving the penal institution during the
time of this calamity will not immediately give rise to
evasion of service of sentence. The crime will only arise
if he failed to give himself up to the proper authorities
within 48 hours from the time that the Chief Executive
had announced the passing away of the said calamity.
So it is not in the act of leaving but in the act of failing
137
So yung umalis 1/5 deduction, but the one who stayed
who is so loyal to the government who did not even leave
the penal institution there will be a better deduction 2/5
deduction if he will survive. Because if he will not
survive he will not benefit from this. Congress
See page 22
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penalty of Prision Correccional in its minimum period.
Here Evasion of Service of Sentence for violation of
conditional pardon of Article 159 is a substantive
offense. It is a substantive offense because a new
penalty is imposed on the offender.
recognizes the fact that this person is more loyal that
the one who left and returned. That is the changes
brought about by RA 10592 it was approved last May
2013.
During the time of a riot A who was not a participant in
the said riot. So therefore he duly escaped and he left
the penal institution. While in the house he saw the
President announcing that the riot already lapsed and
he immediately returned within 48 hours from the
announcement by the President. Upon his return will
he be given the deduction of 1/5 on his sentence?
The answer is no because a riot is not a mutiny, a riot is
not a mutiny because it is a fight among inmates
whereas a mutiny is an act of insubordination of the
subordinates or the inmates against the head of the
penal institution.
On the other hand, if the penalty remitted by the grant
of pardon exceeds or is more than 6 years. Even if the
offender violates the terms or the conditions of his
pardon, no new penalty will be imposed on him. He is
only required to serve the remainder of his sentence.
Since no new penalty is imposed upon the offender,
Evasion of Service of Sentence is considered as not a
substantive penalty. Here under the 2nd circumstance
Evasion of Service of Sentence is not a substantive
offense because no new penalty is reposed on the said
offender.
ART. 159. Other cases of evasion of service of sentence .
- The penalty of prision correccional in its minimum
period shall be imposed upon
1. the convict who, having been granted
conditional pardon by the Chief Executive,
2. shall violate any of the conditions of such
pardon.
However,
1. if the penalty remitted by the granting of such
pardon be higher than 6 years,
the convict shall then suffer the unexpired portion of his
original sentence.
So those are the 3 ways in which Evasion of Service of
Sentence can be committed.
1. Article 157 Evasion of Service of Sentence when the
offender escapes the penal institution.
2. Article 158, Evasion of Service of Sentence when the
offender escapes penal institution in times of
calamity and failed to give himself up to the proper
authorities within 48 hours following the
declaration of the executive of the passing away of
the said calamity.
3. Article 159 Evasion of Service of Sentence by
violation of conditional pardon.
Article 159 evasion of service of sentence by violation of
conditional pardon. The offender is a convict by final
judgment and he was granted conditional pardon by the
Chief Executive but he violated any of the terms, any of
the conditions of the said pardon. He commits evasion
of service of sentence.
Those are the three kinds but note whatever be the kind
of Evasion of Service of Sentence whether it is in Article
157 or under Article 158 or under Article 159, the
offender must always be a prisoner convicted by final
judgment.
Just like an absolute pardon a conditional pardon will
not free the offender from his criminal liability. Unlike
an absolute pardon which is not subject to any condition
a conditional pardon is subject to strict conditions.
Therefore the moment a convicted prisoner has
accepted his conditional pardon it means he has to
comply with the strict conditions. The moment he
violates any of the terms he becomes liable for evasion
of service of sentence.
COMMISSION OF ANOTHER CRIME DURING
SERVICE OF PENALTY IMPOSED FOR
ANOTHER PREVIOUS OFFENSE
Chapter Seven
ART. 160. Commission of another crime during service
of penalty imposed for another offense; Penalty. Besides the provisions of Rule 5 of article 62,
1. any person who shall commit a felony after
having been convicted by final judgment,
1.1. before beginning to serve such sentence, or
1.2. while serving the same,
2. shall be punished by the maximum period of the
penalty prescribed by law for the new felony.
Is Evasion of Service of Sentence under Article 159 a
substantive offense?
The answer is it depends. There are two situations
being referred to under Article 159. If the penalty
remitted by the grant of pardon does not exceed 6 years
for having violated the terms and conditions of the
pardon. The offender shall be imposed with a new
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Any convict of the class referred to in this article, who
is not a habitual criminal,
1. shall be pardoned at the age of 70 years if
1.1. he shall have already served out his original
sentence, or
1.2. when he shall complete it after reaching the
said age,
2. unless by reason of his conduct or other
circumstances he shall not be worthy of such
clemency.
Quai-recidivism is misplaced because you have studied
this already in book I, right? Quasi-recidivism is a
special aggravating circumstance it is not a felony. Book
II speaks of felony then suddenly there is Article 160.
Article 160 should be in book I because it is not a felony
but a special aggravating circumstance.
A quasi recidivist is any person who after having been
convicted by final judgment shall commit a felony before
serving his sentence or while serving the said sentence.
And under Article 160 the maximum period of the
penalty prescribed by law shall be the one imposed
hence it is a special aggravating circumstance.
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Section Two.
Counterfeiting Coins138
Title Four
CRIMES AGAINST PUBLIC INTEREST
ART. 163. Making and importing and uttering false
coins139. - Any person who (1) makes, (2) imports, or (3)
utters, false coins, in connivance with counterfeiters, or
importers, shall suffer:
Chapter One
FORGERIES
Section One.
Forging the seal of the Government of the Philippine
Islands, the signature or stamp of the Chief Executive.
1. Prision mayor in its minimum and medium
periods and a fine not to exceed P10,000 pesos,
if the counterfeited coin be silver coin of the
Philippines or coin of the Central Bank of the
Philippines of ten centavo denomination or
above.
2. Prision correccional in its minimum and
medium periods and a fine of not to exceed
P2,000 pesos, if the counterfeited coins be any
of the minor coinage of the Philippines or of the
Central Bank of the Philippines below tencentavo denomination.
3. Prision correccional in its minimum period and
a fine not to exceed P1,000 pesos, if the
counterfeited coin be currency of a foreign
country.
ART. 161. Counterfeiting the great seal of the
Government of the Philippine Islands, forging the
signature or stamp of the Chief Executive. - The penalty
of reclusion temporal shall be imposed upon any person
who shall forge
1. the Great Seal of the Government of the
Philippine Islands or
2. the signature or
3. stamp of the Chief Executive.
ART. 162. Using forged signature or counterfeit seal or
stamp. - The penalty of prision mayor shall be imposed
upon any person who shall knowingly make use of
1. the counterfeit seal or
2. forged signature or stamp mentioned in the
preceding article.
3 ACTS PUNISHED UNDER ARTICLE 163
1. Counterfeiting of coins;
2. Importing of false coins; and
3. Altering false coins.
3 ACTS PUNISHED UNDER ARTICLE 161
1. Forging the great seal of the republic of the
Philippines;
2. Forging the signature of the President; and
3. Forging the stamp of the President.
COUNTERFEITING OF COINS
There is counterfeiting of coins when the offender
imitates a genuine and authentic coin. The offender
copies the peculiar design of the said coin and creates a
spurious one, a falsified one, a counterfeited one. The
crime committed is counterfeiting of coins.
X forged the signature of the president in a public
document, then he gave the said document to Y. Y knew
that the signature of the president in the said document
was a forgery, and that it was X who forged the same;
nevertheless Y used the said document in a transaction.
What crime or crimes is/are said to be committed by X
and Y?
X is liable under Article 161 because he was the one who
forged the signature of the president in the said
document.
In counterfeiting of coins, the coins which may be the
subject of counterfeiting can be any coin. It can be a coin
issued by the Bangko Sentral ng Pilipinas in present
circulation, or it could be a coin of foreign currency, or it
could be a coin which is in circulation during the old
times, old or vintage coins.
Y, on the other hand, is liable under Article 162 Y is
liable under Article 162 because he knows that the said
document contains the forged signature of the
president; nevertheless, despite such knowledge he
used the same. He is liable under Article 162.
138
Regardless of the coin, as long as it is a genuine of
authentic coin. The moment that it is imitated, the
moment it is copied the offender becomes liable for
Counterfeiting of Coins because what is being punished
by the state is the act of counterfeiting or imitating the
2.
That any person who shall violate this Decree shall, upon
conviction, be punished by a fine of not more than P20,000
and/or by imprisonment of not more than 5 years.
139 As amended by R.A. No. 4202, approved June 19, 1965
PD No. 247 July 18, 1973:
1. That it shall be unlawful for any person to willfully deface,
mutilate, tear, burn or destroy, in any manner whatsoever,
currency notes and coins issued by the Central Bank of the
Philippines; and
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peculiar design of the said coin and to make a spurious
one. Hence, regardless of the kind of coins the act of
counterfeiting will arise.
circulation. Old and Vintage coins, as well as coins of
foreign currency cannot be the subject of Mutilation
under Article 164.
IMPORTATION OF FALSE COINS
What if the offenders are three men A, B, and C who are
kargadors in the public market. While waiting for the
goods to arrive A, B, and C were playing Kara y Kruz
before they would throw the coin in the air, they would
first scratch the coin in the street; therefore part of the
metal coin were scrapped. Are they liable under Article
164?
They are not liable under Article 164 because they do
not have intent to mutilate. After scrapping the metal
content on the street of the ground on the cemented
pavement, they did not gather the metal dust; hence,
there was not intent to mutilate. They are not liable
under Article 164, Mutilation of Coins. But they can be
held liable under P.D. 247.
Importation of false coins is committed when the
offender brings into Philippine ports any of these
counterfeited coins.
UTTERING FALSE COINS
Uttering false coins is committed when the offender
circulates, gives away from one person to another,
passes away from one person to another, these
counterfeited coins.
ART. 164. Mutilation of coins; Importation and
utterance of mutilated coins. - The penalty of prision
correccional in its minimum period and a fine not to
exceed P2,000 pesos shall be imposed upon
1. any person who shall mutilate coins of the legal
currency of the United States or of the
Philippine Islands or
2. import or utter mutilated current coins, or in
connivance with mutilators or importers.
P.D. 247 punishes any person who willfully mutilates,
bursts, turns or destroys any coin or currency note
issued by the Bank Sentral ng Pilipinas. P.D. 247 being
a Special Penal Law, intent to mutilate is not required.
For as long as the coin has been scrapped or scratched
of its metal content, the crime will immediately arise.
ART. 165. Selling of false or mutilated coin, without
connivance. - The person who knowingly,
1. although without the connivance mentioned in
the preceding articles,
2. shall possess false or mutilated coin
2.1. with intent to utter the same, or
2.2. shall actually utter such coin,
shall suffer a penalty lower by one degree than that
prescribed in said articles.
Mutilation of Coins is committed when the offender
takes off a part of the metal content of the said coin,
when the offender scraps or scratches the part or the
metal content of the said coin.
In Mutilation of Coins for the crime to arise, it is
necessary for the coins that are the object of mutilation
must be one that is in present circulation. One which is
still the currency of the Philippines.
TWO ACTS PUNISHED UNDER ART. 165
If the coin which has been scrapped, or scratched, or the
contents thereof has been taken off is a vintage coin, the
crime of Mutilation will not arise under Article 164. The
reason is that the coin being old and vintage, the public
will not be deceived even if it is mutilated. If an old and
vintage coin is mutilated and it is given to the public,
the public will not receive it because it is not current
currency, not in present circulation. But if the coin
mutilated is one of present circulation and then it is
given to another person, and that person is deceived
because in taking a part of the metal content of the
content of the coin the offender in effect diminishes the
intrinsic value of the coin thereby deceiving public
interest.
1. Possession of Counterfeited or Mutilated Coins by
another with intent to utter the same knowing that
the same is counterfeited or mutilated;
2. Actually uttering coins which are counterfeited or
mutilated by another person with knowledge that
the said coin is counterfeited or mutilated.
Under the first act punished, we have possession of
coins counterfeited or mutilated by another person with
intent to utter the same knowing that it is counterfeited
or mutilated.
ELEMENTS
1. There must be possession.
2. There must be intent to utter.
3. There must be knowledge.
So in so far as Mutilation of Coins is concerned, the
coins that must be the subject of Mutilation must be
coins that are of legal tender, coins which are in present
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The first element requires that there must be
possession. The possession here does not only refer to
physical possession or actual possession of the said coin,
it also includes constructive possession of the said coin
for as long as the coin is under control and dominion of
the offender. It is said to be under constructive
possession.
However, the third element is lacking. There is no
knowledge on the part of the said vendor that the 10
peso coins paid to him were all counterfeited. Had he
had knowledge, he would not have given the said person
of X the bread worth 50 pesos. Since the third element
was absent, the said vendor cannot be held liable under
Article 165 for possession of counterfeited coins
The second element requires intent to utter, the
offender has intent to circulate this counterfeited coins.
Section Three.
Forging treasury or bank notes, obligations and
securities; importing and uttering false or forged notes,
obligations and securities.
The last element requires that the offender has
knowledge that the coin in his possession is a
counterfeited or mutilated one.
ART. 166. Forging treasury or bank notes on other
documents payable to bearer; importing, and uttering
such false or forged notes and documents. – The (1)
Under the second act punished actually uttering coins,
counterfeited or mutilated by another with intent or
knowledge that it is counterfeited or mutilated.
forging or falsification of treasury or bank notes or
certificates or other obligations and securities payable
to bearer and (2) the importation and uttering in
connivance with forgers or importers of such false or
forged obligations or notes, shall be punished as follows:
ELEMENTS
1. Actually uttering the said coins;
2. Knowledge on the part of the offender that the coin
that he is uttering is counterfeited or mutilated.
