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TITLE I. CRIMES AGAINST NATIONAL Almost all of these are crimes committed in
SECURITY AND THE LAW OF NATIONS times of war, except the following, which
can be committed in times of peace:

Crimes against national security (1) Espionage, under Article 114 – This
is also covered by Commonwealth
1. Treason (Art. 114); Act No. 616 which punishes
conspiracy to commit espionage.
2. Conspiracy and proposal to commit This may be committed both in times
treason (Art. 115); of war and in times of peace.

3. Misprision of treason (Art. 116); and (2) Inciting to War or Giving Motives for
Reprisals, under Article 118 – This
4. Espionage (Art. 117). can be committed even if the
Philippines is not a participant.
Exposing the Filipinos or their
Crimes against the law of nations properties because the offender
performed an unauthorized act, like
1. Inciting to war or giving motives for those who recruit Filipinos to
reprisals (Art. 118); participate in the gulf war. If they
involve themselves to the war, this
2. Violation of neutrality (Art. 119); crime is committed. Relevant in the
cases of Flor Contemplacion or
3. Corresponding with hostile country Abner Afuang, the police officer who
(Art. 120); stepped on a Singaporean flag.

4. Flight to enemy's country (Art. 121); (3) Violation of Neutrality, under Article
and 119 – The Philippines is not a party
to a war but there is a war going on.
5. Piracy in general and mutiny on the This may be committed in the light of
high seas (Art. 122). the Middle East war.

The crimes under this title can be Article 114. Treason

prosecuted even if the criminal act or acts
were committed outside the Philippine Elements
territorial jurisdiction. However, prosecution
can proceed only if the offender is within 1. Offender is a Filipino or resident
Philippine territory or brought to the alien;
Philippines pursuant to an extradition treaty.
This is one of the instances where the 2. There is a war in which the
Revised Penal Code may be given extra- Philippines is involved;
territorial application under Article 2 (5)
thereof. In the case of crimes against the 3. Offender either –
law of nations, the offender can be
prosecuted whenever he may be found a. levies war against the
because the crimes are regarded as government; or
committed against humanity in general.
b. adheres to the enemies,
giving them aid or comfort
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within the Philippines or 2. At least one person decides to –

elsewhere
a. levy war against the
government; or
Requirements of levying war
b. adhere to the enemies,
1. Actual assembling of men; giving them aid or comfort;
3. He proposes its execution to some
2. To execute a treasonable design by other persons.
force;

3. Intent is to deliver the country in Article 116. Misprision of Treason

whole or in part to the enemy; and
Elements
4. Collaboration with foreign enemy or
some foreign sovereign 1. Offender owes allegiance to the
government, and not a foreigner;

Two ways of proving treason 2. He has knowledge of conspiracy to

commit treason against the
1. Testimony of at least two witnesses government;
to the same overt act; or
3. He conceals or does not disclose and
2. Confession of accused in open court. make known the same as soon as
possible to the governor or fiscal of
the province in which he resides, or
Article 115. Conspiracy and Proposal to the mayor or fiscal of the city in
Commit Treason which he resides.
Elements of conspiracy to commit treason
While in treason, even aliens can commit
1. There is a war in which the said crime because of the amendment to
Philippines is involved; the article, no such amendment was made
in misprision of treason. Misprision of
2. At least two persons come to an treason is a crime that may be committed
agreement to – only by citizens of the Philippines.
a. levy war against the The essence of the crime is that there are
government; or persons who conspire to commit treason
and the offender knew this and failed to
b. adhere to the enemies, make the necessary report to the
giving them aid or comfort; government within the earliest possible time.
What is required is to report it as soon as
3. They decide to commit it. possible. The criminal liability arises if the
treasonous activity was still at the
conspiratorial stage. Because if the treason
Elements of proposal to commit treason already erupted into an overt act, the
implication is that the government is already
1. There is a war in which the aware of it. There is no need to report the
Philippines is involved; same. This is a felony by omission although
committed with dolo, not with culpa.
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The persons mentioned in Article 116 are 2. He has no authority therefore;

not limited to mayor, fiscal or governor. Any
person in authority having equivalent 3. His purpose is to obtain
jurisdiction, like a provincial commander, will information, plans,
already negate criminal liability. photographs or other data of
a confidential nature relative
Whether the conspirators are parents or to the defense of the
children, and the ones who learn the Philippines.
conspiracy is a parent or child, they are
required to report the same. The reason is 2. By disclosing to the representative of
that although blood is thicker than water so a foreign nation the contents of the
to speak, when it comes to security of the articles, data or information referred
state, blood relationship is always to in paragraph 1 of Article 117,
subservient to national security. Article 20 which he had in his possession by
does not apply here because the persons reason of the public office he holds.
found liable for this crime are not
considered accessories; they are treated as Elements
principals.
1. Offender is a public officer;
In the 1994 bar examination, a problem was
given with respect to misprision of treason. 2. He has in his possession the
The text of the provision simply refers to a articles, data or information
conspiracy to overthrow the government. referred to in paragraph 1 of
The examiner failed to note that this crime Article 117, by reason of the
can only be committed in times of war. The public office he holds;
conspiracy adverted to must be treasonous 3. He discloses their contents to
in character. In the problem given, it was a representative of a foreign
rebellion. A conspiracy to overthrow the nation.
government is a crime of rebellion because
there is no war. Under the Revised Penal
Code, there is no crime of misprision of Commonwealth Act No. 616 – An Act to
rebellion. Punish Espionage and Other Offenses
against National Security

Article 117. Espionage Acts punished

Acts punished 1. Unlawfully obtaining or permitting to

be obtained information affecting
1. By entering, without authority national defense;
therefore, a warship, fort or naval or
military establishment or reservation 2. Unlawful disclosing of information
to obtain any information, plans, affecting national defense;
photograph or other data of a
confidential nature relative to the 3. Disloyal acts or words in times of
defense of the Philippines; peace;

Elements 4. Disloyal acts or words in times of

war;
1. Offender enters any of the
places mentioned;
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5. Conspiracy to violate preceding threatened. Now, the threat of rebellion or

sections; and internal wars is serious as a national threat.

6. Harboring or concealing violators of

law. Article 120. Correspondence with
Hostile Country

Article 118. Inciting to War or Giving Elements

Motives for Reprisals
1. It is in time of war in which the
Elements Philippines is involved;

1. Offender performs unlawful or 2. Offender makes correspondence

unauthorized acts; with an enemy country or territory
occupied by enemy troops;
2. The acts provoke or give occasion
for – 3. The correspondence is either –

a. a war involving or liable to a. prohibited by the government;

involve the Philippines; or
b. carried on in ciphers or
b. exposure of Filipino citizens conventional signs; or
to reprisals on their persons
or property. c. containing notice or
information which might be
useful to the enemy.
Article 119. Violation of Neutrality

Elements Article 121. Flight to Enemy's Country

1. There is a war in which the Philippines Elements

is not involved;
1. There is a war in which the
2. There is a regulation issued by a Philippines is involved;
competent authority to enforce
neutrality; 2. Offender must be owing allegiance
to the government;
3. Offender violates the regulation.
3. Offender attempts to flee or go to
enemy country;
When we say national security, it should be
interpreted as including rebellion, sedition 4. Going to the enemy country is
and subversion. The Revised Penal Code prohibited by competent authority.
does not treat rebellion, sedition and
subversion as crimes against national
security, but more of crimes against public In crimes against the law of nations, the
order because during the time that the offenders can be prosecuted anywhere in
Penal Code was enacted, rebellion was the world because these crimes are
carried out only with bolos and spears; considered as against humanity in general,
hence, national security was not really like piracy and mutiny. Crimes against
national security can be tried only in the
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Philippines, as there is a need to bring the in August 1974, Presidential Decree No.
offender here before he can be made to 532 (The Anti-Piracy and Anti-Highway
suffer the consequences of the law. The Robbery Law of 1974) was issued,
acts against national security may be punishing piracy, but not mutiny, in
committed abroad and still be punishable Philippine territorial waters. Thus came
under our law, but it can not be tried under about two kinds of piracy: (1) that which is
foreign law. punished under the Revised Penal Code if
committed in the high seas; and (2) that
which is punished under Presidential
Article 122. Piracy in general and Mutiny Decree No. 532 if committed in Philippine
on the High Seas or in Philippine Waters territorial waters.

Acts punished as piracy Amending Article 122, Republic Act No.

7659 included therein piracy in Philippine
1. Attacking or seizing a vessel on the waters, thus, pro tanto superseding
high seas or in Philippine waters; Presidential Decree No. 532. As amended,
the article now punishes piracy, as well as
2. Seizing in the vessel while on the mutiny, whether committed in the high seas
high seas or in Philippine waters the or in Philippine territorial waters, and the
whole or part of its cargo, its penalty has been increased to reclusion
equipment or personal belongings of perpetua from reclusion temporal.
its complement or passengers.
But while under Presidential Decree No.
Elements of piracy 532, piracy in Philippine waters could be
committed by any person, including a
1. The vessel is on the high seas or passenger or member of the complement of
Philippine waters; a vessel, under the amended article, piracy
can only be committed by a person who is
2. Offenders are neither members of its not a passenger nor member of the
complement nor passengers of the complement of the vessel irrespective of
vessel; venue. So if a passenger or complement of
the vessel commits acts of robbery in the
3. Offenders either – high seas, the crime is robbery, not piracy.

a. attack or seize a vessel on Note, however, that in Section 4 of

the high seas or in Philippine Presidential Decree No. 532, the act of
waters; or aiding pirates or abetting piracy is penalized
as a crime distinct from piracy. Said section
b. seize in the vessel while on penalizes any person who knowingly and in
the high seas or in Philippine any manner aids or protects pirates, such
waters the whole or part of its as giving them information about the
cargo, its equipment or movement of the police or other peace
personal belongings of its officers of the government, or acquires or
complement or passengers; receives property taken by such pirates, or
in any manner derives any benefit therefrom;
4. There is intent to gain. or who directly or indirectly abets the
commission of piracy. Also, it is expressly
provided in the same section that the
Originally, the crimes of piracy and mutiny offender shall be considered as an
can only be committed in the high seas, that accomplice of the principal offenders and
is, outside Philippine territorial waters. But punished in accordance with the Revised
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Penal Code. This provision of Presidential

Decree No. 532 with respect to piracy in
Philippine water has not been incorporated Mutiny is the unlawful resistance to a
in the Revised Penal Code. Neither may it superior officer, or the raising of
be considered repealed by Republic Act No. commotions and disturbances aboard a ship
7659 since there is nothing in the against the authority of its commander.
amendatory law is inconsistent with said
section. Apparently, there is still the crime of Distinction between mutiny and piracy
abetting piracy in Philippine waters under
Presidential Decree No. 532. (1) As to offenders

Considering that the essence of piracy is Mutiny is committed by members of

one of robbery, any taking in a vessel with the complement or the passengers
force upon things or with violence or of the vessel.
intimidation against person is employed will
always be piracy. It cannot co-exist with the Piracy is committed by persons who
crime of robbery. Robbery, therefore, are not members of the complement
cannot be committed on board a vessel. or the passengers of the vessel.
But if the taking is without violence or
intimidation on persons of force upon things, (2) As to criminal intent
the crime of piracy cannot be committed,
but only theft. In mutiny, there is no criminal intent.

In piracy, the criminal intent is for

Questions & Answers gain.

Could theft be committed on board a Article 123. Qualified Piracy

vessel?
Elements
Yes. The essence of piracy is one of
robbery. 1. The vessel is on the high seas or
Philippine waters:
Elements of mutiny 2. Offenders may or may not be members
of its complement, or passengers of
1. The vessel is on the high seas or the vessel;
Philippine waters;
3. Offenders either –
2. Offenders are either members of its
complement, or passengers of the a. attack or seize the vessel; or
vessel;
b. seize the whole or part of the
3. Offenders either – cargo, its equipment., or
personal belongings of the
a. attack or seize the vessel; or crew or passengers;

b. seize the whole or part of the 4. The preceding were committed under
cargo, its equipment, or any of the following circumstances:
personal belongings of the
crew or passengers.
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a. whenever they have seized a Anti hi-jacking is another kind of piracy

vessel by boarding or firing which is committed in an aircraft. In other
upon the same; countries, this crime is known as aircraft
piracy.
b. whenever the pirates have
abandoned their victims Four situations governed by anti hi-jacking
without means of saving law:
themselves; or
(1) usurping or seizing control of an
c. whenever the crime is aircraft of Philippine registry while it
accompanied by murder, is in flight, compelling the pilots
homicide, physical injuries or thereof to change the course or
rape. destination of the aircraft;

(2) usurping or seizing control of an

If any of the circumstances in Article123 is aircraft of foreign registry while
present, piracy is qualified. Take note of the within Philippine territory, compelling
specific crimes involve in number 4 c the pilots thereof to land in any part
(murder, homicide, physical injuries or rape). of Philippine territory;
When any of these crimes accompany
piracy, there is no complex crime. Instead, (3) carrying or loading on board an
there is only one crime committed – aircraft operating as a public utility
qualified piracy. Murder, rape, homicide, passenger aircraft in the Philippines,
physical injuries are mere circumstances any flammable, corrosive, explosive,
qualifying piracy and cannot be punished as or poisonous substance; and
separate crimes, nor can they be
complexed with piracy. (4) loading, shipping, or transporting on
board a cargo aircraft operating as a
Although in Article 123 merely refers to public utility in the Philippines, any
qualified piracy, there is also the crime of flammable, corrosive, explosive, or
qualified mutiny. Mutiny is qualified under poisonous substance if this was
the following circumstances: done not in accordance with the
rules and regulations set and
(1) When the offenders abandoned the promulgated by the Air
victims without means of saving Transportation Office on this matter.
themselves; or
Between numbers 1 and 2, the point of
(2) When the mutiny is accompanied by distinction is whether the aircraft is of
rape, murder, homicide, or physical Philippine registry or foreign registry. The
injuries. common bar question on this law usually
involves number 1. The important thing is
Note that the first circumstance which that before the anti hi-jacking law can apply,
qualifies piracy does not apply to mutiny. the aircraft must be in flight. If not in flight,
whatever crimes committed shall be
governed by the Revised Penal Code. The
law makes a distinction between aircraft of a
foreign registry and of Philippine registry. If
Republic Act No. 6235 (The Anti Hi- the aircraft subject of the hi-jack is of
Jacking Law) Philippine registry, it should be in flight at
the time of the hi-jacking. Otherwise, the
anti hi-jacking law will not apply and the
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crime is still punished under the Revised The criminal intent definitely is to
Penal Code. The correlative crime may be take control of the aircraft, which is hi-
one of grave coercion or grave threat. If jacking. It is a question now of whether the
somebody is killed, the crime is homicide or anti-hi-jacking law shall govern.
murder, as the case may be. If there are
some explosives carried there, the crime is The anti hi-jacking law is applicable
destructive arson. Explosives are by nature in this case. Even if the aircraft is not yet
pyro-techniques. Destruction of property about to fly, the requirement that it be in
with the use of pyro-technique is destructive flight does not hold true when in comes to
arson. If there is illegally possessed or aircraft of foreign registry. Even if the
carried firearm, other special laws will apply. problem does not say that all exterior doors
are closed, the crime is hi-jacking. Since
On the other hand, if the aircraft is of foreign the aircraft is of foreign registry, under the
registry, the law does not require that it be law, simply usurping or seizing control is
in flight before the anti hi-jacking law can enough as long as the aircraft is within
apply. This is because aircrafts of foreign Philippine territory, without the requirement
registry are considered in transit while they that it be in flight.
are in foreign countries. Although they may
have been in a foreign country, technically Note, however, that there is no hi-
they are still in flight, because they have to jacking in the attempted stage. This is a
move out of that foreign country. So even if special law where the attempted stage is
any of the acts mentioned were committed not punishable.
while the exterior doors of the foreign
aircraft were still open, the anti hi-jacking 2. A Philippine Air Lines aircraft
law will already govern. is bound for Davao. While the pilot and co-
pilot are taking their snacks at the airport
Note that under this law, an aircraft is lounge, some of the armed men were also
considered in flight from the moment all there. The pilots were followed by these
exterior doors are closed following men on their way to the aircraft. As soon as
embarkation until such time when the same the pilots entered the cockpit, they pulled
doors are again opened for disembarkation. out their firearms and gave instructions
This means that there are passengers that where to fly the aircraft. Does the anti hi-
boarded. So if the doors are closed to bring jacking law apply?
the aircraft to the hangar, the aircraft is not
considered as in flight. The aircraft shall be No. The passengers have yet to
deemed to be already in flight even if its board the aircraft. If at that time, the
engine has not yet been started. offenders are apprehended, the law will not
apply because the aircraft is not yet in flight.
Note that the aircraft is of Philippine registry.
Questions & Answers
3. While the stewardess of a
Philippine Air Lines plane bound for Cebu
1. The pilots of the Pan Am was waiting for the passenger manifest, two
aircraft were accosted by some armed men of its passengers seated near the pilot
and were told to proceed to the aircraft to fly surreptitiously entered the pilot cockpit. At
it to a foreign destination. The armed men gunpoint, they directed the pilot to fly the
walked with the pilots and went on board aircraft to the Middle East. However, before
the aircraft. But before they could do the pilot could fly the aircraft towards the
anything on the aircraft, alert marshals Middle East, the offenders were subdued
arrested them. What crime was committed? and the aircraft landed. What crime was
committed?
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result from the carrying or loading of the

The aircraft was not yet in flight. flammable, corrosive, explosive, or
Considering that the stewardess was still poisonous substance in an aircraft, the
waiting for the passenger manifest, the offender shall be prosecuted not only for
doors were still open. Hence, the anti hi- violation of Republic Act No. 6235, but also
jacking law is not applicable. Instead, the for the crime of physical injuries or damage
Revised Penal Code shall govern. The to property, as the case may be, under the
crime committed was grave coercion or Revised Penal Code. There will be two
grave threat, depending upon whether or prosecutions here. Other than this situation,
not any serious offense violence was the crime of physical injuries will be
inflicted upon the pilot. absorbed. If the explosives were planted in
the aircraft to blow up the aircraft, the
However, if the aircraft were of circumstance will qualify the penalty and
foreign registry, the act would already be that is not punishable as a separate crime
subject to the anti hi-jacking law because for murder. The penalty is increased under
there is no requirement for foreign aircraft to the anti hi-jacking law.
be in flight before such law would apply.
The reason for the distinction is that as long All other acts outside of the four are merely
as such aircraft has not returned to its home qualifying circumstances and would bring
base, technically, it is still considered in about higher penalty. Such acts would not
transit or in flight. constitute another crime. So the killing or
explosion will only qualify the penalty to a
higher one.
As to numbers 3 and 4 of Republic Act No.
6235, the distinction is whether the aircraft
is a passenger aircraft or a cargo aircraft. In Questions & Answers
both cases, however, the law applies only to
public utility aircraft in the Philippines.
Private aircrafts are not subject to the anti 1. In the course of the hi-jack, a
hi-jacking law, in so far as transporting passenger or complement was shot and
prohibited substances are concerned. killed. What crime or crimes were
committed?
If the aircraft is a passenger aircraft, the
prohibition is absolute. Carrying of any The crime remains to be a violation
prohibited, flammable, corrosive, or of the anti hi-jacking law, but the penalty
explosive substance is a crime under thereof shall be higher because a
Republic Act No. 6235. But if the aircraft is passenger or complement of the aircraft had
only a cargo aircraft, the law is violated only been killed. The crime of homicide or
when the transporting of the prohibited murder is not committed.
substance was not done in accordance with
the rules and regulations prescribed by the 2. The hi-jackers threatened to
Air Transportation Office in the matter of detonate a bomb in the course of the hi-jack.
shipment of such things. The Board of What crime or crimes were committed?
Transportation provides the manner of
packing of such kind of articles, the quantity Again, the crime is violation of the
in which they may be loaded at any time, anti hi-jacking law. The separate crime of
etc. Otherwise, the anti hi-jacking law does grave threat is not committed. This is
not apply. considered as a qualifying circumstance
that shall serve to increase the penalty.
However, under Section 7, any physical
injury or damage to property which would
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TITLE II. CRIMES AGAINST THE as when a private person conspires with a
FUNDAMENTAL LAWS OF THE STATE public officer. What is required is that the
principal offender must be a public officer.
Thus, if a private person conspires with a
Crimes against the fundamental laws of the public officer, or becomes an accessory or
State accomplice, the private person also
becomes liable for the same crime. But a
1. Arbitrary detention (Art. 124); private person acting alone cannot commit
the crimes under Article 124 to 132 of this
2. Delay in the delivery of detained title.
persons to the proper judicial
authorities (Art. 125);
Article 124. Arbitrary Detention
3. Delaying release (Art. 126);
Elements
4. Expulsion (Art. 127);
1. Offender is a public officer or
5. Violation of domicile (Art. 128); employee;

6. Search warrants maliciously 2. He detains a person;

obtained and abuse in the service of
those legally obtained (Art. 129); 3. The detention is without legal
grounds.
7. Searching domicile without
witnesses (Art. 130);
Meaning of absence of legal grounds
8. Prohibition, interruption, and
dissolution of peaceful meetings (Art. 1. No crime was committed by the
131); detained;

9. Interruption of religious worship (Art. 2. There is no violent insanity of the

132); and detained person; and

10. Offending the religious feelings (Art. 3. The person detained has no ailment
133); which requires compulsory
confinement in a hospital.

Crimes under this title are those which

violate the Bill of Rights accorded to the The crime of arbitrary detention assumes
citizens under the Constitution. Under this several forms:
title, the offenders are public officers, except
as to the last crime – offending the religious (1) Detaining a person without legal
feelings under Article 133, which refers to grounds under;
any person. The public officers who may be
held liable are only those acting under (2) Having arrested the offended party
supposed exercise of official functions, for legal grounds but without warrant
albeit illegally. of arrest, and the public officer does
In its counterpart in Title IX (Crimes Against not deliver the arrested person to the
Personal Liberty and Security), the proper judicial authority within the
offenders are private persons. But private period of 12, 18, or 36 hours, as the
persons may also be liable under this title case may be; or
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scope of his official duties is no better than

(3) Delaying release by competent a private citizen.
authority with the same period
mentioned in number 2.
Questions & Answers
Distinction between arbitrary detention and
illegal detention
1. A janitor at the Quezon City
1. In arbitrary detention -- Hall was assigned in cleaning the men’s
room. One day, he noticed a fellow
The principal offender must be a urinating so carelessly that instead of
public officer. Civilians can commit urinating at the bowl, he was actually
the crime of arbitrary detention urinating partly on the floor. The janitor
except when they conspire with a resented this. He stepped out of the men’s
public officer committing this crime, room and locked the same. He left. The
or become an accomplice or fellow was able to come out only after
accessory to the crime committed by several hours when people from the outside
the public officer; and forcibly opened the door. Is the janitor liable
for arbitrary detention?
The offender who is a public officer
has a duty which carries with it the No. Even if he is a public officer, he
authority to detain a person. is not permitted by his official function to
arrest and detain persons. Therefore, he is
2. In illegal detention -- guilty only of illegal detention. While the
offender is a public officer, his duty does not
The principal offender is a private include the authority to make arrest; hence,
person. But a public officer can the crime committed is illegal detention.
commit the crime of illegal detention
when he is acting in a private 2. A municipal treasurer has
capacity or beyond the scope of his been courting his secretary. However, the
official duty, or when he becomes an latter always turned him down. Thereafter,
accomplice or accessory to the she tried to avoid him. One afternoon, the
crime committed by a private person. municipal treasurer locked the secretary
inside their office until she started crying.
The offender, even if he is a public The treasurer opened the door and allowed
officer, does not include as his her to go home. What crime was committed?
function the power to arrest and
detain a person, unless he conspires Illegal detention. This is because
with a public officer committing the municipal treasurer has no authority to
arbitrary detention. detain a person although he is a public
officer.
Note that in the crime of arbitrary detention,
although the offender is a public officer, not
any public officer can commit this crime. In a case decided by the Supreme Court a
Only those public officers whose official Barangay Chairman who unlawfully detains
duties carry with it the authority to make an another was held to be guilty of the crime of
arrest and detain persons can be guilty of arbitrary detention. This is because he is a
this crime. So, if the offender does not person in authority vested with the
possess such authority, the crime jurisdiction to maintain peace and order
committed by him is illegal detention. A within his barangay. In the maintenance of
public officer who is acting outside the such peace and order, he may cause the
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arrest and detention of troublemakers or

those who disturb the peace and order (2) As to criminal intent
within his barangay. But if the legal basis
for the apprehension and detention does not In arbitrary detention, the main
exist, then the detention becomes arbitrary. reason for detaining the offended
party is to deny him of his liberty.
Whether the crime is arbitrary detention or
illegal detention, it is necessary that there In unlawful arrest, the purpose is to
must be an actual restraint of liberty of the accuse the offended party of a crime
offended party. If there is no actual restraint, he did not commit, to deliver the
as the offended party may still go to the person to the proper authority, and
place where he wants to go, even though to file the necessary charges in a
there have been warnings, the crime of way trying to incriminate him.
arbitrary detention or illegal detention is not
committed. There is either grave or light When a person is unlawfully arrested, his
threat. subsequent detention is without legal
grounds.
However, if the victim is under guard in his
movement such that there is still restraint of
liberty, then the crime of either arbitrary or Question & Answer
illegal detention is still committed.

A had been collecting tong from

drivers. B, a driver, did not want to
Question & Answer contribute to the tong. One day, B was
apprehended by A, telling him that he was
The offended party was brought to a driving carelessly. Reckless driving carries
place which he could not leave because he with it a penalty of immediate detention and
does not know where he is, although free to arrest. B was brought to the Traffic Bureau
move about. Was arbitrary or illegal and was detained there until the evening.
detention committed? When A returned, he opened the cell and
told B to go home. Was there a crime of
Either arbitrary detention or illegal arbitrary detention or unlawful arrest?
detention was committed. If a person is
brought to a safe house, blindfolded, even if Arbitrary detention. The arrest of B
he is free to move as he pleases, but if he was only incidental to the criminal intent of
cannot leave the place, arbitrary detention the offender to detain him. But if after
or illegal detention is committed. putting B inside the cell, he was turned over
to the investigating officer who booked him
and filed a charge of reckless imprudence
Distinction between arbitrary detention and against him, then the crime would be
unlawful arrest unlawful arrest. The detention of the driver
is incidental to the supposed crime he did
(1) As to offender not commit. But if there is no supposed
crime at all because the driver was not
In arbitrary detention, the offender is charged at all, he was not given place under
a public officer possessed with booking sheet or report arrest, then that
authority to make arrests. means that the only purpose of the offender
is to stop him from driving his jeepney
In unlawful arrest, the offender may because he refused to contribute to the tong.
be any person.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 13

Article 125. Delay in the Delivery of

Detained Persons to the Proper Judicial Question & Answer
Authorities

Elements Within what period should a police

officer who has arrested a person under a
1. Offender is a public officer or employee; warrant of arrest turn over the arrested
person to the judicial authority?
2. He detains a person for some legal
ground; There is no time limit specified
except that the return must be made within
a reasonable time. The period fixed by law
3. He fails to deliver such person to the
under Article 125 does not apply because
proper judicial authorities within –
the arrest was made by virtue of a warrant
of arrest.
a. 12 hour for light penalties;

b. 18 hours for correctional

When a person is arrested without a warrant,
penalties; and
it means that there is no case filed in court
yet. If the arresting officer would hold the
c. 36 hours for afflictive or
arrested person there, he is actually
capital penalties.
depriving the arrested of his right to bail. As
long as there is no charge in the court yet,
the arrested person cannot obtain bail
This is a form of arbitrary detention. At the
because bail may only be granted by the
beginning, the detention is legal since it is in
court. The spirit of the law is to have the
the pursuance of a lawful arrest. However,
arrested person delivered to the jurisdiction
the detention becomes arbitrary when the
of the court.
period thereof exceeds 12, 18 or 36 hours,
as the case may be, depending on whether
If the arrest is by virtue of a warrant, it
the crime is punished by light, correctional
means that there is already a case filed in
or afflictive penalty or their equivalent.
court. When an information is filed in court,
the amount of bail recommended is stated.
The period of detention is 12 hours for light
The accused person is not really denied his
offenses, 18 hours for correctional offences
right to bail. Even if he is interrogated in the
and 36 hours for afflictive offences, where
police precinct, he can already file bail.
the accused may be detained without formal
charge. But he must cause a formal charge
Note that delivery of the arrested person to
or application to be filed with the proper
the proper authorities does not mean
court before 12, 18 or 36 hours lapse.
physical delivery or turn over of arrested
Otherwise he has to release the person
person to the court. It simply means putting
arrested.
the arrested person under the jurisdiction of
the court. This is done by filing the
Note that the period stated herein does not
necessary complaint or information against
include the nighttime. It is to be counted
the person arrested in court within the
only when the prosecutor’s office is ready to
period specified in Article 125. The purpose
receive the complaint or information.
of this is for the court to determine whether
the offense is bailable or not and if bailable,
This article does not apply if the arrest is
to allow him the right to bail.
with a warrant. The situation contemplated
here is an arrest without a warrant.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 14

Under the Rule 114 of the Revised Rules of In this situation, he may be exempt under
Court, the arrested person can demand paragraph 7 of Article 12.
from the arresting officer to bring him to any
judge in the place where he was arrested
and post the bail here. Thereupon, the Before Article 125 may be applied, it is
arresting officer may release him. The necessary that initially, the detention of the
judge who granted the bail will just forward arrested person must be lawful because the
the litimus of the case to the court trying his arrest is based on legal grounds. If the
case. The purpose is in order to deprive the arrest is made without a warrant, this
arrested person of his right to post the bail. constitutes an unlawful arrest. Article 269,
not Article 125, will apply. If the arrest is not
Under the Revised Rules of Court, when the based on legal grounds, the arrest is pure
person arrested is arrested for a crime and simple arbitrary detention. Article 125
which gives him the right to preliminary contemplates a situation where the arrest
investigation and he wants to avail his right was made without warrant but based on
to a preliminary investigation, he would legal grounds. This is known as citizen’s
have to waive in writing his rights under arrest.
Article 125 so that the arresting officer will
not immediately file the case with the court
that will exercise jurisdiction over the case. Article 126. Delaying Release
If he does not want to waive this in writing,
the arresting officer will have to comply with Acts punished
Article 125 and file the case immediately in
court without preliminary investigation. In 1. Delaying the performance of a
such case, the arrested person, within five judicial or executive order for the
days after learning that the case has been release of a prisoner;
filed in court without preliminary
investigation, may ask for preliminary 2. Unduly delaying the service of the
investigation. In this case, the public officer notice of such order to said prisoner;
who made the arrest will no longer be liable
for violation of Article 125. 3. Unduly delaying the proceedings
upon any petition for the liberation of
such person.
Question & Answer
Elements
The arrest of the suspect was done
in Baguio City. On the way to Manila, 1. Offender is a public officer or
where the crime was committed, there was employee;
a typhoon so the suspect could not be
brought to Manila until three days later. 2. There is a judicial or executive order
Was there a violation of Article 125? for the release of a prisoner or
detention prisoner, or that there is a
There was a violation of Article 125. proceeding upon a petition for the
The crime committed was arbitrary liberation of such person;
detention in the form of delay in the delivery
of arrested person to the proper judicial 3. Offender without good reason delays
authority. The typhoon or flood is a matter –
of defense to be proved by the accused, the
arresting officer, as to whether he is liable. a. the service of the notice of
such order to the prisoner;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 15

b. the performance of such Questions & Answers

judicial or executive order for
the release of the prisoner; or
1. Certain aliens were arrested
c. the proceedings upon a and they were just put on the first aircraft
petition for the release of which brought them to the country so that
such person. they may be out without due process of law.
Was there a crime committed?

Article 127. Expulsion Yes. Expulsion.

Acts punished 2. If a Filipino citizen is sent out

of the country, what crime is committed?
1. Expelling a person from the
Philippines; Grave coercion, not expulsion,
because a Filipino cannot be deported.
2. Compelling a person to change his This crime refers only to aliens.
residence.

Article 128. Violation of Domicile

Elements
Acts punished
1. Offender is a public officer or employee;
1. Entering any dwelling against the will
2. He either – of the owner thereof;

a. expels any person from the 2. Searching papers or other effects

Philippines; or found therein without the previous
consent of such owner; or
b. compels a person to change
residence; 3. Refusing to leave the premises, after
having surreptitiously entered said
dwelling and after having been
3. Offender is not authorized to do so by
required to leave the same
law.

Common elements
The essence of this crime is coercion but
the specific crime is “expulsion” when
1. Offender is a public officer or
committed by a public officer. If committed
employee;
by a private person, the crime is grave
coercion.
2. He is not authorized by judicial order
In Villavicencio v. Lukban, 39 Phil 778,
to enter the dwelling or to make a
the mayor of the City of Manila wanted to
search therein for papers or other
make the city free from prostitution. He
effects.
ordered certain prostitutes to be transferred
to Davao, without observing due processes
since they have not been charged with any
Circumstances qualifying the offense
crime at all. It was held that the crime
committed was expulsion.
1. If committed at nighttime; or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 16

against the will of the occupant. In

2. If any papers or effects not the plain view doctrine, public officer
constituting evidence of a crime are should be legally entitled to be in the
not returned immediately after the place where the effects were found.
search made by offender. If he entered the place illegally and
he saw the effects, doctrine
inapplicable; thus, he is liable for
Under Title IX (Crimes against Personal violation of domicile.
Liberty and Security), the corresponding
article is qualified trespass to dwelling under (2) Public officer who enters with
Article 280. Article 128 is limited to public consent searches for paper and
officers. The public officers who may be effects without the consent of the
liable for crimes against the fundamental owner. Even if he is welcome in the
laws are those who are possessed of the dwelling, it does not mean he has
authority to execute search warrants and permission to search.
warrants of arrests.
(3) Refusing to leave premises after
Under Rule 113 of the Revised Rules of surreptitious entry and being told to
Court, when a person to be arrested enters leave the same. The act punished is
a premise and closes it thereafter, the public not the entry but the refusal to leave.
officer, after giving notice of an arrest, can If the offender upon being directed to
break into the premise. He shall not be eave, followed and left, there is no
liable for violation of domicile. crime of violation of domicile. Entry
must be done surreptitiously; without
There are only three recognized instances this, crime may be unjust vexation.
when search without a warrant is But if entering was done against the
considered valid, and, therefore, the seizure will of the occupant of the house,
of any evidence done is also valid. Outside meaning there was express or
of these, search would be invalid and the implied prohibition from entering the
objects seized would not be admissible in same, even if the occupant does not
evidence. direct him to leave, the crime of is
already committed because it would
(1) Search made incidental to a valid fall in number 1.
arrest;

(2) Where the search was made on a Questions & Answers

moving vehicle or vessel such that
the exigency of he situation prevents
the searching officer from securing a 1. It was raining heavily. A
search warrant; policeman took shelter in one person’s
house. The owner obliged and had his
(3) When the article seized is within daughter serve the police some coffee. The
plain view of the officer making the policeman made a pass at the daughter.
seizure without making a search The owner of the house asked him to leave.
therefore. Does this fall under Article 128?

There are three ways of committing the No. It was the owner of the house
violation of Article 128: who let the policeman in. The entering is
not surreptitious.
(1) By simply entering the dwelling of
another if such entering is done
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 17

2. A person surreptitiously Article 130. Searching Domicile without

enters the dwelling of another. What crime Witnesses
or crimes were possibly committed?
Elements
The crimes committed are (1)
qualified trespass to dwelling under Article 1. Offender is a public officer or
280, if there was an express or implied employee;
prohibition against entering. This is
tantamount to entering against the will of the 2. He is armed with search warrant
owner; and (2) violation of domicile in the legally procured;
third form if he refuses to leave after being
told to. 3. He searches the domicile, papers or
other belongings of any person;

Article 129. Search Warrants Maliciously 4. The owner, or any members of his
Obtained, and Abuse in the Service of family, or two witnesses residing in
Those Legally Obtained the same locality are not present.

Acts punished
Crimes under Articles 129 and 130 are
1. Procuring a search warrant without referred to as violation of domicile. In these
just cause; articles, the search is made by virtue of a
valid warrant, but the warrant
Elements notwithstanding, the liability for the crime is
still incurred through the following situations:
1. Offender is a public officer or
employee; (1) Search warrant was irregularly
obtained – This means there was no
2. He procures a search probable cause determined in
warrant; obtaining the search warrant.
Although void, the search warrant is
3. There is no just cause. entitled to respect because of
presumption of regularity. One
remedy is a motion to quash the
2. Exceeding his authority or by using search warrant, not refusal to abide
unnecessary severity in executing a by it. The public officer may also be
search warrant legally procured. prosecuted for perjury, because for
him to succeed in obtaining a search
Elements warrant without a probable cause,
he must have perjured himself or
1. Offender is a public officer or induced someone to commit perjury
employee; to convince the court.

2. He has legally procured a (2) The officer exceeded his authority

search warrant; under the warrant – To illustrate, let
us say that there was a pusher in a
3. He exceeds his authority or condo unit. The PNP Narcotics
uses unnecessary severity in Group obtained a search warrant but
executing the same. the name of person in the search
warrant did not tally with the address
stated. Eventually, the person with
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 18

the same name was found but in a c. prohibiting or hindering any

different address. The occupant person from addressing,
resisted but the public officer either alone or together with
insisted on the search. Drugs were others, any petition to the
found and seized and occupant was authorities for the correction
prosecuted and convicted by the trial of abuses or redress of
court. The Supreme Court acquitted grievances.
him because the public officers are
required to follow the search warrant
to the letter. They have no The government has a right to require a
discretion on the matter. Plain view permit before any gathering could be made.
doctrine is inapplicable since it Any meeting without a permit is a
presupposes that the officer was proceeding in violation of the law. That
legally entitled to be in the place being true, a meeting may be prohibited,
where the effects where found. interrupted, or dissolved without violating
Since the entry was illegal, plain Article 131 of the Revised Penal Code.
view doctrine does not apply.
But the requiring of the permit shall be in
(3) When the public officer employs exercise only of the government’s regulatory
unnecessary or excessive severity in powers and not really to prevent peaceful
the implementation of the search assemblies as the public may desire.
warrant. The search warrant is not a Permit is only necessary to regulate the
license to commit destruction. peace so as not to inconvenience the public.
The permit should state the day, time and
(4) Owner of dwelling or any member of the place where the gathering may be held.
the family was absent, or two This requirement is, therefore, legal as long
witnesses residing within the same as it is not being exercised in as a
locality were not present during the prohibitory power.
search.
If the permit is denied arbitrarily, Article 131
is violated. If the officer would not give the
Article 131. Prohibition, Interruption, permit unless the meeting is held in a
and Dissolution of Peaceful Meetings particular place which he dictates defeats
the exercise of the right to peaceably
Elements assemble, Article 131 is violated.

1. Offender is a public officer or employee; At the beginning, it may happen that the
assembly is lawful and peaceful. If in the
2. He performs any of the following acts: course of the assembly the participants
commit illegal acts like oral defamation or
a. prohibiting or by interrupting, inciting to sedition, a public officer or law
without legal ground, the enforcer can stop or dissolve the meeting.
holding of a peaceful meeting, The permit given is not a license to commit
or by dissolving the same; a crime.

b. hindering any person from There are two criteria to determine whether
joining any lawful association, Article 131 would be violated:
or attending any of its
meetings; (1) Dangerous tendency rule –
applicable in times of national unrest
such as to prevent coup d’etat.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 19

1. Offender is a public officer or

(2) Clear and present danger rule – employee;
applied in times of peace. Stricter
rule. 2. Religious ceremonies or
manifestations of any religious are
Distinctions between prohibition, interruption, about to take place or are going on;
or dissolution of peaceful meetings under
Article 131, and tumults and other 3. Offender prevents or disturbs the
disturbances, under Article 153 same.

(1) As to the participation of the public Qualified if committed by violence or threat.

officer

In Article 131, the public officer is not Article 133. Offending the Religious
a participant. As far as the gathering Feelings
is concerned, the public officer is a
third party. Elements

If the public officer is a participant of 1. Acts complained of were performed

the assembly and he prohibits, in a place devoted to religious
interrupts, or dissolves the same, worship, or during the celebration of
Article 153 is violated if the same is any religious ceremony;
conducted in a public place.
2. The acts must be notoriously
(2) As to the essence of the crime offensive to the feelings of the
faithful.
In Article 131, the offender must be
a public officer and, without any There must be deliberate intent to hurt the
legal ground, he prohibits, interrupts, feelings of the faithful.
or dissolves a peaceful meeting or
assembly to prevent the offended
party from exercising his freedom of TITLE III. CRIMES AGAINST PUBLIC
speech and that of the assembly to ORDER
petition a grievance against the
government.
Crimes against public order
In Article 153, the offender need not
be a public officer. The essence of 1. Rebellion or insurrection (Art. 134);
the crime is that of creating a serious
disturbance of any sort in a public 2. Conspiracy and proposal to commit
office, public building or even a rebellion (Art. 136);
private place where a public function
is being held. 3. Disloyalty to public officers or
employees (Art. 137);

Article 132. Interruption of Religious 4. Inciting to rebellion (Art. 138);

Worship
5. Sedition (Art. 139);
Elements
6. Conspiracy to commit sedition (Art.
141);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 20

24. Commission of another crime during

7. Inciting to sedition (Art. 142); service of penalty imposed for
another previous offense (Art. 160).
8. Acts tending to prevent the meeting
of Congress and similar bodies (Art.
143); Article 134. Rebellion or Insurrection

9. Disturbance of proceedings of Elements

Congress or similar bodies (Art. 144);
1. There is a public uprising and taking
10. Violation of parliamentary immunity arms against the government;
(Art. 145);
2. The purpose of the uprising or
11. Illegal assemblies (Art. 146); movement is –

12. Illegal associations (Art. 147); a. to remove from the

allegiance to the government
13. Direct assaults (Art. 148); or its laws Philippine territory
or any part thereof, or any
14. Indirect assaults (Art. 149); body of land, naval, or other
armed forces;
15. Disobedience to summons issued by
Congress, its committees, etc., by or
the constitutional commissions, its
committees, etc. (Art. 150); b. to deprive the Chief
Executive or Congress,
16. Resistance and disobedience to a wholly or partially, of any of
person in authority or the agents of their powers or prerogatives.
such person (Art. 151);

17. Tumults and other disturbances of The essence of this crime is a public
public order (Art. 153); uprising with the taking up of arms. It
requires a multitude of people. It aims to
18. Unlawful use of means of publication overthrow the duly constituted government.
and unlawful utterances (Art. 154); It does not require the participation of any
member of the military or national police
19. Alarms and scandals (Art. 155); organization or public officers and generally
carried out by civilians. Lastly, the crime
20. Delivering prisoners from jails (Art. can only be committed through force and
156); violence.

21. Evasion of service of sentence (Art.

157); Rebellion and insurrection are not
synonymous. Rebellion is more frequently
22. Evasion on occasion of disorders used where the object of the movement is
(Art. 158); completely to overthrow and supersede the
existing government; while insurrection is
23. Violation of conditional pardon (Art. more commonly employed in reference to a
159); and movement which seeks merely to effect
some change of minor importance, or to
prevent the exercise of governmental
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 21

authority with respect to particular matters because Article 135 then punished said acts
of subjects (Reyes, citing 30 Am. Jr. 1). as components of the crime of rebellion that
precludes the application of Article 48 of the
Revised Penal Code thereto. In the eyes of
Rebellion can now be complexed with the law then, said acts constitute only one
common crimes. Not long ago, the crime and that is rebellion. The Hernandez
Supreme Court, in Enrile v. Salazar, 186 doctrine was reaffirmed in Enrile v. Salazar
SCRA 217, reiterated and affirmed the rule because the text of Article 135 has
laid down in People v. Hernandez, 99 Phil remained the same as it was when the
515, that rebellion may not be complexed Supreme Court resolved the same issue in
with common crimes which are committed in the People v. Hernandez. So the Supreme
furtherance thereof because they are Court invited attention to this fact and thus
absorbed in rebellion. In view of said stated:
reaffirmation, some believe that it has been
a settled doctrine that rebellion cannot be “There is a an apparent need to restructure
complexed with common crimes, such as the law on rebellion, either to raise the
killing and destruction of property, penalty therefore or to clearly define and
committed on the occasion and in delimit the other offenses to be considered
furtherance thereof. absorbed thereby, so that it cannot be
conveniently utilized as the umbrella for
This thinking is no longer correct; there is no every sort of illegal activity undertaken in its
legal basis for such rule now. name. The court has no power to effect
such change, for it can only interpret the law
The statement in People v. Hernandez that as it stands at any given time, and what is
common crimes committed in furtherance of needed lies beyond interpretation.
rebellion are absorbed by the crime of Hopefully, Congress will perceive the need
rebellion, was dictated by the provision of for promptly seizing the initiative in this
Article 135 of the Revised Penal Code prior matter, which is purely within its province.”
to its amendment by the Republic Act No.
6968 (An Act Punishing the Crime of Coup Obviously, Congress took notice of this
D’etat), which became effective on October pronouncement and, thus, in enacting
1990. Prior to its amendment by Republic Republic Act No. 6968, it did not only
Act No. 6968, Article 135 punished those provide for the crime of coup d’etat in the
“who while holding any public office or Revised Penal Code but moreover, deleted
employment, take part therein” by any of from the provision of Article 135 that portion
these acts: engaging in war against the referring to those –
forces of Government; destroying property;
committing serious violence; exacting “…who, while holding any public office or
contributions, diverting funds for the lawful employment takes part therein [rebellion or
purpose for which they have been insurrection], engaging in war against the
appropriated. forces of government, destroying property
or committing serious violence, exacting
Since a higher penalty is prescribed for the contributions or diverting public funds from
crime of rebellion when any of the specified the lawful purpose for which they have been
acts are committed in furtherance thereof, appropriated …”
said acts are punished as components of
rebellion and, therefore, are not to be Hence, overt acts which used to be
treated as distinct crimes. The same acts punished as components of the crime of
constitute distinct crimes when committed rebellion have been severed therefrom by
on a different occasion and not in Republic Act No. 6968. The legal
furtherance of rebellion. In short, it was impediment to the application of Article 48
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 22

to rebellion has been removed. After the under the Revised Penal Code and,
amendment, common crimes involving therefore, Article 135 (2) of the Revised
killings, and/or destructions of property, Penal Code should not apply. The offense
even though committed by rebels in of illegal possession of firearm is a malum
furtherance of rebellion, shall bring about prohibitum, in which case, good faith and
complex crimes of rebellion with absence of criminal intent are not valid
murder/homicide, or rebellion with robbery, defenses.
or rebellion with arson as the case may be.
In People v. Lobedioro, an NPA cadre
To reiterate, before Article 135 was killed a policeman and was convicted for
amended, a higher penalty is imposed when murder. He appealed invoking rebellion.
the offender engages in war against the The Supreme Court found that there was no
government. "War" connotes anything evidence shown to further the end of the
which may be carried out in pursuance of NPA movement. It held that there must be
war. This implies that all acts of war or evidence shown that the act furthered the
hostilities like serious violence and cause of the NPA; it is not enough to say it.
destruction of property committed on
occasion and in pursuance of rebellion are Rebellion may be committed even without a
component crimes of rebellion which is why single shot being fired. No encounter
Article 48 on complex crimes is inapplicable. needed. Mere public uprising with arms
In amending Article135, the acts which used enough.
to be component crimes of rebellion, like
serious acts of violence, have been deleted. Article 135, as amended, has two penalties:
These are now distinct crimes. The legal a higher penalty for the promoters, heads
obstacle for the application of Article 48, and maintainers of the rebellion; and a
therefore, has been removed. Ortega says lower penalty for those who are only
legislators want to punish these common followers of the rebellion.
crimes independently of rebellion. Ortega
cites no case overturning Enrile v. Salazar. Distinctions between rebellion and sedition

In People v. Rodriguez, 107 Phil. 569, it (1) As to nature

was held that an accused already convicted
of rebellion may not be prosecuted further In rebellion, there must be taking up
for illegal possession of firearm and or arms against the government.
ammunition, a violation of Presidential
Decree No. 1866, because this is a In sedition, it is sufficient that the
necessary element or ingredient of the public uprising be tumultuous.
crime of rebellion with which the accused
was already convicted. (2) As to purpose

However, in People v. Tiozon, 198 SCRA In rebellion, the purpose is always

368, it was held that charging one of illegal political.
possession of firearms in furtherance of
rebellion is proper because this is not a In sedition, the purpose may be
charge of a complex crime. A crime under political or social. Example: the
the Revised Penal Code cannot be uprising of squatters against Forbes
absorbed by a statutory offense. park residents. The purpose in
In People v. de Gracia, it was ruled that sedition is to go against established
illegal possession of firearm in furtherance government, not to overthrow it.
of rebellion under Presidential Decree No.
1866 is distinct from the crime of rebellion
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 23

When any of the objectives of rebellion is public officer with or without civilian support.
pursued but there is no public uprising in the Finally, it may be carried out not only by
legal sense, the crime is direct assault of force or violence but also through stealth,
the first form. But if there is rebellion, with threat or strategy.
public uprising, direct assault cannot be
committed.
Persons liable for rebellion, insurrection or
coup d' etat under Article 135
Article 134-A. Coup d' etat
1. The leaders –
Elements
a. Any person who promotes,
1. Offender is a person or persons maintains or heads a
belonging to the military or police or rebellion or insurrection; or
holding any public office or
employment; b. Any person who leads,
directs or commands others
2. It is committed by means of a swift to undertake a coup d' etat;
attack accompanied by violence,
intimidation, threat, strategy or 2. The participants –
stealth;
a. Any person who participates
3. The attack is directed against the or executes the commands
duly constituted authorities of the of others in rebellion,
Republic of the Philippines, or any insurrection or coup d' etat;
military camp or installation,
communication networks, public b. Any person not in the
utilities or other facilities needed for government service who
the exercise and continued participates, supports,
possession of power; finances, abets or aids in
undertaking a coup d' etat.
4. The purpose of the attack is to seize
or diminish state power. Article 136. Conspiracy and Proposal to
Commit Coup d' etat, Rebellion or
Insurrection
The essence of the crime is a swift attack
upon the facilities of the Philippine Conspiracy and proposal to commit
government, military camps and rebellion are two different crimes, namely:
installations, communication networks, 1. Conspiracy to commit rebellion; and
public utilities and facilities essential to the
continued possession of governmental 2. Proposal to commit rebellion.
powers. It may be committed singly or
collectively and does not require a multitude There is conspiracy to commit rebellion
of people. The objective may not be to when two or more persons come to an
overthrow the government but only to agreement to rise publicly and take arms
destabilize or paralyze the government against government for any of the purposes
through the seizure of facilities and utilities of rebellion and decide to commit it.
essential to the continued possession and
exercise of governmental powers. It There is proposal to commit rebellion when
requires as principal offender a member of the person who has decided to rise publicly
the AFP or of the PNP organization or a and take arms against the government for
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 24

any of the purposes of rebellion proposes its not required that the offender has
execution to some other person or persons. decided to commit rebellion.

3. In proposal, the person who

Article 137. Disloyalty of Public Officers proposes the execution of the crime
or Employees uses secret means; in inciting to
rebellion, the act of inciting is done
Acts punished publicly.

1. By failing to resist a rebellion by all

the means in their power; Article 139. Sedition

2. By continuing to discharge the duties Elements

of their offices under the control of
the rebels; or 1. Offenders rise publicly and tumultuously;
3. By accepting appointment to office 2. Offenders employ force, intimidation, or
under them. other means outside of legal
methods;
Offender must be a public officer or
employee. 3. Purpose is to attain any of the following
objects:
Article 138. Inciting to Rebellion or a. To prevent the promulgation
Insurrection or execution of any law or the
holding of any popular
Elements election;
1. Offender does not take arms or is b. To prevent the national
not in open hostility against the government or any provincial
government; or municipal government, or
any public officer from
2. He incites others to the execution of exercising its or his functions
any of the acts of rebellion; or prevent the execution of
an administrative order;
3. The inciting is done by means of
speeches, proclamations, writings, c. To inflict any act of hate or
emblems, banners or other revenge upon the person or
representations tending to the same property of any public officer
end. or employee;

d. To commit, for any political or

Distinction between inciting to rebellion and social end, any act of hate or
proposal to commit rebellion revenge against private
persons or any social classes;
1. In both crimes, offender induces
another to commit rebellion. e. To despoil for any political or
social end, any person,
2. In proposal, the person who municipality or province, or
proposes has decided to commit the national government of
rebellion; in inciting to rebellion, it is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 25

all its property or any part

thereof. 3. Writing, publishing, or circulating
scurrilous libels against the
government or any of the duly
The crime of sedition does not contemplate constituted authorities thereof, which
the taking up of arms against the tend to disturb the public peace.
government because the purpose of this
crime is not the overthrow of the
government. Notice from the purpose of the Elements
crime of sedition that the offenders rise
publicly and create commotion ad 1. Offender does not take direct part in
disturbance by way of protest to express the crime of sedition;
their dissent and obedience to the
government or to the authorities concerned. 2. He incites others to the
This is like the so-called civil disobedience accomplishment of any of the acts
except that the means employed, which is which constitute sedition; and
violence, is illegal.
3. Inciting is done by means of
speeches, proclamations, writings,
Persons liable for sedition under Article 140 emblems, cartoons, banners, or
other representations tending
1. The leader of the sedition; and towards the same end.

2. Other person participating in the Only non-participant in sedition may be

sedition. liable.

Considering that the objective of sedition is

Article 141. Conspiracy to Commit to express protest against the government
Sedition and in the process creating hate against
public officers, any act that will generate
In this crime, there must be an agreement hatred against the government or a public
and a decision to rise publicly and officer concerned or a social class may
tumultuously to attain any of the objects of amount to Inciting to sedition. Article 142 is,
sedition. therefore, quite broad.

There is no proposal to commit sedition. The mere meeting for the purpose of
discussing hatred against the government is
inciting to sedition. Lambasting government
Article 142. Inciting to Sedition officials to discredit the government is
Inciting to sedition. But if the objective of
Acts punished such preparatory actions is the overthrow of
the government, the crime is inciting to
1. Inciting others to the rebellion.
accomplishment of any of the acts
which constitute sedition by means
of speeches, proclamations, writings, Article 143. Acts Tending to Prevent the
emblems, etc.; Meeting of the Congress of the
Philippines and Similar Bodies
2. Uttering seditious words or
speeches which tend to disturb the Elements
public peace;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 26

1. There is a projected or actual committees or divisions thereof, or

meeting of Congress or any of its from expressing his opinion or
committees or subcommittees, casting his vote;
constitutional committees or
divisions thereof, or of any provincial Elements
board or city or municipal council or
board; 1. Offender uses force,
intimidation, threats or fraud;
2. Offender, who may be any person,
prevents such meetings by force or 2. The purpose of the offender
fraud. is to prevent any member of
Congress from –

Article 144. Disturbance of Proceedings a. attending the

meetings of the
Elements Congress or of any of
its committees or
1. There is a meeting of Congress or constitutional
any of its committees or commissions, etc.;
subcommittees, constitutional
commissions or committees or b. expressing his
divisions thereof, or of any provincial opinion; or
board or city or municipal council or
board; c. casting his vote.

2. Offender does any of the following 2. Arresting or searching any member

acts: thereof while Congress is in regular
or special session, except in case
a. He disturbs any of such such member has committed a
meetings; crime punishable under the Code by
a penalty higher than prision mayor.
b. He behaves while in the
presence of any such bodies Elements
in such a manner as to
interrupt its proceedings or to 1. Offender is a public officer of
impair the respect due it. employee;

2. He arrests or searches any

member of Congress;

Article 145. Violation of Parliamentary 3. Congress, at the time of

Immunity arrest or search, is in regular
or special session;
Acts punished
4. The member arrested or
1. Using force, intimidation, threats, or searched has not committed
frauds to prevent any member of a crime punishable under the
Congress from attending the Code by a penalty higher
meetings of Congress or of any of its than prision mayor.
committees or subcommittees,
constitutional commissions or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 27

Under Section 11, Article VI of the 2. The audience, whether

Constitution, a public officer who arrests a armed or not, is incited to the
member of Congress who has committed a commission of the crime of
crime punishable by prision mayor (six treason, rebellion or
years and one day, to 12 years) is not liable insurrection, sedition or direct
Article 145. assault.

According to Reyes, to be consistent with

the Constitution, the phrase "by a penalty Persons liable for illegal assembly
higher than prision mayor" in Article 145
should be amended to read: "by the penalty 1. The organizer or leaders of the
of prision mayor or higher." meeting;

2. Persons merely present at the

Article 146. Illegal Assemblies meeting, who must have a common
intent to commit the felony of illegal
Acts punished assembly.