1. By reclusion temporal in its minimum period
and a fine not to exceed P10,000 pesos, if the
document
which
has
been
falsified,
counterfeited, or altered, is an obligations or
security (of the United States or) of the
Philippines Islands.
X was been followed by the police. The police officers got
a tip that X had been circulating counterfeited coins,
and so the police officers were following X. X was so
hungry he passed by a bakery store. He bought bread
worth 50 pesos. The vendor gave X bread that is worth
50 pesos, and X paid the vendor five 10 peso coins which
are all counterfeited. Thereafter X hurriedly left
worrying that the officers are after him. The officers
arrived in the said bakery, and they inquired from the
vendor if X bought anything. The vendor said that X
brought bread worth 50 pesos. So he police asked the
vendor for the money paid by X, and so the vendor
opened the opened the cash register, and there the
police officers saw the five 10 peso counterfeited coins.
The police officers confiscated the said counterfeited 10
peso coins, and arrested the said vendor. The vendor
was charged under Article 165 for possession of
Counterfeited coins with intent to Utter in knowing
that they are counterfeited. Is the said vendor liable
under Article 165?
First element, he was in possession. The counterfeited
coins were found under his possession and dominion.
The counterfeited coins were found in the cash register
of the said vendor; therefore, it was under his control
and dominion.
The word "obligation or security of the United
States or of the Philippine Islands" shall be held
to mean all
1.1. bonds,
1.2. certificates of indebtedness,
1.3. national bank notes,
1.4. fractional notes,
1.5. certificates of deposit,
1.6. bills,
1.7. checks, or
1.8. drafts for money,
1.9. drawn by or upon authorized officers of the
United States or of the Philippine Islands,
and other representatives of value, of
whatever denomination, which have been or
may be issued under any act of the Congress
of the United States or of the Philippine
Legislature.
2. By prision mayor in its maximum period and a
fine not to exceed P5,000 pesos, if the falsified
or altered document is a circulating note issued
by any banking association duly authorized by
law to issue the same.
3. By prision mayor in its medium period and a
fine not to exceed P5,000 pesos, if the falsified
Second element, he has the intent to utter the same
since the vendor placed the counterfeited coins inside
the said drawer, he has the intent to utter the same. He
can use it as change to other customers or he can use it
in buying other things. There was the intent to utter.
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ART. 169. How forgery is committed. - The forgery
referred to in this section may be committed by any of
the following means:
or counterfeited document was issued by a
foreign government.
4. By prision mayor in its minimum period and a
fine not to exceed P2,000 pesos, when the forged
or altered document is a circulating note or bill
issued by a foreign bank duly authorized
therefor.
1. By giving to
1.1. a treasury or bank note or
1.2. any instrument, payable to bearer or order
mentioned therein,
the appearance of a true genuine document.
2.
2.1. By
2.1.1. erasing,
2.1.2. substituting,
2.1.3. counterfeiting or
2.1.4. altering
2.2. by any means the
2.2.1. figures,
2.2.2. letters,
2.2.3. words or
2.2.4. signs contained therein.
ART. 167. Counterfeiting, importing and uttering
instruments not payable to bearer. –
1. Any person who shall
1.1. forge,
1.2. import or
1.3. utter,
2. in connivance with the forgers or importers,
3. any
3.1. instrument payable to order or
3.2. other document of credit not payable to
bearer,
shall suffer the penalties of prision correccional in its
medium and maximum periods and a fine not exceeding
P6,000 pesos.
When is there forgery? When do you say that the
offender has committed acts of forgery?
There is forgery when the offender gives any currency
note or instrument payable to bearer or payable to
order, the appearance of a true and genuine document;
and second, when the offender commits the act of
evasing, substituting, counterfeiting, or uttering by any
means, any figures, words, letters, or signs contained
therein.
ART. 168. Illegal possession and use of false treasury or
bank notes and other instruments of credit. - Unless the
act be one of those coming under the provisions of any
of the preceding articles,
1. any person who shall
1.1. knowingly use or
1.2. have in his possession,
2. with intent to use any of the false or falsified
instruments referred to in this section,
shall suffer the penalty next lower in degree than that
prescribed in said articles.
How is forgery committed?
The answer is simple under Article 169.
If what has been falsified is a coin, it is called
counterfeiting.
Articles 166, 167 and 168 punishes the acts of forging
treasury or bank notes, as well as instruments payable
to bearer or payable to order. Likewise, it punishes the
act of possessing forged currency notes or instrument
payable to bearer, or payable to order.
If what has been falsified treasure or bank notes or
instruments payable to bearer or payable to order, it is
called forgery.
An instrument is payable to bearer when it can be
transferred by the mere act of delivery. On the other
hand, the instrument is said to be payable to order when
it can be transferred only upon the endorsement coming
from the payee thereof, plus delivery.
If what has been falsified is the stamp or the signature
of the president, the great seal of the Republic of the
Philippines, the crime committed is forgery.
If what has been falsified is a document, is a writing,
the crime committed is falsification. So we now go to
Falsification
In order to bring about the crime of falsification, it is
necessary that the writing that has been falsified must
be a document in the legal sense of the word. A
document or a writing is said to be a document in the
legal sense of the word if it is capable of creating rights
or extinguishing obligations.
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So it is necessary that the writing is capable of
extinguishing rights or creating obligations. The said
document must be complete by itself. The said
document must be susceptible of becoming evidence of
the facts stated therein. Otherwise the crime committed
is not falsification of document.
FOUR KINDS OF DOCUMENTS WHICH COULD BE
THE SUBJECT OF FALSIFICATION.
1. A public document is a document issued by the
notary public or a competent public official with all
the solemnities required by law.
2. An official document is a document which is issued
by a public official in the exercise of his official
function.
3. A commercial document is document which is
defined and regulated by the code of commerce or
any mercantile laws.
4. A private document is any deed or instrument
executed by any private individual without any
intervention of a notary public or any competent
public official by which document any disposition or
agreement is true evidence or set forth.
X, was found outside the premises of the LTO, and he
was selling fake forms of Driver’s License, the police got
a tip about these acts of X. So the police arrested X and
found in the possession of X falsified, fake forms of
Driver’s License, and he was selling these to the people
applying for a driver’s license. X was arrested and he
was charged with falsification of a public document. Is
X liable as charged of falsification of the said public
document?
X is not liable of falsification of public document because
the thing in his possession are fake forms of driver’s
license. Fake or falsified unfilled up forms of driver’s
license; therefore, they are not yet documents in the
legal sense of the word. They are not complete, no name,
no address; hence, they are not susceptible of becoming
evidence of the acts stated therein. They are not capable
of creating rights or extinguishing obligation. X is not
liable of falsification.
All official documents are considered as public
documents but not all public documents are considered
as official document. Before a public document may be
considered as an official document, it must be issued by
a public official in the exercise of his official function.
A private document may be considered as a public
document the moment that the said public document
becomes part of public records. So if a private document
is submitted to a public official and now becomes part of
public records and thereafter a certified copy released,
it is now considered as a public document or an official
document.
So what crime then is committed by X?
X is liable under Article 176 that is Possession of
Instruments or Implements for Falsification. X was in
possesion of these falsified and unfilled out forms of
Driver’s license which are instruments or implements
for purposes of Falsification. Hence, X can be only be
held liable under Article 176.
It is necessary to determine the kind of document which
has been the subject of falsification because whether it
is a public, official, commercial or private document, the
crime committed will depend on the kind of the said
document.
Section Four.
Falsification of legislative, public, commercial, and
private documents, and wireless, telegraph, and
telephone message.
If the offender falsifies a public, official or commercial
document damage or intent to cause damage on the part
of the offender is not necessary to commit the crime.
ART. 170. Falsification of legislative documents. - The
penalty of prision correccional in its maximum period
and a fine not exceeding P6,000 pesos shall be imposed
upon
1. any person who, without proper authority
therefor alters any
1.1. bill,
1.2. resolution, or
1.3. ordinance
2. enacted or approved or pending approval by
either
2.1. House of the Legislature or
2.2. any provincial board or
2.3. municipal council.
But if the document falsified is a private document,
damage or intent to cause damage on the part of the
offender is a material element. Without damage or
without intent to cause damage on the part of the
offender, the crime of Falsification on the said document
will not arise.
Why is it that when the document falsified is a public
document, why is it when the document falsified is an
official document there is no need for damage or intent
to cause damage?
If the document falsified is a public document, damage
or intent to cause damage is not a material element
because a public document is presumed by law to be
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authentic and genuine. Since it presumed by law to be
authentic and genuine, it is deemed to be evidence of the
facts stated therein; therefore, when a public document
is falsified what you are in effect is saying that the
public would no longer believe in the said public
document. What you are in effect is doing is perverting
the truth which is being proclaimed by the said
document. Damage or the intent to cause damage is not
a material element in Falsification of a Public
Document.
8. Intercalating any instrument or note relative to
the issuance thereof in a
8.1. protocol,
8.2. registry, or
8.3. official book.
The same penalty shall be imposed upon any
ecclesiastical minister
1. who shall commit any of the offenses
enumerated in the preceding paragraphs of this
article,
2. with respect to any record or document of such
character that its falsification may affect the
civil status of persons.
But if the document falsified is a private document,
damage or intent to cause damage is a material
element. The reason is that the crime of falsification
being a crime against public interest, it is necessary
that there has been damage caused to the private
offended party or to any other person in order for said
crime to arise.
ELEMENTS OF ARTICLE 171
1. The offender is a public officer or employee, or a
notary public, or an ecclesiastical minister.
2. The offender takes advantage of his official
functions or position.
3. The offender falsifies a public document.
ART. 171. Falsification by public officer, employee or
notary or ecclesiastic minister. - The penalty of prision
mayor and a fine not to exceed P5,000 pesos shall be
imposed upon any (1) public officer, employee, or notary
who, (2) taking advantage of his official position, (3)
shall falsify a document by committing any of the
following acts:
Who is the offender under Article 171?
The offender is a public officer or employee, or a notary
public, or an ecclesiastical minister.
The second element requires that in committing the
crime it is necessary that the said offender must have
taken advantage of his public function or position. The
offender public officer or employee, or a notary public is
said to have taken advantage of his official position
when he has made, prepared, or otherwise intervened
in the preparation of the document that he falsified, or
when he is the custodian of the document that he
falsified. He instead has taken advantage of his public
position in the commission of the crime.
1. Counterfeiting or imitating any
1.1. handwriting,
1.2. signature or
1.3. rubric;
2.
2.1. Causing it to appear that persons have
participated in any
2.1.1 act or
2.1.2 proceeding
2.2. when they did not in fact so participate;
3. Attributing to persons who have participated in
an act or proceeding statements other than
those in fact made by them;
4. Making untruthful statements in a narration of
facts;
5. Altering true dates;
6. Making any
6.1. alteration or intercalation in a genuine
document
6.2. which changes its meaning;
7. Issuing in an authenticated form
7.1. a document purporting to be a copy of an
original document when no such original
exists, or
7.2. including in such a copy a statement
contrary to, or different from, that of the
genuine original; or
The third element requires that the offender falsifies a
document.
Article 171 is silent as to the kind of document that has
been falsified. Article 171 did not state what kind of
document has been falsified. But the offender being a
public officer or employee, or a notary public, it
necessarily follows that the document which has been
the subject of falsification under Article 171 is a public
document, official document or a commercial document.
If the person who committed the crime of falsification is
an ecclesiastical minister, when will the crime arise?
If the offender is an ecclesiastical minister, the crime
will arise if the document that he falsified will affect the
civil status of the said person. If the document that he
falsified does not affect the civil status of a person, the
said ecclesiastical minister is still liable but not under
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These are the different acts of Falsification, and these
acts of Falsification which are enumerated under
Article 171 would also be the same acts of Falsification
under Article 172.
Article 171 but he will be liable under Article 172
Falsification of
Public, Official or a Commercial
Document by a Private Individual.
The priest falsified the certificate of marriage of A.
What is the crime committed by the said priest?
The crime committed by the priest is falsification under
Article 171 because a certificate of marriage would
affect the civil status of a person.
(1) COUNTERFEITING OR IMITATING
HANDWRITING, SIGNATURE OR RUBRIC;
ANY
What do you mean by counterfeiting?
But what If priest falsified the baptismal certificate of
A. What is the crime committed by A?
The priest would be liable for Falsification under Article
172. The reason being that a baptismal certificate would
not actually affect the civil status of a person; hence the
crime committed is under Article 172 and not under
Article 171.
Counterfeiting is the act of imitating any handwriting,
signature or rubric. It requires that there is an original
handwriting, an original signature, an original rubric,
and the offender copies or imitates, the said
handwriting, signature or rubric. There is an original
one and the offender copies the said handwriting,
signature or rubric.
What are the different acts of falsification under Article
171 which is also the same acts of falsification under
Article 172?
Is counterfeiting the same as simulating?
Counterfeiting is not the same as simulating. While in
counterfeiting there is an original handwriting,
signature or rubric which is copied or imitated by the
offender, in case of simulating there is no original
handwriting, signature or rubric. The said handwriting,
signature or rubric is produced out of mere imagination.
It is inexistent and the offender merely produced one
out of imagination that is simulation. Both
counterfeiting and simulation are punished as acts of
falsification.
1. Counterfeiting or imitating any
1.1. handwriting,
1.2. signature or
1.3. rubric;
2.
2.1. Causing it to appear that persons have
participated in any
2.1.3 act or
2.1.4 proceeding
2.2. when they did not in fact so participate;
3. Attributing to persons who have participated in
an act or proceeding statements other than
those in fact made by them;
4. Making untruthful statements in a narration of
facts;
5. Altering true dates;
6. Making any
6.1. alteration or intercalation in a genuine
document
6.2. which changes its meaning;
7. Issuing in an authenticated form
7.1. a document purporting to be a copy of an
original document when no such original
exists, or
7.2. including in such a copy a statement
contrary to, or different from, that of the
genuine original; or
8. Intercalating any instrument or note relative to
the issuance thereof in a
8.1. protocol,
8.2. registry, or
8.3. official book.
(2) CAUSING IT TO APPEAR THAT PERSONS HAVE
PARTICIPATED IN ANY ACT OR PROCEEDING
WHEN THEY DID NOT IN FACT SO PARTICIPATE;
Here the offender makes it appear that persons have
participated in an act or proceeding, that will give rise
to the crime of falsification because although this
persons did not participate in the said act or proceeding,
the offender made it appear otherwise.
A notary public prepared this affidavit for extrajudicial
settlement of estate. The heirs of the decedent were
dividing the estate extrajudicially. There were 12 heirs,
and all these 12 heirs are signatories under the said
document that was the document made by the notary
public. However 2 of these heirs, A and B are not in the
Philippines at the time of the preparation and execution
of the said document, both A and B were in another
country; hence it is impossible for them to have signed
the said document. What crime is committed by the said
notary public?
It is Falsification under the 2nd act. He caused it to
appear that both A and B who were in another country
participated in the said extrajudicial settlement of X,
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ART. 172. Falsification by private individual and use of
falsified documents. - The penalty of prision
correccional in its medium and maximum periods and a
fine of not more than P5,000 pesos shall be imposed
upon:
when in truth and in fact they did not participated in
the said extrajudicial settlement of the estate.
(3) ATTRIBUTING TO PERSONS WHO HAVE
PARTICIPATED IN AN ACT OR PROCEEDING
STATEMENTS OTHER THAN THOSE IN FACT
MADE BY THEM;
1. Any private individual who shall commit any of
the falsifications enumerated in the next
preceding article in any
1.1. public or official document or
1.2. letter of exchange or
1.3. any other kind of commercial document;
and
2. Any person who,
2.1. to the damage of a third party, or
2.2. with the intent to cause such damage,
2.3. shall in any private document commit any
of the acts of falsification enumerated in the
next preceding article.
Under the said third act punished, persons have
participated in an act or proceedings. So these persons
participated in the said act or proceedings. The crime
will arise when the offender attributed to these persons
statements other than those made in fact by them. The
crime will arise because he attributed to them other
statements than that which have been made by these
persons.
There was this Sanggunian Bayan session, and they
were approving, they were voting an ordinance, and two
of the councilors dissented with the said ordinance, and
so they just stated a no vote without any explanation for
their dissenting opinion; however, the moment that the
secretary of the Sanggunian, a public officer, produced
the minutes of the said session statements were already
attributed to the said councilors, statements wherein
they stated their dissenting opinions but in truth and in
fact no such statement were made by such councilors
because after stating their no vote, they did not
anymore explain their dissent. But since the
Sanggunian Secretary stated in the said minutes that
these two explained their votes, the Sanggunian
Secretary becomes liable for Falsification under the
third act, he attributed to these councilors statements
other than those in fact made by them.
Any person who
1. shall knowingly introduce in evidence in any
judicial proceeding or
2. to the damage of another or who, with the intent
to cause such damage, shall use any of the false
documents
2.1. embraced in the next preceding article, or
2.2. in any of the foregoing subdivisions of this
article,
shall be punished by the penalty next lower in degree.
THREE ACTS PUNISHED
1. Falsification of Public, Official or Commercial
Document by a private individual;
2. Falsification of a Private Document by any person;
and
3. Use of Falsified Document.
(4) MAKING UNTRUTHFUL STATEMENTS IN A
NARRATION OF FACTS;
(5)ALTERING TRUE DATES;
FALSIFICATION OF PUBLIC, OFFICIAL OR
COMMERCIAL DOCUMENT BY A PRIVATE
INDIVIDUAL
Here the document that has been falsified is a Public,
Official or Commercial Document. Even if the offender
is a private individual, since the document falsified is a
Public, Official or Commercial Document, damage to the
offended party or intent to cause damage is not an
element. The document being Public, Official or
Commercial, no damage is required for the crime of
Falsification to arise. Even of the offender is a mere
Private Individual.
(6)
MAKING
ANY
ALTERATION
OR
INTERCALATION IN A GENUINE DOCUMENT
WHICH CHANGES ITS MEANING;
(7) ISSUING IN AN AUTHENTICATED FORM A
DOCUMENT PURPORTING TO BE A COPY OF AN
ORIGINAL
DOCUMENT
WHEN
NO
SUCH
ORIGINAL EXISTS, OR INCLUDING IN SUCH A
COPY A STATEMENT CONTRARY TO, OR
DIFFERENT FROM, THAT OF THE GENUINE
ORIGINAL; OR
(8) INTERCALATING ANY INSTRUMENT OR NOTE
RELATIVE TO THE ISSUANCE THEREOF IN A
PROTOCOL, REGISTRY, OR OFFICIAL BOOK.
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FALSIFICATION OF A PRIVATE DOCUMENT BY
ANY PERSON
Under the 2nd act punished the document falsified is a
private document, one that is executed by a private
individual without the intervention of a notary public or
competent public official. If the document falsified is a
private document, whoever be the offender, whoever be
the person who falsified the same, whether he is a public
officer or employee, or whether he is a private
individual, there must be damage or at least there must
be intent to cause damage. Absent damage or intent to
cause damage, there is no crime of Falsification of a
private document. So in case of falsification of a private
document, it is necessary that there must be damage
caused in the offended party, or at least intent to cause
damage.
So let us say he was charged with Falsification of a
Public Document, during trial on the merits, evidence
revealed that he was not the one who falsified the said
document, instead they found another person who
falsified the same and he was merely using the said
Falsified Document. Therefore the judge acquitted him
of the said charge. Can he is still be prosecuted for the
crime of Use of Falsified Document?
The answer is yes. If based on evidence the person of X
was charged with Falsification of a Public Document
was found to be the person who did not falsify the
document. He was not the person who falsified the same
document. Therefore, upon acquittal he can still be
prosecuted for Use of Falsified Document. Double
Jeopardy would not set in because the element of
Falsification of Public Document and Use of Falsified
Document are different; hence, Double jeopardy would
not set in.
USE OF FALSIFIED DOCUMENT
So you have the first charged by Falsification of a Public
Document, and in case evidence would show that he is
not the falsifier then he should be charged with use of
Falsified Document.
In Use of Falsified Document is damage an element?
It depends on where or what transaction is the falsified
document used.
Under the third act if the document falsified is used in
a Judicial Proceeding, in a judicial transaction, damage
or intent to cause damage on the part of the offender is
not an element, but if the Falsified Document is used in
any other official transaction then damage or intent to
cause damage becomes a necessary element for the
crime to arise. Note that in Article 172, the same acts of
falsification are punished as enumerated in Article 171
also applies.
ART. 173. Falsification of wireless, cable, telegraph and
telephone messages, and use of said falsified messages.
- The penalty of prision correccional in its medium and
maximum periods shall be imposed upon
1. any officer or employee of
1.1. the Government or
1.2. of any private corporation or concern
2. engaged in the service of sending or receiving
wireless, cable or telephone message
3. who
3.1. utters a fictitious
3.1.1. wireless,
3.1.2. telegraph or
3.1.3. telephone message of any system or
3.2. falsifies the same.
X was found in possession of a Falsified Document. It is
a falsified public document and he was using the same
in an official transaction. He was found using the same
and it was verified to be a falsified one, and so X was
arrested. He was charged with Use of falsified
Document under Article 172. Is the charge correct?
The charge is wrong. Although X was using the said
falsified document. The proper charge for X would be
Falsification of Public Document. If a person possesses
a falsified document, the law presumes that he is the
falsifier of the said document. Since the law presumes
that he is the one who falsified the said document then
the appropriate charge is Falsification of a Public
Document, and not use of Falsified Document. So in this
case since X is found in possession of a falsified
document using in a single and official transaction, once
arrested, he should be prosecuted for Falsification of a
Public Document. He is deemed to be the person who
falsified the said document.
Any person who shall use such falsified dispatch
1. to the prejudice of a third party or
2. with the intent of cause such prejudice,
shall suffer the penalty next lower in degree.
THREE ACTS PUNISHED
1. Uttering fictitious wireless telegraph, telephone
and messages,
2. Falsifying fictitious wireless telegraph, telephone
and messages, and
3. Using falsified fictitious wireless telegraph,
telephone and messages.
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The first act, Uttering fictitious wireless telegraph, and
telephone messages; and the second act, Falsifying
fictitious wireless telegraph, telephone messages can be
committed by persons whether he is an officer or
employee of any institution engaged in the business of
sending or receiving wireless telegraph and telephone
messages.
witness saying that in the scheduled hearing the
witness must present a medical certificate that indeed
he was hospitalized on this day of hearing. And so the
counsel informed the witness that in the next hearing
he must present a medical certificate as to his serious
illness. Upon learning this order of the court this
witness became worried because he was not actually in
the hospital. He just didn’t want to go to court and
testify. Now he has to produce a medical certificate, and
so what he did was that he went to a friend doctor, and
he asked his friend doctor to issue a medical certificate
saying that on the said day of trial he was sick, and that
he could not get out of bed, and therefore could not
testify in court. Out of friendship the doctor acceded to
the request of friend W, and so on the next scheduled
date of hearing. This witness upon his appearance
before the court produced and submitted to the court a
medical certificate issued by this friend doctor saying
that on the previous date of hearing the said witness
was seriously ill, hospitalized and could not get out of
the hospital ; hence, the failure to testify on the said
date. Upon the said filing or submission of the said
medical certificate before the court, what crime or
crimes is/are committed by the doctor who issued the
medical certificate, as well as the said witness who
submitted and filed the said falsified medical certificate
before the court?
The doctor shall be liable under Article 174, whereas the
said witness shall be liable under article 175.
The third act use of fictitious wireless telegraph,
telephone and messages can be committed by any
person.
Section Five.
Falsification of medical certificates,
certificates of merit or services and the like.
ART. 174. False medical certificates, false certificates of
merits or service, etc. - The penalties of arresto mayor
in its maximum period to prision correccional in its
minimum period and a fine not to exceed P1,000 pesos
shall be imposed upon:
1. Any physician or surgeon who,
1.1. in connection, with the practice of his
profession,
1.2. shall issue a false certificate; and
2. Any public officer who shall issue a false
certificate of
2.1. merit of service,
2.2. good conduct or
2.3. similar circumstances.
THREE ACTS PUNISHED UNDER ARTICLE 174
1. Any physician or surgeon who in the connection of
his practice or profession shall issue a false medical
certificate;
2. Any public officer who shall issue a false certificate
of merit, certificate of service, certificate of good
conduct, or any other kind of false certificate;
3. A private individual who shall make a false
certificate of merit, certificate of good conduct or
service, or shall make a false medical certificate.
The penalty of arresto mayor shall be imposed upon any
private person who shall falsify a certificate falling
within the classes mentioned in the two preceding
subdivisions.
ART. 175. Using false certificates. - The penalty of
arresto menor shall be imposed upon any one who shall
knowingly use any of the false certificates mentioned in
the next preceding article.
The first one if the surgeon, if the doctor, if the
physician in connection with the practice of his
profession shall issue a false medical certificate. The
second one if a public officer who shall issue a false
certificate of merit, certificate of service, certificate of
good conduct, or any other kind of false certificate.
The defense counsel was to present his witness in a
court hearing; however before the start of the hearing,
the defense counsel received a call from the said witness
that he was indisposed, he was not available during the
day of hearing because he was in the hospital, and that
he couldn’t get out of bed because he was seriously ill.
So when the hearing started the defense counsel
informed the honorable court that he has no witness for
that day, and the his witness called him, saying that he
is in the hospital and was seriously ill, and so he move
for a resetting of the said case. The judge granted the
resetting of the said case but together with the said
granted motion, the judge also issued an order to the
This usually happens in the barangays. A constituent of
the barangay will go to the barangay chairman and ask
that he be issued a certificate of good moral character
although in reality he is a menace in the said barangay.
The said barangay shall issue a medical certificate
showing that this person is of good moral conduct, that
is a false certificate of moral conduct.
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The last person penalized under Article 174 is a private
individual who shall make a false medical certificate or
a false certificate of merit or service.
TWO ACTS PUNISHED
1. Introduction to the Philippines of any stamp, dyes,
marks, or any other instruments or implements for
falsification or counterfeiting;
2. Possession with intent to use these instruments or
implements for falsification.
Under Article 175, the person liable is not the one who
made, or who prepared the said false medical certificate,
or false certificate of merit. He is any person who had
knowledge that the thing in his possession is a false
medical certificate, or a false certificate of merit, or a
false certificate of service. He shall make use of the
same.
Remember the problem that I gave in the initial
discussion of Falsification. A person was found outside
the LTO office, and the said person was found in
possession of falsified unfilled out forms of Driver’s
license. I said that the crime committed is not
Falsification of Public Document but rather under
Article 176 possession of instruments or implements for
falsification. He was in possession of falsified forms of
driver’s license. They were unfilled out forms, no date,
no name, no etc.. So they are not evidence of the facts
stated therein therefore they are not yet considered as
document. They are mere unfilled out forms; hence,
they are merely considered as instruments or
implements which are used for falsification. The
offender is therefore liable under Article 176 that is
possession of instruments or implements for
falsification.
So in the problem that I gave, the doctor is liable under
Article 174 because he issued a false medical certificate,
despite the knowledge of the fact that X was not in
reality ill, he issued a medical certificate saying that X,
the witness was ill on the said date of the hearing. When
X presented and submitted this to the court despite
knowledge that it is a false medical certificate, X
becomes liable under Article 175 for having used the
false medical certificate.