1. Any meeting attended by armed If any person present at the meeting carries
persons for the purpose of an unlicensed firearm, it is presumed that
committing any of the crimes the purpose of the meeting insofar as he is
punishable under the Code; concerned is to commit acts punishable
under the Revised Penal Code, and he is
Elements considered a leader or organizer of the
meeting.
1. There is a meeting, a
gathering or group of
persons, whether in fixed The gravamen of the offense is mere
place or moving; assembly of or gathering of people for illegal
purpose punishable by the Revised Penal
2. The meeting is attended by Code. Without gathering, there is no illegal
armed persons; assembly. If unlawful purpose is a crime
under a special law, there is no illegal
3. The purpose of the meeting assembly. For example, the gathering of
is to commit any of the drug pushers to facilitate drug trafficking is
crimes punishable under the not illegal assembly because the purpose is
Code. not violative of the Revised Penal Code but
of The Dangerous Drugs Act of 1972, as
2. Any meeting in which the audience, amended, which is a special law.
whether armed or not, is incited to
the commission of the crime of Two forms of illegal assembly
treason, rebellion or insurrection,
sedition, or assault upon person in (1) No attendance of armed men, but
authority or his agents. persons in the meeting are incited to
commit treason, rebellion or
1. There is a meeting, a insurrection, sedition or assault upon
gathering or group of a person in authority. When the
persons, whether in a fixed illegal purpose of the gathering is to
place or moving; incite people to commit the crimes
mentioned above, the presence of
armed men is unnecessary. The
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 28

mere gathering for the purpose is

sufficient to bring about the crime 1. Founders, directors and president of
already. the association;

(2) Armed men attending the gathering 2. Mere members of the association.
– If the illegal purpose is other than
those mentioned above, the
presence of armed men during the Distinction between illegal association and
gathering brings about the crime of illegal assembly
illegal assembly.
1. In illegal association, it is not
Example: Persons conspiring to rob necessary that there be an actual
a bank were arrested. Some were meeting.
with firearms. Liable for illegal
assembly, not for conspiracy, but for In illegal assembly, it is necessary
gathering with armed men. that there is an actual meeting or
assembly or armed persons for the
Distinction between illegal assembly and purpose of committing any of the
illegal association crimes punishable under the Code,
or of individuals who, although not
In illegal assembly, the basis of liability is armed, are incited to the commission
the gathering for an illegal purpose which of treason, rebellion, sedition, or
constitutes a crime under the Revised Penal assault upon a person in authority or
Code. his agent.

In illegal association, the basis is the 2. In illegal association, it is the act of

formation of or organization of an forming or organizing and
association to engage in an unlawful membership in the association that
purpose which is not limited to a violation of are punished.
the Revised Penal Code. It includes a
violation of a special law or those against In illegal assembly, it is the meeting
public morals. Meaning of public morals: and attendance at such meeting that
inimical to public welfare; it has nothing to are punished.
do with decency., not acts of obscenity.
3. In illegal association, the persons
liable are (1) the founders, directors
Article 147. Illegal Associations and president; and (2) the members.

Illegal associations In illegal assembly, the persons

liable are (1) the organizers or
1. Associations totally or partially leaders of the meeting and (2) the
organized for the purpose of persons present at meeting.
committing any of the crimes
punishable under the Code;
Article 148. Direct Assault
2. Associations totally or partially
organized for some purpose contrary Acts punished
to public morals.
1. Without public uprising, by
employing force or intimidation for
Persons liable the attainment of any of the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 29

purposes enumerated in defining the The crime is not based on the material
crimes of rebellion and sedition; consequence of the unlawful act. The crime
of direct assault punishes the spirit of
Elements lawlessness and the contempt or hatred for
the authority or the rule of law.
1. Offender employs force or
intimidation; To be specific, if a judge was killed while he
was holding a session, the killing is not the
2. The aim of the offender is to direct assault, but murder. There could be
attain any of the purposes of direct assault if the offender killed the judge
the crime of rebellion or any simply because the judge is so strict in the
of the objects of the crime of fulfillment of his duty. It is the spirit of hate
sedition; which is the essence of direct assault.

3. There is no public uprising. So, where the spirit is present, it is always

complexed with the material consequence
2. Without public uprising, by attacking, of the unlawful act. If the unlawful act was
by employing force or by seriously murder or homicide committed under
intimidating or by seriously resisting circumstance of lawlessness or contempt of
any person in authority or any of his authority, the crime would be direct assault
agents, while engaged in the with murder or homicide, as the case may
performance of official duties, or on be. In the example of the judge who was
occasion of such performance. killed, the crime is direct assault with murder
or homicide.
Elements
The only time when it is not complexed is
1. Offender makes an attack, when material consequence is a light felony,
employs force, makes a that is, slight physical injury. Direct assault
serious intimidation, or absorbs the lighter felony; the crime of
makes a serious resistance; direct assault can not be separated from the
material result of the act. So, if an offender
2. The person assaulted is a who is charged with direct assault and in
person in authority or his another court for the slight physical Injury
agent; which is part of the act, acquittal or
conviction in one is a bar to the prosecution
3. At the time of the assault, the in the other.
person in authority or his
agent is engaged in the Example of the first form of direct assault:
actual performance of official
duties, or that he is assaulted Three men broke into a National Food
by reason of the past Authority warehouse and lamented
performance of official duties; sufferings of the people. They called on
people to help themselves to all the rice.
4. Offender knows that the one They did not even help themselves to a
he is assaulting is a person single grain.
in authority or his agent in
the exercise of his duties. The crime committed was direct assault.
There was no robbery for there was no
5. There is no public uprising. intent to gain. The crime is direct assault by
committing acts of sedition under Article 139
(5), that is, spoiling of the property, for any
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 30

political or social end, of any person performing official functions, the crime may
municipality or province or the national simply be the material consequence of he
government of all or any its property, but unlawful act: murder or homicide. For the
there is no public uprising. crime to be direct assault, the attack must
be by reason of his official function in the
Person in authority is any person directly past. Motive becomes important in this
vested with jurisdiction, whether as an respect. Example, if a judge was killed
individual or as a member of some court or while resisting the taking of his watch, there
government corporation, board, or is no direct assault.
commission. A barangay chairman is
deemed a person in authority. In the second form of direct assault, it is
also important that the offended party knew
Agent of a person in authority is any person that the person he is attacking is a person in
who by direct provision of law or by election authority or an agent of a person in authority,
or by appointment by competent authority, performing his official functions. No
is charged with the maintenance of public knowledge, no lawlessness or contempt.
order and the protection and security of life For example, if two persons were quarreling
and property, such as a barangay and a policeman in civilian clothes comes
councilman, barrio policeman, barangay and stops them, but one of the protagonists
leader and any person who comes to the stabs the policeman, there would be no
aid of a person in authority. direct assault unless the offender knew that
he is a policeman.
In applying the provisions of Articles 148
and 151, teachers, professors, and persons In this respect it is enough that the offender
charged with the supervision of public or should know that the offended party was
duly recognized private schools, colleges exercising some form of authority. It is not
and universities and lawyers in the actual necessary that the offender knows what is
performance of their duties or on the meant by person in authority or an agent of
occasion of such performance, shall be one because ignorantia legis non excusat.
deemed a person in authority.

In direct assault of the first form, the stature Article 149. Indirect Assault
of the offended person is immaterial. The
crime is manifested by the spirit of Elements
lawlessness.
1. A person in authority or his agent is
In the second form, you have to distinguish the victim of any of the forms of
a situation where a person in authority or his direct assault defined in Article 148;
agent was attacked while performing official
functions, from a situation when he is not 2. A person comes to the aid of such
performing such functions. If attack was authority or his agent;
done during the exercise of official functions,
the crime is always direct assault. It is 3. Offender makes use of force or
enough that the offender knew that the intimidation upon such person
person in authority was performing an coming to the aid of the authority or
official function whatever may be the reason his agent.
for the attack, although what may have
happened was a purely private affair.
The victim in indirect assault should be a
On the other hand, if the person in authority private person who comes in aid of an agent
or the agent was killed when no longer of a person in authority. The assault is upon
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 31

a person who comes in aid of the person in to do so in the exercise of their

authority. The victim cannot be the person functions;
in authority or his agent.
4. By restraining another from
There is no indirect assault when there is no attending as a witness in such
direct assault. legislative or constitutional body;

Take note that under Article 152, as 5. By inducing disobedience to a

amended, when any person comes in aid of summons or refusal to be sworn by
a person in authority, said person at that any such body or official.
moment is no longer a civilian – he is
constituted as an agent of the person in
authority. If such person were the one Article 151. Resistance and
attacked, the crime would be direct assault. Disobedience to A Person in Authority or
the Agents of Such Person
Due to the amendment of Article 152,
without the corresponding amendment in Elements of resistance and serious
Article 150, the crime of indirect assault can disobedience under the first paragraph
only be committed when assault is upon a
civilian giving aid to an agent of the person 1. A person in authority or his agent is
in authority. He does not become another engaged in the performance of
agent of the person in authority. official duty or gives a lawful order to
the offender;

Article 150. Disobedience to Summons 2. Offender resists or seriously

Issued by Congress, Its Committees or disobeys such person in authority or
Subcommittees, by the Constitutional his agent;
Commissions, Its Committees,
Subcommittees or Divisions 3. The act of the offender is not
included in the provision of Articles
Acts punished 148, 149 and 150.

1. By refusing, without legal excuse, to

obey summons of Congress, its Elements of simple disobedience under the
special or standing committees and second paragraph
subcommittees, the Constitutional
Commissions and its committees, 1. An agent of a person in authority is
subcommittees or divisions, or by engaged in the performance of
any commission or committee official duty or gives a lawful order to
chairman or member authorized to the offender;
summon witnesses;
2. Offender disobeys such agent of a
2. By refusing to be sworn or placed person in authority;
under affirmation while being before
such legislative or constitutional 3. Such disobedience is not of a
body or official; serious nature.

3. By refusing to answer any legal

inquiry or to produce any books, Distinction between resistance or serious
papers, documents, or records in his disobedience and direct assault
possession, when required by them
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 32

1. In resistance, the person in authority disobedience under the first

or his agent must be in actual paragraph of Article 151.
performance of his duties.

In direct assault, the person in

authority or his agent must be Who are deemed persons in authority and
engaged in the performance of agents of persons in authority under Article
official duties or that he is assaulted 152
by reason thereof.
A person in authority is one directly vested
2. Resistance or serious disobedience with jurisdiction, that is, the power and
is committed only by resisting or authority to govern and execute the laws.
seriously disobeying a person in
authority or his agent. An agent of a person in authority is one
charged with (1) the maintenance of public
Direct assault (the second form) is order and (2) the protection and security of
committed in four ways, that is, (1) life and property.
by attacking, (2) by employing force,
(3) by seriously intimidating, and (4)
by seriously resisting a persons in Examples of persons in authority
authority or his agent.
1. Municipal mayor;
3. In both resistance against an agent
of a person in authority and direct 2. Division superintendent of schools;
assault by resisting an agent of a
person in authority, there is force 3. Public and private school teachers;
employed, but the use of force in
resistance is not so serious, as there 4. Teacher-nurse;
is no manifest intention to defy the
law and the officers enforcing it. 5. President of sanitary division;

The attack or employment of force 6. Provincial fiscal;

which gives rise to the crime of
direct assault must be serious and 7. Justice of the Peace;
deliberate; otherwise, even a case of
simple resistance to an arrest, which 8. Municipal councilor;
always requires the use of force of
some kind, would constitute direct 9. Barrio captain and barangay
assault and the lesser offense of chairman.
resistance or disobedience in Article
151 would entirely disappear.

But when the one resisted is a

person I authority, the use of any
kind or degree of force will give rise
to direct assault.

If no force is employed by the

offender in resisting or disobeying a
person in authority, the crime
committed is resistance or serious
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 33

Article 153. Tumults and Other speaker started inciting the audience to rise
Disturbances of Public Order in sedition against the government, the
crime is disturbance of the public order.
Acts punished
The disturbance of the pubic order is
1. Causing any serious disturbance in tumultuous and the penalty is increased if it
a public place, office or is brought about by armed men. The term
establishment; “armed” does not refer to firearms but
includes even big stones capable of causing
2. Interrupting or disturbing grave injury.
performances, functions or
gatherings, or peaceful meetings, if It is also disturbance of the public order if a
the act is not included in Articles 131 convict legally put to death is buried with
and 132; pomp. He should not be made out as a
martyr; it might incite others to hatred.
3. Making any outcry tending to incite
rebellion or sedition in any meeting,
association or public place; Article 154. Unlawful Use of Means of
Publication and Unlawful Utterances
4. Displaying placards or emblems
which provoke a disturbance of Acts punished
public order in such place;
1. Publishing or causing to be
5. Burying with pomp the body of a published, by means of printing,
person who has been legally lithography or any other means of
executed. publication, as news any false news
which may endanger the public
order; or cause damage to the
The essence is creating public disorder. interest or credit of the State;
This crime is brought about by creating
serious disturbances in public places, public 2. Encouraging disobedience to the law
buildings, and even in private places where or to the constituted authorities or
public functions or performances are being praising, justifying or extolling any
held. act punished by law, by the same
means or by words, utterances or
For a crime to be under this article, it must speeches;
not fall under Articles 131 (prohibition,
interruption, and dissolution of peaceful 3. Maliciously publishing or causing to
meetings) and 132 (interruption of religious be published any official resolution
worship). or document without proper authority,
or before they have been published
In the act of making outcry during speech officially;
tending to incite rebellion or sedition, the
situation must be distinguished from inciting 4. Printing, publishing or distributing (or
to sedition or rebellion. If the speaker, even causing the same) books, pamphlets,
before he delivered his speech, already had periodicals, or leaflets which do not
the criminal intent to incite the listeners to bear the real printer’s name, or
rise to sedition, the crime would be inciting which are classified as anonymous.
to sedition. However, if the offender had no
such criminal intent, but in the course of his Actual public disorder or actual damage to
speech, tempers went high and so the the credit of the State is not necessary.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 34

discharged is directed against a

Republic Act No. 248 prohibits the person and intent to kill is present.
reprinting, reproduction or republication of
government publications and official In this connection, understand that it is not
documents without previous authority. necessary that the offended party be
wounded or hit. Mere discharge of firearm
towards another with intent to kill already
Article 155. Alarms and Scandals amounts to attempted homicide or
attempted murder or attempted parricide. It
Acts punished can not be frustrated because the offended
party is not mortally wounded.
1. Discharging any firearm, rocket,
firecracker, or other explosive within In Araneta v. Court of Appeals, it was held
any town or public place, calculated that if a person is shot at and is wounded,
to cause (which produces) alarm of the crime is automatically attempted
danger; homicide. Intent to kill is inherent in the use
of the deadly weapon.
2. Instigating or taking an active part in
any charivari or other disorderly The crime alarms and scandal is only one
meeting offensive to another or crime. Do not think that alarms and
prejudicial to public tranquility; scandals are two crimes.

3. Disturbing the public peace while Scandal here does not refer to moral
wandering about at night or while scandal; that one is grave scandal in Article
engaged in any other nocturnal 200. The essence of the crime is
amusements; disturbance of public tranquility and public
peace. So, any kind of disturbance of public
4. Causing any disturbance or scandal order where the circumstance at the time
in public places while intoxicated or renders the act offensive to the tranquility
otherwise, provided Article 153 in prevailing, the crime is committed.
not applicable.
Charivari is a mock serenade wherein the
supposed serenaders use broken cans,
When a person discharges a firearm in broken pots, bottles or other utensils
public, the act may constitute any of the thereby creating discordant notes. Actually,
possible crimes under the Revised Penal it is producing noise, not music and so it
Code: also disturbs public tranquility. Understand
the nature of the crime of alarms and
(1) Alarms and scandals if the firearm scandals as one that disturbs public
when discharged was not directed to tranquility or public peace. If the annoyance
any particular person; is intended for a particular person, the crime
is unjust vexation.
(2) Illegal discharge of firearm under
Article 254 if the firearm is directed Even if the persons involved are engaged in
or pointed to a particular person nocturnal activity like those playing patintero
when discharged but intent to kill is at night, or selling balut, if they conduct their
absent; activity in such a way that disturbs public
peace, they may commit the crime of alarms
(3) Attempted homicide, murder, or and scandals.
parricide if the firearm when
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 35

Article 156. Delivering Prisoners from though he is a public officer, the crime he
Jail committed is delivering prisoners from jail.

Elements Liability of the prisoner or detainee who

escaped – When these crimes are
1. There is a person confined in a jail committed, whether infidelity in the custody
or penal establishment; of prisoners or delivering prisoners from jail,
the prisoner so escaping may also have
2. Offender removes therefrom such criminal liability and this is so if the prisoner
person, or helps the escape of such is a convict serving sentence by final
person. judgment. The crime of evasion of service
of sentence is committed by the prisoner
Penalty of arresto mayor in its maximum who escapes if such prisoner is a convict
period to prision correccional in its minimum serving sentence by final judgment.
period is imposed if violence, intimidation or
bribery is used. If the prisoner who escapes is only a
detention prisoner, he does not incur liability
Penalty of arresto mayor if other means are from escaping if he does not know of the
used. plan to remove him from jail. But if such
prisoner knows of the plot to remove him
Penalty decreased to the minimum period if from jail and cooperates therein by escaping,
the escape of the prisoner shall take place he himself becomes liable for delivering
outside of said establishments by taking the prisoners from jail as a principal by
guards by surprise. indispensable cooperation.

If three persons are involved – a stranger,

In relation to infidelity in the custody of the custodian and the prisoner – three
prisoners, correlate the crime of delivering crimes are committed:
person from jail with infidelity in the custody
of prisoners punished under Articles 223, (1) Infidelity in the custody of prisoners;
224 and 225 of the Revised Penal Code. In
both acts, the offender may be a public (2) Delivery of the prisoner from jail; and
officer or a private citizen. Do not think that
infidelity in the custody of prisoners can only (3) Evasion of service of sentence.
be committed by a public officer and
delivering persons from jail can only be
committed by private person. Both crimes Article 157. Evasion of Service of
may be committed by public officers as well Sentence
as private persons.
Elements
In both crimes, the person involved may be
a convict or a mere detention prisoner. 1. Offender is a convict by final judgment;

The only point of distinction between the 2. He is serving sentence which consists in
two crimes lies on whether the offender is the deprivation of liberty;
the custodian of the prisoner or not at the
time the prisoner was made to escape. If 3. He evades service of his sentence by
the offender is the custodian at that time, escaping during the term of his
the crime is infidelity in the custody of imprisonment.
prisoners. But if the offender is not the
custodian of the prisoner at that time, even
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 36

Qualifying circumstances as to penalty Conflagrations, Earthquakes, or Other

imposed Calamities

If such evasion or escape takes place – Elements

1. By means of unlawful entry (this 1. Offender is a convict by final

should be “by scaling” - Reyes); judgment, who is confined in a penal
institution;
2. By breaking doors, windows, gates,
walls, roofs or floors; 2. There is disorder, resulting from –

3. By using picklock, false keys, a. conflagration;

disguise, deceit, violence or
intimidation; or b. earthquake;

4. Through connivance with other c. explosion; or

convicts or employees of the penal
institution. d. similar catastrophe; or

e. mutiny in which he has not

Evasion of service of sentence has three participated;
forms:
3. He evades the service of his
(1) By simply leaving or escaping from sentence by leaving the penal
the penal establishment under institution where he is confined, on
Article 157; the occasion of such disorder or
during the mutiny;
(2) Failure to return within 48 hours after
having left the penal establishment 4. He fails to give himself up to the
because of a calamity, conflagration authorities within 48 hours following
or mutiny and such calamity, the issuance of a proclamation by
conflagration or mutiny has been the Chief Executive announcing the
announced as already passed under passing away of such calamity.
Article 158;

(3) Violating the condition of conditional The leaving from the penal establishment is
pardon under Article 159. not the basis of criminal liability. It is the
failure to return within 48 hours after the
In leaving or escaping from jail or prison, passing of the calamity, conflagration or
that the prisoner immediately returned is mutiny had been announced. Under Article
immaterial. It is enough that he left the 158, those who return within 48 hours are
penal establishment by escaping therefrom. given credit or deduction from the remaining
His voluntary return may only be mitigating, period of their sentence equivalent to 1/5 of
being analogous to voluntary surrender. the original term of the sentence. But if the
But the same will not absolve his criminal prisoner fails to return within said 48 hours,
liability. an added penalty, also 1/5, shall be
imposed but the 1/5 penalty is based on the
remaining period of the sentence, not on the
Article 158. Evasion of Service of original sentence. In no case shall that
Sentence on the Occasion of Disorders, penalty exceed six months.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 37

Those who did not leave the penal In violation of conditional pardon, as a rule,
establishment are not entitled to the 1/5 the violation will amount to this crime only if
credit. Only those who left and returned the condition is violated during the
within the 48-hour period. remaining period of the sentence. As a
rule, if the condition of the pardon is violated
The mutiny referred to in the second form of when the remaining unserved portion of the
evasion of service of sentence does not sentence has already lapsed, there will be
include riot. The mutiny referred to here no more criminal liability for the violation.
involves subordinate personnel rising However, the convict maybe required to
against the supervisor within the penal serve the unserved portion of the sentence,
establishment. One who escapes during a that is, continue serving original penalty.
riot will be subject to Article 157, that is,
simply leaving or escaping the penal The administrative liability of the convict
establishment. under the conditional pardon is different and
has nothing to do with his criminal liability
Mutiny is one of the causes which may for the evasion of service of sentence in the
authorize a convict serving sentence in the event that the condition of the pardon has
penitentiary to leave the jail provided he been violated. Exception: where the
has not taken part in the mutiny. violation of the condition of the pardon will
constitute evasion of service of sentence,
The crime of evasion of service of sentence even though committed beyond the
may be committed even if the sentence is remaining period of the sentence. This is
destierro, and this is committed if the when the conditional pardon expressly so
convict sentenced to destierro will enter the provides or the language of the conditional
prohibited places or come within the pardon clearly shows the intention to make
prohibited radius of 25 kilometers to such the condition perpetual even beyond the
places as stated in the judgment. unserved portion of the sentence. In such
case, the convict may be required to serve
If the sentence violated is destierro, the the unserved portion of the sentence even
penalty upon the convict is to be served by though the violation has taken place when
way of destierro also, not imprisonment. the sentence has already lapsed.
This is so because the penalty for the
evasion can not be more severe than the In order that the conditional pardon may be
penalty evaded. violated, it is conditional that the pardonee
received the conditional pardon. If he is
released without conformity to the
Article 159. Other Cases of Evasion of conditional pardon, he will not be liable for
Service of Sentence the crime of evasion of service of sentence.

Elements of violation of conditional pardon

1. Offender was a convict;

2. He was granted pardon by the Chief

Executive; Question & Answer

3. He violated any of the conditions of

such pardon. Is the violation of conditional pardon
a substantive offense?
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 38

Under Article 159, there are two

situations provided:
TITLE IV. CRIMES AGAINST PUBLIC
(1) There is a penalty of prision INTEREST
correccional minimum for the
violation of the conditional pardon;
Crimes against public interest
(2) There is no new penalty imposed for
the violation of the conditional 1. Counterfeiting the great seal of the
pardon. Instead, the convict will be Government of the Philippines (Art.
required to serve the unserved 161);
portion of the sentence.
2. Using forged signature or
If the remitted portion of the counterfeiting seal or stamp (Art.
sentence is less than six years or up to six 162);
years, there is an added penalty of prision
correccional minimum for the violation of the 3. Making and importing and uttering
conditional pardon; hence, the violation is a false coins (Art. 163);
substantive offense if the remitted portion of
the sentence does not exceed six years 4. Mutilation of coins, importation and
because in this case a new penalty is uttering of mutilated coins (Art. 164);
imposed for the violation of the conditional
pardon. 5. Selling of false or mutilated coins,
without connivance (Art. 165);
But if the remitted portion of the
sentence exceeds six years, the violation of 6. Forging treasury or bank notes or
the conditional pardon is not a substantive other documents payable to bearer,
offense because no new penalty is imposed importing and uttering of such false
for the violation. or forged notes and documents (Art.
166);
In other words, you have to qualify
your answer. 7. Counterfeiting, importing and
uttering instruments not payable to
The Supreme Court, however, has bearer (Art. 167);
ruled in the case of Angeles v. Jose that
this is not a substantive offense. This has 8. Illegal possession and use of forged
been highly criticized. treasury or bank notes and other
instruments of credit (Art. 168);

Article 160. Commission of Another 9. Falsification of legislative documents

Crime During Service of Penalty Imposed (Art. 170);
for Another Previous Offense
10. Falsification by public officer,
Elements employee or notary (Art. 171);

1. Offender was already convicted by 11. Falsification by private individuals

final judgment of one offense; and use of falsified documents (Art.
172);
2. He committed a new felony before
beginning to serve such sentence or 12. Falsification of wireless, cable,
while serving the same. telegraph and telephone messages
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 39

and use of said falsified messages 27. Substituting and altering trade marks
(Art. 173); and trade names or service marks
(Art. 188);
13. False medical certificates, false
certificates of merit or service (Art. 28. Unfair competition and fraudulent
174); registration of trade mark or trade
name, or service mark; fraudulent
14. Using false certificates (Art. 175); designation of origin, and false
description (Art. 189).
15. Manufacturing and possession of
instruments or implements for
falsification (Art. 176); The crimes in this title are in the nature of
fraud or falsity to the public. The essence of
16. Usurpation of authority or official the crime under this title is that which
functions (Art. 177); defraud the public in general. There is
deceit perpetrated upon the public. This is
17. Using fictitious name and concealing the act that is being punished under this title.
true name (Art. 178);

18. Illegal use of uniforms or insignia Article 161. Counterfeiting the Great
(Art. 179); Seal of the Government of the Philippine
Islands, Forging the Signature or Stamp
19. False testimony against a defendant of the Chief Executive
(Art. 180);
Acts punished
20. False testimony favorable to the
defendant (Art. 181); 1. Forging the great seal of the
Government of the Philippines;
21. False testimony in civil cases (Art.
182); 2. Forging the signature of the
President;
22. False testimony in other cases and
perjury (Art. 183); 3. Forging the stamp of the President.

23. Offering false testimony in evidence

(Art. 184); Article 162. Using Forged Signature or
Counterfeit Seal or Stamp
24. Machinations in public auction (Art.
185); Elements

25. Monopolies and combinations in 1. The great seal of the Republic was
restraint of trade (Art. 186); counterfeited or the signature or
stamp of the Chief Executive was
26. Importation and disposition of falsely forged by another person;
marked articles or merchandise
made of gold, silver, or other 2. Offender knew of the counterfeiting
precious metals or their alloys (Art. or forgery;
187);
3. He used the counterfeit seal or
forged signature or stamp.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 40

Offender under this article should not be the

forger. (1) Counterfeiting – refers to money or
currency;

Article 163. Making and Importing and (2) Forgery – refers to instruments of
Uttering False Coins credit and obligations and securities
issued by the Philippine government
Elements or any banking institution authorized
by the Philippine government to
1. There be false or counterfeited coins; issue the same;

2. Offender either made, imported or (3) Falsification – can only be

uttered such coins; committed in respect of documents.

3. In case of uttering such false or

counterfeited coins, he connived In so far as coins in circulation are
with the counterfeiters or importers. concerned, there are two crimes that may
be committed:

Kinds of coins the counterfeiting of which is (1) Counterfeiting coins -- This is the
punished crime of remaking or manufacturing
without any authority to do so.
1. Silver coins of the Philippines or
coins of the Central Bank of the In the crime of counterfeiting, the law is not
Philippines; concerned with the fraud upon the public
such that even though the coin is no longer
2. Coins of the minor coinage of the legal tender, the act of imitating or
Philippines or of the Central Bank of manufacturing the coin of the government is
the Philippines; penalized. In punishing the crime of
counterfeiting, the law wants to prevent
3. Coin of the currency of a foreign people from trying their ingenuity in their
country. imitation of the manufacture of money.

It is not necessary that the coin

Article 164. Mutilation of Coins counterfeited be legal tender. So that even
if the coin counterfeited is of vintage, the
Acts punished crime of counterfeiting is committed. The
reason is to bar the counterfeiter from
1. Mutilating coins of the legal currency, perfecting his craft of counterfeiting. The
with the further requirements that law punishes the act in order to discourage
there be intent to damage or to people from ever attempting to gain
defraud another; expertise in gaining money. This is
because if people could counterfeit money
2. Importing or uttering such mutilated with impunity just because it is no longer
coins, with the further requirement legal tender, people would try to counterfeit
that there must be connivances with non-legal tender coins. Soon, if they
the mutilator or importer in case of develop the expertise to make the
uttering. counterfeiting more or less no longer
discernible or no longer noticeable, they
could make use of their ingenuity to
The first acts of falsification or falsity are – counterfeit coins of legal tender. From that
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 41

time on, the government shall have difficulty

determining which coins are counterfeited Mutilation is being regarded as a crime
and those which are not. It may happen because the coin, being of legal tender, it is
that the counterfeited coins may look better still in circulation and which would
than the real ones. So, counterfeiting is necessarily prejudice other people who may
penalized right at the very start whether the come across the coin. For example, X
coin is legal tender or otherwise. mutilated a P 2.00 coin, the octagonal one,
by converting it into a round one and
extracting 1/10 of the precious metal dust
Question & Answer from it. The coin here is no longer P2.00
but only P 1.80, therefore, prejudice to the
public has resulted.
X has in his possession a coin which
was legal tender at the time of Magellan and There is no expertise involved here. In
is considered a collector’s item. He mutilation of coins under the Revised Penal
manufactured several pieces of that coin. Is Code, the offender does nothing but to
the crime committed? scrape, pile or cut the coin and collect the
dust and, thus, diminishing the intrinsic
Yes. It is not necessary that the coin value of the coin.
be of legal tender. The provision punishing
counterfeiting does not require that the Mutilation of coins is a crime only if the coin
money be of legal tender and the law mutilated is legal tender. If the coin whose
punishes this even if the coin concerned is metal content has been depreciated through
not of legal tender in order to discourage scraping, scratching, or filing the coin and
people from practicing their ingenuity of the offender collecting the precious metal
imitating money. If it were otherwise, dust, even if he would use the coin after its
people may at the beginning try their intrinsic value had been reduced, nobody
ingenuity in imitating money not of legal will accept the same. If it is not legal tender
tender and once they acquire expertise, anymore, no one will accept it, so nobody
they may then counterfeit money of legal will be defrauded. But if the coin is of legal
tender. tender, and the offender minimizes or
decreases the precious metal dust content
of the coin, the crime of mutilation is
(2) Mutilation of coins -- This refers to committed.
the deliberate act of diminishing the
proper metal contents of the coin In the example, if the offender has collected
either by scraping, scratching or 1/10 of the P 2.00 coin, the coin is actually
filling the edges of the coin and the worth only P 1.80. He is paying only P1.80
offender gathers the metal dust that in effect defrauding the seller of P .20.
has been scraped from the coin. Punishment for mutilation is brought about
by the fact that the intrinsic value of the coin
Requisites of mutilation under the Revised is reduced.
Penal Code
The offender must deliberately reduce the
(1) (1) Coin mutilated is of legal tender; precious metal in the coin. Deliberate intent
arises only when the offender collects the
(2) Offender gains from the precious precious metal dust from the mutilated coin.
metal dust abstracted from the coin; If the offender does not collect such dust,
and intent to mutilate is absent, but Presidential
Decree No. 247 will apply.
(3) It has to be a coin.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 42

declaration of martial law that all bills

Presidential Decree No. 247 (Defacement, without the Bagong Lipunan sign on them
Mutilation, Tearing, Burning or will no longer be recognized. Because of
Destroying Central Bank Notes and this, the people had no choice but to
Coins) surrender their money to banks and
exchange them with those with the Bagong
It shall be unlawful for any person to willfully Lipunan sign on them. However, people
deface, mutilate, tear, burn, or destroy in who came up with a lot of money were also
any manner whatsoever, currency notes being charged with hoarding for which
and coins issued by the Central Bank. reason certain printing presses did the
stamping of the Bagong Lipunan sign
themselves to avoid prosecution. Was
Mutilation under the Revised Penal Code is there a violation of Presidential Decree No.
true only to coins. It cannot be a crime 247?
under the Revised Penal Code to mutilate
paper bills because the idea of mutilation Yes. This act of the printing presses
under the code is collecting the precious is a violation of Presidential Decree No. 247.
metal dust. However, under Presidential
Decree No. 247, mutilation is not limited to 4. An old woman who was a
coins. cigarette vendor in Quiapo refused to
accept one-centavo coins for payment of
the vendee of cigarettes he purchased.
Questions & Answers Then came the police who advised her that
she has no right to refuse since the coins
are of legal tender. On this, the old woman
1. The people playing cara y accepted in her hands the one-centavo
cruz, before they throw the coin in the air coins and then threw it to the face of the
would rub the money to the sidewalk vendee and the police. Was the old woman
thereby diminishing the intrinsic value of the guilty of violating Presidential Decree No.
coin. Is the crime of mutilation committed? 247?

Mutilation, under the Revised Penal She was guilty of violating

Code, is not committed because they do not Presidential Decree No. 247 because if no
collect the precious metal content that is one ever picks up the coins, her act would
being scraped from the coin. However, this result in the diminution of the coin in
will amount to violation of Presidential circulation.
Decree No. 247.
5. A certain customer in a
2. When the image of Jose restaurant wanted to show off and used a P
Rizal on a five-peso bill is transformed into 20.00 bill to light his cigarette. Was he
that of Randy Santiago, is there a violation guilty of violating Presidential Decree No.
of Presidential Decree No. 247? 247?

Yes. Presidential Decree No. 247 is He was guilty of arrested for

violated by such act. violating of Presidential Decree No. 247.
Anyone who is in possession of defaced
3. Sometime before martial law money is the one who is the violator of
was imposed, the people lost confidence in Presidential Decree No. 247. The intention
banks that they preferred hoarding their of Presidential Decree No. 247 is not to
money than depositing it in banks. Former punish the act of defrauding the public but
President Ferdinand Marcos declared upon what is being punished is the act of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 43

destruction of money issued by the Central 2. Knowledge.

Bank of the Philippines.

Article 166. Forging Treasury or Bank

Note that persons making bracelets out of Notes or Other Documents Payable to
some coins violate Presidential Decree No. Bearer; Importing and Uttering Such
247. False or Forged Notes and Documents

The primary purpose of Presidential Decree Acts punished

No. 247 at the time it was ordained was to
stop the practice of people writing at the 1. Forging or falsification of treasury or
back or on the edges of the paper bills, such bank notes or other documents
as "wanted: pen pal". payable to bearer;

So, if the act of mutilating coins does not 2. Importation of such false or forged
involve gathering dust like playing cara y obligations or notes;
cruz, that is not mutilation under the
Revised Penal Code because the offender 3. Uttering of such false or forged
does not collect the metal dust. But by obligations or notes in connivance
rubbing the coins on the sidewalk, he also with the forgers or importers.
defaces and destroys the coin and that is
punishable under Presidential Decree No.
247. Article 167. Counterfeiting, Importing,
and Uttering Instruments Not Payable to
Bearer
Article 165. Selling of False or Mutilated
Coin, without Connivance Elements

Acts punished 1. There is an instrument payable to order

or other documents of credit not
1. Possession of coin, counterfeited or payable to bearer;
mutilated by another person, with
intent to utter the same, knowing 2. Offender either forged, imported or
that it is false or mutilated; uttered such instrument;

Elements 3. In case of uttering, he connived with the

forger or importer.
1. Possession;
Article 168. Illegal Possession and Use
2. With intent to utter; and of False Treasury or Bank Notes and
Other Instruments of Credit
3. Knowledge.
Elements
2. Actually uttering such false or
mutilated coin, knowing the same to 1. Any treasury or bank note or
be false or mutilated. certificate or other obligation and
security payable to bearer, or any
Elements instrument payable to order or other
document of credit not payable to
1. Actually uttering; and bearer is forged or falsified by
another person;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 44

Revised Penal Code is given a status of

2. Offender knows that any of those money or legal tender, the crime committed
instruments is forged or falsified; is forgery.

3. He either –
Questions & Answers
a. uses any of such forged or
falsified instruments; or
1. Instead of the peso sign (P),
b. possesses with intent to use somebody replaced it with a dollar sign ($).
any of such forged or falsified Was the crime of forgery committed?
instruments.
No. Forgery was not committed.
The forged instrument and currency note
How forgery is committed under Article 169 must be given the appearance of a true and
genuine document. The crime committed is
1. By giving to a treasury or bank note or a violation of Presidential Decree No. 247.
any instrument payable to bearer or Where the currency note, obligation or
to order mentioned therein, the security has been changed to make it
appearance of a true and genuine appear as one which it purports to be as
document; genuine, the crime is forgery. In checks or
commercial documents, this crime is
2. By erasing, substituting, committed when the figures or words are
counterfeiting, or altering by any changed which materially alters the
means the figures, letters, words, or document.
sign contained therein.
2. An old man, in his desire to
earn something, scraped a digit in a losing
Forgery under the Revised Penal Code sweepstakes ticket, cut out a digit from
applies to papers, which are in the form of another ticket and pasted it there to match
obligations and securities issued by the the series of digits corresponding to the
Philippine government as its own winning sweepstakes ticket. He presented
obligations, which is given the same status this ticket to the Philippine Charity
as legal tender. Generally, the word Sweepstakes Office. But the alteration is so
“counterfeiting” is not used when it comes to crude that even a child can notice that the
notes; what is used is “forgery.” supposed digit is merely superimposed on
Counterfeiting refers to money, whether the digit that was scraped. Was the old
coins or bills. man guilty of forgery?

The Revised Penal Code defines forgery Because of the impossibility of

under Article 169. Notice that mere change deceiving whoever would be the person to
on a document does not amount to this whom that ticket is presented, the Supreme
crime. The essence of forgery is giving a Court ruled that what was committed was
document the appearance of a true and an impossible crime. Note, however, that
genuine document. Not any alteration of a the decision has been criticized. In a case
letter, number, figure or design would like this, the Supreme Court of Spain ruled
amount to forgery. At most, it would only be that the crime is frustrated. Where the
frustrated forgery. alteration is such that nobody would be
deceived, one could easily see that it is a
When what is being counterfeited is forgery, the crime is frustrated because he
obligation or securities, which under the has done all the acts of execution which
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 45

would bring about the felonious

consequence but nevertheless did not result 3. He has no proper authority therefor;
in a consummation for reasons independent
of his will. 4. The alteration has changed the
meaning of the documents.
3. A person has a twenty-peso
bill. He applied toothache drops on one
side of the bill. He has a mimeograph paper The words "municipal council" should
similar in texture to that of the currency note include the city council or municipal board –
and placed it on top of the twenty-peso bill Reyes.
and put some weight on top of the paper.
After sometime, he removed it and the
printing on the twenty-peso bill was The crime of falsification must involve a
reproduced on the mimeo paper. He took writing that is a document in the legal sense.
the reverse side of the P20 bill, applied The writing must be complete in itself and
toothache drops and reversed the mimeo capable of extinguishing an obligation or
paper and pressed it to the paper. After creating rights or capable of becoming
sometime, he removed it and it was evidence of the facts stated therein. Until
reproduced. He cut it out, scraped it a little and unless the writing has attained this
and went to a sari-sari store trying to buy a quality, it will not be considered as
cigarette with that bill. What he overlooked document in the legal sense and, therefore,
was that, when he placed the bill, the the crime of falsification cannot be
printing was inverted. He was apprehended committed in respect thereto.
and was prosecuted and convicted of
forgery. Was the crime of forgery Five classes of falsification:
committed?
(1) Falsification of legislative documents;
The Supreme Court ruled that it was
only frustrated forgery because although the (2) Falsification of a document by a
offender has performed all the acts of public officer, employee or notary
execution, it is not possible because by public;
simply looking at the forged document, it
could be seen that it is not genuine. It can (3) Falsification of a public or official, or
only be a consummated forgery if the commercial documents by a private
document which purports to be genuine is individual;
given the appearance of a true and genuine
document. Otherwise, it is at most (4) Falsification of a private document
frustrated. by any person;

Article 170. Falsification of Legislative (5) Falsification of wireless, telegraph

Documents and telephone messages.

Elements Distinction between falsification and forgery:

1. There is a bill, resolution or Falsification is the commission of any of the

ordinance enacted or approved or eight acts mentioned in Article 171 on
pending approval by either House of legislative (only the act of making alteration),
the Legislature or any provincial public or official, commercial, or private
board or municipal council; documents, or wireless, or telegraph
messages.
2. Offender alters the same;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 46

The term forgery as used in Article 169 g. Issuing in an authenticated

refers to the falsification and counterfeiting form a document
of treasury or bank notes or any instruments purporting to be a copy of an
payable to bearer or to order. original document when no
such original exists, or
Note that forging and falsification are crimes including in such a copy a
under Forgeries. statement contrary to, or
different from, that of the
genuine original; or
Article 171. Falsification by Public
Officer, Employee or Notary or h. Intercalating any instrument
Ecclesiastical Minister or note relative to the
issuance thereof in a protocol,
Elements registry, or official book.

1. Offender is a public officer, 4. In case the offender is an

employee, or notary public; ecclesiastical minister who shall
commit any of the offenses
2. He takes advantage of his official enumerated, with respect to any
position; record or document of such
character that its falsification may
3. He falsifies a document by affect the civil status of persons.
committing any of the following acts:

a. Counterfeiting or imitating For example, a customer in a hotel did not

any handwriting, signature or write his name on the registry book, which
rubric; was intended to be a memorial of those who
got in and out of that hotel. There is no
b. Causing it to appear that complete document to speak of. The
persons have participated in document may not extinguish or create
any act or proceeding when rights but it can be an evidence of the facts
they did not in fact so stated therein.
participate;
Note that a check is not yet a document
c. Attributing to persons who when it is not completed yet. If somebody
have participated in an act or writes on it, he makes a document out of it.
proceeding statements other
than those in fact made by The document where a crime was
them; committed or the document subject of the
prosecution may be totally false in the
d. Making untruthful statements sense that it is entirely spurious. This
in a narration of facts; notwithstanding, the crime of falsification is
committed.
e. Altering true dates;
It does not require that the writing be
f. Making any alteration or genuine. Even if the writing was through
intercalation in a genuine and through false, if it appears to be
document which changes its genuine, the crime of falsification is
meaning; nevertheless committed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 47

Questions & Answers Yes. It is capable of speaking of the

facts stated therein. Writing may be on
anything as long as it is a product of the
1. A is one of those selling handwriting, it is considered a document.
residence certificates in Quiapo. He was
brought to the police precincts on suspicion 5. In a case where a lawyer
that the certificates he was selling to the tried to extract money from a spinster by
public proceed from spurious sources and typing on a bond paper a subpoena for
not from the Bureau of Treasury. Upon estafa. The spinster agreed to pay. The
verification, it was found out that the spinster went to the prosecutor’s office to
certificates were indeed printed with a verify the exact amount and found out that
booklet of supposed residence certificates. there was no charge against her. The
What crime was committed? lawyer was prosecuted for falsification. He
contended that only a genuine document
Crime committed is violation of could be falsified. Rule.
Article 176 (manufacturing and possession
of instruments or implements for As long as any of the acts of
falsification). A cannot be charged of falsification is committed, whether the
falsification because the booklet of document is genuine or not, the crime of
residence certificates found in his falsification may be committed. Even totally
possession is not in the nature of false documents may be falsified.
“document” in the legal sense. They are
mere forms which are not to be completed
to be a document in the legal sense. This is There are four kinds of documents:
illegal possession with intent to use
materials or apparatus which may be used (1) Public document in the execution of
in counterfeiting/forgery or falsification. which, a person in authority or
notary public has taken part;
2. Public officers found a traffic
violation receipts from a certain person. (2) Official document in the execution of
The receipts were not issued by the Motor which a public official takes part;
Vehicle Office. For what crime should he be
prosecuted for? (3) Commercial document or any
document recognized by the Code of
It cannot be a crime of usurpation of Commerce or any commercial law;
official functions. It may be the intention but and
no overt act was yet performed by him. He
was not arrested while performing such (4) Private document in the execution of
overt act. He was apprehended only while which only private individuals take
he was standing on the street suspiciously. part.
Neither can he be prosecuted for
falsification because the document is not Public document is broader than the term
completed yet, there being no name of any official document. Before a document may
erring driver. The document remains to be be considered official, it must first be a
a mere form. It not being completed yet, the public document. But not all public
document does not qualify as a document in documents are official documents. To
the legal sense. become an official document, there must be
a law which requires a public officer to issue
4. Can the writing on the wall or to render such document. Example: A
be considered a document? cashier is required to issue an official
receipt for the amount he receives. The
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 48

official receipt is a public document which is 3. Falsification causes damage to a third

an official document. party or at least the falsification was
committed with intent to cause such
damage.
Article 172. Falsification by Private
Individual and Use of Falsified
Documents Elements under the last paragraph

Acts punished In introducing in a judicial proceeding –

1. Falsification of public, official or 1. Offender knew that the document was

commercial document by a private falsified by another person;
individual;
2. The false document is in Articles 171 or
2. Falsification of private document by 172 (1 or 2);
any person;
3. He introduced said document in
3. Use of falsified document. evidence in any judicial proceeding.

In use in any other transaction –

Elements under paragraph 1
1. Offender knew that a document was
1. Offender is a private individual or falsified by another person;
public officer or employee who did
not take advantage of his official 2. The false document is embraced in
position; Articles 171 or 172 (1 or 2);
2. He committed any act of falsification; 3. He used such document;
3. The falsification was committed in a 4. The use caused damage to another or
public, official, or commercial
at least used with intent to cause
document or letter of exchange. damage.

Elements under paragraph 2

Article 173. Falsification of Wireless,
Cable, Telegraph and Telephone
Messages, and Use of Said Falsified
1. Offender committed any of the acts of
Messages
falsification except Article 171(7),
that is, issuing in an authenticated
Acts punished
form a document purporting to be a
copy of an original document when
1. Uttering fictitious wireless, telegraph
no such original exists, or including
or telephone message;
in such a copy a statement contrary
to, or different from, that of the
Elements
genuine original;
1, Offender is an officer or
2. Falsification was committed in any
employee of the government
private document;
or an officer or employee of a
private corporation, engaged
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 49

in the service of sending or Article 174. False Medical Certificates,

receiving wireless, cable or False Certificates of Merits or Service,
telephone message; Etc.

2. He utters fictitious wireless, Persons liable

cable, telegraph or telephone
message. 1. Physician or surgeon who, in connection
with the practice of his profession,
2. Falsifying wireless, telegraph or issues a false certificate (it must
telephone message; refer to the illness or injury of a
person);
Elements
[The crime here is false medical
1, Offender is an officer or certificate by a physician.]
employee of the government
or an officer or employee of a 2. Public officer who issues a false
private corporation, engaged certificate of merit of service, good
in the service of sending or conduct or similar circumstances;
receiving wireless, cable or
telephone message; [The crime here is false certificate of
merit or service by a public officer.]
2. He falsifies wireless, cable,
telegraph or telephone 3. Private person who falsifies a certificate
message. falling within the classes mentioned
in the two preceding subdivisions.
3. Using such falsified message.

Elements Article 175. Using False Certificates

1. Offender knew that wireless, Elements

cable, telegraph, or
telephone message was 1. The following issues a false
falsified by an officer or certificate:
employee of the government
or an officer or employee of a a. Physician or surgeon, in
private corporation, engaged connection with the practice
in the service of sending or of his profession, issues a
receiving wireless, cable or false certificate;
telephone message;
b. Public officer issues a
2. He used such falsified false certificate of
dispatch; merit of service, good
conduct or similar
3. The use resulted in the circumstances;
prejudice of a third party or at
least there was intent to c. Private person
cause such prejudice. falsifies a certificate
falling within the
classes mentioned in
the two preceding
subdivisions.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 50

the Philippine government or

2. Offender knows that the any foreign government, or
certificate was false; any agency thereof;

3. He uses the same. 3. Under pretense of official

position;

Article 176. Manufacturing and 4. Without being lawfully

Possession of Instruments or entitled to do so.
Implements for Falsification

Acts punished Article 178. Using Fictitious Name and

Concealing True Name
1. Making or introducing into the
Philippines any stamps, dies, marks, Acts punished
or other instruments or implements
for counterfeiting or falsification; 1. Using fictitious name

2. Possession with intent to use the Elements

instruments or implements for
counterfeiting or falsification made in 1. Offender uses a name other
or introduced into the Philippines by than his real name;
another person.
2. He uses the fictitious name
publicly;
Article 177. Usurpation of Authority or
Official Functions 3. Purpose of use is to conceal
a crime, to evade the
Acts punished execution of a judgment or to
cause damage [to public
1. Usurpation of authority; interest – Reyes].

Elements 2. Concealing true name

1. Offender knowingly and Elements

falsely represents himself;
1. Offender conceals his true
2. As an officer, agent or name and other personal
representative of any circumstances;
department or agency of the
Philippine government or of 2. Purpose is only to conceal
any foreign government. his identity.

2. Usurpation of official functions.

Commonwealth Act No. 142 (Regulating
Elements the Use of Aliases)

1. Offender performs any act; No person shall use any name different
from the one with which he was registered
2. Pertaining to any person in at birth in the office of the local civil registry,
authority or public officer of or with which he was registered in the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 51

bureau of immigration upon entry; or such 4. Defendant against whom the false
substitute name as may have been testimony is given is either acquitted
authorized by a competent court. or convicted in a final judgment.

Exception: Pseudonym solely for literary,

cinema, television, radio, or other Three forms of false testimony
entertainment and in athletic events where
the use of pseudonym is a normally 1. False testimony in criminal cases
accepted practice. under Article 180 and 181;

2. False testimony in civil case under

Article 179. Illegal Use of Uniforms or Article 182;
Insignia
3. False testimony in other cases under
Elements Article 183.

1. Offender makes use of insignia,

uniforms or dress; Article 181. False Testimony Favorable
to the Defendant
2. The insignia, uniforms or dress pertains
to an office not held by such person Elements
or a class of persons of which he is
not a member; 1. A person gives false testimony;

3. Said insignia, uniform or dress is 2. In favor of the defendant;

used publicly and improperly.
3. In a criminal case.

Wearing the uniform of an imaginary office

is not punishable. Article 182. False Testimony in Civil
Cases
So also, an exact imitation of a uniform or
dress is unnecessary; a colorable Elements
resemblance calculated to deceive the
common run of people is sufficient. 1. Testimony given in a civil case;

Article 180. False Testimony against A 2. Testimony relates to the issues

Defendant presented in said case;

Elements 3. Testimony is false;

1. There is a criminal proceeding; 4. Offender knows that testimony is false;

2. Offender testifies falsely under oath 5. Testimony is malicious and given with
against the defendant therein; an intent to affect the issues
presented in said case.
3. Offender who gives false testimony
knows that it is false.
Article 183. False Testimony in Other
Cases and Perjury in Solemn Affirmation
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 52

Acts punished
Elements
1. By falsely testifying under oath;
1. There is a public auction;
2. By making a false affidavit.
2. Offender solicits any gift or a
promise from any of the
Elements of perjury bidders;

1. Offender makes a statement under oath 3. Such gift or promise is the

or executes an affidavit upon a consideration for his
material matter; refraining from taking part in
that public auction;
2. The statement or affidavit is made
before a competent officer, 4. Offender has the intent to
authorized to receive and administer cause the reduction of the
oaths; price of the thing auctioned.

3. Offender makes a willful and deliberate 2. Attempting to cause bidders to stay

assertion of a falsehood in the away from an auction by threats,
statement or affidavit; gifts, promises or any other artifice.

4. The sworn statement or affidavit Elements

containing the falsity is required by
law, that is, it is made for a legal 1. There is a public auction;
purpose.
2. Offender attempts to cause
the bidders to stay away from
Article 184. Offering False Testimony in that public auction;
Evidence
3. It is done by threats, gifts,
Elements promises or any other artifice;

1. Offender offers in evidence a false 4. Offender has the intent to

witness or testimony; cause the reduction of the
price of the thing auctioned.
2 He knows that the witness or the
testimony was false;
Article 186. Monopolies and
3. The offer is made in any judicial or Combinations in Restraint of Trade
official proceeding.
Acts punished

Article 185. Machinations in Public 1. Combination to prevent free

Auctions competition in the market;

Acts punished Elements

1. Soliciting any gift or promise as a 1. Entering into any contract or

consideration for refraining from agreement or taking part in
taking part in any public auction; any conspiracy or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 53

combination in the form of a any merchandise or object of

trust or otherwise; commerce manufactured,
produced, processed,
2. In restraint of trade or assembled or imported into
commerce or to prevent by the Philippines.
artificial means free
competition in the market.
Article 187. Importation and Disposition
2. Monopoly to restrain free of Falsely Marked Articles or
competition in the market; Merchandise Made of Gold, Silver, or
Other Precious Metals of Their Alloys
Elements
Elements
1. By monopolizing any
merchandise or object of 1. Offender imports, sells or disposes
trade or commerce, or by articles made of gold, silver, or other
combining with any other precious metals or their alloys;
person or persons to
monopolize said 2. The stamps, brands, or marks of
merchandise or object; those articles of merchandise fail to
indicate the actual fineness or
2. In order to alter the prices quality of said metals or alloys;
thereof by spreading false
rumors or making use of any 3. Offender knows that the stamps,
other artifice; brands, or marks fail to indicate the
actual fineness or quality of the
3. To restrain free competition metals or alloys.
in the market

3. Manufacturer, producer, or Article 188. Substituting and Altering

processor or importer combining, Trademarks, Trade names, or Service
conspiring or agreeing with any Marks
person to make transactions
prejudicial to lawful commerce or to Acts punished
increase the market price of
merchandise. 1. Substituting the trade name or
trademark of some other
Elements manufacturer or dealer, or a
colorable imitation thereof for the
1. Manufacturer, producer, trade name or trademark of the real
processor or importer of any manufacturer or dealer upon any
merchandise or object of article of commerce and selling the
commerce; same;

2. Combines, conspires or 2. Selling or offering for sale such

agrees with any person; articles of commerce knowing that
the trade name or trademark has
3. Purpose is to make been fraudulently used;
transactions prejudicial to
lawful commerce or to 3. Using or substituting the service
increase the market price of mark of some other person, or a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 54

colorable imitation of such mark n services a false designation

the sale or advertising of his of origin, or any false
services; description or representation;
and
4. Printing, lithographing or
reproducing trade name, trademark, 2. Selling such goods or
or service mark of one person or a services.
colorable imitation thereof to enable
another person to fraudulently use 3. Fraudulent registration
the same knowing the fraudulent
purpose for which it is to be used. Elements

1. By procuring fraudulently
Article 189. Unfair Competition, from the patent office;
Fraudulent Registration of Trade Name,
Trademark, or Service Mark, Fraudulent 2. The registration of trade
Designation of Origin, and False name, trademark or service
Description mark

Acts punished
Republic Act No. 8293 (An Act
1. Unfair competition; Prescribing the Intellectual Property
Code and Establishing the Intellectual
Elements Property Office, Providing for Its Power
and Functions, and for Other Purposes)
1. By selling his goods;
Section 170. Penalties. –
2. Giving them the general Independent of the civil and administrative
appearance of the goods of sanctions imposed by law, a criminal
another manufacturer or penalty of imprisonment from two (2) years
dealer; to five (5) years and a fine ranging from Fifty
thousand pesos (P 50,000.00) to Two
3. The general appearance is hundred thousand pesos (P 200,000.00),
shown in the goods shall be imposed on any person who is
themselves, or in the found guilty of committing any of the acts
wrapping of their packages, mentioned in Section 155, Section 168 and
or in the device or words Subsection 169.1.
therein, or in any feature of
their appearance; Section 155. Remedies;
Infringement. – Any person who shall,
4. There is actual intent to without the consent of the owner of the
deceive the public or defraud registered mark:
a competitor.
155.1. Use in commerce any
2. Fraudulent designation of origin; reproduction, counterfeit, copy, or colorable
false description: imitation of a registered mark or the same
container or a dominant feature thereof in
Elements connection with the sale, offering for sale,
distribution, advertising of any goods or
1. By affixing to his goods or services including other preparatory steps
using in connection with his necessary to carry out the sale of any goods
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 55

or services on or in connection with which against unfair competition, the following

such use is likely to course confusion, or to shall be deemed guilty of unfair competition:
cause mistake, or to deceive; or
(a) Any person, who is selling
155.2. Reproduce, counterfeit, copy his goods and gives them the general
or colorably imitate a registered mark or a appearance of goods of another
dominant feature thereof and apply such manufacturer or dealer, either as to the
reproduction, counterfeit, copy or colorable goods themselves or in the wrapping of the
imitation to labels, signs, prints, packages, packages in which they are contained, or
wrappers, receptacles or advertisement the devices or words thereon, on in any
intended to be used in commerce upon or in other feature or their appearance, which
connection with the sale, offering for sale, would be likely to influence purchasers to
distribution, or advertising of goods or believe that the goods offered are those of a
services on or in connection with which manufacturer or dealer, other than the
such use is likely to cause confusion, or to actual manufacturer or dealer, or who
cause mistake, or to deceive shall be liable otherwise clothes the goods with such
in a civil action for infringement by the appearance as shall deceive the public and
registrant for the remedies hereinafter set defraud another of his legitimate trade, or
forth: Provided, that the infringement takes any subsequent vendor of such goods or
place at the moment any of the acts stated any agent of any vendor engaged in selling
in Subsection 155.1 or this subsection are such goods with a like purpose; or
committed regardless of whether there is
actual sale of goods or services using the (b) Any person who by any
infringing material. artifice, or device, or who employs any other
means calculated to induce the false belief
Section 168. Unfair Competition, that such person is offering the services of
Rights, Regulation and Remedies. another who ahs identified such services in
the mind of the public; or
168.1. Any person who has
identified in the mind of the public the goods (c) Any person who shall make
he manufactures or deals in, his business or any false statement in the course of trade or
services from those of others, whether or who shall commit any other act contrary to
not a registered mark is employed, has a good faith of a nature calculated to discredit
property right in the goodwill of the said the goods, business or services of another.
goods, business or service so identified,
which will be protected in the same manner 168.4. The remedies provided by
as other property rights. Section 156, 157 and 161 shall apply
mutatis mutandis.
168.2. Any person who shall employ
deception or any other means contrary to Section 169. False Designation or
good faith by which he shall pass off the Origin; False Description or Representation.
goods manufactured by him or in which he
deals, or his business, or services for those 169.1. Any person who, on or in
of the one having established such goodwill, connection with any goods or services, or
or who shall commit any acts calculated to any container for goods, uses in commerce
produce said result, shall be guilty of unfair any word, term, name, symbol, or device, or
competition, and shall be subject to an any combination thereof, or any false
action therefor. designation of origin, false or misleading
description of fact, or false or misleading
168.3. In particular, and without in representation of fact, which:
any way limiting the scope of protection
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 56

(a) Is likely to cause confusion, 7. Cultivation of plants which are sources

or to cause mistake, or to deceive as to the of prohibited drugs;
affiliation, connection, or association of such
person with another person, or as to the 8. Failure to comply with the provisions of
origin, sponsorship, or approval of his or her the Act relative to the keeping of
goods, services, or commercial activities by records of prescriptions, sales,
another person; or purchases, acquisitions and/or
deliveries of prohibited drugs;
(b) In commercial advertising or
promotion, misrepresents the nature, 9. Unlawful prescription of prohibited drugs;
characteristics, qualities, or geographic
origin of his or her or another person's 10. Unnecessary prescription of prohibited
goods, services or commercial activities, drugs;
shall be liable to a civil action for damages
and injunction provided in Section 156 and 11. Possession of opium pipe and other
157 of this Act by any person who believes paraphernalia for prohibited drugs;
that he or she is or likely to be damaged by
such act.
12. Unauthorized importation, manufacture,
sale administration, dispensation,
delivery, transportation, distribution,
TITLE V. CRIMES RELATIVE TO OPIUM
possession or use of regulated
AND OTHER PROHIBITED DRUGS
drugs, failure to comply with the
provisions of the Act relative to the
keeping of records of prescriptions,
Articles 190, 191, 192, 193 and194 of the
sales, purchases, acquisitions
Revised Penal Code have been repealed by
and/or deliveries, unlawful
Republic Act No. 6425 (The Dangerous
prescription, unnecessary
Drugs Act of 1972), as amended by
prescription of regulated drugs, and
Presidential Decree No. 1683 and further
maintenance of a den, dive or resort
amended by Republic Act No. 7659.
for regulated drug users.