Section Six.
Manufacturing, importing and possession of
instruments or implements intended for the
commission of falsification.
Chapter Two
OTHER FALSITIES
176. Manufacturing and possession of
instruments or implements for falsification. - The
ART.
Section One.
Usurpation of authority, rank, title, and improper use
of names, uniforms and insignia.
penalty of prison correctional in its medium and
maximum periods and a fine not to exceed P10,000
pesos shall be imposed upon
1. any person who shall
1.1. make or introduce into the Philippine
Islands any
1.1.1. stamps,
1.1.2. dies,
1.1.3. marks, or
1.1.4. other instruments or implements
1.2. intended to be used in the commission of the
offenses of counterfeiting or falsification
mentioned in the preceding sections of this
Chapter.
2. Any person who,
2.1. with the intention of using them,
2.2. shall have in his possession any of the
instruments or implements mentioned in
the preceding paragraphs,
shall suffer the penalty next lower in degree
than that provided therein.
140
177. Usurpation
functions140. - Any person
ART.
of
authority
or
official
1. who shall knowingly and falsely represent
himself to be an officer, agent or representative
of any
1.1. department or
1.2. agency of the
1.2.1. Philippine Government or
1.2.2. of any foreign government, or
2. who, under pretense of official position,
2.1. shall perform any act pertaining to any
person in authority or public officer of the
Philippine Government or any foreign
government, or any agency thereof,
2.2. without being lawfully entitled to do so,
shall suffer the penalty of prision correccional in its
minimum and medium periods.
Reinstated by E.O. No. 187, June 5, 1987
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TWO ACTS PUNISHED
1. Usurpation of Public Authority
2. Usurpation of Official Function
the drivers stuck in traffic, alighted from his vehicle and
went in the middle of the street. Thereafter, he manned
the traffic and eased the flow of the traffic. He
performed an act pertaining to an MMDA officer or a
traffic enforcer, a public officer. Is he liable under
Article 177, for Usurpation?
He is not liable for Usurpation, although he performs an
act pertaining to a public officer. He is not liable because
he did not perform the said act under false pretense of
official position or without being lawfully entitled to do
so. His only intent was to ease the flow of traffic. It was
done under a civic spirit to help ease the flow of traffic.
There was no showing that he had intent under false
pretense to be considered as a public officer. Such being
the case, he is not liable under Article 177.
The first act which is Usurpation of Public Authority is
committed when any person knowingly or falsely
represents himself to be an officer, agent or a
representative of any department or agency of the
Philippines government or any foreign government.
In case of Usurpation of Public Authority, the offender
is not required to perform any act. The moment he
falsely misrepresents himself to be an officer agent or
representative of any department or agency of the
Philippine government or Foreign government, the
crime will immediately arise.
X is the city mayor, he was charged before the office of
the Ombudsman. He was charged for an administrative
case before the office of the ombudsman. The office of
the ombudsman while investigating the same, placed
the city mayor under preventive suspension for a period
of 6 months. He was placed under preventive
suspension under 6 months. The DILG enforced the
said order and placed X the city mayor under preventive
suspension for a period of 6 months. The DILG
designated the vice mayor as the acting city mayor.
After just 90 days of preventive suspension, the city
mayor just went back to office, and he now again
performs the function of the mayor. He now again
performs the function of the mayor, and he signs
documents which should be signed by a mayor. So he
was charged with the crime of Usurpation under Article
177. Is he liable as charged? He contended that he went
back to office after preventive suspension because
according to his counsel the maximum period that a
person can go under preventive suspension is only for a
period of 90 day, and since it is beyond 90 days he
immediately assumes office. So according to him, he is
not liable for usurpation under Article 177. If you were
the judge would you convict him or would you acquit
him on the ground of his contention?
In the case of Miranda vs. Sandiganbayan141, the
Supreme Court said that the said city mayor is liable
The second act punished is Usurpation of Official
Function is committed by a person who performs an act
pertaining to a public officer or a person in authority
under false pretense of official position and without
being lawfully entitled to do so.
Under the second act punished, Usurpation of Official
Function, here it is required for the crime to arise, that
the offender must perform an act pertaining to a public
officer, or pertaining to a person in authority. Note that
it must be under false pretense of official position and
without being lawfully entitled to do so.
In performing the said act pertaining to the public
officer or pertaining to a person in authority, it is
necessary that it must be done under false pretense of
official position, and without being lawfully entitled to
do so. If a person performs an act pertaining to public
officer or a person in authority but he has no intent to
state that he was the said public authority. It was not
done under false pretense of official position, and it can’t
be said that it falls under Article 177.
There was this heavy traffic and there was no traffic
officer, no policemen, traffic enforcer, and the traffic
was very heavy. No vehicle was moving and so X one of
Not all acts of usurpation of authority or official functions involve
“fraud upon government.” The essence of usurpation of authority
under Article 177 of the RPC is false and malicious representation.
The “gravamen of the offense of usurpation of authority is the false
representation, maliciously made, that one is an officer, agent or
representative of the Philippine Government or any foreign
government.” Fraud on the government is not an essential element of
the offense. The mere act of making a false and malicious
representation that one is a government officer is sufficient to
constitute the offense, whether or not the act defrauds the
government. The essence of usurpation of official functions under
Article 177 of the RPC is performing, under pretense of official
position and without lawful authority, an official act pertaining to an
official. Fraud on the government is also not an essential element of
the offense. The offense usually results in injury to private parties
who are victimized by pretenders to public office.
141
On the other hand, the gravamen of “fraud upon government” in
Section 13 of RA 3019 is the public officer’s act of defrauding the
government. It is necessary that the act should defraud the
government. Usurpation of authority, while involving fraudulent
means, does not necessarily involve fraud on the government. The
fraud may be committed only against private parties and not against
the government. (Miranda vs. Sandiganbayan, 464 SCRA 165, G.R.
No. 154098 July 27, 2005)
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must be done publicly; therefore, there must be an
element of publicity to consummate the crime; whereas,
in case of concealing true name, publicity is not an
element. It is not necessary that the act of concealing
one’s name and circumstances be done publicly. No
element of publicity is required.
under Article 177. He is liable for Usurpation. He was
placed under preventive suspension by the DILG upon
the order of the office of the Ombudsman for a period of
6 months. He has to comply with the said order, he
cannot just go back to office without the office of the
Ombudsman lifting the said preventive suspension. The
moment that he goes back to office, and performs the act
of the mayor, even without the Ombudsman lifting the
said preventive suspension order, he commits the crime
of Usurpation.
The other distinction between the two is in their
purposes. In case of using fictitious name, the purpose
of the offender in using a fictitious name is to conceal a
crime, evade execution of a judgment or to cause
damage to public interest. In case of concealing true
name, the purpose of the offender is to conceal his real
identity. Hence it is necessary that not only does he
conceal his real name but also his other personal
circumstances because his purpose is to conceal his real
identity.
Second his contention was wrong that he can only be
placed under preventive suspension for a period of only
90 days refers only to violation of R.A. 3019 but it does
not refer to violation of administrative cases. So if the
case filed is just an administrative case, the office of the
Ombudsman has the right to place in preventive
suspension for a period of 6 months, not only 90 days.
For this, the said city mayor is liable to Usurpation
under Article 177.
X went to a sauna bath parlor, and while he was
receiving services from an attendant. Suddenly police
officers entered the said place. The police officers raided
the said place. The police officers were able to secure a
search warrant because they were able to prove before
the issuing judge the said place as thought as a sauna
bath parlor is in reality a prostitution den. As such the
search warrant was issued by the court, and all persons
that were there were arrested. So among those arrested,
and brought to the PNP station was attorney X.
Together with attorney X and others, he was
investigated. Attorney X during investigation was
asked of his real name. Instead of stating that he was
attorney X, he said that he was Y. He did not reveal, he
did not disclose his real name. When asked about his
age, he revealed his real age. When asked on whether
he was married or single, he revealed that he is a
married man. When asked to state the name of his wife
and of his children, he correctly stated the name of his
wife, and the name of his three children. Is attorney X
liable under Article 178 for Using Fictitious name?
Attorney X is not liable under Article 178 for Using
Fictitious name. Although he used a different name,
which is the name of Y, he had no intention to conceal a
crime or to evade an execution of a judgment, or to cause
damage to public interest. Therefore he is not liable in
Using Fictitious name.
ART. 178. Using fictitious name and concealing true
name. - The penalty of arresto mayor and a fine not to
exceed 500 pesos shall be imposed upon
1. any person who shall publicly use a fictitious
name
2. for the purpose of
2.1. concealing a crime,
2.2. evading the execution of a judgment or
2.3. causing damage.
Any person who conceals his true name and other
personal circumstances shall be punished by arresto
menor or a fine not to exceed 200 pesos.
TWO ACTS PUNISHED
1. Using fictitious name
2. Concealing true name
ELEMENTS OF USING FICTITIOUS NAME
1. The offender uses a name not his real name;
2. He uses this fictitious name publicly; and
3. The purpose of the offender is
3.1. to conceal a crime,
3.2. to evade execution of a judgment, or
3.3. to cause damage to public interest.
Is Attorney X then liable for concealing true name?
Attorney X is also not liable of concealing true name
under Article 178. Attorney X is not liable under Article
178 of concealing true name because although he
concealed his real name, he did not conceal his other
personal circumstances. He revealed his other
circumstance, his age, the name of his wife, the name of
his children, and his address; Therefore, although he
did not disclose his name, the fact that he disclosed his
ELEMENTS OF CONCEALING TRUE NAME
1. The offender conceals his real name and other
personal circumstance; and
2. The purpose of the offender is to conceal his real
identity.
In so far as the first act is concerned Using Fictitious
Name, it is necessary that the use of the fictitious name
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other circumstance, it means that he does not have
intention to conceal his real identity. He has no
intention to conceal his true identity, even if he used a
different name because the police officers can just go to
his real address, and then his identity will already be
divulged; hence, attorney X is not liable for Concealing
true name.
Under C.A. 142 as amended an alias is a name or names
used or intended to be used by a person publicly and
habitually usually in business transaction other than
the name by which he is registered at birth at the local
civil registrar. So an Alias is a name or names used or
intended to be used publicly and habitually in a
business transaction.
Is attorney X liable under C.A. 142 as amended, the
Anti-Alias law?
Attorney X is not liable under C.A. 142 as amended the
Anti-Alias Law.
So why is attorney X not liable under C.A. 142?
Attorney X is not liable under C.A. 142 as amended
because Y is not an alias of attorney X. The name Y that
he used at during the investigation of X is not an Alias
of attorney X. Y is not an alias of Attorney X because
said name Y is not used habitually in a business
transaction.
Under C.A. 142 as amended, it is provided that except
for writing, cinema, lithography, or television, or any
other entertainment purposes, or in athletic events
where the use of a pseudonym is a normally accepted
practice, no person can use a name other than his name
for which he is registered at birth, at the local civil
registrar, or at the bureau of immigration as registered
upon entry into the Philippines. A substitute name will
only be used when allowed by a competent or judicial
authority.
In the case of Cesario Ursua vs. Court of Appeals142, as
well as in the case of People vs. Estrada and
Sandiganbayan143, the Supreme Court said that the use
of the name other than a person’s real name in a single
transaction without showing that henceforth, he
wanted to be known under such name is not under the
prohibition of C.A. 142 as amended.
So under C.A. 142 as amended, a pseudonym may be
used under any of the following circumstances. In any
entertainment purposes, in radio, television or etcetera,
or in athletic events wherein it is a person in the field of
sports, or in case of literary, a pen name; or as a
substitute name as approved by a competent Judicial
authority.
So here Y is not an alias of attorney X because he used
the name while only in a single transaction without
henceforth showing that he would be using the said
name Y in any other transaction. Therefore, attorney X
is not liable under any crime, when he used the name Y
instead of attorney X during the investigation made by
the police.
These are the instance wherein the use of a name other
than a real name other than which he is registered at
birth at the local civil registrar, or other than the name
that which he is registered under the Bureau of
Immigration upon his entry into the Philippines.
In that case of Cesario Ursua vs. CA, Cesario Ursua
went to the office of the Ombudsman to get a copy of the
complaint filed against him. He was asked by his
counsel to get a copy. Since the messenger of the counsel
is not available to get it, so he was the one tasked to get
the copy of the complaint. So he said he did not want to
use his own name, the name of the staff of the said
What is an Alias?
The presence of Lacquian and Chua when Estrada signed as Jose
Velarde and opened Trust Account No. C-163 does not necessarily
indicate his intention to be publicly known henceforth as Jose
Velarde. In relation to Estrada, Lacquian and Chua were not part of
the public who had no access to Estrada’s privacy and to the
confidential matters that transpired in Malacañan where he sat as
President; Lacquian was the Chief of Staff with whom he shared
matters of the highest and strictest confidence, while Chua was a
lawyer-friend bound by his oath of office and ties of friendship to keep
and maintain the privacy and secrecy of his affairs. Thus, Estrada
could not be said to have intended his signing as Jose Velarde to be
for public consumption by the fact alone that Lacquian and Chua were
also inside the room at that time. The same holds true for Estrada’s
alleged representations with Ortaliza and Dichavez, assuming the
evidence for these representations to be admissible. All of Estrada’s
representations to these people were made in privacy and in secrecy,
with no iota of intention of publicity. (People vs. Estrada, 583 SCRA
Hence, the use of a fictitious name or a different name belonging to
another 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. No. 142 as amended. This is so in the case at bench. (Ursua vs.