Acts punished by the Republic Act No. 6425

TITLE VI. CRIMES AGAINST PUBLIC
MORALS
1. Importation of prohibited drugs;

2. Sale, administration, delivery, Crimes against public morals

distribution and transportation of
prohibited drugs; 1. Gambling (Art. 195);
3. Maintenance of a den, dive or resort for 2. Importation, sale and possession of
prohibited drug users; lottery tickets or advertisements (Art.
196);
4. Being employees and visitors of
prohibited drug den; 3. Betting in sport contests (Art. 197);
5. Manufacture of prohibited drugs; 4. Illegal betting on horse races (Art. 198);
6. Possession or use of prohibited drugs; 5. Illegal cockfighting (Art. 199);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 57

6. Grave scandal (Art. 200);

Article 196. Importation, Sale and
7. Immoral doctrines, obscene publications Possession of Lottery Tickets or
and exhibitions (Art. 201); and Advertisements

8. Vagrancy and prostitution (Art. 202). Acts punished

1. Importing into the Philippines from any

Article 195. What Acts Are Punishable in foreign place or port any lottery
Gambling ticket or advertisement; or

Acts punished 2. Selling or distributing the same in

connivance with the importer;
1. Taking part directly or indirectly in –
3. Possessing, knowingly and with intent to
a. any game of monte, jueteng, use them, lottery tickets or
or any other form of lottery, advertisements; or
policy, banking, or
percentage game, dog races, 4. Selling or distributing the same without
or any other game or scheme connivance with the importer of the
the results of which depend same.
wholly or chiefly upon chance
or hazard; or wherein wagers
consisting of money, articles Note that possession of any lottery ticket or
of value, or representative of advertisement is prima facie evidence of an
value are made; or intent to sell, distribute or use the same in
the Philippines.
b. the exploitation or use of any
other mechanical invention or
contrivance to determine by Article 197. Betting in Sport Contests
chance the loser or winner of
money or any object or This article has been repealed by
representative of value; Presidential Decree No. 483 (Betting,
Game-fixing or Point-shaving and
2. Knowingly permitting any form of Machinations in Sport Contests):
gambling to be carried on in any
place owned or controlled by the Section 2. Betting, game-fixing,
offender; point-shaving or game machination unlawful.
– Game-fixing, point-shaving, game
3. Being maintainer, conductor, or machination, as defined in the preceding
banker in a game of jueteng or section, in connection with the games of
similar game; basketball, volleyball, softball, baseball;
chess, boxing bouts, jai-alia, sipa, pelota
4. Knowingly and without lawful and all other sports contests, games or
purpose possessing lottery list, races; as well as betting therein except as
paper, or other matter containing may be authorized by law, is hereby
letters, figures, signs or symbol declared unlawful.
which pertain to or are in any
manner used in the game of jueteng
or any similar game. Article 198. Illegal Betting on Horse
Race
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 58

30, Holy Thursday, Good Friday,

Acts punished Election or Referendum Day, and
registration days for referendums
1. Betting on horse races during periods and elections;
not allowed by law;
 Only municipal and city mayors are
2. Maintaining or employing a totalizer or allowed to issue licenses for such.
other device or scheme for betting
on races or realizing profit therefrom
during the periods not allowed by Presidential Decree No. 1602
law. (Simplifying and Providing Stiffer
Penalties for Violations of Philippine
Gambling Laws)
When horse races not allowed
Section 1. Violations and Penalties.
1. July 4 (Republic Act No. 137); -- The penalty of prision mayor in its
medium degree or a fine ranging from Five
2. December 30 (Republic Act No. 229); Hundred Pesos to Two Thousand Pesos
and in case of recidivism the penalty of
3. Any registration or voting days (Republic prision correccional in its medium degree or
Act No. 180, Revised Election Code); a fine of ranging from One Thousand Pesos
and to Six Thousand Pesos shall be imposed
upon:
4. Holy Thursday and Good Friday
(Republic Act No. 946). (a) Any person other than those
referred to in the succeeding subsection
who in any manner, shall directly or
Article 199. Illegal Cockfighting indirectly take part in any game of
cockfighting, jueteng, bookies (jai- alai or
This article has been modified or repealed horse racing to include game fixing) and
by Presidential Decree No. 449 (The other lotteries, cara y cruz or pompiang and
Cockfighting Law of 1974): the like, black jack, lucky nine, “pusoy” or
Russian Poker, monte, baccarat and other
Only allows one cockpit per card games, palk que, domino, mahjong,

high and low, slot machines, roulette, pinball
municipality, unless the population
exceeds 100,000 in which case two and other mechanical inventories or devices,
dog racing, boat racing, car raising and
cockpits may be established;
other races, basketball, volleyball, boxing,
seven-eleven dice games and the like and
 Cockfights can only be held in
other contests to include game fixing, point
licensed cockpits on Sundays and
shaving and other machinations banking or
legal holidays and local fiestas for
percentage game, or any other game or
not more than three days;
scheme, whether upon chance or skill,
which do not have a franchise from the
 Also allowed during provincial, national government, wherein wagers
municipal, city, industrial, agricultural consisting of money, articles of value of
fairs, carnivals, or exposition not representative of value are made;
more than three days;
(b) Any person who shall
 Cockfighting not allowed on knowingly permit any form of gambling
December 30, June 12, November referred to in the preceding subdivision to
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 59

be carried on in inhabited or uninhabited

places or any building, vessel or other While the acts under the Revised Penal
means of transportation owned or controlled Code are still punished under the new law,
by him. If the place where gambling is yet the concept of gambling under it has
carried on has a reputation of a gambling been changed by the new gambling law.
place or that prohibited gambling is
frequently carried on therein or the place is Before, the Revised Penal Code considered
a public or government building or barangay the skill of the player in classifying whether
hall, the culprit shall be punished by the a game is gambling or not. But under the
penalty provided for in its maximum period new gambling law, the skill of the players is
and a fine of Six Thousand Pesos. immaterial.

The penalty of prision correccional Any game is considered gambling where

in its maximum degree and a fine of Six there are bets or wagers placed with the
Thousand Pesos shall be imposed upon the hope to win a prize therefrom.
maintainer, conductor of the above
gambling schemes. Under this law, even sports contents like
boxing, would be gambling insofar as those
The penalty of prision mayor in its who are betting therein are concerned.
medium degree and temporary absolute Under the old penal code, if the skill of the
disqualification and a fine of Six Thousand player outweighs the chance or hazard
Pesos shall be imposed if the maintainer, involved in winning the game, the game is
conductor or banker is a government official, not considered gambling but a sport. It was
or if a player, promoter, referee, umpire, because of this that betting in boxing and
judge or coach in cases of game-fixing, basketball games proliferated.
point-shaving and other game machination.
“Unless authorized by a franchise, any form
The penalty of prision correccional of gambling is illegal.” So said the court in
in its medium degree and a fine ranging the recent resolution of the case against the
from Five Hundred pesos to Two Thousand operation of jai-alai.
Pesos shall be imposed upon any person
who shall knowingly and without lawful There are so-called parlor games which
purpose in any hour of any day shall have in have been exempted from the operation of
his possession any lottery list, paper, or the decree like when the games are played
other matter containing letter, figures, signs during a wake to keep the mourners awake
or symbols which pertain to or in any at night. Pursuant to a memorandum
manner used in the game of jueteng, jai-alai circular issued by the Executive Branch, the
or horse racing bookies and similar game or offshoot of the exemption is the intentional
lottery which has taken place or about to prolonging of the wake of the dead by
take place. gambling lords.

Section 2. Barangay Official. – As a general rule, betting or wagering

Any barangay official in whose jurisdiction determines whether a game is gambling or
such gambling house is found and which not. Exceptions: These are games which
house has the reputation of a gambling are expressly prohibited even without bets.
place shall suffer the penalty of prision Monte, jueteng or any form of lottery; dog
correccional in its medium period and a fine races; slot machines; these are habit-
ranging from Five Hundred to Two forming and addictive to players, bringing
Thousand Pesos and temporary absolute about the pernicious effects to the family
disqualifications. and economic life of the players.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 60

Mere possession of lottery tickets or lottery the management increased their

lists is a crime punished also as part of prices of the merchandise by 10
gambling. However, it is necessary to make cents each. Whenever someone
a distinction whether a ticket or list refers to buys from that supermarket, he pays
a past date or to a future date. 10 cents more for each merchandise
and for his purchase, he gets a
Illustration: coupon which is to be dropped at
designated drop boxes to be raffled
X was accused one night and found in his on a certain period.
possession was a list of jueteng. If the date
therein refers to the past, X cannot be The increase of the price is to
convicted of gambling or illegal possession answer for the cost of the valuable
of lottery list without proving that such game prices that will be covered at stake.
was indeed played on the date stated. The increase in the price is the
Mere possession is not enough. If the date consideration for the chance to win
refers to the future, X can be convicted by in the lottery and that makes the
the mere possession with intent to use. lottery a gambling game.
This will already bring about criminal liability
and there is no need to prove that the game But if the increase in prices of the
was played on the date stated. If the articles or commodities was not
possessor was caught, chances are he will general, but only on certain items
not go on with it anymore. and the increase in prices is not the
same, the fact that a lottery is
There are two criteria as to when the lottery sponsored does not appear to be
is in fact becomes a gambling game: tied up with the increase in prices,
therefore not illegal.
1. If the public is made to pay not only
for the merchandise that he is Also, in case of manufacturers, you
buying, but also for the chance to have to determine whether the
win a prize out of the lottery, lottery increase in the price was due to the
becomes a gambling game. Public lottery or brought about by the
is made to pay a higher price. normal price increase. If the
increase in price is brought about by
2. If the merchandise is not saleable the normal price increase [economic
because of its inferior quality, so that factor] that even without the lottery
the public actually does not buy the price would be like that, there is
them, but with the lottery the public no consideration in favor of the
starts patronizing such merchandise. lottery and the lottery would not
In effect, the public is paying for the amount to a gambling game.
lottery and not for the merchandise,
and therefore the lottery is a If the increase in the price is due
gambling game. Public is not made particularly to the lottery, then the
to pay a higher price. lottery is a gambling game. And the
sponsors thereof may be prosecuted
Illustrations: for illegal gambling under
Presidential Decree No. 1602.
(1) A certain supermarket wanted to
increase its sales and sponsored a (2) The merchandise is not really
lottery where valuable prices are saleable because of its inferior
offered at stake. To defray the cost quality. A certain manufacturer,
of the prices offered in the lottery, Bhey Company, manufacture
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 61

cigarettes which is not saleable 3. The highly scandalous conduct is not

because the same is irritating to the expressly falling within any other
throat, sponsored a lottery and a article of this Code; and
coupon is inserted in every pack of
cigarette so that one who buys it 4. The act or acts complained of be
shall have a chance to participate. committed in a public place or within
Due to the coupons, the public the public knowledge or view.
started buying the cigarette.
Although there was no price
increase in the cigarettes, the lottery In grave scandal, the scandal involved
can be considered a gambling game refers to moral scandal offensive to decency,
because the buyers were really after although it does not disturb public peace.
the coupons not the low quality But such conduct or act must be open to the
cigarettes. public view.

If without the lottery or raffle, the In alarms and scandals, the scandal
public does not patronize the involved refers to disturbances of the public
product and starts to patronize them tranquility and not to acts offensive to
only after the lottery or raffle, in decency.
effect the public is paying for the
price not the product. Any act which is notoriously offensive to
decency may bring about criminal liability for
the crime of grave scandal provided such
Under this decree, a barangay captain who act does not constitute some other crime
is responsible for the existence of gambling under the Revised Penal Code. Grave
dens in their own locality will be held liable scandal is a crime of last resort.
and disqualified from office if he fails to
prosecute these gamblers. But this is not Distinction should be made as to the place
being implemented. where the offensive act was committed,
whether in the public place or in a private
Gambling, of course, is legal when place:
authorized by law.
(1) In public place, the criminal liability
Fund-raising campaigns are not gambling. arises irrespective of whether the
They are for charitable purposes but they immoral act is open to the public
have to obtain a permit from Department of view. In short public view is not
Social Welfare and Development. This required.
includes concerts for causes, Christmas
caroling, and the like. (2) When act offensive to decency is
done in a private place, public view
or public knowledge is required.
Article 200. Grave Scandal
Public view does not require numerous
Elements persons. Even if there was only one person
who witnessed the offensive act for as long
1. Offender performs an act or acts; as the third person was not an intruder,
grave scandal is committed provided the act
2. Such act or acts be highly scandalous does not fall under any other crime in the
as offending against decency or Revised Penal Code.
good customs;
Illustrations:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 62

men looking down at her who are

(1) A man and a woman enters a movie malicious.
house which is a public place and
then goes to the darkest part of the This is an act which even though
balcony and while there the man done in a private place is
started performing acts of nonetheless open to public view.
lasciviousness on the woman.

If it is against the will of the woman, Article 201. Immoral Doctrines, Obscene
the crime would be acts of Publications and Exhibitions and
lasciviousness. But if there is Indecent Shows
mutuality, this constitutes grave
scandal. Public view is not Acts punished
necessary so long as it is performed
in a public place. 1. Those who shall publicly expound or
proclaim doctrines openly contrary to
(2) A man and a woman went to Luneta public morals;
and slept there. They covered
themselves their blanket and made 2. a. The authors of obscene
the grass their conjugal bed. literature, published with their
knowledge in any form, the editors
This is grave scandal. publishing such literature; and the
owners/operators of the
(3) In a certain apartment, a lady tenant establishment selling the same;
had the habit of undressing in her
room without shutting the blinds. b. Those who, in theaters, fairs,
She does this every night at about cinematographs, or any other place,
eight in the evening. So that at this exhibit indecent or immoral plays,
hour of the night, you can expect scenes, acts, or shows, it being
people outside gathered in front of understood that the obscene
her window looking at her silhouette. literature or indecent or immoral
She was charged of grave scandal. plays, scenes, acts or shows,
Her defense was that she was doing whether live or in film, which are
it in her own house.
proscribed by virtue hereof, shall
include those which: (1) glorify
It is no defense that she is doing it in
criminals or condone crimes; (2)
her private home. It is still open to
the public view. serve no other purpose but to satisfy
the market for violence, lust or
(4) In a particular building in Makati pornography; (3) offend any
which stands right next to the house race, or religion; (4) tend to abet
of a young lady who goes traffic in and use of prohibited drugs;
sunbathing in her poolside. Every and (5) are contrary to law, public
morning several men in the upper order, morals, good customs,
floors would stick their heads out to established policies, lawful orders,
get a full view of said lady while in decrees and edicts; and
her two-piece swimsuit. The lady
was then charged with grave 3. Those who shall sell, give away, or
scandal. Her defense was that it is exhibit films, prints, engravings,
her own private pool and it is those sculptures, or literature which are
offensive to morals.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 63

The test is objective. It is more on the effect

upon the viewer and not alone on the
Article 202. Vagrants and Prostitutes; conduct of the performer.
Penalty
If the material has the tendency to deprave
Vagrants and corrupt the mind of the viewer then the
same is obscene and where such obscenity
1. Any person having no apparent means is made publicly, criminal liability arises.
of subsistence, who has the physical
ability to work and who neglects to Because there is a government body which
apply himself or herself to some deliberates whether a certain exhibition,
lawful calling; movies and plays is pornographic or not, if
such body approves the work the same
2. Any person found loitering about public should not be charged under this title.
or semi-public buildings or places or Because of this, the test of obscenity may
trampling or wandering about the be obsolete already. If allowed by the
country or the streets without visible Movies and Television Review and
means of support; Classification Board (MTRCB), the question
is moot and academic.
3. Any idle or dissolute person who ledges
in houses of ill fame; The law is not concerned with the moral of
one person. As long as the pornographic
4. Ruffians or pimps and those who matter or exhibition is made privately, there
habitually associate with prostitutes; is no crime committed under the Revised
Penal Code because what is protected is
5. Any person who, not being included in the morality of the public in general. Third
the provisions of other articles of this party is there. Performance of one to
Code, shall be found loitering in any another is not.
inhabited or uninhabited place
belonging to another without any Illustration:
lawful or justifiable purpose;
A sexy dancing performed for a 90 year old
6. Prostitutes, who are women who, for is not obscene anymore even if the dancer
money or profit, habitually indulge in strips naked. But if performed for a 15 year
sexual intercourse or lascivious old kid, then it will corrupt the kid’s mind.
conduct. (Apply Kottinger Rule here.)

In some instances though, the Supreme

Prostitutes are women who, for money or Court did not stick to this test. It also
profit, habitually indulge in sexual considered the intention of the performer.
intercourse or lascivious conduct, are
deemed to be prostitutes. In People v. Aparici, the accused was a
performer in the defunct Pacific Theatre, a
Test of Obscenity: Whether or not the movie house which opens only at midnight.
material charged as obscene has the She was arrested because she was dancing
tendency to deprave and corrupt the minds in a “different kind of way.” She was not
of those open to the influence thereof, or really nude. She was wearing some sort of
into whose hands such material may come an abbreviated bikini with a flimsy cloth over
to (Kottinger Rule). it. However, on her waist hung a string with
a ball reaching down to her private part so
that every time she gyrates, it arouses the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 64

audience when the ball would actually touch Use this when someone loiters in front of
her private part. The defense set up by your house every night.
Aparici was that she should not be
criminally liable for as a matter of fact, she Any person found wandering in an estate
is better dressed than the other dancers. belonging to another whether public or
The Supreme Court ruled that it is not only private without any lawful purpose also
the display of the body that gives it a commits vagrancy, unless his acts
depraved meaning but rather the movement constitutes some other crime in the Revised
of the body coupled with the “tom-tom Penal Code.
drums” as background. Nudity alone is not
the real scale. (Reaction Test)
Question & Answer
Illustration:

A sidewalk vendor was arrested and If a person is found wandering in an

prosecuted for violation of Article 201. It estate belonging to another, whether public
appears that the fellow was selling a ballpen or private, without any lawful purpose, what
where one who buys the ballpen can peep other crimes may be committed?
into the top of the pen and see a girl
dancing in it. He put up the defense that he When a person is apprehended
is not the manufacturer and that he was loitering inside an estate belonging to
merely selling it to earn a living. The fact of another, the following crimes may be
selling the ballpen was being done at the committed:
expense of public morals. One does not
have to be the manufacturer to be criminally (1) Trespass to property under Article
liable. This holds true for those printing or 281 if the estate is fenced and there
selling Playboy Magazines. is a clear prohibition against entering,
but the offender entered without the
The common concept of a vagrant is a consent of the owner or overseer
person who loiters n public places without thereof. What is referred to here is
any visible means of livelihood and without estate, not dwelling.
any lawful purpose.
(2) Attempted theft under Article 308,
While this may be the most common form of paragraph 3, if the estate is fenced
vagrancy, yet even millionaires or one who and the offender entered the same
has more that enough for his livelihood can to hunt therein or fish from any
commit vagrancy by habitually associating waters therein or to gather any farm
with prostitutes, pimps, ruffians, or by products therein without the consent
habitually lodging in houses of ill-repute. of the owner or overseer thereof;

Vagrancy is not only a crime of the (3) Vagrancy under Article 202 if the
privileged or the poor. The law punishes estate is not fenced or there is no
the act involved here as a stepping stone to clear prohibition against entering.
the commission of other crimes. Without
this article, law enforcers would have no
way of checking a person loitering in the Prostitution and vagrancy are both punished
wrong place in the wrong time. The by the same article, but prostitution can only
purpose of the law is not simply to punish a be committed by a woman.
person because he has no means of
livelihood; it is to prevent further criminality. The term prostitution is applicable to a
woman who for profit or money habitually
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 65

engages in sexual or lascivious conduct. A 11. Frauds against the public treasury
man if he engages in the same conduct – and similar offenses (Art. 213);
sex for money – is not a prostitute, but a
vagrant. 12. Other frauds (Art. 214);

In law the mere indulging in lascivious 13. Prohibited transactions (Art. 215);
conduct habitually because of money or
gain would amount to prostitution, even if 14. Possession of prohibited interest by
there is no sexual intercourse. Virginity is a public officer (Art. 216);
not a defense. Habituality is the controlling
factor; is has to be more than one time. 15. Malversation of public funds or
property – Presumption of
There cannot be prostitution by conspiracy. malversation (Art. 217)
One who conspires with a woman in the
prostitution business like pimps, taxi drivers 16. Failure of accountable officer to
or solicitors of clients are guilty of the crime render accounts (Art. 218);
under Article 341 for white slavery.
17. Failure of a responsible public officer
to render accounts before leaving
TITLE VII. CRIMES COMMITTED BY the country (Art. 219);
PUBLIC OFFICERS
18. Illegal use of public funds or property
Crimes committed by public officers (Art. 220);

1. Knowingly rendering unjust 19. Failure to make delivery of public

judgment (Art. 204); funds or property (Art. 221);

2. Judgment rendered through 20. Conniving with or consenting to

negligence (Art. 205); evasion (Art. 223);

3. Unjust interlocutory order (Art. 206); 21. Evasion through negligence (Art.
224);
4. Malicious delay in the administration
of justice (Art. 207); 22. Escape of prisoner under the
custody of a person not a public
5. Prosecution of offenses; negligence officer (Art. 225);
and tolerance (Art. 208);
23. Removal, concealment or
6. Betrayal of trust by an attorney or destruction of documents (Art. 226);
solicitor – Revelation of secrets (Art.
209); 24. Officer breaking seal (Art. 227);

7. Direct bribery (Art. 210); 25. Opening of closed documents (Art.

228);
8. Indirect bribery (Art. 211);
26. Revelation of secrets by an officer
9. Qualified bribery (Art. 211-A); (Art. 229);

10. Corruption of public officials (Art. 27. Public officer revealing secrets of
212); private individual (Art. 230);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 66

28. Open disobedience (Art. 231); the crime. The public officer has to be the
principal.
29. Disobedience to order of superior
officer when said order was In some cases, it can even be committed by
suspended by inferior officer (Art. a private citizen alone such as in Article 275
232); (infidelity in the custody of a prisoner where
the offender is not a public officer) or in
30. Refusal of assistance (Art. 233); Article 222 (malversation).

31. Refusal to discharge elective office

(Art. 234); Requsites to be a public officer under
Article 203
32. Maltreatment of prisoners (Art. 235);
1. Taking part in the performance of
33. Anticipation of duties of a public public functions in the government;
office (Art. 236);
or
34. Prolonging performance of duties
and powers (Art. 237); Performing in said government or in
any of its branches public duties as
35. Abandonment of office or position an employee, agent or subordinate
(Art. 238); official, or any rank or class;

36. Usurpation of legislative powers (Art. 2. His authority to take part in the
239); performance of public functions or to
perform public duties must be –
37. Usurpation of executive functions
(Art. 240);
a. By direct provision of the law;
38. Usurpation of judicial functions (Art.
241); b. By popular election; or

39. Disobeying request for c. By appointment by

disqualification (Art. 242); competent authority.

40. Orders or requests by executive

officers to any judicial authority (Art. Originally, Title VII used the phrase “public
243); officer or employee” but the latter word has
been held meaningless and useless
41. Unlawful appointments (Art. 244); because in criminal law, “public officer”
and covers all public servants, whether an
official or an employee, from the highest to
42. Abuses against chastity (Art. 245). the lowest position regardless of rank or
class; whether appointed by competent
authority or by popular election or by direct
The designation of the title is misleading. provision of law.
Crimes under this title can be committed by
public officers or a non-public officer, when Under Republic Act No. 3019 (The Anti-
the latter become a conspirator with a public Graft and Corrupt Practices Act), the term
officer, or an accomplice, or accessory to public officer is broader and more
comprehensive because it includes all
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 67

persons whether an official or an employee, 4. It is due to his inexcusable negligence

temporary or not, classified or not, or ignorance.
contractual or otherwise. Any person who
receives compensation for services
rendered is a public officer. Article 206. Unjust Interlocutory Order

Breach of oath of office partakes of three 1. Offender is a judge;

forms:
2. He performs any of the following acts:
(1) Malfeasance - when a public officer
performs in his public office an act a. Knowingly rendering an
prohibited by law. unjust interlocutory order or
decree; or
Example: bribery.
b. Rendering a manifestly
(2) Misfeasance - when a public officer unjust interlocutory order or
performs official acts in the manner decree through inexcusable
not in accordance with what the law negligence or ignorance.
prescribes.