142
Court of Appeals, 256 SCRA 147, G.R. No. 112170 April 10, 1996)
Separately from the constitutional dimension of the allegation of
time in the Information, another issue that the allegation of time and
our above conclusion raise relates to what act or acts, constituting a
violation of the offense charged, were actually alleged in the
Information. The conclusion we arrived at necessarily impacts on the
People’s case, as it deals a fatal blow on the People’s claim that
Estrada habitually used the Jose Velarde alias. For, to our mind, the
repeated use of an alias within a single day cannot be deemed
“habitual,” as it does not amount to a customary practice or use. This
reason alone dictates the dismissal of the petition under CA No. 142
and the terms of Ursua.
143
302, G.R. Nos. 164368-69 April 2, 2009)
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counsel which is Oscar Perez was the one used by
Cesario Ursua so with the consent of Oscar Perez. So
Cesario Ursua went in the Office of the Ombudsman he
logged down the name of Oscar Perez, and he was able
to get the complaint for Cesario Ursua but someone
recognized Cesario Ursua; therefore, an investigation
was conducted that Cesario Ursua used and logged
down a different name in the logbook of the
Ombudsman that he used the name Oscar Perez instead
of Cesario Ursua, and so he was charged with violation
of CA 142 as amended. He was convicted by the lower
court.
trust account Jose Velarde in his trust account, the
persons present were Atty. Chua, his friend lawyer, and
Lacquian, his former Executive Secretary.
When the case reached the Supreme Court, the
Supreme Court said that the use of a different name,
the use of the name of Oscar Perez in a single
transaction that is to get a copy of the complaint in the
office of the Ombudsman without showing henceforth
that he wanted to be known under such name is not
within the prohibition of CA 142 as amended.
Second, the use of the name Jose Velarde was not done
habitually, the prosecution did not show any evidence
showing that Joseph Estrada used the name Jose
Velarde in any other transaction thereafter. Therefore,
a single use in that particular transaction is beyond CA
142 as amended, as such the Supreme Court acquitted
Estrada for violation of CA 142 as amended, the AntiAlia Law.
So the Supreme Court said that in so far as this two
persons are concerned, they are not public in so far as
Estrada is concerned because they are his friends;
therefore, the signing of the name Jose Velarde was not
done publicly. It was done in secrecy, inside of Equitable
PCI bank before his 2 friends. These 2 persons are his
friends and therefore cannot be considered as public in
so far as Estrada is concerned.
The Supreme Court said that there was no showing that
the said accused used the name Oscar Perez in any
other transaction after. The use of the name Oscar
Perez in a single transaction without henceforth he uses
it in any other transaction is outside the ambit of CA
142 as amended. The Supreme Court therefore
acquitted Cesario Ursua. He did not use the name
habitually because there was no evidence that he used
it in any other transaction.
ART. 179. Illegal use of uniforms or insignia. - The
penalty of arresto mayor shall be imposed upon
1. any person who shall publicly and improperly
make use of
1.1. insignia,
1.2. uniforms or
1.3. dress
2. pertaining
2.1. to an office not held by such person or
2.2. to a class of persons of which he is not a
member.
This case of Cesario Ursua V. CA was cited by the
Supreme Court in People vs. Estrada and
Sandiganbayan. Former president, and now the mayor
of the city of Manila Joseph Ejercito Estrada. He used
the name Jose Velarde in afixing his signature in a trust
account in Equitable PCI bank. Inside the office of the
bank, he signed it in the presence of 2 persons Atty.
Chua, his friend lawyer, and Lacquian, his former
Executive Secretary. So he used and signed his name
Jose Velarde instead of Joseph Estrada in affixing his
signature on a trust account.
ELEMENTS
1. The offender makes use of an insignia, uniform or
dress;
2. The said insignia, uniform or dress pertains to a
class of persons for which he is not a member, or to
an office not held by him.
3. The said offender uses such insignia, uniform or
dress publicly and improperly.
As such, he was charged with violation of CA 142 as
amended. Convicted by the lower court, when it reached
the Supreme Court, the Supreme Court citing Cesario
Ursua vs. CA said that Estrada is not liable under CA
142 as amended, the Anti-Alias law.
Note that under the 2nd element for the person to be
liable for Illegal use of Uniform Insignia or Dress the
said insignia, uniform or dress must pertain to a class
of persons of which, the offender using it is not a
member, or must pertain to an office which is not held
by the said offender.
Again an Alias is a name, or names used, or intended to
be used publicly, and habitually usually in business
transactions. In the instant case Supreme Court said
that there was no showing that Joseph Estrada
intended to use the name Jose Velarde publicly. The
persons present when he affixed his signature in the
So if the offender is wearing an insignia, uniform or
dress which does not belong to any organization. It does
not belong to any class of person, this person only
imagined this insignia, uniform or dress out of nowhere,
it is not the insignia, uniform or dress of any
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organization or of any class of persons, the person
bearing the same is not liable under Article 179 because
the use of an imaginary insignia, uniform or dress was
brought forth by speculation, adorned out of
imagination, cannot be considered under Article 179
because such specifically requires that such insignia,
uniform or dress must belong to a class of persons for
which the offender is not a member or an office not held
by the offender. It is necessary that the offender uses it
publicly and improperly.
2.1. shall not exceed said amount or
2.2. cannot be estimated.
ART. 183. False testimony in other cases and perjury in
solemn affirmation. - The penalty of arresto mayor in its
maximum period to prision correccional in its minimum
period shall be imposed upon any person,
1. who knowingly makes untruthful statements
and
2. not being included in the provisions of the next
preceding articles,
2.1. shall testify under oath, or
2.2. make an affidavit,
upon any material matter before a competent
person authorized to administer an oath in
cases in which the law so requires.
Section Two.
False testimony
ART. 180. False testimony against a defendant. - Any
person who shall give false testimony against the
defendant in any criminal case shall suffer:
Any person who,
1. in case of a solemn affirmation made in lieu of
an oath,
2. shall commit any of the falsehoods mentioned in
this and the three preceding articles of this
section,
shall suffer the respective penalties provided therein.
1. The penalty of reclusion temporal, if the
defendant in said case shall have been
sentenced to death;
2. The penalty of prision mayor, if the defendant
shall have been sentenced to reclusion temporal
or reclusion perpetua;
3. The penalty of prision correccional, if the
defendant shall have been sentenced to any
other afflictive penalty; and
4. The penalty of arresto mayor, if the defendant
shall have been sentenced to a correctional
penalty or a fine, or shall have been acquitted.
Articles 180, 181, 182, and 183 refers to False
Testimony.
1. Articles 180 and 181 we have False Testimony in
Criminal Cases.
2. Article 182 we have False Testimony in Civil Cases.
3. Article 183, we have False Testimony in other cases
including Perjury.
In cases provided in subdivisions 3 and 4 of this
articlethe offender shall further suffer a fine not to
exceed 1,000 pesos.
False Testimony in Criminal Cases can either be
against a defendant or in favor of a defendant.
ART. 181. False testimony favorable to the defendants.
- Any person who shall give false testimony in favor of
the defendant in a criminal case,
1. shall suffer the penalties of arresto mayor in its
maximum period to prision correccional in its
minimum period and a fine not to exceed 1,000
pesos, if the prosecution is for a felony
punishable by an afflictive penalty, and
2. the penalty of arresto mayor in any other case.
1.
2.
3.
4.
ART. 182. False testimony in civil cases. - Any person
found guilty of false testimony in a civil case shall suffer
1. the penalty of prision correccional in its
minimum period and a fine not to exceed 6,000
pesos, if the amount in controversy shall exceed
5,000 pesos, and
2. the penalty of arresto mayor in its maximum
period to prision correccional in its minimum
period and a fine not to exceed 1,000 pesos, if
the amount in controversy
ELEMENTS OF FALSE TESTIMONY
AGAINST A DEFENDANT
There is a criminal proceeding;
The offender testified falsely against the defendant;
The offender knows that his testimony is false; and
The defendant to whom the false testimony was
given is either convicted by final judgment, or
acquitted in the said case in which the false
testimony has been given. These are the elements of
False Testimony against a defendant.
ELEMENTS OF FALSE TESTIMONY
IN FAVOR OF THE DEFENDANT
1. There must be a criminal proceeding;
2. The offender testifies falsely in favor of the
defendant; and
3. The offender knows that his testimony is a falsity.
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Testimony had been given must first be convicted by
final judgment or acquitted. Here the said defendant
and the said accused was not yet convicted by final
judgment. Although convicted by the RTC, he appealed
to the Court of Appeals. Therefore, while the case is
pending appeal before the Court of Appeals, while the
said case has not yet been decided with finality, the said
accused cannot file a False Testimony case against the
false witness X.
Note that false testimony against a defendant, and false
testimony in favor of a defendant have almost the same
elements except the fourth element.
In case of False Testimony against a defendant, the 4 th
element requires that the said defendant to whom the
false testimony is given must either be convicted by
final judgment or acquitted. Whereas in False
Testimony in favor of a defendant this last element is
absent, there is no requisite in which the defendant
whose the False Testimony is given must first be
convicted by final judgment or acquitted by the crime
charged.
1.
2.
3.
4.
It is premature because under Article 180 the penalty
to be imposed on the false witness is dependent on the
penalty imposed on the defendant. Since the penalty to
be imposed on the False witness is always dependent on
the penalty imposed on the defendant, it is necessary
first that there be conviction of final judgment before
this false witness may be prosecuted for False
Testimony because at the moment you do not know yet
the penalty that will imposed on this false witness
because the penalty that would be imposed on him
would be dependent on the penalty that would be
imposed on the said defendant. Hence, there must first
be conviction by final judgment before a case for False
Testimony against a defendant under Article 180 may
be filed before false witness X.
ELEMENTS OF FALSE TESTIMONY
IN CIVIL CASES
There is a Civil Case.
The offender testifies falsely on issues pertinent to
the said civil case.
The offender knows his testimony is a falsity.
The offender did so with malice and intent to affect
the issues relative to the said civil case.
The accused was charged with the crime of Homicide.
The accused was charged with homicide for having
killed the victim so the case is now on trial. The
prosecution presented the witness X, X was brought
along by the family of the victim, and the fiscal believed
based on the statement of the family that this witness
X saw how the accused killed the victim, and so this
witnessed X testified in open court that, he saw the
accused stabbing repeatedly the victim to death, that
was the testimony of X but X was a false witness. He
was actually a paid witness. He was not present at the
scene of the crime, and the accused knew that X was a
false witness. He knew that X was not present at the
scene of the crime. After the trial on the merits, the
judge convicted the said accused. The judge believed the
testimony of X and the judge convicted the accused, and
so the accused appealed his conviction before the Court
of Appeals. At the same time the accused also filed a
case of false testimony against the witness X. He filed a
case of violation of Article 180 False Testimony against
a defendant against X. Is X liable as charged? Or will
the case of False testimony against X prosper? X
definitely is liable but before he can be said liable. Will
the case prosper?
At the instant the answer is no. The case is premature.
The filing of the false testimony case against false
witness X under Article 180 is premature.
Same problem, the accused killed the victim, and so a
case of Homicide was filed against the accused. During
the time for the defense to present his witness, the
defense presented X a false witness. X testified in open
court in favor of the accused. X testified falsely in favor
of the accused. X said that it was impossible for the
accused to kill the victim because he was with him at
the exact date and time of the said killing. Therefore,
the said witness X said that it is impossible for the
accused to have committed the crime of Homicide. After
trial on the merits the judge did not believe the said
witness X, so the judge convicted the said accused. The
judge convicted the accused of the crime of Homicide.
The accused appealed to the Court of Appeals.
Meanwhile, while the case is pending appeal before the
Court of Appeals, the heirs of the victim filed a case
against the false witness X. They filed a case for
violation of Article 181 False Testimony in favor of a
defendant against the false witness X. Will the case
prosper?
Yes the case will prosper. This time the case will prosper
because under Article 181, in case of False Testimony in
favor of a defendant, there is no requisite that the
defendant in whose favor the False Testimony had been
given must first be convicted by final judgment, or
acquitted. There is no such requisite because under
Article 181 there is a fixed penalty to be imposed on a
false witness. The penalty to be imposed on the false
witness is not dependent on the penalty imposed on the
The filing of the case is premature because the fourth
element is wanting, the fourth element in False
Testimony against a defendant under Article 180
requires that the defendant against whom the False
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Article 182 because Article 182 is Civil cases, Article
183 False Testimony in other proceedings as well as
Perjury.
defendant in case of conviction. Therefore, right after
the giving of False Testimony, any victim, any heir s of
the victim, or any other person may immediately file a
case of False Testimony against the false witness under
Article 181 that is False Testimony in favor of a
defendant.
What is Perjury?
Perjury is the willful, deliberate assertion of falsehood
on a material matter made before a competent authority
that is duly authorized to receive, and administer the
oath.
What if same problem, the accused killed the victim. A
case of homicide was filed against the accused. Here
comes a witness, the witness was presented by the
prosecution, and the witness falsely testified against
the defendant. The witness X said that, he saw the
defendant killing the victim, stabbing the victim until
the victim died, but in truth and in fact, the false
witness X was not present at the scene of the crime, but
he testified falsely against the accused, against the
defendant. After trial on the merits, the judge did not
believe the testimony of witness X, and so the judge
acquitted the accused. The judge said that there was no
sufficient proof to show that the said accused killed the
victim. Therefore, the judge acquitted the accused based
on reasonable doubt. Now that the accused was
acquitted upon his acquittal he immediately filed a case
of False Testimony against the false witness X. He filed
a case against X for violating Article 180 False
Testimony against a defendant because X a false
witness testified falsely against him the defendant.
Right after the acquittal, the accused immediately filed
a case of False Testimony against the defendant’s false
witness X. Will the case prosper?