(3) Nonfeasance - when a public officer The crime of knowingly rendering an unjust
willfully refrains or refuses to perform judgment, or knowingly issuing an unjust
an official duty which his office interlocutory order, may be committed only
requires him to perform. by a judge of a trial court and never of an
appellate court. The reason for this is that
in appellate court, not only one magistrate
Article 204. Knowingly Rendering Unjust renders or issues the interlocutory order.
Judgment An appellate court functions as a division
and the resolutions thereof are handed
1. Offender is a judge; down only after deliberations among the
members of a division so that it cannot be
2. He renders a judgment in a case said that there is malice or inexcusable
submitted to him for decision; negligence or ignorance in the rendering of
a judgment or order that is supposedly
3. Judgment is unjust; unjust as held by the Supreme Court in one
administrative case.
4. The judge knows that his judgment is
unjust . There is more injustice done in cases of
judgment than mere interlocutory order that
is why the penalty is higher in the first case.
Article 205. Judgment Rendered through
Negligence
Article 207. Malicious Delay in the
1. Offender is a judge; Administration of Justice

2. He renders a judgment in a case 1. Offender is a judge;

submitted to him for decision;
2. There is a proceeding in his court;
3. The judgment is manifestly unjust;
3. He delays in the administration of justice;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 68

4. The delay is malicious, that is, with

deliberate intent to inflict damage on This crime can only be committed by a
either party in the case. public officer whose official duty is to
prosecute offenders, that is, state
prosecutors. Hence, those officers who are
Malice must be proven. Malice is present not duty bound to perform these obligations
where the delay is sought to favor one party cannot commit this crime in the strict sense.
to the prejudice of the other.
When a policeman tolerates the commission
These have been interpreted by the of a crime or otherwise refrains from
Supreme Court to refer only to judges of the apprehending the offender, such peace
trial court. officer cannot be prosecuted for this crime
but they can be prosecuted as:

Article 208. Prosecution of Offenses; (1) An accessory to the crime

Negligence and Tolerance committed by the principal in
accordance with Article 19,
Acts Punished paragraph 3; or

1. Maliciously refraining from instituting (2) He may become a fence if the crime
prosecution against violators of the committed is robbery or theft, in
law; which case he violates the Anti-
Fencing Law; or
2. Maliciously tolerating the
commission of offenses. (3) He may be held liable for violating
the Anti-Graft and Corrupt Practices
Act.
Elements of dereliction of duty in the
prosecution of offenses However, in distant provinces or
municipalities where there are no municipal
1. Offender is a public officer or officer of attorneys, the local chief of police is the
the law who has a duty to cause the prosecuting officer. If he is the one who
prosecution of, or to prosecute, tolerates the violations of laws or otherwise
offenses; allows offenders to escape, he can be
prosecuted under this article.
2. There is a dereliction of the duties of his
office, that is, knowing the This is also true in the case of a barangay
commission of the crime, he does chairman. They are supposed to prosecute
not cause the prosecution of the violators of laws within their jurisdiction. If
criminal, or knowing that a crime is they do not do so, they can be prosecuted
about to be committed, he tolerates for this crime.
its commission;
Prevaricacion
3. Offender acts with malice and deliberate
intent to favor the violator of the law. This used to be a crime under the Spanish
Codigo Penal, wherein a public officer
regardless of his duty violates the oath of
A public officer engaged in the prosecution his office by not carrying out the duties of
of offenders shall maliciously tolerate the his office for which he was sworn to office,
commission of crimes or refrain from thus, amounting to dereliction of duty.
prosecuting offenders or violators of the law.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 69

But the term prevaricacion is not limited to If it is the public

dereliction of duty in the prosecution of officer who asks or demands
offenders. It covers any dereliction of duty such gift or present, he shall
whereby the public officer involved violates suffer the penalty of death.
his oath of office. The thrust of
prevaricacion is the breach of the oath of
office by the public officer who does an act Actually the crime is a kind of direct bribery
in relation to his official duties. where the bribe, offer, promise, gift or
present has a consideration on the part of
While in Article 208, dereliction of duty the public officer, that is refraining from
refers only to prosecuting officers, the term arresting or prosecuting the offender in
prevaricacion applies to public officers in consideration for such offer, promise, gift or
general who is remiss or who is maliciously present. In a way, this new provision
refraining from exercising the duties of his modifies Article 210 of the Revised Penal
office. Code on direct bribery.

Illustration: However, the crime of qualified bribery may

be committed only by public officers
The offender was caught for white slavery. “entrusted with enforcement” whose official
The policeman allowed the offender to go duties authorize then to arrest or prosecute
free for some consideration. The policeman offenders. Apparently, they are peace
does not violate Article 208 but he becomes officers and public prosecutors since the
an accessory to the crime of white slavery. nonfeasance refers to “arresting or
prosecuting.” But this crime arises only
But in the crime of theft or robbery, where when the offender whom such public officer
the policeman shared in the loot and refrains from arresting or prosecuting, has
allowed the offender to go free, he becomes committed a crime punishable by reclusion
a fence. Therefore, he is considered an perpetua and/or death. If the crime were
offender under the Anti-Fencing Law. punishable by a lower penalty, then such
nonfeasance by the public officer would
Relative to this crime under Article 208, amount to direct bribery, not qualified
consider the crime of qualified bribery. bribery.
Among the amendments made by Republic
Act No. 7659 on the Revised Penal Code is If the crime was qualified bribery, the
a new provision which reads as follows: dereliction of the duty punished under
Article 208 of the Revised Penal Code
Article. 211-A. should be absorbed because said article
Qualified Bribery – If any punishes the public officer who “maliciously
public officer is entrusted refrains from instituting prosecution for the
with law enforcement and he punishment of violators of the law or shall
refrains from arresting or tolerate the commission of offenses”. The
prosecuting an offender who dereliction of duty referred to is necessarily
has committed a crime included in the crime of qualified bribery.
punishable by Reclusion
Perpetua and/or death in On the other hand, if the crime was direct
consideration of any offer, bribery under Article 210 of the Revised
promise, gift, or present, he Penal Code, the public officer involved
shall suffer the penalty for should be prosecuted also for the dereliction
the offense which was not of duty, which is a crime under Article 208 of
prosecuted. the Revised Penal Code, because the latter
is not absorbed by the crime of direct
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 70

bribery. This is because in direct bribery, 3. Undertaking the defense of the

where the public officer agreed to perform opposing party in the same case,
an act constituting a crime in connection without the consent of his first client,
with the performance of his official duties, after having undertaken the defense
Article 210 expressly provides that the of said first client of after having
liabilty thereunder shall be “in addition to the received confidential information
penalty corresponding to the crime agreed from said client.
upon, if the crime shall have been
committed.
Under the rules on evidence,
Illustration: communications made with prospective
clients to a lawyer with a view to engaging
A fiscal, for a sum of money, refrains from his professional services are already
prosecuting a person charged before him. If privileged even though the client-lawyer
the penalty for the crime involved is relationship did not eventually materialize
reclusion perpetua, the fiscal commits because the client cannot afford the fee
qualified bribery. If the crime is punishable being asked by the lawyer. The lawyer and
by a penalty lower than reclusion perpetua, his secretary or clerk cannot be examined
the crime is direct bribery. thereon.

In the latter situation, three crimes are That this communication with a prospective
committed: direct bribery and dereliction of client is considered privileged, implies that
duty on the part of the fiscal; and corruption the same is confidential. Therefore, if the
of a public officer by the giver. lawyer would reveal the same or otherwise
accept a case from the adverse party, he
would already be violating Article 209. Mere
Article 209. Betrayal of Trust by An malicious breach without damage is not
Attorney or Solicitor – Revelation of violative of Article 209; at most he will be
Secrets liable administratively as a lawyer, e.g.,
suspension or disbarment under the Code
Acts punished of Professional Responsibility.

1. Causing damage to his client, either— Illustration:

a. By any malicious breach of B, who is involved in the crime of seduction

professional duty; wanted A, an attorney at law, to handle his
case. A received confidential information
b. By inexcusable negligence or from B. However, B cannot pay the
ignorance. professional fee of A. C, the offended party,
came to A also and the same was accepted.
Note: When the attorney acts with
malicious abuse of his employment A did not commit the crime under Article
or inexcusable negligence or 209, although the lawyer’s act may be
ignorance, there must be damage to considered unethical. The client-lawyer
his client. relationship between A and B was not yet
established. Therefore, there is no trust to
2. Revealing any of the secrets of his violate because B has not yet actually
client learned by him in his engaged the services of the lawyer A. A is
professional capacity; not bound to B. However, if A would reveal
the confidential matter learned by him from
B, then Article 209 is violated because it is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 71

enough that such confidential matters were

communicated to him in his professional A lawyer who had already undertaken the
capacity, or it was made to him with a view case of a client cannot later on shift to the
to engaging his professional services. opposing party. This cannot be done.

Here, matters that are considered Under the circumstances, it is necessary

confidential must have been said to the that the confidential matters or information
lawyer with the view of engaging his was confided to the lawyer in the latter’s
services. Otherwise, the communication professional capacity.
shall not be considered privileged and no
trust is violated. It is not the duty of the lawyer to give advice
on the commission of a future crime. It is,
Illustration: therefore, not privileged in character. The
lawyer is not bound by the mandate of
A went to B, a lawyer/notary public, to have privilege if he reports such commission of a
a document notarized. A narrated to B the future crime. It is only confidential
detail of the criminal case. If B will disclose information relating to crimes already
what was narrated to him there is no committed that are covered by the crime of
betrayal of trust since B is acting as a notary betrayal of trust if the lawyer should
public and not as a counsel. The lawyer undertake the case of opposing party or
must have learned the confidential matter in otherwise divulge confidential information of
his professional capacity. a client.

Several acts which would make a lawyer Under the law on evidence on privileged
criminally liable: communication, it is not only the lawyer who
is protected by the matter of privilege but
(1) Maliciously causing damage to his also the office staff like the secretary.
client through a breach of his
professional duty. The breach of The nominal liability under this article may
professional duty must be malicious. be constituted either from breach of
If it is just incidental, it would not professional duties in the handling of the
give rise to criminal liability, although case or it may arise out of the confidential
it may be the subject of relation between the lawyer and the client.
administrative discipline;
Breach of professional duty
(2) Through gross ignorance, causing
damage to the client; Tardiness in the prosecution of the case for
which reason the case was dismissed for
(3) Inexcusable negligence; being non-prosecuted; or tardiness on the
part of the defense counsel leading to
(4) Revelation of secrets learned in his declaration of default and adverse judgment.
professional capacity;
Professional duties – Lawyer must appear
(5) Undertaking the defense of the on time. But the client must have suffered
opposite party in a case without the damage due to the breach of professional
consent of the first client whose duty. Otherwise, the lawyer cannot be held
defense has already been liable.
undertaken.
If the prosecutor was tardy and the case
Note that only numbers 1, 2 and 3 must was dismissed as non-prosecuted, but he
approximate malice. filed a motion for consideration which was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 72

granted, and the case was continued, the

lawyer is not liable, because the client did Elements
not suffer damage.
1. Offender is a public officer within the
If lawyer was neglectful in filing an answer, scope of Article 203;
and his client declared in default, and there
was an adverse judgment, the client 2. Offender accepts an offer or a
suffered damages. The lawyer is liable. promise or receives a gift or present
by himself or through another;
Breach of confidential relation
3. Such offer or promise be accepted,
Revealing information obtained or taking or gift or present received by the
advantage thereof by accepting the public officer –
engagement with the adverse party. There
is no need to prove that the client suffered a. With a view to committing
damages. The mere breach of confidential some crime; or
relation is punishable.

In a conjugal case, if the lawyer disclosed b. In consideration of the

the confidential information to other people, execution of an act which
he would be criminally liable even though does not constitute a crime,
the client did not suffer any damage. but the act must be unjust; or

The client who was suing his wife disclosed c. To refrain from doing
that he also committed acts of something which it is his
unfaithfulness. The lawyer talked about this official duty to do.
to a friend. He is, thus, liable.
4. The act which offender agrees to
perform or which he executes be
Article 210. Direct Bribery connected with the performance of
his official duties.
Acts punished

1. Agreeing to perform, or performing, It is a common notion that when you talk of

in consideration of any offer, bribery, you refer to the one corrupting the
promise, gift or present – an act public officer. Invariably, the act refers to
constituting a crime, in connection the giver, but this is wrong. Bribery refers to
with the performance of his official the act of the receiver and the act of the
duties; giver is corruption of public official.

2. Accepting a gift in consideration of Distinction between direct bribery and

the execution of an act which does indirect bribery
not constitute a crime, in connection
with the performance of his official Bribery is direct when a public officer is
duty; called upon to perform or refrain from
performing an official act in exchange for
3. Agreeing to refrain, or by refraining, the gift, present or consideration given to
from doing something which it is his him.
official duty to do, in consideration of
gift or promise. If he simply accepts a gift or present given
to him by reason of his public position, the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 73

crime is indirect bribery. Bear in mind that If the public officer commits the act which
the gift is given "by reason of his office", not constitutes the crime, he, as well as the
"in consideration" thereof. So never use the corruptor shall be liable also for that other
term “consideration.” The public officer in crime.
Indirect bribery is not to perform any official
act. Illustrations:

Note however that what may begin as an (1) If the corruptor offers a consideration
indirect bribery may actually ripen into direct to a custodian of a public record to
bribery. remove certain files, the mere
agreement, without delivery of the
Illustration: consideration, brings about the
crime of direct bribery and corruption
Without any understanding with the public of public official.
officer, a taxi operator gave an expensive
suiting material to a BLT registrar. Upon If the records were actually removed,
receipt by the BLT registrar of his valuable both the public officer and the
suiting material, he asked who the giver was. corruptor will in addition to the two
He found out that he is a taxi operator. As felonies above, will also be liable for
far as the giver is concerned, he is giving the crime committed, which is
this by reason of the office or position of the infidelity in the custody of the public
public officer involved. It is just indirect records for which they shall be liable
bribery as principals; one as principal by
. inducement, the other as principal by
If the BLT registrar calls up his subordinates direct participation.
and said to take care of the taxis of the taxi
operator so much so that the registration of (2) A party litigant approached the
the taxis is facilitated ahead of the others, court’s stenographer and proposed
what originally would have been indirect the idea of altering the transcript of
bribery becomes direct bribery. stenographic notes. The court
stenographer agreed and he
In direct bribery, consider whether the demanded P 2,000.00.
official act, which the public officer agreed to
do, is a crime or not. Unknown to them, there were law
enforcers who already had a tip that
If it will amount to a crime, it is not the court stenographer had been
necessary that the corruptor should deliver doing this before. So they were
the consideration or the doing of the act. waiting for the chance to entrap him.
The moment there is a meeting of the minds, They were apprehended and they
even without the delivery of the said they have not done anything yet.
consideration, even without the public
officer performing the act amounting to a Under Article 210, the mere
crime, bribery is already committed on the agreement to commit the act, which
part of the public officer. Corruption is amounts to a crime, is already
already committed on the part of the bribery. That stenographer
supposed giver. The reason is that the becomes liable already for
agreement is a conspiracy involving the consummated crime of bribery and
duty of a public officer. The mere the party who agreed to give that
agreement is a felony already. money is already liable for
consummated corruption, even
though not a single centavo is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 74

delivered yet and even though the consideration because the act to be done is
stenographer had not yet made the not a crime. So, without the acceptance,
alterations. the crime is not committed.

If he changed the transcript, another Direct bribery may be committed only in the
crime is committed: falsification. attempted and consummated stages
because, in frustrated felony, the offender
must have performed all the acts of
The same criterion will apply with respect to execution which would produce the felony
a public officer who agrees to refrain from as a consequence. In direct bribery, it is
performing his official duties. If the possible only if the corruptor concurs with
refraining would give rise to a crime, such the offender. Once there is concurrence,
as refraining to prosecute an offender, the the direct bribery is already consummated.
mere agreement to do so will consummate In short, the offender could not have
the bribery and the corruption, even if no performed all the acts of execution to
money was delivered to him. If the produce the felony without consummating
refraining is not a crime, it would only the same.
amount to bribery if the consideration be
delivered to him. Actually, you cannot have a giver unless
there is one who is willing to receive and
If it is not a crime, the consideration must be there cannot be a receiver unless there is
delivered by the corruptor before a public one willing to give. So this crime requires
officer can be prosecuted for bribery. Mere two to commit. It cannot be said, therefore,
agreement, is not enough to constitute the that one has performed all the acts of
crime because the act to be done in the first execution which would produce the felony
place is legitimate or in the performance of as a consequence but for reasons
the official duties of the public official. independent of the will, the crime was not
committed.
Unless the public officer receives the
consideration for doing his official duty, It is now settled, therefore, that the crime of
there is no bribery. It is necessary that bribery and corruption of public officials
there must be delivery of monetary cannot be committed in the frustrated stage
consideration. This is so because in the because this requires two to commit and
second situation, the public officer actually that means a meeting of the minds.
performed what he is supposed to perform.
It is just that he would not perform what he Illustrations:
is required by law to perform without an
added consideration from the public which (1) If the public official accepted the
gives rise to the crime. corrupt consideration and turned it
over to his superior as evidence of
The idea of the law is that he is being paid the corruption, the offense is
salary for being there. He is not supposed attempted corruption only and not
to demand additional compensation from frustrated. The official did not agree
the public before performing his public to be corrupted.
service. The prohibition will apply only
when the money is delivered to him, or if he If the public officer did not report the
performs what he is supposed to perform in same to his superior and actually
anticipation of being paid the money. accepted it, he allowed himself to be
corrupted. The corruptor becomes
Here, the bribery will only arise when there liable for consummated corruption of
is already the acceptance of the public official. The public officer also
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 75

becomes equally liable for Merely delivering the gift to the public officer
consummated bribery. does not bring about the crime. Otherwise it
would be very easy to remove a public
(2) If a public official demanded officer: just deliver a gift to him.
something from a taxpayer who
pretended to agree and use marked
money with the knowledge of the Article 211-A. Qualified Bribery
police, the crime of the public official
is attempted bribery. The reason is Elements
that because the giver has no
intention to corrupt her and therefore, 1. Offender is a public officer entrusted
he could not perform all the acts of with law enforcement;
execution.
2. He refrains from arresting or prosecuting
Be sure that what is involved is a an offender who has committed a
crime of bribery, not extortion. If it crime;
were extortion, the crime is not
bribery, but robbery. The one who 3. Offender has committed a crime
yielded to the demand does not punishable by reclusion perpetua
commit corruption of a public officer and/or death;
because it was involuntary.
4. Offender refrains from arresting or
prosecuting in consideration of any
Article 211. Indirect Bribery offer, promise, gift, or present.
Elements
Note that the penalty is qualified if the public
1. Offender is a public officer; officer is the one who asks or demands
such present.
2. He accepts gifts;

3. The gifts are offered to him by reason of Presidential Decree No. 46

his office.
Presidential Decree No. 46 prohibits giving
and acceptance of gifts by a public officer or
The public official does not undertake to to a public officer, even during anniversary,
perform an act or abstain from doing an or when there is an occasion like Christmas,
official duty from what he received. Instead, New Year, or any gift-giving anniversary.
the official simply receives or accepts gifts The Presidential Decree punishes both
or presents delivered to him with no other receiver and giver.
reason except his office or public position.
This is always in the consummated stage. The prohibition giving and receiving gifts
There is no attempted much less frustrated given by reason of official position,
stage in indirect bribery. regardless of whether or not the same is for
past or future favors.
The Supreme Court has laid down the rule
that for indirect bribery to be committed, the The giving of parties by reason of the
public officer must have performed an act of promotion of a public official is considered a
appropriating of the gift for himself, his crime even though it may call for a
family or employees. It is the act of celebration. The giving of a party is not
appropriating that signifies acceptance.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 76

limited to the public officer only but also to

any member of his family. These conditions are analogous to the
conditions under the State Witness Rule
under Criminal Procedure.
Presidential Decree No. 749
The immunity granted the bribe-giver is
The decree grants immunity from limited only to the illegal transaction where
prosecution to a private person or public the informant gave voluntarily the testimony.
officer who shall voluntarily give information If there were other transactions where the
and testify in a case of bribery or in a case informant also participated, he is not
involving a violation of the Anti-graft and immune from prosecution. The immunity in
Corrupt Practices Act. one transaction does not extend to other
transactions.
It provides immunity to the bribe-giver
provided he does two things: The immunity attaches only if the
information given turns out to be true and
(1) He voluntarily discloses the correct. If the same is false, the public
transaction he had with the public officer may even file criminal and civil
officer constituting direct or indirect actions against the informant for perjury and
bribery, or any other corrupt the immunity under the decree will not
transaction; protect him.

(2) He must willingly testify against the

public officer involved in the case to Republic Act No. 7080 (Plunder)
be filed against the latter.
Plunder is a crime defined and penalized
Before the bribe-giver may be dropped from under Republic Act No. 7080, which
the information, he has to be charged first became effective in 1991. This crime
with the receiver. Before trial, prosecutor somehow modified certain crimes in the
may move for dropping bribe-giver from Revised Penal Code insofar as the overt
information and be granted immunity. But acts by which a public officer amasses,
first, five conditions have to be met: acquires, or accumulates ill-gotten wealth
are felonies under the Revised Penal Code
(1) Information must refer to like bribery (Articles 210, 211, 211-A), fraud
consummated bribery; against the public treasury [Article 213],
other frauds (Article 214), malversation
(2) Information is necessary for the (Article 217), when the ill-gotten wealth
proper conviction of the public officer amounts to a total value of P50,000,000.00.
involved; The amount was reduced from
P75,000,000.00 by Republic Act No. 7659
(3) That the information or testimony to and the penalty was changed from life
be given is not yet in the possession imprisonment to reclusion perpetua to death.
of the government or known to the
government; Short of the amount, plunder does not arise.
Any amount less than P50,000,000.00 is a
(4) That the information can be violation of the Revised Penal Code or the
corroborated in its material points; Anti-Graft and Corrupt Practices Act.

(5) That the information has not been Under the law on plunder, the prescriptive
convicted previously for any crime period is 20 years commencing from the
involving moral turpitude. time of the last overt act.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 77

that “in the imposition of penalties, the

Plunder is committed through a combination degree of participation and the attendance
or series of overt acts: of mitigating and aggravating circumstances
shall be considered by the court”.
(1) Through misappropriation,
conversion, misuse, or malversation
of public funds or raids on the public Republic Act No. 3019 (Anti-Graft and
treasury; Corrupt Practices Act)

(2) By receiving, directly or indirectly, The mere act of a public officer demanding
any commission, gift, share, an amount from a taxpayer to whom he is to
percentage, kickbacks or any other render public service does not amount to
form of pecuniary benefit from any bribery, but will amount to a violation of the
person and/or entity in connection Anti-graft and Corrupt Practices Act.
with any government contract or
project by reason of the office or Illustration:
position of the public officer;
A court secretary received P500 .00 from a
(3) By illegal or fraudulent conveyance litigant to set a motion for an early hearing.
or disposition of asset belonging to This is direct bribery even if the act to be
the national government or any of its performed is within his official duty so long
subdivisions, agencies or as he received a consideration therefor.
instrumentalities or government-
owned or controlled corporations If the secretary persuaded the judge to
and their subsidiaries; make a favorable resolution, even if the
judge did not do so, this constitutes a
(4) By obtaining, receiving, or accepting violation of Anti-Graft and Corrupt Practices
directly or indirectly any shares of Act, Sub-Section A.
stock, equity or any other form of
interest or participation including the Under the Anti-Graft and Corrupt Practices
promise of future employment in any Act, particularly Section 3, there are several
business or undertaking; acts defined as corrupt practices. Some of
them are mere repetitions of the act already
(5) By establishing agricultural, penalized under the Revised Penal Code,
industrial, or commercial monopolies like prohibited transactions under Article
or other combinations and/or 215 and 216. In such a case, the act or
implementations of decrees and omission remains to be mala in se.
orders intended to benefit particular
persons or special interests; or But there are acts penalized under the Anti-
Graft and Corrupt Practices Act which are
(6) By taking undue advantage of official not penalized under the Revised Penal
position, authority, relationship, Code. Those acts may be considered as
connection or influence to unjustly mala prohibita. Therefore, good faith is not
enrich himself or themselves at the a defense.
expense and to the damage and
prejudice of the Filipino people, and Illustration:
the Republic of the Philippines.
Section 3 (e) of the Anti-Graft and Corrupt
Practices Act – causing undue injury to the
While the crime appears to be malum government or a private party by giving
prohibitum, Republic Act No. 7080 provides
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 78

unwarranted benefit to the party whom does

not deserve the same. Sen. Dominador Aytono had an interest in
the Iligan Steel Mills, which at that time was
In this case, good faith is not a defense being subject of an investigation by the
because it is in the nature of a malum Senate Committee of which he was a
prohibitum. Criminal intent on the part of chairman. He was threatened with
the offender is not required. It is enough prosecution under Republic Act No. 3019 so
that he performed the prohibited act he was compelled to sell all his interest in
voluntarily. Even though the prohibited act that steel mill; there is no defense. Because
may have benefited the government. The the law says so, even if he voted against it,
crime is still committed because the law is he commits a violation thereof.
not after the effect of the act as long as the
act is prohibited. These cases are filed with the Ombudsman
and not with the regular prosecutor’s office.
Section 3 (g) of the Anti-Graft and Corrupt Jurisdiction is exclusively with the
Practices Act – where a public officer Sandiganbayan. The accused public officer
entered into a contract for the government must be suspended when the case is
which is manifestly disadvantageous to the already filed with the Sandiganbayan.
government even if he did not profit from the
transaction, a violation of the Anti-Graft and Under the Anti-Graft and Corrupt Practices
Corrupt Practices Act is committed. Act, the public officer who is accused should
not be automatically suspended upon the
If a public officer, with his office and a filing of the information in court. It is the
private enterprise had a transaction and he court which will order the suspension of the
allows a relative or member of his family to public officer and not the superior of that
accept employment in that enterprise, good public officer. As long as the court has not
faith is not a defense because it is a malum ordered the suspension of the public officer
prohibitum. It is enough that that the act involved, the superior of that public officer is
was performed. not authorized to order the suspension
simply because of the violation of the Anti-
Where the public officer is a member of the Graft and Corrupt Practices Act. The court
board, panel or group who is to act on an will not order the suspension of the public
application of a contract and the act officer without first passing upon the validity
involved one of discretion, any public officer of the information filed in court. Without a
who is a member of that board, panel or hearing, the suspension would be null and
group, even though he voted against the void for being violative of due process.
approval of the application, as long as he
has an interest in that business enterprise Illustration:
whose application is pending before that
board, panel or group, the public officer A public officer was assigned to direct traffic
concerned shall be liable for violation of the in a very busy corner. While there, he
Anti-Graft and Corrupt Practices Act. His caught a thief in the act of lifting the wallet
only course of action to avoid prosecution of a pedestrian. As he could not leave his
under the Anti-graft and Corrupt Practices post, he summoned a civilian to deliver the
Act is to sell his interest in the enterprise thief to the precinct. The civilian agreed so
which has filed an application before that he left with the thief. When they were
board, panel or group where he is a beyond the view of the policeman, the
member. Or otherwise, he should resign civilian allowed the thief to go home. What
from his public position. would be the liability of the public officer?

Illustration:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 79

The liability of the traffic policeman would be The law itself additionally requires that the
merely administrative. The civilian has no accused’s dereliction, besides being without
liability at all. justification, must be for the purpose of
Firstly, the offender is not yet a prisoner so obtaining from any person interested in the
there is no accountability yet. The term matter some pecuniary or material benefit or
“prisoner” refers to one who is already for the purpose of favoring any interested
booked and incarcerated no matter how party, or discriminating against another
short the time may be. interested party. This element is
indispensable.
The policeman could not be said as having
assisted the escape of the offender because In other words, the neglect or refusal to act
as the problem says, he is assigned to must motivated by gain or benefit, or
direct traffic in a busy corner street. So he purposely to favor the other interested party
cannot be considered as falling under the as held in Coronado v. SB, decided on
third 3rd paragraph of Article 19 that would August 18, 1993.
constitute his as an accessory.
Republic Act No. 1379 (Forfeiture of Ill-
The same is true with the civilian because gotten Wealth)
the crime committed by the offender, which
is snatching or a kind of robbery or theft as Correlate with RA 1379 -- properly under
the case may be, is not one of those crimes Remedial Law. This provides the procedure
mentioned under the third paragraph of for forfeiture of the ill-gotten wealth in
Article 19 of the Revised Penal Code. violation of the Anti-Graft and Corrupt
Practices Act. The proceedings are civil and
Where the public officer is still incumbent, not criminal in nature.
the prosecution shall be with the
Ombudsman. Any taxpayer having knowledge that a
public officer has amassed wealth out of
Where the respondent is separated from proportion to this legitimate income may file
service and the period has not yet a complaint with the prosecutor’s office of
prescribed, the information shall be filed in the place where the public officer resides or
any prosecution’s office in the city where the holds office. The prosecutor conducts a
respondent resides. The prosecution shall preliminary investigation just like in a
file the case in the Regional Trial Court criminal case and he will forward his
unless the violation carries a penalty higher findings to the office of the Solicitor General.
than prision correccional, in which case the The Solicitor General will determine whether
Sandiganbayan has jurisdiction. there is reasonable ground to believe that
the respondent has accumulated an
The fact that the government benefited out unexplained wealth.
of the prohibited act is no defense at all, the
violation being mala prohibita. If the Solicitor General finds probable cause,
he would file a petition requesting the court
Section 3 (f) of the Anti-Graft and Corrupt to issue a writ commanding the respondent
Practices Act – where the public officer to show cause why the ill-gotten wealth
neglects or refuses to act on a matter described in the petition should not be
pending before him for the purpose of forfeited in favor of the government. This is
obtaining any pecuniary or material benefit covered by the Rules on Civil Procedure.
or advantage in favor of or discriminating The respondent is given 15 days to answer
against another interested party. the petition. Thereafter trial would proceed.
Judgment is rendered and appeal is just like
in a civil case. Remember that this is not a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 80

criminal proceeding. The basic difference is nature different from that provided
that the preliminary investigation is by law, in the collection of taxes,
conducted by the prosecutor. licenses, fees, and other imposts.