Yes the case will prosper. The case will prosper because
it is an acquittal. The fourth element of Article 180
requires that the defendant against him the False
Testimony has been given must either be convicted by
Final Judgment or acquitted.
ELEMENTS OF PERJURY
1. The defendant makes a statement under oath, or
executes an affidavit on a material matter ;
2. The said statement under oath or affidavit on a
material matter must be made before a competent
officer duly authorized to receive and administer
the oath;
3. In the said statement or in the said affidavit, the
offender made a willful and deliberate assertion of
falsehood; and
4. The said statement under oath or affidavit is
required by law.
The first element that the offender makes a statement
under oath or executes an affidavit on a material
matter, the statement must be under oath. Affidavit,
when you say affidavit, it is necessary that the same is
under oath.
TWO WAYS OF COMMITTING PERJURY
1. Making a statement under oath; and
2. Executing an affidavit on a material matter.
The second element requires that statement under oath
or the affidavit is made before a competent officer duly
authorized to receive and administer the oaths. It is
necessary that the said statement under oath or
affidavit must be made before a competent officer duly
authorized to receive and administer oaths because if it
is not made before such officer, the crime can be any
other crime, like Falsification, but not Perjury.
Right after the acquittal of the said accused, right after
the acquittal of the said defendant, he can immediately
file a case of False Testimony against the defendant
under Article 180 against false witness X. The reason is
that acquittal is immediately executory. Acquittal is not
subject to appeal. Therefore right after the filing, right
after his acquittal, the said accused can immediately file
a case of False Testimony against the false witness who
testified falsely against him.
In Perjury for the crime to arise it is necessary that the
False Testimony under oath or the affidavit must be
made before a competent officer duly authorized to
receive and administer oath because the essence of
Perjury is the violation of the Solemnity of the oath. So
if the falsity is not made before the competent officer
duly authorized to receive and administer the oath,
perjury will not arise because the second element is
absent.
Under Article 183, we have False Testimony in other
cases. In case of False Testimony under Article 180 and
181 which is False Testimony in criminal cases, False
Testimony in Civil cases must refer to an actual civil
case.
If the False Testimony is given in a special proceedings,
like for example a declaration of nullity of marriage,
petition for adoption, it falls under Article 183 not
The third element requires that in the said statement
under oath the offender made a willful or deliberate
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before a local sanggunian under oath. What crime if any
is committed by the said accused?
The crime committed is perjury not false testimony but
Perjury because labor cases are administrative
proceeding. Administrative proceedings are not Judicial
proceedings.
assertion of falsehood; therefore, Perjury can only be
committed with deliberate intent.
The law requires that there must be a willful and
deliberate assertion of falsehood. It is done by means of
deliberate intent. It cannot be done out of mere
imprudence or out of mere negligence; hence good faith
is a defense in Perjury.
So when the false statement under oath is made in a
non-judicial proceedings the crime committed is
perjury, but if the false statement under oath is made
in a judicial proceedings, the crime committed is false
testimony.
Then we have the last element requires that the said
oath or affidavit must be required by law. It is necessary
that the statement under oath or the affidavit must be
required by law, because Perjury is under Title 4 which
is Crimes against Public Interest. Therefore, if the said
statement under oath, if the said affidavit which
contains falsity is not required by law, then Perjury is
not the crime committed because it cannot be
considered as a crime against public interest.
The offender stated falsities in his driver’s license. The
offender stated falsities in his cedula or residence
certificate, or community tax certificate. What crime if
any is committed? Is he liable of Perjury?
The said accused is not liable of Perjury because a
driver’s license as well as a cedula or a community tax
certificate is not required to be under oath.
A public officer submitted his Statements of Assets
Liabilities and Net worth. In his Statements of Assets
Liabilities and Net worth, the said public officer stated
falsities. He did not state his real properties. He also did
no state his amount of money in the bank. Thereafter,
he filed the same. What crime if any is committed by the
said public officer?
He is liable for the crime of Perjury because a
Statements of Assets Liabilities and Net worth is
required to be under oath; hence, when under oath he
did not state his real properties in the said Statements
of Assets Liabilities and Net worth he becomes
criminally liable for Article 183, Perjury.
So what crime has been committed by the offender?
The offender is liable of Falsification. Falsification by
making false narration in a statement of facts in a
document. So the liability is falsification and not
perjury because these documents are not required to be
under oath.
So if the offender stated falsities in a document which is
required to be under oath, the crime committed is
perjury, but if the said accused stated as falsities in a
document which is not required to be under oath the
crime committed is falsification.
X was a witness in a case filed before the office of the
ombudsman. So the complainant filed a case before the
Office of the Prosecutor, and so the investigating
prosecutor called the complainant, the witnesses, and
the respondent and his witnesses. The investigating
prosecutor was asking clarificatory questions on the
witness, and the witness testified under oath. All the
statements made by the witness were falsities. The
statements that he made before the public prosecutor
under oath were all falsities. What crime or crimes were
committed by the said witness?
He is liable of Perjury and not of false testimony. He is
liable for Perjury under Article 183 because the said
testimony made before the investigating prosecutor is
not in a judicial proceeding. The said False statement
or false testimony will be considered as a violation of
Article 180, 181 or 182 if it is in a judicial proceedings
but if it is in a none judicial proceedings the crime
committed is under Article 183 that is Perjury.
ART. 184. Offering false testimony in evidence . - Any
person who shall knowingly offer in evidence a false
witness or testimony in any judicial or official
proceeding, shall be punished as guilty of false
testimony and shall suffer the respective penalties
provided in this section.
ELEMENTS
1. The offender offers in evidence a false witness or a
false testimony;
2. The offender knows that the said witness or said
testimony is a falsity; and
3. The offender offered the same either in a judicial
proceeding or any other transaction.
So in case of Article 184 or offering false testimony in
evidence, the offender becomes criminally liable just by
the mere act of offering in evidence either a false
witness or a false testimony.
The accused testified falsely in a labor case under oath.
The accused testified falsely in an administrative case
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Under the first act, soliciting any gifts or present as a
consideration for refraining from taking part in any
public auction. The mere act of soliciting will give rise
to the crime. It is not necessary that the said gift or
present will be received by the person who made the
solicitation. It is also not necessary that he actually
refrains from taking part in the public auction. It
suffices that he makes this solicitation the crime will
already arise.
Note that, Article 184 is different from subornation in
perjury. Subornation in perjury is committed by the
suborner. A suborner is one who procures a false
witness to testify in court. The suborner procures a false
witness to perjure himself. Before a suborner can be
criminally liable for subrogation of perjury it is
necessary that the false witness that he procures must
first be convicted of the crime of perjury. If the false
witness that he procures is not convicted of perjury then
the person he procures the same shall not be liable for
subornation in perjury.
Under the second act punished by attempting to cause
bidders to stay away from public auctions by means of
gifts, present, by means of threats or by means of fraud
or any other artifice. It is not necessary that the said
bidders would actually not participate, a mere attempt
to cause these bidders not to participate in the public
auction will then give rise to the crime.
Subornation in perjury is not a crime punished under
the RPC. It is not a crime punished under the RPC
because we already have Article 184, Offering false
testimony or false witness in evidence, just by the mere
act of offering a false witness or testimony will the give
rise to the crime. It is not necessary that the person or
the said witness who testified falsely be actually
convicted before the person who offered the same
become criminally liable.
Note that whether it is the first act of solicitation or the
second act of attempting to cause bidders to stay away
from public auctions, whether it is the first act or the
second act the intention of the offender is to cause the
reduction of the price of the thing which is the subject
of the auction.
Chapter Three
FRAUDS
That is the criminal intent of the offender, so the
intention on the part of the offender is to cause the
reduction of the price of the thing which is the subject
of the said auction.
Section One.
Machinations, monopolies and combinations
ART. 185. Machinations in public auctions. –
1. Any person who shall
1.1. solicit any gift or promise
1.2. as a consideration for refraining from
taking part in any public auction, and
2. any person who shall
2.1. attempt to cause bidders to stay away from
an auction by
2.1.1. threats,
2.1.2. gifts,
2.1.3. promises, or
2.1.4. any other artifice,
2.2. with intent to cause the reduction of the
price of the thing auctioned,
shall suffer the penalty of prision correccional in its
minimum period and a fine ranging from 10 to 50 per
centum of the value of the thing auctioned.
It is criminal in nature because when there is a public
auction it is necessary that the best price would be given
to the public. It refers to public interest. If persons
would manipulate so that bidders would not participate
in the said auction therefore the public will not have the
best price for the thing which is the subject of the
auction. As such the crime will arise.
ART. 186. Monopolies and combinations in restraint of
trade. - The penalty of prision correccional in its
minimum period or a fine ranging from 200 to 6,000
pesos, or both, shall be imposed upon:
1. Any person who shall
1.1. enter into any contract or agreement or
1.2. shall take part in any conspiracy or
combination in the form of a trust or
otherwise,
1.3. in restraint of trade or commerce or
1.4. to prevent by artificial means free
competition in the market;
2. Any person who
2.1. shall monopolize any merchandise or object
of trade or commerce, or
TWO ACTS PUNISHED
1. By soliciting any gift or present as a consideration
for refraining from taking part in any public
auction; and
2. By attempting to cause bidders to stay away from
public auctions by means of gifts, present, by means
of threats or by means of fraud.
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2.2. shall combine with any other person or
persons to monopolize said merchandise or
object
2.3. in order to
2.3.1. alter the price thereof by spreading
false rumors or
2.3.2. making use of any other article to
restrain free competition in the
market;
3. Any person who,
3.1. being a manufacturer, producer, or
processor of any merchandise or object of
commerce or an importer of any
merchandise or object of commerce from any
foreign country, either as principal or agent,
wholesaler or retailer,
3.2. shall combine, conspire or agree in any
manner with any person likewise engaged
in the manufacture, production, processing,
assembling or importation of such
merchandise or object of commerce or with
any other persons not so similarly engaged
3.3. for the purpose of
3.3.1. making transactions prejudicial to
lawful commerce, or
3.3.2. of increasing the market price in
any part of the Philippines,
3.4. of any such merchandise or object of
commerce
manufactured,
produced,
processed, assembled in or imported into
the Philippines, or of any article in the
manufacture of which such manufactured,
produced, or imported merchandise or
object of commerce is used.
3. shall be held liable as principals thereof.
THREE ACTS PUNISHED
1. Combination to prevent free competition in the
market; and
2. Monopoly to restraint free competition in the
market.
These first two acts can be committed by any person
who connives, conspires or try to monopolize free
competition in the market.
Under the (3) third act, it can only be done by
manufacturers, producers, processors, or importers who
connives, conspires, or agree in any manner with any
person to perform acts prejudicial to local commerce or
to cause the reduction of the price or to cause the
increase the price of the basic commodities.
So under the third act, not any person can commit that
one. Under the third act the offender can either be the
manufacturer, the producer, the importer or the
processor of the said articles or merchandise. If the said
manufacturers, producers, processors or importers,
connives, conspires, agrees with any other person in
order to commit any acts prejudicial to the lawful
commerce or to increase the prices of the basic
commodities, then, the crime will arise.
It is not necessary that there be actual monopoly, that
there be actual agreement. The mere initial steps will
already give rise to the said crime.
What if the offender happens to be juridical persons, the
offender happens to be corporations, associations. And
these corporations, associations conspired with one
another in order to prevent free competition in the
market. Who shall be held criminally liable? You cannot
charge these juridical persons. Juridical persons can’t
be charged in court because even if convicted, they
cannot be imprisoned. They cannot be penalized with
imprisonment. Then who shall be liable?
It is the president and the directors of the said juridical
persons or the said corporations, associations who
knowingly permitted and who despite knowledge
allowed the same shall be the one liable under Article
186.
If the offense mentioned in this article affects any food
substance, motor fuel or lubricants, or other articles of
prime necessity, the penalty shall be that of prision
mayor in its maximum and medium periods it being
sufficient for the imposition thereof that the initial
steps have been taken toward carrying out the purposes
of the combination.
Any property possessed under any contract or by any
combination mentioned in the preceding paragraphs,
and being the subject thereof, shall be forfeited to the
Government of the Philippines.
Whenever any of the offenses described above is
committed by a corporation or association,
1. the president and each one of its agents or
representatives in the Philippines in case of a
foreign corporation or association,
2. who shall have knowingly permitted or failed to
prevent the commission of such offense,
Chevron, Petron, and Shell conspired and connived with
one another to hoard gasoline/oil. The prices of oil in the
foreign market it is very low so they decided to import
and hoard the same because they know, that come
summer, the prices will increase. What crime if any is
committed by these Chevron, Petron, as well as Shell,
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they aren’t liable for any crime for they are juridical
persons. Who then should you prosecute?
It is the president, the directors or the managers of
these organizations of these companies charged in
court. Those managers, those presidents, those
directors who knowingly permitted and did not prevent
the commission of the crime despite knowledge should
be the one charged in court.
But in case of watch cases and flatware made of gold,
the actual fineness of such gold shall not be less by more
than 3/1000 than the fineness indicated by said stamp,
brand, label, or mark.
ELEMENTS
1. The offender imports, sells, or disposes articles or
merchandise made of gold, silver or any other
precious metals or alloys.
2. The stamps, brands or marks of these articles or
merchandise, fail to indicate the actual fineness or
quality of these precious metals or their alloys.
3. The said offender knew that the said articles or
merchandise fail to indicate the actual fitness or
quality of these precious metals or their alloys.
If the thing subject of monopoly is basic commodities,
like for example, food products, motor fuels, lubricants,
any other commodities, basic commodities, basic needs
of the people, it is not even necessary that there be
conspiracy. It is not necessary that there be an
agreement. Mere initial steps will suffice for the crime
to arise. The product be it, the basic needs of the people.