Article 212. Corruption of Public Elements of frauds against public treasury

Officials under paragraph 1

Elements 1. Offender is a public officer;

1. Offender makes offers or promises 2. He has taken advantage of his office,

or gives gifts or presents to a public that is, he intervened in the
officer; transaction in his official capacity;

2. The offers or promises are made or 3. He entered into an agreement with

the gifts or presents given to a public any interested party or speculator or
officer, under circumstances that will made use of any other scheme with
make the public officer liable for regard to furnishing supplies, the
direct bribery or indirect bribery. making of contracts, or the
adjustment or settlement of accounts
relating to public property or funds;
Article 213. Frauds against the Public
Treasury and Similar Offenses 4. He had intent to defraud the
government.
Acts punished

1. Entering into an agreement with any The essence of this crime is making the
interested party or speculator or government pay for something not received
making use of any other scheme, to or making it pay more than what is due. It is
defraud the government, in dealing also committed by refunding more than the
with any person with regard to amount which should properly be refunded.
furnishing supplies, the making of This occurs usually in cases where a public
contracts, or the adjustment or officer whose official duty is to procure
settlement of accounts relating to supplies for the government or enter into
public property or funds; contract for government transactions,
connives with the said supplier with the
2. Demanding, directly or indirectly, the intention to defraud the government. Also
payment of sums different from or when certain supplies for the government
larger than those authorized by law, are purchased for the high price but its
in collection of taxes, licenses, fees, quantity or quality is low.
and other imposts;
Illustrations:
3. Failing voluntarily to issue a receipt,
as provided by law, for any sum of (1) A public official who is in charge of
money collected by him officially, in procuring supplies for the
the collection of taxes, licenses, fees, government obtained funds for the
and other imposts; first class materials and buys inferior
quality products and pockets the
4. Collecting or receiving, directly or excess of the funds. This is usually
indirectly, by way of payment or committed by the officials of the
otherwise, things or objects of a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 81

Department of Public Works and Be sure to determine whether fraud is

Highways. against public treasury or one under Article
214.
(2) Poorest quality of ink paid as if it
were of superior quality.
Elements of illegal exactions under
(3) One thousand pieces of blanket for paragraph 2
certain unit of the Armed Forces of
the Philippines were paid for but 1. Offender is a public officer entrusted
actually, only 100 pieces were with the collection of taxes, licenses,
bought. fees and other imposts;

(4) The Quezon City government 2. He is guilty of any of the following

ordered 10,000 but what was acts or omissions:
delivered was only 1,000 T-shirts,
the public treasury is defrauded a. Demanding, directly or
because the government is made to indirectly, the payment of
pay that which is not due or for a sums different from or larger
higher price. than those authorized by law;
or
Not all frauds will constitute this crime.
There must be no fixed allocation or amount b. Failing voluntarily to issue a
on the matter acted upon by the public receipt, as provided by law,
officer. for any sum of money
collected by him officially; or
The allocation or outlay was made the basis
of fraudulent quotations made by the public c. Collecting or receiving,
officer involved. directly or indirectly, by way
of payment or otherwise,
For example, there was a need to put some things or objects of a nature
additional lighting along the a street and no different from that provided
one knows how much it will cost. An officer by law.
was asked to canvass the cost but he
connived with the seller of light bulbs,
pricing each light bulb at P550.00 instead of This can only be committed principally by a
the actual price of P500.00. This is a case public officer whose official duty is to collect
of fraud against public treasury. taxes, license fees, import duties and other
dues payable to the government.
If there is a fixed outlay of P20,000.00 for
the lighting apparatus needed and the Not any public officer can commit this crime.
public officer connived with the seller so that Otherwise, it is estafa. Fixers cannot
although allocation was made a lesser commit this crime unless he conspires with
number was asked to be delivered, or of an the public officer authorized to make the
inferior quality, or secondhand. In this case collection.
there is no fraud against the public treasury
because there is a fixed allocation. The Also, public officers with such functions but
fraud is in the implementation of are in the service of the Bureau of Internal
procurement. That would constitute the Revenue and the Bureau of Customs are
crime of “other fraud” in Article 214, which is not to be prosecuted under the Revised
in the nature of swindling or estafa. Penal Code but under the Revised
Administrative Code. These officers are
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 82

authorized to make impositions and to enter even though the taxpayer does not
into compromises. Because of this pay the P500.00.
discretion, their demanding or collecting
different from what is necessary is legal. (2) Suppose the taxpayer came across
with P500.00. But the municipal
This provision of the Revised Penal Code treasurer, thinking that he would
was provided before the Bureau of Internal abstract the P100.00, issued a
Revenue and the Tariff and Customs Code. receipt for only P400.00. The
Now, we have specific Code which will taxpayer would naturally ask the
apply to them. In the absence of any municipal treasurer why the receipt
provision applicable, the Revised was only for P400.00. The treasurer
Administrative Code will apply. answered that the P100.00 is
supposed to be for documentary
The essence of the crime is not stamps. The taxpayer left.
misappropriation of any of the amounts but
the improper making of the collection which He has a receipt for P400.00. The
would prejudice the accounting of collected municipal treasurer turned over to
amounts by the government. the government coffers P400.00
because that is due the government
On the first form of illegal exaction and pocketed the P100.00.

In this form, mere demand will consummate The mere fact that there was a
the crime, even if the taxpayer shall refuse demand for an amount different from
to come across with the amount being what is due the government, the
demanded. That will not affect the public officer already committed the
consummation of the crime. crime of illegal exaction.

In the demand, it is not necessary that the On the P100.00 which the public
amount being demanded is bigger than officer pocketed, will it be
what is payable to the government. The malversation or estafa?
amount being demanded maybe less than
the amount due the government. In the example given, the public
officer did not include in the official
Note that this is often committed with receipt the P100.00 and, therefore, it
malversation or estafa because when a did not become part of the public
public officer shall demand an amount funds. It remained to be private. It
different from what the law provides, it can is the taxpayer who has been
be expected that such public officer will not defrauded of his P100.00 because
turn over his collection to the government. he can never claim a refund from the
government for excess payment
Illustrations: since the receipt issued to him was
only P400.00 which is due the
(1) A taxpayer goes to the local government. As far as the P100.00
municipal treasurer to pay real is concerned, the crime committed is
estate taxes on his land. Actually, estafa.
what is due the government is
P400.00 only but the municipal (3) A taxpayer pays his taxes. What is
treasurer demanded P500.00. By due the government is P400.00 and
that demand alone, the crime of the public officer issues a receipt for
illegal exaction is already committed P500.00 upon payment of the
taxpayer of said amount demanded
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 83

by the public officer involved. But he separate accusation because there,

altered the duplicate to reflect only the mere demand regardless of
P400.00 and he extracted the whether the taxpayer will pay or not,
difference of P100.00. will already consummate the crime
of illegal exaction. It is the breach of
In this case, the entire P500.00 was trust by a public officer entrusted to
covered by an official receipt. That make the collection which is
act of covering the whole amount penalized under such article. The
received from the taxpayer in an falsification or alteration made on the
official receipt will have the duplicate can not be said as a
characteristics of becoming a part of means to commit malversation. At
the public funds. The crimes most, the duplicate was altered in
committed, therefore, are the order to conceal the malversation.
following: So it cannot be complexed with the
malversation.
(a) Illegal exaction – for
collecting more than he is It cannot also be said that the
authorized to collect. The falsification is a necessary means to
mere act of demanding is commit the malversation because
enough to constitute this the public officer can misappropriate
crime. the P100.00 without any falsification.
All that he has to do is to get the
(b) Falsification – because there excess of P100.00 and
was an alteration of official misappropriate it. So the falsification
document which is the is a separate accusation.
duplicate of the official
receipt to show an amount However, illegal exaction may be
less than the actual amount complexed with malversation
collected. because illegal exaction is a
necessary means to be able to
(c) Malversation – because of collect the P100.00 excess which
his act of misappropriating was malversed.
the P100.00 excess which
was covered by an official In this crime, pay attention to
receipt already, even though whether the offender is the one
not payable to the charged with the collection of the tax,
government. The entire license or impost subject of the
P500.00 was covered by the misappropriation. If he is not the
receipt, therefore, the whole one authorized by disposition to do
amount became public funds. the collection, the crime of illegal
So when he appropriated the exaction is not committed.
P100 for his own benefit, he
was not extracting private If it did not give rise to the crime of
funds anymore but public illegal exaction, the funds collected
funds. may not have become part of the
public funds. If it had not become
Should the falsification be part of the public funds, or had not
complexed with the malversation? become impressed with being part of
the public funds, it cannot be the
As far as the crime of illegal exaction subject of malversation. It will give
is concerned, it will be the subject of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 84

rise to estafa or theft as the case accretion, as the owner of the bigger
may be. amount becomes the owner of the whole.

(3) The Municipal Treasurer demanded On the second form of illegal exaction
P500.00 when only P400.00 was
due. He issued the receipt at The act of receiving payment due the
P400.00 and explained to taxpayer government without issuing a receipt will
that the P100 was for documentary give rise to illegal exaction even though a
stamps. The Municipal Treasurer provisional receipt has been issued. What
placed the entire P500.00 in the the law requires is a receipt in the form
vault of the office. When he needed prescribed by law, which means official
money, he took the P100.00 and receipt.
spent it.
Illustration:
The following crimes were
committed: If a government cashier or officer to whom
payment is made issued a receipt in his own
(a) Illegal exaction – for private form, which he calls provisional,
demanding a different even though he has no intention of
amount; misappropriating the amount received by
him, the mere fact that he issued a receipt
(b) Estafa – for deceiving the not in the form prescribed by law, the crime
taxpayer; and of illegal exaction is committed. There must
be voluntary failure to issue the Official
(c) Malversation – for getting the Receipt.
P100.00 from the vault.
On the third form of illegal exaction
Although the excess P100.00 was
not covered by the Official Receipt, it Under the rules and regulations of the
was commingled with the other government, payment of checks not
public funds in the vault; hence, it belonging to the taxpayer, but that of checks
became part of public funds and of other persons, should not be accepted to
subsequent extraction thereof settle the obligation of that person.
constitutes malversation.
Illustration:

Note that numbers 1 and 2 are complexed A taxpayer pays his obligation with a check
as illegal exaction with estafa, while in not his own but pertaining to another.
number 3, malversation is a distinct offense. Because of that, the check bounced later on.

The issuance of the Official Receipt is the The crime committed is illegal exaction
operative fact to convert the payment into because the payment by check is not
public funds. The payor may demand a allowed if the check does not pertain to the
refund by virtue of the Official Receipt. taxpayer himself, unless the check is a
manager’s check or a certified check,
In cases where the payor decides to let the amended already as of 1990. (See the
official to “keep the change”, if the latter case of Roman Catholic.)
should pocket the excess, he shall be liable
for malversation. The official has no right Under Article 213, if any of these acts
but the government, under the principle of penalized as illegal exaction is committed
by those employed in the Bureau of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 85

Customs or Bureau of Internal Revenue, the

law that will apply to them will be the 2. Experts, arbitrators, and private
Revised Administrative Code or the Tariff accountants who, in like manner,
and Customs Code or National Revenue took part in any contract or
Code. transaction connected with the
estate or property in the appraisal,
This crime does not require damage to the distribution or adjudication of which
government. they had acted;

3. Guardians and executors with

Article 214. Other Frauds respect to the property belonging to
their wards or the estate.
Elements

1. Offender is a public officer; Section 14, Article VI of the Constitution

2. He takes advantage of his official No Senator or Member of the House

position; of Representatives may personally appear
as counsel before any court of justice or
3. He commits any of the frauds or before the Electoral Tribunals, or quasi-
deceits enumerated in Article 315 to judicial and other administrative bodies.
318. Neither shall he, directly or indirectly, be
interested financially in any contract with, or
in any franchise or special privilege granted
Article 215. Prohibited Transactions by the Government or any subdivision,
agency or instrumentality thereof, including
Elements any government-owned or controlled
corporation or its subsidiary, during his term
1. Offender is an appointive public of office. He shall not intervene in any
officer; matter before any office of the government
for his pecuniary benefit or where he may
2. He becomes interested, directly or be called upon to act on account of his
indirectly, in any transaction of office.
exchange or speculation;

3. The transaction takes place within Section 13, Article VII of the Constitution
the territory subject to his jurisdiction;
The President, Vice-President, the
4. He becomes interested in the Members of the Cabinet and their deputies
transaction during his incumbency. or assistant shall not, unless otherwise
provided in this Constitution, hold any other
office or employment during their tenure.
Article 216. Possession of Prohibited They shall not, during said tenure, directly
Interest By A Public Officer or indirectly, practice any other profession,
participate in any business, or be financially
Persons liable interested in any contract with, or in any
franchise, or special privilege granted by the
1. Public officer who, directly or Government or any subdivision, agency or
indirectly, became interested in any instrumentality thereof, including
contracts or business in which it was government-owned or controlled
his official duty to intervene; corporations or their subsidiaries. They
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 86

shall strictly avoid conflict of interest in the

conduct of their office. 3. Those funds or property were public
funds or property for which he was
accountable;
Section 2, Article IX-A of the Constitution
4. He appropriated, took,
No member of a Constitutional misappropriated or consented or,
Commission shall, during his tenure, hold through abandonment or negligence,
any office or employment. Neither shall he permitted another person to take
engage in the practice of any profession or them.
in the active management or control of any
business which in any way may be affected
by the functions of his office, nor shall he be This crime is predicated on the relationship
financially interested, directly or indirectly, in of the offender to the property or funds
any contract with, or in any franchise or involved. The offender must be
privilege granted by the government, or any accountable for the property
of its subdivisions, agencies, or misappropriated. If the fund or property,
instrumentalities, including government- though public in character is the
owned or controlled corporations or their responsibility of another officer,
subsidiaries. malversation is not committed unless there
is conspiracy.

Article 217. Malversation of Public It is not necessary that the offender profited
Funds or Property – Presumption of because somebody else may have
Malversation misappropriated the funds in question for as
long as the accountable officer was remiss
Acts punished in his duty of safekeeping public funds or
property. He is liable for malversation if
1. Appropriating public funds or such funds were lost or otherwise
property; misappropriated by another.

2. Taking or misappropriating the same; There is no malversation through simple

negligence or reckless imprudence, whether
3. Consenting, or through deliberately or negligently. This is one
abandonment or negligence, crime in the Revised Penal Code where the
permitting any other person to take penalty is the same whether committed with
such public funds or property; and dolo or culpa.

4. Being otherwise guilty of the

misappropriation or malversation of
such funds or property. Question & Answer

Elements common to all acts of What crime under the Revised Penal
malversation under Article 217 Code carries the same penalty whether
committed intentionally or through
1. Offender is a public officer; negligence?

2. He had the custody or control of Malversation under Article 217.

funds or property by reason of the There is no crime of malversation through
duties of his office; negligence. The crime is malversation,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 87

plain and simple, whether committed 2. Can the buyer be liable

through dolo or culpa. There is no crime of under the Anti-fencing law?
malversation under Article 365 – on criminal
negligence – because in malversation under No. The crime is neither theft nor
Article 217, the same penalty is imposed robbery, but malversation.
whether the malversation results from
negligence or was the product of deliberate 3. A member of the Philippine
act. National Police went on absence without
leave. He was charged with malversation of
the firearm issued to him. After two years,
The crime of malversation can be he came out of hiding and surrendered the
committed only by an officer accountable for firearm. What crime was committed?
the funds or property which is appropriated.
This crime, therefore, bears a relation The crime committed was
between the offender and the funds or malversation. Payment of the amount
property involved. misappropriated or restitution of property
misappropriated does not erase criminal
The offender, to commit malversation, must liability but only civil liability.
be accountable for the funds or property
misappropriated by him. If he is not the one
accountable but somebody else, the crime When private property is attached or seized
committed is theft. It will be qualified theft if by public authority and the public officer
there is abuse of confidence. accountable therefor misappropriates the
same, malversation is committed also.
Accountable officer does not refer only to
cashier, disbursing officers or property Illustration:
custodian. Any public officer having
custody of public funds or property for which If a sheriff levied the property of the
he is accountable can commit the crime of defendants and absconded with it, he is not
malversation if he would misappropriate liable of qualified theft but of malversation
such fund or property or allow others to do even though the property belonged to a
so. private person. The seizure of the property
or fund impressed it with the character of
being part of the public funds it being in
Questions & Answers custodia legis. For as long as the public
officer is the one accountable for the fund or
property that was misappropriated, he can
1. An unlicensed firearm was be liable for the crime of malversation.
confiscated by a policeman. Instead of Absent such relation, the crime could be
turning over the firearm to the property theft, simple or qualified.
custodian for the prosecution of the offender,
the policeman sold the firearm. What crime
was committed?
Question & Answer
The crime committed is malversation
because that firearm is subject to his There was a long line of payors on
accountability. Having taken custody of the the last day of payment for residence
firearm, he is supposed to account for it as certificates. Employee A of the municipality
evidence for the prosecution of the offender. placed all his collections inside his table and
requested his employee B to watch over his
table while he goes to the restroom. B took
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 88

advantage of A’s absence and took P50.00 funds or property belong to a private
out of the collections. A returned and found individual.
his money short. What crimes have been
committed? Illustration:

A is guilty of malversation through Municipal treasurer connives with outsiders

negligence because he did not exercise due to make it appear that the office of the
diligence in the safekeeping of the funds treasurer was robbed. He worked overtime
when he did not lock the drawer of his table. and the co-conspirators barged in, hog-tied
Insofar as B is concerned, the crime is the treasurer and made it appear that there
qualified theft. was a robbery. Crime committed is
malversation because the municipal
treasurer was an accountable officer.
Under jurisprudence, when the public officer
leaves his post without locking his drawer, Note that damage on the part of the
there is negligence. Thus, he is liable for government is not considered an essential
the loss. element. It is enough that the proprietary
rights of the government over the funds
Illustration: have been disturbed through breach of trust.

A government cashier did not bother to put It is not necessary that the accountable
the public fund in the public safe/vault but public officer should actually misappropriate
just left it in the drawer of his table which the fund or property involved. It is enough
has no lock. The next morning when he that he has violated the trust reposed on
came back, the money was already gone. him in connection with the property.
He was held liable for malversation through
negligence because in effect, he has Illustration:
abandoned the fund or property without any
safety. (1) It is a common practice of
government cashiers to change the
A private person may also commit checks of their friends with cash in
malversation under the following situations: their custody, sometimes at a
discount. The public officer knows
(1) Conspiracy with a public officer in that the check is good because the
committing malversation; issuer thereof is a man of name. So
he changed the same with cash.
(2) When he has become an The check turned out to be good.
accomplice or accessory to a public
officer who commits malversation; With that act of changing the cash of
the government with the check of a
(3) When the private person is made the private person, even though the
custodian in whatever capacity of check is good, malversation is
public funds or property, whether committed. The reason is that a
belonging to national or local check is cleared only after three
government, and he misappropriates days. During that period of three
the same; days, the government is being
denied the use of the public fund.
(4) When he is constituted as the With more reason if that check
depositary or administrator of funds bounce because the government
or property seized or attached by suffers.
public authority even though said
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 89

(2) An accountable public officer, out of Note that the moment any money is
laziness, declares that the payment commingled with the public fund even if not
was made to him after he had due the government, it becomes impressed
cleaned his table and locked his safe with the characteristic of being part of public
for the collection of the day. A funds. Once they are commingled, you do
taxpayer came and he insisted that not know anymore which belong to the
he pay the amount so that he will not government and which belong to the private
return the next day. So he accepted persons. So that a public vault or safe
the payment but is too lazy to open should not be used to hold any fund other
the combination of the public safe. that what is due to the government.
He just pocketed the money. When
he came home, the money was still When does presumption of misappropriation
in his pocket. The next day, when arise?
he went back to the office, he
changed clothes and he claims that When a demand is made upon an
he forgot to put the money in the accountable officer and he cannot produce
new funds that he would collect the the fund or property involved, there is a
next day. Government auditors prima facie presumption that he had
came and subjected him to converted the same to his own use. There
inspection. He was found short of must be indubitable proof that thing
that amount. He claimed that it is in unaccounted for exists. Audit should be
his house -- with that alone, he was made to determine if there was shortage.
charged with malversation and was Audit must be complete and trustworthy. If
convicted. there is doubt, presumption does not arise.

Any overage or excess in the collection of Presumption arises only if at the time the
an accountable public officer should not be demand to produce the public funds was
extracted by him once it is commingled with made, the accountability of the accused is
the public funds. already determined and liquidated. A
demand upon the accused to produce the
Illustration: funds in his possession and a failure on his
part to produce the same will not bring
When taxpayers pay their accountabilities to about this presumption unless and until the
the government by way of taxes or licenses amount of his accountability is already
like registration of motor vehicles, the known.
taxpayer does not bother to collect loose
change. So the government cashier In Dumagat v. Sandiganbayan, 160 SCRA
accumulates the loose change until this 483, it was held that the prima facie
amounts to a sizable sum. In order to avoid presumption under the Revised Penal Code
malversation, the cashier did not separate arises only if there is no issue as to the
what is due the government which was left accuracy, correctness and regularity of the
to her by way of loose change. Instead, he audit findings and if the fact that public
gets all of these and keeps it in the public funds are missing is indubitably established.
vault/safe. After the payment of the taxes The audit must be thorough and complete
and licenses is through, he gets all the down to the last detail, establishing with
official receipts and takes the sum total of absolute certainty the fact that the funds are
the payment. He then opens the public indeed missing.
vault and counts the cash. Whatever will be
the excess or the overage, he gets. In this In De Guzman v. People, 119 SCRA 337, it
case, malversation is committed. was held that in malversation, all that is
necessary to prove is that the defendant
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 90

received in his possession the public funds In Parungao v. Sandiganbayan, 197

and that he could not account for them and SCRA 173, it was held that a public officer
that he could not give a reasonable excuse charged with malversation cannot be
for their disappearance. An accountable convicted of technical malversation (illegal
public officer may be convicted of use of public funds under Article 220). To
malversation even if there is no direct do so would violate accused’s right to be
evidence of misappropriation and the only informed of nature of accusation against
evidence is the shortage in the accounts him.
which he has not been able to explain
satisfactorily. Technical malversation is not included in the
crime of malversation. In malversation, the
In Cabello v. Sandiganbaya, 197 SCRA 94, offender misappropriates public funds or
it was held it was held that malversation property for his own personal use, or allows
may be committed intentionally or by any other person to take such funds or
negligence. The dolo or culpa bringing property for the latter’s own personal use.
about the offences is only a modality in the In technical malversation, the public officer
perpetration of the offense. The same applies the public funds or property under
offense of malversation is involved, whether his administration to another public use
the mode charged differs from the mode different from that for which the public fund
established in the commission of the crime. was appropriated by law or ordinance.
An accused charged with willful Recourse: File the proper information.
malversation may be convicted of
Malversation through her negligee.
Article 218. Failure of Accountable
In Quizo v. Sandiganbayan, the accused Officer to Render Accounts
incurred shortage (P1.74) mainly because
the auditor disallowed certain cash Elements
advances the accused granted to
employees. But on the same date that the 1. Offender is public officer, whether in the
audit was made, he partly reimbursed the service or separated therefrom by
amount and paid it in full three days later. resignation or any other cause;
The Supreme Court considered the
circumstances as negative of criminal intent. 2. He is an accountable officer for public
The cash advances were made in good faith funds or property;
and out of good will to co-employees which
was a practice tolerated in the office. The
actual cash shortage was only P1.74 and 3. He is required by law or regulation to
together with the disallowed advances were render account to the Commission
fully reimbursed within a reasonable time. on Audit, or to a provincial auditor;
There was no negligence, malice, nor intent
to defraud. 4. He fails to do so for a period of two
months after such accounts should
In Ciamfranca Jr. v. Sandiganbayan, be rendered.
where the accused in malversation could
not give reasonable and satisfactory
explanation or excuse for the missing funds Article 219. Failure of A Responsible
or property accountable by him, it was held Public Officer to Render Accounts before
that the return of the funds or property is not Leaving the Country
a defense and does not extinguish criminal
liability. Elements
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 91

1. Offender is a public officer; 3. Such fund or property were appropriated

by law or ordinance;
2. He is an accountable officer for public
funds or property; 4. He applies such public fund or property
to any public use other than for
3. He unlawfully leaves or attempts to which it was appropriated for.
leave the Philippine Islands without
securing a certificate from the
Commission on Audit showing that Illegal use of public funds or property is also
his accounts have been finally known as technical malversation. The term
settled. technical malversation is used because in
this crime, the fund or property involved is
already appropriated or earmarked for a
When an accountable officer leaves the certain public purpose.
country without first settling his
accountability or otherwise securing a The offender is entrusted with such fund or
clearance from the Commission on Audit property only to administer or apply the
regarding such accountability, the same to the public purpose for which it was
implication is that he left the country appropriated by law or ordinance. Instead
because he has misappropriated the funds of applying it to the public purpose to which
under his accountability. the fund or property was already
appropriated by law, the public officer
Who can commit this crime? A responsible applied it to another purpose.
public officer, not necessarily an
accountable one, who leaves the country Since damage is not an element of
without first securing clearance from the malversation, even though the application
Commission on Audit. made proved to be more beneficial to public
interest than the original purpose for which
The purpose of the law is to discourage the amount or property was appropriated by
responsible or accountable officers from law, the public officer involved is still liable
leaving without first liquidating their for technical malversation.
accountability.
If public funds were not yet appropriated by
Mere leaving without securing clearance law or ordinance, and this was applied to a
constitutes violation of the Revised Penal public purpose by the custodian thereof, the
Code. It is not necessary that they really crime is plain and simple malversation, not
misappropriated public funds. technical malversation. If the funds had
been appropriated for a particular public
purpose, but the same was applied to
Article 220. Illegal use of public funds or private purpose, the crime committed is
property simple malversation only.

Elements Illustration:

1. Offender is a public officer; The office lacked bond papers. What the
government cashier did was to send the
2. There are public funds or property under janitor, get some money from his collection,
his administration; told the janitor to buy bond paper so that the
office will have something to use. The
amount involved maybe immaterial but the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 92

cashier commits malversation pure and

simple.

This crime can also be committed by a Question & Answer

private person.

Illustration: The sheriff, after having levied on

the property subject of a judgment,
A certain road is to be cemented. Bags of conducted a public auction sale. He
cement were already being unloaded at the received the proceeds of the public auction.
side. But then, rain began to fall so the Actually, the proceeds are to be delivered to
supervisor of the road building went to a the plaintiff. The sheriff, after deducting the
certain house with a garage, asked the sheriff’s fees due to the office, spent part of
owner if he could possibly deposit the bags that amount. He gave the balance to the
of cement in his garage to prevent the same plaintiff and executed a promissory note to
from being wet. The owner of the house, pay the plaintiff the amount spent by him. Is
Olive, agreed. So the bags of cement were there a crime committed?
transferred to the garage of the private
person. After the public officer had left, and The Supreme Court ruled that the
the workers had left because it is not sheriff committed the crime of malversation
possible to do the cementing, the owner of because the proceeds of the auction sale
the garage started using some of the was turned over to the plaintiff, such
cement in paving his own garage. The proceeds is impressed with the
crime of technical malversation is also characteristic of being part of public funds.
committed. The sheriff is accountable therefore
because he is not supposed to use any part
of such proceeds.
Note that when a private person is
constituted as the custodian in whatever
capacity, of public funds or property, and he Article 221. Failure to Make Delivery of
misappropriates the same, the crime of Public Funds of Property
malversation is also committed. See Article
222. Acts punished

Illustration: 1. Failing to make payment by a public

officer who is under obligation to
The payroll money for a government make such payment from
infrastructure project on the way to the site government funds in his possession;
of the project, the officers bringing the
money were ambushed. They were all 2. Refusing to make delivery by a
wounded. One of them, however, was able public officer who has been ordered
to get away from the scene of the ambush by competent authority to deliver any
until he reached a certain house. He told property in his custody or under his
the occupant of the house to safeguard the administration.
amount because it is the payroll money of
the government laborers of a particular
project. The occupant of the house Elements of failure to make payment
accepted the money for his own use. The
crime is not theft but malversation as long 1. Public officer has government funds
as he knew that what was entrusted in his in his possession;
custody is public fund or property.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 93

2. He is under obligation to make Elements

payment from such funds;
1. Offender is a private person;
3. He fails to make the payment
maliciously. 2. The conveyance or custody of a
prisoner or person under arrest is
confided to him;
Article 223. Conniving with or
Consenting to Evasion 3. The prisoner or person under arrest
escapes;
1. Offender is a public officer;
4. Offender consents to the escape, or
2. He had in his custody or charge a that the escape takes place through
prisoner, either detention prisoner or his negligence.
prisoner by final judgment;

3. Such prisoner escaped from his The crime is infidelity in the custody of
custody; prisoners if the offender involved is the
custodian of the prisoner.
4. He was in connivance with the
prisoner in the latter’s escape. If the offender who aided or consented to
the prisoner’s escaping from confinement,
whether the prisoner is a convict or a
Classes of prisoners involved detention prisoner, is not the custodian, the
crime is delivering prisoners from jail under
1. If the fugitive has been sentenced by Article156.
final judgment to any penalty;
The crime of infidelity in the custody of
2. If the fugitive is held only as prisoners can be committed only by the
detention prisoner for any crime or custodian of a prisoner.
violation of law or municipal
ordinance. If the jail guard who allowed the prisoner to
escape is already off-duty at that time and
he is no longer the custodian of the prisoner,
Article 224. Evasion through Negligence the crime committed by him is delivering
prisoners from jail.
Elements
Note that you do not apply here the principle
1. Offender is a public officer; of conspiracy that the act of one is the act of
all. The party who is not the custodian who
2. He is charged with the conveyance conspired with the custodian in allowing the
or custody of a prisoner or prisoner prisoner to escape does not commit
by final judgment; infidelity in the custody of the prisoner. He
commits the crime of delivering prisoners
3. Such prisoner escapes through from jail.
negligence.