So in case of Article 187, the product being referred to
here are misbranded articles, they are misbranded
articles because these products made of gold, silver,
precious metals or their alloys, the stamps, brands or
marks, do not indicate the actual fineness and quality
of the said precious metals or their alloys. Hence, they
are misbranded.
Section Two.
Frauds in commerce and industry
ART. 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 ranging from 200 to 1,000
pesos, or both, shall be imposed on any person who
1. shall knowingly
1.1. import or
1.2. sell or
1.3. dispose of any article or merchandise
2. made of
2.1. gold,
2.2. silver, or
2.3. other precious metals, or
2.4. their alloys, with
2.4.1. stamps,
2.4.2. brands, or
2.4.3. marks
3. which fail to indicate the actual fineness or
quality of said metals or alloys.
For Article 187 to arise, it is not necessary that the
offender would have sold the same. It is not necessary
that the offender would have disposed the same. It
suffices that the offender imported these misbranded
articles. Despite knowledge that he knew that these
articles or merchandise are misbranded but imported
the same, violation of Article 187 will arise.
ART. 188. Subsisting and altering trade-mark, tradenames, or service marks144.
ART. 189. Unfair competition, fraudulent registration
of trade-mark, trade-name or service mark, fraudulent
designation of origin, and false description145.
Any stamp, brand, label, or mark shall be deemed to fail
to indicate the actual fineness of the article on which it
is engraved, printed, stamped, labeled or attached,
when the rest of the article shows that the quality or
fineness thereof is
1. less by more than 1/2 karat, if made of gold, and
2. less by more than 4/1000, if made of silver,
3. than what is shown by said
3.1. stamp,
3.2. brand,
3.3. label or
3.4. mark.
Superseded by the Intellectual Property Code
(R.A. 8293, January 1, 1998)
Superseded by the Intellectual Property Code
(R.A. 8293, January 1, 1998)
144
145
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IMPORTATION OF DANGEROUS DRUGS
Title Five146
Republic Act No. 9165
Comprehensive Dangerous Drugs Act of 2002
Under section 4 of RA 9165, there is importation of
dangerous drugs when the offender brings into
Philippine ports any dangerous drugs regardless of its
quantity and purity. So the moment dangerous drugs
have been brought to Philippine ports regardless of the
quality or purity of these dangerous drugs, the offender
would become criminally liable for importation of
dangerous drugs.
Section 4. IMPORTATION OF DANGEROUS DRUGS
AND/OR
CONTROLLED
PRECURSORS
AND
ESSENTIAL CHEMICALS.- .The penalty of life
imprisonment to death and a 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 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.
A foreign vessel was docked along Manila Bay, the
police officer got a tip that there were boxes of shabu
inside the said foreign vessel and so the police went to
the place and there, upon arriving in the said place they
saw about five boxes of dangerous drugs and confiscated
the same. The persons therein were arrested. Are they
liable under section 4?
The Supreme Court said, before one can be held liable
for importation of dangerous drugs, the prosecution
must be able to prove beyond reasonable doubt that
when the foreign vessel arrived from a foreign country
to the Philippine ports the said dangerous drugs were
already on board the said foreign vessel.
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 import any controlled
precursor and essential chemical.
So it is necessary that the prosecution must prove that
the said foreign vessel upon arrival into the Philippine
ports already have the dangerous drugs in sight. Absent
that evidence showing that upon the arrival the
dangerous drugs were already on board it cannot be
considered as importation of dangerous drugs, but only
possession of dangerous drugs.
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 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.
So it is necessary that the prosecution must prove when
the vessel arrived in the Philippine ports the vessel has
already the said dangerous drugs on board the said
vessel.
The 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.
∞∞∞
Section 5. SALE, TRADING, ADMINISTRATION,
DISPENSATION, DELIVERY, DISTRIBUTION AND
TRANSPORTATION 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 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
dangerous drug, including any and all species of opium
The penalty of twelve (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 Five
hundred thousand pesos (P500,000.00) shall be imposed
upon any person, who acts as a "protector/coddler" of
any violator of the provisions under this Section.
146
See R.A. 9165. Comprehensive Dangerous Drugs Act of 2002
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poppy regardless of the quantity and purity involved, or
shall act as a broker in any of such transactions.
Section 5 punishes different acts. We have selling,
trading, administering, dispensing, delivery, giving
away to another, dispatching in transit, distributing
and transportation 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 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.
ILLEGAL SALE OF DANGEROUS DRUGS
So many acts punished under section 5. Including
among these is selling dangerous drugs. Selling is the
act of giving away dangerous drugs from one person to
another for money or any other consideration.
ELEMENTS OF ILLEGAL SALE
OF DANGEROUS DRUGS
1. The buyer and the seller are clearly identified.
2. The corpus delicti, that is, the dangerous drugs
itself as well as the price are established.
3. The corpus delicti, that is the dangerous drugs,
must be transferred or delivered from the hands of
the seller to the hands of the buyer.
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.
(Jurisprudential Elements: (1) the identities of the
buyer and seller, object, and consideration; and (2) the
delivery of the thing sold and the payment thereof 147)
For drug pushers who use minors or mentally
incapacitated individuals as runners, couriers and
messengers, or in any other capacity directly connected
to the dangerous drugs and/or controlled precursors and
essential chemical trade, the maximum penalty shall be
imposed in every case.
The first element, the buyer and the seller are clearly
identified. Who is the buyer? Who is the seller of the
said dangerous drug? It must be clearly identified no
doubt.
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.
Second element, the corpus delicti and the price are
established. In cases of violation of RA 9165, the corpus
delicti is the dangerous drug itself. It is the object, it is
the substance of the crime. The dangerous drugs itself,
its existence, its identity must be established.
The 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.
Under the second element, not only the corpus delicti
but also the price must be established. The price must
be established because otherwise it cannot be
considered as illegal sale of dangerous drugs, so the
price must be established.
The penalty of twelve (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 Five
hundred thousand pesos (P500,000.00) shall be imposed
upon any person, who acts as a "protector/coddler" of
any violator of the provisions under this Section.
147
And the third element requires that it is necessary that
the said corpus delicti or dangerous drugs must be
transferred from the hands of the seller to the hands of
the buyer. Because if the dangerous drugs was not given
by the seller to the buyer then it is an aborted sale of
dangerous drugs because there was no transfer of
dangerous drugs from the hands of the seller to the
hands of the buyer. It is an aborted illegal sale of
dangerous drugs which cannot be considered as a
consummated sale but only an attempted illegal sale of
People vs. Castro, G.R. No. 194836, June 15, 2011, J. VELASCO
Jr.
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dangerous drugs as found in the case of People vs.
Rolando Laylo148.
Therefore, according to X, since the mark money was
not given to him it cannot be illegal sale of dangerous
drugs. If you were the judge, would you convict or acquit
X? How would you rule on the contention of the said
accused?
X is liable as charged. He is liable for illegal sale of
dangerous drugs.
The police officers got a tip that X was engaged in
buying/selling dangerous drugs so they conduct a
surveillance in the house of X and based on the
surveillance they are positive that he was engaged in
selling dangerous drugs and so a buy bust operation was
planned. Based on the said operation, A shall act as the
poseur-buyer, A will be the one to buy dangerous drugs
from the drug vendor X. And so during their buy bust
operation planning, the police officers gave A marked
money in the amount of five 100 peso bills. Based on
their buy bust operation plan, the moment the sale
transaction, between A and X is already consummated,
A as the poseur buyer has to remove his eye glasses. The
removal of the eyeglasses, will signal that the
transaction is already finished and the police officers
will already arrest X. That was the plan in the buy bust
operation. So all the members of the team of the police
went to the place or the house of X was located. The
police officers positioned themselves nearby but in
hiding so that X will not be able to see them. Meanwhile
A, the assigned poseur buyer went alone to the gate of
the house and knocked and it was X who opened the
door, the drug vendor. Upon seeing X, A the poseur
buyer told X that he is going to buy shabu worth 500
pesos. Upon hearing that X went inside the house and
when X came back at the gate X showed to A two
transparent sachets of shabu. X gave the same to A. A
upon receipt of the same was about to give the five 100
peso bills to X when suddenly he accidentally removed
his eyeglasses and the glasses fell on the ground. Upon
the removal of the said eyeglasses and such fell on the
ground. The police officers believing that the said
transaction has already been consummated because
based on their plan it is the removal of the eyeglasses
that would signal that the sale/transaction has already
been consummated this brings the officers immediately
went to scene and they arrested X. X was thereafter
charged of illegal sale of dangerous drugs under Section
5. But X contended, it cannot be illegal sale of dangerous
drugs because he did not receive the mark money. The
mark money remained in the hands of A because even
before A was able to give the mark money to X, the
police officers already arrived and arrested him.
First element, the buyer and the seller are both
identified. X is the seller, A is the poseur-buyer.
Second element, the corpus delicti, the dangerous drugs
and the price are established. The corpus delicti that is
the two plastic sachets of shabu. The price, that is 500
pesos.
Even if the marked money was not given by the poseurbuyer to the drug seller, there is still the presence of the
second element because the second element only
requires that the price must be established. So the
Supreme Court said, there is no requisite that there
must be a simultaneous exchange of money and
dangerous drugs. It suffices that the price or the value
or amount of dangerous drugs being bought has been
established beyond reasonable doubt. It is not necessary
that the said money be given to the drug handler.
The third element is also present because X gave the
two plastic sachets of shabu to the poseur buyer.
All the elements being present therefore, X is liable for
illegal sale of dangerous drugs.
So in case of illegal sale of dangerous drugs, it is not
necessary that the money actually be given to the seller.
It suffices that the price be established. It suffices that
the value of the dangerous drugs being bought have
been established by evidence beyond reasonable doubt.
So what if, in the same problem, the poseur buyer A was
not presented in court. So X was charged with illegal
sale of dangerous drugs but the poseur buyer was not
presented in court and so the poseur buyer did not
testify to the transaction of sale between him and the
seller. Even if the poseur buyer is not presented in
court, can there still be a conviction?
Thus, appellant was charged with attempted sale of dangerous drugs.
Section 26(b), Article II of RA 9165 provides: Section 26. Attempt or
Conspiracy.—Any attempt or conspiracy to commit the following
unlawful acts shall be penalized by the same penalty prescribed for
the commission of the same as provided under this Act: x x x (b) Sale,
trading, administration, dispensation, delivery, distribution and
transportation of any dangerous drug and/or controlled precursor and
essential chemical; x x x. (People vs. Laylo, 653 SCRA 660, G.R. No.
From the testimonies given, PO1 Reyes and PO1 Pastor testified
that they were the poseur-buyers in the sale. Both positively
identified appellant as the seller of the substance contained in plastic
sachets which were found to be positive for shabu. The same plastic
sachets were likewise identified by the prosecution witnesses when
presented in court. Even the consideration of P200.00 for each sachet
had been made known by appellant to the police officers. However, the
sale was interrupted when the police officers introduced themselves
as cops and immediately arrested appellant and his live-in partner
Ritwal. Thus, the sale was not consummated but merely attempted.
148
192235 July 6, 2011)
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The SC in a number of cases said that, the presentation
of the poseur- buyer in court to testify as to the presence
of the sale of said dangerous drugs is not material. His
testimony will only be in effect corroborative, if the
other police officers witness the said sale of dangerous
drugs. If the other police officers present could see and
have witnessed the actual sale of dangerous drugs, it is
not necessary that the poseur buyer be presented in
court.
A parked his vehicle near a sidewalk in front of B. B was
a cigarette vendor. And then thereafter, A lowered the
window of his car and called on B. A told B, “I have here
a box. If you agree to deliver this box to that man near
the electric post on the other side of the street, I will
give you Php 1,000.00.” And so B asked A, “What is
inside this box? Why would you give me Php 1,000.00
just for delivering this to that man on the other side of
the street?” So A told B, “This is just a valuable jewelry,
this is just a valuable thing. So just give it to that man
and here is Php 1,000.00.” B was in need of money so he
accepted the Php 1,000.00 and he took the box from him
and went to the other side of the street to the man near
the electric post. He was in the act of delivering the said
box when the police suddenly arrived and arrested B.
The box was also confiscated. Upon looking at the said
box, it was discovered that the contents of the box were
marijuana and so B was charged for delivering
dangerous drugs. Is B liable as charged?
B is not liable for delivery of dangerous drugs because
B has no knowledge that the thing he is delivering is
dangerous drugs. Based on the definition of delivery
under RA 9165, it is necessary that the person making
the delivery must have knowledge that the thing he is
delivering is dangerous drugs. Absent that knowledge,
it could be a defense. Hence, he is not liable for
delivering dangerous drugs.
But the moment the said accused testified and denied
the existence of the actual sale of dangerous drugs and
the police officers who witnessed were far from the
actual scene, it is incumbent upon the prosecution to
present the poseur buyer because in this case, the
testimony of the police officers will only be hearsay
evidence. They are not present at the actual sale and
buying, they are only within the vicinity in hiding.
Therefore it cannot be said that they know that the
transaction had already lasted.
So the absence or the presence of the testimony of the
poseur buyer will depend upon the facts and
circumstances presented in the case. If based on the
presentation of evidence in court the drug seller denied
the actual existence of the said sale or transaction, it is
incumbent upon the prosecution to present the said
poseur buyer. The transaction only being between the
drug teller and the poseur buyer, it is only the poseur
buyer who can testify as to the consummation of the
said sale. But if, other police officers are present nearby
and they witnessed the actual sale then it is not
necessary for the poseur buyer to be presented.
∞∞∞
Section 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.
DELIVERY OF DANGEROUS DRUGS
How is delivery of dangerous drugs defined under RA
9165?
Any act of knowingly passing a dangerous drug to
another, personally or otherwise, and by any means,
with or without consideration149.
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 or
group of persons who shall maintain a den, dive, or
resort where any controlled precursor and essential
chemical is used or sold in any form.
It is necessary that there be knowledge on the part of
the courier. It is necessary that there be knowledge of
the part of the person delivering dangerous drugs for
him to be criminally liable under Sec. 5 of RA 9165. The
courier, the person delivering the dangerous drugs must
have knowledge that the thing he is delivering must be
dangerous drugs because under RA 9165 delivering has
been defined as the act of knowingly passing. So the
offender knows that the thing he is passing is dangerous
drugs.
149
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.
R.A. 9165 Sec. 3 (k)
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X told Y, “Y, you go to my house tonight. There is a
session in my house. And if you may wish to join our
session, drop by my house at around 9 o’clock tonight.”
And so Y told X, “Okay, I will drop by your house 9
o’clock this evening.” And so at exactly 9 o’clock in the
evening, Y went to the house of X. Upon arrival to the
house of X, Y why so shocked. Y thought all along that
it was a mahjong session, but upon reaching the house,
he saw that it was a shabu session. Y was on his way
out upon seeing that it was a shabu session when
suddenly the police arrived. The police, armed with a
search warrant, they raided the said place. And among
those arrested was Y. Y was charged. Is why criminally
liable?
Under Sec. 7 of RA 9165, the following persons are also
criminally liable. First, an employee of the said den,
dive, or resort who has knowledge of the nature of the
place as one use for the sale of dangerous drugs. And
the second one is any person any person who has been
an employee is aware of the nature of the said place as
a den, dive, or resort for the use and sale of dangerous
drugs and who shall normally visit the same.
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 (P1,000,000.00) to Fifteen million pesos
(P15,000,000.00) shall be imposed on the maintainer,
owner and/or operator.
If such den, dive or resort is owned by a third person,
the same shall be confiscated and escheated in favor of
the government: Provided, That the criminal complaint
shall specifically allege that such place is intentionally
used in the furtherance of the crime: Provided, further,
That the prosecution shall prove such intent on the part
of the owner to use the property for such purpose:
Provided, finally, That the owner shall be included as
an accused in the criminal complaint.
The 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.
The penalty twelve (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 Five hundred
thousand pesos (P500,000.00) shall be imposed upon
any person, who acts as a "protector/coddler" of any
violator of the provisions under this Section.
So in the said place which is for the use and sale of
dangerous drugs, can the employees therein, can the
workers therein, be held liable?
The answer is yes, if they are aware of the nature of the
said place and considering that they are employees,
obviously they are aware that the said place is being
maintained for the use and sale of dangerous drugs.
Therefore the employees therein are criminally liable
under Sec. 7.
Section 7. EMPLOYEES AND VISITORS OF A DEN,
DIVE OR RESORT. - 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:
How about Y?
Y is not liable because although he went to the said
place, he is not aware that the said place was used I
order to maintain the use and sale of dangerous drug.
Likewise, he did not knowingly visit the same despite
such knowledge.
a. Any employee of a den, dive or resort, who is aware
of the nature of the place as such; and
b. Any person who, not being included in the
provisions of the next preceding, paragraph, is
aware of the nature of the place as such and shall
knowingly visit the same
For a mere visitor to be liable, Sec. 7 requires that first,
he is aware of the nature of the said place as one which
is maintained for the use and sale of dangerous drugs.
And second element requires that he shall knowingly
visit the same despite knowledge that it is a place, den,
dive, or resort for use and sale of dangerous drugs.
MAINTENANCE OF A DEN, DIVE, OR RESORT
FOR USE AND SALE OF DANGEROUS DRUGS
Section 6 punishes any person or group of persons who
maintains any den, dive, or resort for the use and sale
of dangerous drugs.
In this case, based on the facts, Y didn’t know. Y is not
aware of the nature of the said place, as one being
maintained as the use and sale of dangerous drugs and
he did not knowingly visit the same. Therefore, Y should
be acquitted based on the provision of Sec. 7.
What about the employee in the said place? What about
persons visiting the said place? Can they also be held
criminally liable?
∞∞∞
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Section 8. MANUFACTURE OF DANGEROUS DRUGS
AND/OR
CONTROLLED
PRECURSORS
AND
ESSENTIAL CHEMICALS. - The penalty of life
imprisonment to death and a fine ranging 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 engage in the
manufacture of any dangerous drug.
Section 11. POSSESSION 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 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
(MDA)
or
"ecstasy",
paramethoxyamphetamine
(PMA),
trimethoxyamphetamine (TMA), lysergic acid
diethylamine (LSD), gamma hydroxyamphetamine
(GHB), 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.
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 manufacture any
controlled precursor and essential chemical.
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.
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 Five
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 Five
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,
MDMA or "ecstasy", PMA, TMA, LSD, GHB, 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
The 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.
The penalty of twelve (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 Five
hundred thousand pesos (P500,000.00) shall be imposed
upon any person, who acts as a "protector/coddler" of
any violator of the provisions under this Section.
Under this section, the persons of any controlled
precursor or any essential chemical or any laboratory
equipment in a clandestine laboratory shall be prima
facie evidence of the manufacture of dangerous drugs.
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(300) grams or more but less than five (hundred)
500) grams of marijuana; and
3. Imprisonment of twelve (12) years and one (1) day
to twenty (20) years and a fine ranging from Three
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, MDMA or "ecstasy",
PMA, TMA, LSD, GHB, 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.
The answer is no. Insofar as the second element is
concerned, the law presumes that any person in
possession of any dangerous drugs does not have the
authority to possess the same. The law prima facie
presumes the same because dangerous drugs are per se
contraband. Since dangerous drugs are per se
contraband, since they are per se illegal, the law
presumes that any person in possession of dangerous
drugs does not have the authority to possess the same.
Therefore, it is the accused who has the burden of
proving that he has the authority to possess the said
dangerous drug.
So insofar as the second element is concerned it is
presumed by law, therefore it is the accused that must
prove that he has the authority to possess the
dangerous drugs found in his possession.
Then we have the third element requires that the
offender freely consciously possesses the said dangerous
drugs. There is animus posidendi, he knows that the
thing in his possession is a dangerous drug. He freely
and consciously possesses the said dangerous drug.
ILLEGAL POSSESSION OF DANGEROUS DRUGS
ELEMENTS
1. The accused is in possession of an item or object which
is identified to be a prohibited drug;
2. Such possession is not authorized by law; and
3. The accused freely and consciously possessed the said
drug.
∞∞∞
Section 12. POSSESSION OF EQUIPMENT,
INSTRUMENT,
APPARATUS
AND
OTHER
PARAPHERNALIA FOR DANGEROUS DRUGS. -The
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,
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, That 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.
The first element, the offender was found in possession
of an article or item identified to be dangerous drugs.
What does possession mean?
Possession does not only mean actual physical
possession. Possession also includes constructive
possession for as long as the said dangerous drugs is
under the control and dominion of the said offender. It
is not necessary that the dangerous drugs be found on
his body or clothing. It is not necessary that there is
physical possession for as long as it is found in a place
under the control and dominion of the person, there is
already constructive possession.
The dangerous drugs was found under the pillow on the
beddings where he was sleeping, there is already illegal
possession of dangerous drugs because the said
dangerous drugs were under his control and dominion
hence there is constructive possession.
The 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.
The second element requires that the offender does not
have the authority to possess dangerous drugs.
Is this second element for the prosecution to prove? Is
the prosecution mandated or incumbent to prove that
the said accused has possession of the said dangerous
drugs when he has no authority to possess the same?
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When the offender is charged with illegal possession of
drug paraphernalia what is the presumption of the law?
When a person is found in possession of drug
paraphernalia, the law presumes that the said person
consumed, administered or injected dangerous drugs to
himself.
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.
So the possession of these drug paraphernalia would
lead to the presumption that he consumed,
administered, used, injected dangerous drugs on
himself.
ELEMENTS
1. The offender was found in the actual use of
dangerous drugs.
2. After a confirmatory test, he was found positive for
use of any dangerous drugs.
3. No other amount of dangerous drugs was found in
his possession other than that what he is consumed,
or used.
ILLEGAL USE OF DANGEROUS DRUGS
∞∞∞
Section 13. POSSESSION OF DANGEROUS DRUGS
DURING PARTIES, SOCIAL GATHERINGS OR
MEETINGS. – Any 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.
So under the first element it is necessary that the
offender was actually seen by the police officers by the
PDEA agents or any other person using dangerous
drugs.
Second element, after his arrest he must go to the PNP
Crime Lab for confirmatory testing and the test showed
that he is positive for use of dangerous drugs, that he
actually consumed dangerous drugs.
What if the offender was found in possession of
dangerous drugs in a party, in a meeting, in a
gathering? What is the effect on his criminal liability?
Under Section 13 of RA 9165 if a person is found in
possession of dangerous drugs in a meeting, party,
gathering, or in the company of at least two or more
persons. The maximum penalty prescribed by law shall
be the one imposed.
The third element requires that no other amount of
dangerous drugs must be found in his possession
because if any other amount of dangerous drugs was
found in his possession other than the dangerous drugs
that he has consumed or he was consuming, then the
appropriate charge is already illegal possession and not
illegal use of dangerous drugs.
Therefore, the moment the person was found in
possession of dangerous drugs in a meeting, gathering,
or in any place in the company of at least two or more
persons it will aggravate the criminal liability of the
offender. The law says, the maximum penalty
prescribed by law shall be the one imposed.
So in order to give rise to illegal use of dangerous drugs
the third element requires that no other amount, no
other kind of dangerous drugs must be found in
possession of the said offender.
X was walking on the street on his way home when
suddenly here comes a snatcher. The snatcher
immediately grabbed her handbag and so X shouted for
help the police officers who were nearby heard the shout
of X for help and so the police officer chased the
snatcher. The police officer blew the whistle for the
snatcher to stop but the snatcher would not stop. The
snatcher entered a house that has an opened door
considering that the door of the house was open the
police officer entered the said house. Upon entering, the
police officers saw on the floor of the said house three
persons, A, B, and C encircled and engaged in sniffing
shabu. The police officers did not anymore follow the
snatcher, instead the police officers arrested A, B, and
C whom they caught in the actual act of sniffing shabu.
They informed A, B, and C of their constitutional rights
∞∞∞
Section 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 minimum of six (6)
months rehabilitation in a government center for the
first offense, subject to the provisions of Article VIII of
this Act. If apprehended using any dangerous drug for
the second time, he/she shall suffer the penalty of
imprisonment ranging from six (6) years and one (1) day
to twelve (12) years and a fine ranging from Fifty
thousand pesos (P50,000.00) to Two hundred thousand
pesos (P200,000.00): Provided, That this Section shall
not be applicable where the person tested is also found
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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
1.1. the accused or the person/s from whom such
items were confiscated and/or seized, or his/her
representative or counsel,
1.2. a representative from the media and
1.3. the Department of Justice (DOJ), and
1.4. 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
PDEA 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 twentyfour (24) hours;
4. After the filing of the criminal case, the Court shall,
within seventy-two (72) hours, conduct an ocular
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 PDEA shall within
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
and handcuffed them. Thereafter they searched/frisked
the body and the clothing of A, B, and C. And upon
search the police officers found two plastic sachets of
shabu on the pocket of the pants of A, two plastic
sachets of shabu on the pocket of the pants of B and also
two plastic sachets of shabu on the pocket of the pants
of C. So from A, B, and C two plastic sachets of shabu
were found in each of their pockets. The police officers
confiscated the said dangerous drugs marked the same
and thereafter brought A, B, and C to the PNP Crime
Lab for testing and they also sent the dangerous drugs
for testing. After the confirmatory test A, B and C were
found to be positive for use of shabu. Based on these
evidence, what case or cases should be filed by the police
officers against A, B, and C?
A, B, and C should only be charged with one case and
that is illegal possession of dangerous drugs not illegal
use of dangerous drugs.
Illegal use of dangerous drugs is not the appropriate
charge because the third element is absent for illegal
use.
The first element is present. A, B, and C were found
actually using shabu. Second element is also present,
after confirmatory test they are found positive for use of
shabu. But the third element is absent. The third
element requires that no other amount of dangerous
drugs must be found in their possession when they were
frisked, when they were searched two plastic sachets of
shabu were found from the pockets of their pants from
each of their pants. Therefore they can no longer be held
liable for illegal use because the third element of illegal
use is already absent. Instead, they shall be convicted
for illegal possession of dangerous drugs because form
each of their pockets two plastic sachets of shabu were
found.
∞∞∞
Section 21. CUSTODY AND DISPOSITION OF
CONFISCATED, SEIZED, AND/OR SURRENDERED
DANGEROUS DRUGS, PLANT SOURCES OF
DANGEROUS
DRUGS,
CONTROLLED
PRECURSORS AND ESSENTIAL CHEMICALS,
INSTRUMENTS/PARAPHERNALIA
AND/OR
LABORATORY EQUIPMENT. – The PDEA 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:
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5.
6.
7.
8.
counsel, a representative from the media, a
representative from the Department of Justice, and an
elected public official who shall be given a copy of the
said inventory and who shall be required to sign the
same.
donated, used or recycled for legitimate purposes:
Provided, further, That a representative sample,
duly weighed and recorded is retained;
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 PDEA, 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;
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;
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 PDEA for proper
disposition and destruction within twenty-four (24)
hours from receipt of the same; and
Transitory Provision: a) Within twenty-four (24)
hours from the effectivity of this Act, dangerous
drugs defined herein which are presently in
possession of law enforcement agencies shall, w