Question & Answer

Article 225. Escape of Prisoner under the
Custody of a Person not a Public Officer
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 94

If a private person approached the committed by him is infidelity in the custody

custodian of the prisoner and for a certain of prisoners and bribery.
consideration, told the custodian to leave
the door of the cell unlocked for the prisoner If the crime is delivering prisoners from jail,
to escape. What crime had been committed? bribery is just a means, under Article 156,
that would call for the imposition of a
It is not infidelity in the custody of heavier penalty, but not a separate charge
prisoners because as far as the private of bribery under Article 156.
person is concerned, this crime is delivering
prisoners from jail. The infidelity is only But under Article 225 in infidelity, what is
committed by the custodian. basically punished is the breach of trust
because the offender is the custodian. For
This crime can be committed also by a that, the crime is infidelity. If he violates the
private person if the custody of the prisoner trust because of some consideration,
has been confided to a private person. bribery is also committed.

Illustration: A higher degree of vigilance is required.

Failure to do so will render the custodian
A policeman escorted a prisoner to court. liable. The prevailing ruling is against laxity
After the court hearing, this policeman was in the handling of prisoners.
shot at with a view to liberate the prisoner
from his custody. The policeman fought the Illustration:
attacker but he was fatally wounded. When
he could no longer control the prisoner, he A prison guard accompanied the prisoner in
went to a nearby house, talked to the head the toilet. While answering the call of nature,
of the family of that house and asked him if police officer waiting there, until the prisoner
he could give the custody of the prisoner to escaped. Police officer was accused of
him. He said yes. After the prisoner was infidelity.
handcuffed in his hands, the policeman
expired. Thereafter, the head of the family There is no criminal liability because it does
of that private house asked the prisoner if not constitute negligence. Negligence
he could afford to give something so that he contemplated here refers to deliberate
would allow him to go. The prisoner said, abandonment of duty.
“Yes, if you would allow me to leave, you
can come with me and I will give the money Note, however, that according to a recent
to you.” This private persons went with the Supreme Court ruling, failure to accompany
prisoner and when the money was given, he lady prisoner in the comfort room is a case
allowed him to go. What crime/s had been of negligence and therefore the custodian is
committed? liable for infidelity in the custody of prisoner.

Under Article 225, the crime can be Prison guard should not go to any other
committed by a private person to whom the place not officially called for. This is a case
custody of a prisoner has been confided. of infidelity in the custody of prisoner
through negligence under Article 224.
Where such private person, while
performing a private function by virtue of a
provision of law, shall accept any Article 226. Removal, Concealment, or
consideration or gift for the non- Destruction of Documents
performance of a duty confided to him,
Bribery is also committed. So the crime Elements
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 95

1. Offender is a public officer; removed the records and kept it in a place

where it is not supposed to be kept. Here, it
2. He abstracts, destroys or conceals a is again the breach of public trust which is
document or papers; punished.

3. Said document or papers should Although there is no material damage

have been entrusted to such public caused, mere delay in rendering public
officer by reason of his office; service is considered damage.

4. Damage, whether serious or not, to Removal of public records by the custodian

a third party or to the public interest does not require that the record be brought
has been caused. out of the premises where it is kept. It is
enough that the record be removed from the
Crimes falling under the section on infidelity place where it should be and transferred to
in the custody of public documents can only another place where it is not supposed to be
be committed by the public officer who is kept. If damage is caused to the public
made the custodian of the document in his service, the public officer is criminally liable
official capacity. If the officer was placed in for infidelity in the custody of official
possession of the document but it is not his documents.
duty to be the custodian thereof, this crime
is not committed. Distinction between infidelity in the custody
of public document, estafa and malicious
Illustration: mischief

A letter is entrusted to a postmaster for  In infidelity in the custody of public

transmission of a registered letter to another. document, the offender is the
The postmaster opened the letter and custodian of the official document
finding the money, extracted the same. The removed or concealed.
crime committed is infidelity in the custody
of the public document because under  In estafa, the offender is not the
Article 226, the law refers also to papers custodian of the document removed
entrusted to public officer involved and or concealed.
currency note is considered to be within the
term paper although it is not a document.  In malicious mischief, the offender
purposely destroyed and damaged
With respect to official documents, infidelity the property/document.
is committed by destroying the document, or
removing the document or concealing the Where in case for bribery or corruption, the
document. monetary considerations was marked as
exhibits, such considerations acquires the
Damage to public interest is necessary. nature of a document such that if the same
However, material damage is not necessary. would be spent by the custodian the crime
is not malversation but Infidelity in the
Illustration: custody of public records, because the
money adduced as exhibits partake the
If any citizen goes to a public office, desiring nature of a document and not as money.
to go over public records and the custodian Although such monetary consideration
of the records had concealed the same so acquires the nature of a document, the best
that this citizen is required to go back for the evidence rule does not apply here.
record to be taken out, the crime of infidelity Example, photocopies may be presented in
is already committed by the custodian who evidence.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 96

 There is infidelity if the offender

Article 227. Officer Breaking Seal opened the letter but did not take the
same.
Elements
 There is theft if there is intent to gain
1. Offender is a public officer; when the offender took the money.

2. He is charged with the custody of Note that he document must be complete in

papers or property; legal sense. If the writings are mere form,
there is no crime.
3. These papers or property are sealed
by proper authority; Illustration:

4. He breaks the seal or permits them As regard the payroll, which has not been
to be broken. signed by the Mayor, no infidelity is
committed because the document is not yet
a payroll in the legal sense since the
If the official document is sealed or document has not been signed yet.
otherwise placed in an official envelope, the
element of damage is not required. The In "breaking of seal", the word "breaking"
mere breaking of the seal or the mere should not be given a literal meaning. Even
opening of the document would already if actually, the seal was not broken, because
bring about infidelity even though no the custodian managed to open the parcel
damage has been suffered by anyone or by without breaking the seal.
the public at large. The offender does not
have to misappropriate the same. Just
trying to discover or look what is inside is Article 228. Opening of Closed
infidelity already. Documents

The act is punished because if a document Elements

is entrusted to the custody of a public officer
in a sealed or closed envelope, such public 1. Offender is a public officer;
officer is supposed not to know what is
inside the same. If he would break the seal 2. Any closed papers, documents, or
or open the closed envelop, indications object are entrusted to his custody;
would be that he tried to find out the
contents of the document. For that act, he 3. He opens or permits to be opened
violates the confidence or trust reposed on said closed papers, documents or
him. objects;

A crime is already committed regardless of 4. He does not have proper authority.

whether the contents of the document are
secret or private. It is enough that it is
entrusted to him in a sealed form or in a Article 229. Revelation of Secrets by An
closed envelope and he broke the seal or Officer
opened the envelop. Public trust is already
violated if he managed to look into the Acts punished
contents of the document.

Distinction between infidelity and theft

REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 97

1. Revealing any secrets known to the

offending public officer by reason of 3. He reveals such secrets without
his official capacity; authority or justifiable reason.

Elements
Article 231. Open Disobedience
1. Offender is a public officer;
Elements
2. He knows of a secret by
reason of his official capacity; 1. Officer is a judicial or executive
officer;
3. He reveals such secret
without authority or justifiable 2. There is a judgment, decision or
reasons; order of a superior authority;

4. Damage, great or small, is 3. Such judgment, decision or order

caused to the public interest. was made within the scope of the
jurisdiction of the superior authority
2. Delivering wrongfully papers or and issued with all the legal
copies of papers of which he may formalities;
have charge and which should not
be published. 4. He, without any legal justification,
openly refuses to execute the said
Elements judgment, decision or order, which
he is duty bound to obey.
1. Offender is a public officer;

2. He has charge of papers; Article 232. Disobedience to Order of

Superior Officer When Said Order Was
3. Those papers should not be Suspended by Inferior Officer
published;
Elements
4. He delivers those papers or
copies thereof to a third 1. Offender is a public officer;
person;
2. An order is issued by his superior for
5. The delivery is wrongful; execution;

6. Damage is caused to public 3. He has for any reason suspended

interest. the execution of such order;

4. His superior disapproves the

Article 230. Public Officer Revealing suspension of the execution of the
Secrets of Private individual order;

Elements 5. Offender disobeys his superior

despite the disapproval of the
1. Offender is a public officer; suspension.

2. He knows of the secrets of a private

individual by reason of his office; Article 233. Refusal of Assistance
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 98

long as the assistance requested from them

1. Offender is a public officer; is within their duty to render and that
assistance is needed for public service, the
2. A competent authority demands from public officers who are refusing deliberately
the offender that he lend his may be charged with refusal of assistance.
cooperation towards the
administration of justice or other Note that the request must come from one
public service; public officer to another.

3. Offender fails to do so maliciously. Illustration:

A fireman was asked by a private person for

Any public officer who, upon being services but was refused by the former for
requested to render public assistance within lack of “consideration”.
his official duty to render and he refuses to
render the same when it is necessary in the It was held that the crime is not refusal of
administration of justice or for public service, assistance because the request did not
may be prosecuted for refusal of assistance. come from a public authority. But if the
fireman was ordered by the authority to put
This is a crime, which a policeman may out the fire and he refused, the crime is
commit when, being subpoenaed to appear refusal of assistance.
in court in connection with a crime
investigated by him but because of some If he receives consideration therefore,
arrangement with the offenders, the bribery is committed. But mere demand will
policeman does not appear in court fall under the prohibition under the provision
anymore to testify against the offenders. He of Republic Act No. 3019 (Anti-Graft and
tried to assail the subpoena so that Corrupt Practices Act).
ultimately the case would be dismissed. It
was already held that the policeman could
be prosecuted under this crime of refusal of Article 234. Refusal to Discharge
assistance and not that of dereliction of duty. Elective Office

Illustration: Elements

A government physician, who had been 1. Offender is elected by popular

subpoenaed to appear in court to testify in election to a public office;
connection with physical injury cases or
cases involving human lives, does not want 2. He refuses to be sworn in or to
to appear in court to testify. He may be discharge the duties of said office;
charged for refusal of assistance. As long
as they have been properly notified by 3. There is no legal motive for such
subpoena and they disobeyed the refusal to be sworn in or to
subpoena, they can be charged always if it discharge the duties of said office.
can be shown that they are deliberately
refusing to appear in court.
Article 235. Maltreatment of Prisoners
It is not always a case or in connection with
the appearance in court that this crime may Elements
be committed. Any refusal by the public
officer to render assistance when 1. Offender is a public officer or
demanded by competent public authority, as employee;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 99

injuries shall be filed. You do not complex

2. He has under his charge a prisoner the crime of physical injuries with the
or detention prisoner; maltreatment because the way Article 235 is
worded, it prohibits the complexing of the
3. He maltreats such prisoner in either crime.
of the following manners:
If the maltreatment was done in order to
a. By overdoing himself in the extort confession, therefore, the
correction or handling of a constitutional right of the prisoner is further
prisoner or detention prisoner violated. The penalty is qualified to the next
under his charge either – higher degree.

(1) By the imposition of The offended party here must be a prisoner

punishment not in the legal sense. The mere fact that a
authorized by the private citizen had been apprehended or
regulations; or arrested by a law enforcer does not
constitute him a prisoner. To be a prisoner,
(2) By inflicting such he must have been booked and
punishments (those incarcerated no matter how short it is.
authorized) in a cruel
and humiliating Illustration:
manner; or
A certain snatcher was arrested by a law
b. By maltreating such enforcer, brought to the police precinct,
prisoners to extort a turned over to the custodian of that police
confession or to obtain some precinct. Every time a policeman entered
information from the prisoner. the police precinct, he would ask, “What is
this fellow doing here? What crime has he
committed?”. The other policeman would
This is committed only by such public officer then tell, “This fellow is a snatcher.” So
charged with direct custody of the prisoner. every time a policeman would come in, he
Not all public officer can commit this offense. would inflict injury to him. This is not
maltreatment of prisoner because the
If the public officer is not the custodian of offender is not the custodian. The crime is
the prisoner, and he manhandles the latter, only physical injuries.
the crime is physical injuries.
But if the custodian is present there and he
The maltreatment does not really require allowed it, then he will be liable also for the
physical injuries. Any kind of punishment physical injuries inflicted, but not for
not authorized or though authorized if maltreatment because it was not the
executed in excess of the prescribed degree. custodian who inflicted the injury.

Illustration: But if it is the custodian who effected the

maltreatment, the crime will be
Make him drink dirty water, sit on ice, eat on maltreatment of prisoners plus a separate
a can, make him strip, hang a sign on his charge for physical injuries.
neck saying “snatcher”.
If a prisoner who had already been booked
But if as a result of the maltreatment, was make to strip his clothes before he was
physical injuries were caused to the put in the detention cell so that when he
prisoner, a separate crime for the physical was placed inside the detention cell, he was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 100

already naked and he used both of his holding such office, has already
hands to cover his private part, the crime of expired;
maltreatment of prisoner had already been
committed. 3. He continues to exercise the duties
and powers of such office.
After having been booked, the prisoner was
made to show any sign on his arm, hand or
his neck; “Do not follow my footsteps, I am a Article 238. Abandonment of Office or
thief.” That is maltreatment of prisoner if the Position
offended party had already been booked
and incarcerated no matter how short, as a Elements
prisoner.
1. Offender is a public officer;
Before this point in time, when he is not yet
a prisoner, the act of hanging a sign on his 2. He formally resigns from his position;
neck will only amount to slander because
the idea is to cast dishonor. Any injury 3. His resignation has not yet been
inflicted upon him will only give rise to the accepted;
crime of physical injuries.
4. He abandons his office to the
detriment of the public service.
Article 236. Anticipation of Duties of A
Public Office
Article 239. Usurpation of Legislative
Elements Powers

1. Offender is entitled to hold a public Elements

office or employment, either by
election or appointment; 1. Offender is an executive or judicial
officer;
2. The law requires that he should first
be sworn in and/or should first give a 2. He (a) makes general rules or
bond; regulations beyond the scope of his
authority or (b) attempts to repeal a
3. He assumes the performance of the law or (c) suspends the execution
duties and powers of such office; thereof.

4. He has not taken his oath of office

and/or given the bond required by Article 240. Usurpation of Executive
law. Functions

Elements
Article 237. Prolonging Performance of
Duties and Powers 1. Offender is a judge;

Elements 2. He (a) assumes a power pertaining

to the executive authorities, or (b)
1. Offender is holding a public office; obstructs the executive authorities in
the lawful exercise of their powers.
2. The period provided by law,
regulations or special provision for
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 101

Article 241. Usurpation of Judicial Article 244. Unlawful Appointments

Functions
Elements
Elements
1. Offender is a public officer;
1. Offender is an officer of the
executive branch of the government; 2. He nominates or appoints a person
to a public office;
2. He (a) assumes judicial powers, or
(b) obstructs the execution of any 3. Such person lacks the legal
order or decision rendered by any qualifications therefore;
judge within his jurisdiction.
4. Offender knows that his nominee or
appointee lacks the qualification at
Article 242. Disobeying Request for the time he made the nomination or
Disqualification appointment.

Elements
Article 245. Abuses against Chastity
1. Offender is a public officer;
Acts punished
2. A proceeding is pending before such
public officer; 1. Soliciting or making immoral or
indecent advances to a woman
3. There is a question brought before interested in matters pending before
the proper authority regarding his the offending officer for decision, or
jurisdiction, which is not yet decided; with respect to which he is required
to submit a report to or consult with
4. He has been lawfully required to refrain a superior officer;
form continuing the proceeding;
2. Soliciting or making immoral or
5. He continues the proceeding. indecent advances to a woman
under the offender’s custody;

Article 243. Orders or Request by 3. Soliciting or making immoral or

Executive Officers to Any Judicial indecent advances to the wife,
Authority daughter, sister or relative within the
same degree by affinity of any
Elements person in the custody of the
offending warden or officer.
1. Offender is an executive officer;

2. He addresses any order or Elements:

suggestion to any judicial authority;
1. Offender is a public officer;
3. The order or suggestion relates to
any case or business coming within 2. He solicits or makes immoral or
the exclusive jurisdiction of the indecent advances to a woman;
courts of justice.
3. Such woman is –
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 102

a. interested in matters pending investigator or he is required to

before the offender for render a report or he is required to
decision, or with respect to consult with a superior officer.
which he is required to
submit a report to or consult
with a superior officer; or This does not include any casual or
incidental interest. This refers to
b. under the custody of the interest in the subject of the case
offender who is a warden or under investigation.
other public officer directly
charged with the care and If the public officer charged with the
custody of prisoners or investigation or with the rendering of
persons under arrest; or the report or with the giving of advice
by way of consultation with a
c. the wife, daughter, sister or superior, made some immoral or
relative within the same indecent solicitation upon such
degree by affinity of the woman, he is taking advantage of
person in the custody of the his position over the case. For that
offender. immoral or indecent solicitation, a
crime is already committed even if
the woman did not accede to the
The name of the crime is misleading. It solicitation.
implies that the chastity of the offended
party is abused but this is not really the Even if the woman may have lied
essence of the crime because the essence with the hearing officer or to the
of the crime is mere making of immoral or public officer and acceded to him,
indecent solicitation or advances. that does not change the crime
because the crime seeks to penalize
Illustration: the taking advantage of official
duties.
Mere indecent solicitation or advances of a
woman over whom the public officer It is immaterial whether the woman
exercises a certain influence because the did not agree or agreed to the
woman is involved in a case where the solicitation. If the woman did not
offender is to make a report of result with agree and the public officer involved
superiors or otherwise a case which the pushed through with the advances,
offender was investigating. attempted rape may have been
committed.
This crime is also committed if the woman is
a prisoner and the offender is her jail (2) The woman who is the offended
warden or custodian, or even if the prisoner party in the crime is a prisoner under
may be a man if the jail warden would make the custody of a warden or the jailer
the immoral solicitations upon the wife, who is the offender.
sister, daughter, or relative by affinity within
the same degree of the prisoner involved. If the warden or jailer of the woman
should make immoral or indecent
Three instances when this crime may arise: advances to such prisoner, this
crime is committed.
(1) The woman, who is the offended
party, is the party in interest in a This crime cannot be committed if
case where the offended is the the warden is a woman and the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 103

prisoner is a man. Men have no Legally, a prisoner is an

chastity. accountability of the government.
So the custodian is not supposed to
If the warden is also a woman but is interfere. Even if the prisoner may
a lesbian, it is submitted that this like it, he is not supposed to do that.
crime could be committed, as the Otherwise, abuse against chastity is
law does not require that the committed.
custodian be a man but requires that Being responsible for the pregnancy
the offended be a woman. is itself taking advantage the
prisoner.
Immoral or indecent advances
contemplated here must be If he forced himself against the will
persistent. It must be determined. A of the woman, another crime is
mere joke would not suffice. committed, that is, rape aside from
abuse against chastity.
Illustrations:
You cannot consider the abuse
(1) An investigating prosecutor against chastity as absorbed in the
where the woman is charged rape because the basis of penalizing
with estafa as the respondent, the acts is different from each other.
made a remark to the woman,
thus: “You know, the way of (3) The crime is committed upon a
deciding this case depends female relative of a prisoner under
on me. I can just say this is the custody of the offender, where
civil in character. I want to the woman is the daughter, sister or
see a movie tonight and I relative by affinity in the same line as
want a companion.” Such a of the prisoner under the custody of
remark, which is not the offender who made the indecent
discerned if not persistent will or immoral solicitation.
not give rise to this crime.
However, if the prosecutor The mother is not included so that
kept on calling the woman any immoral or indecent solicitation
and inviting her, that makes upon the mother of the prisoner
the act determined and the does not give rise to this crime, but
crime is committed. the offender may be prosecuted
under the Section 28 of Republic Act
(2) A jailer was prosecuted for No. 3019 (Anti-graft and Corrupt
abuse against chastity. The Practices Act).
jailer said, “It was mutual on
their part. I did not really Why is the mother left out? Because
force my way upon the it is the mother who easily succumbs
woman. The woman fell in to protect her child.
love with me, I fell in love
with the woman.” The If the offender were not the
woman became pregnant. custodian, then crime would fall
The woman admitted that under Republic Act No. 3019 (The
she was not forced. Just the Anti-Graft and Corrupt Practices Act).
same, the jailer was
convicted of abuse against Republic Act No. 7877 (Anti-Sexual
chastity. Harassment Act)
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 104

Committed by any person having authority, 8. Infanticide (Art. 255);

influence or moral ascendancy over another
in a work, training or education environment 9. Intentional abortion (Art. 256);
when he or she demands, requests, or
otherwise requires any sexual favor from 10. Unintentional abortion (Art. 257);
the other regardless of whether the demand,
request or requirement for submission is 11. Abortion practiced by the woman
accepted by the object of the said act (for a herself or by her parents (Art. 258);
passing grade, or granting of scholarship or
honors, or payment of a stipend, allowances, 12. Abortion practiced by a physician or
benefits, considerations; favorable midwife and dispensing of abortives
compensation terms, conditions, promotions (Art. 259);
or when the refusal to do so results in a
detrimental consequence for the victim). 13. Duel (Art. 260);

Also holds liable any person who directs or 14. Challenging to a duel (Art. 261);
induces another to commit any act of sexual
harassment, or who cooperates in the 15. Mutilation (Art. 262);
commission, the head of the office,
educational or training institution solidarily. 16. Serious physical injuries (Art. 263);

Complaints to be handled by a committee 17. Administering injurious substances

on decorum, which shall be determined by or beverages (Art. 264);
rules and regulations on such.
18. Less serious physical injuries (Art.
Administrative sanctions shall not be a bar 265);
to prosecution in the proper courts for
unlawful acts of sexual harassment. 19. Slight physical injuries and
maltreatment (Art. 266); and

TITLE VIII. CRIMES AGAINST PERSONS 20. Rape (Art. 266-A).

Crimes against persons

The essence of crime here involves the
1. Parricide (Art. 246); taking of human life, destruction of the fetus
or inflicting injuries.
2. Murder (Art. 248);
As to the taking of human life, you have:
3. Homicide (Art. 249);
(1) Parricide;
4. Death caused in a tumultuous affray
(Art. 251); (2) Murder;

5. Physical injuries inflicted in a (3) Homicide;

tumultuous affray (Art. 252);
(4) Infanticide; and
6. Giving assistance to suicide (Art.
253); (5) Giving assistance to suicide.

7. Discharge of firearms (Art. 254); Note that parricide is premised on the

relationship between the offender and the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 105

offended. The victim is three days old or The only illegitimate relationship that can
older. A stranger who conspires with the bring about parricide is that between
parent is guilty of murder. parents and illegitimate children as the
offender and the offended parties.
In infanticide, the victim is younger than
three days or 72 hours old; can be Illustration:
committed by a stranger. If a stranger who
conspires with parent, both commit the A is the parent of B, the illegitimate
crime of infanticide. daughter. B married C and they begot a
legitimate child D. If D, daughter of B and C,
would kill A, the grandmother, the crime
Article 246. Parricide cannot be parricide anymore because of the
intervening illegitimacy. The relationship
Elements between A and D is no longer legitimate.
Hence, the crime committed is homicide or
1. A person is killed; murder.

2. The deceased is killed by the Since parricide is a crime of relationship, if a

accused; stranger conspired in the commission of the
crime, he cannot be held liable for parricide.
3. The deceased is the father, mother, His participation would make him liable for
or child, whether legitimate or murder or for homicide, as the case may be.
illegitimate, or a legitimate other The rule of conspiracy that the act of one is
ascendant or other descendant, or the act of all does not apply here because of
the legitimate spouse, of the the personal relationship of the offender to
accused. the offended party.

Illustration:
This is a crime committed between people
who are related by blood. Between A spouse of B conspires with C to kill B. C
spouses, even though they are not related is the stranger in the relationship. C killed B
by blood, it is also parricide. with treachery. The means employed is
made known to A and A agreed that the
The relationship must be in the direct line killing will be done by poisoning.
and not in the collateral line.
As far as A is concerned, the crime is based
The relationship between the offender and on his relationship with B. It is therefore
the offended party must be legitimate, parricide. The treachery that was employed
except when the offender and the offended in killing Bong will only be generic
party are related as parent and child. aggravating circumstance in the crime of
parricide because this is not one crime that
If the offender and the offended party, requires a qualifying circumstance.
although related by blood and in the direct
line, are separated by an intervening But that same treachery, insofar as C is
illegitimate relationship, parricide can no concerned, as a stranger who cooperated in
longer be committed. The illegitimate the killing, makes the crime murder;
relationship between the child and the treachery becomes a qualifying
parent renders all relatives after the child in circumstance.
the direct line to be illegitimate too.
In killing a spouse, there must be a valid
subsisting marriage at the time of the killing.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 106

Also, the information should allege the fact

of such valid marriage between the accused 3. He has not promoted or facilitated
and the victim. the prostitution of his wife or
daughter, or that he or she has not
In a ruling by the Supreme Court, it was consented to the infidelity of the
held that if the information did not allege other spouse.
that the accused was legally married to the
victim, he could not be convicted of
parricide even if the marriage was Two stages contemplated before the article
established during the trial. In such cases, will apply:
relationship shall be appreciated as generic
aggravating circumstance. (1) When the offender surprised the
other spouse with a paramour or
The Supreme Court has also ruled that mistress. The attack must take
Muslim husbands with several wives can be place while the sexual intercourse is
convicted of parricide only in case the first going on. If the surprise was before
wife is killed. There is no parricide if the or after the intercourse, no matter
other wives are killed although their how immediate it may be, Article 247
marriage is recognized as valid. This is so does not apply. The offender in this
because a Catholic man can commit the situation only gets the benefit of a
crime only once. If a Muslim husband could mitigating circumstance, that is,
commit this crime more than once, in effect, sufficient provocation immediately
he is being punished for the marriage which preceding the act.
the law itself authorized him to contract.
(2) When the offender kills or inflicts
That the mother killed her child in order to serious physical injury upon the
conceal her dishonor is not mitigating. This other spouse and/or paramour while
is immaterial to the crime of parricide, unlike in the act of intercourse, or
in the case of infanticide. If the child is less immediately thereafter, that is, after
than three days old when killed, the crime is surprising.
infanticide and intent to conceal her
dishonor is considered mitigating. You have to divide the stages because as
far as the first stage is concerned, it does
not admit of any situation less than sexual
Article 247. Death or Physical Injuries intercourse.
Inflicted under Exceptional
Circumstances So if the surprising took place before any
actual sexual intercourse could be done
Elements because the parties are only in their
preliminaries, the article cannot be invoked
1. A legally married person, or a parent, anymore.
surprises his spouse or his daughter,
the latter under 18 years of age and If the surprising took place after the actual
living with him, in the act of sexual intercourse was finished, even if the
committing sexual intercourse with act being performed indicates no other
another person; conclusion but that sexual intercourse was
had, the article does not apply.
2. He or she kills any or both of them,
or inflicts upon any or both of them As long as the surprising took place while
any serious physical injury in the act the sexual intercourse was going on, the
or immediately thereafter; second stage becomes immaterial.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 107

infidelity of his wife, looked for a firearm in

It is either killing or inflicting physical injuries Tacloban City.
while in that act or immediately thereafter. If
the killing was done while in that act, no Article 247 does not provide that the victim
problem. If the killing was done when is to be killed instantly by the accused after
sexual intercourse is finished, a problem surprising his spouse in the act of
arises. First, were they surprised in actual intercourse. What is required is that the
sexual intercourse? Second, were they killing is the proximate result of the outrage
killed immediately thereafter? overwhelming the accused upon the
discovery of the infidelity of his spouse. The
The phrase “immediately thereafter” has killing should have been actually motivated
been interpreted to mean that between the by the same blind impulse.
surprising and the killing of the inflicting of
the physical injury, there should be no break Illustration:
of time. In other words, it must be a
continuous process. A upon coming home, surprised his wife, B,
together with C. The paramour was fast
The article presumes that a legally married enough to jump out of the window. A got
person who surprises his or her better half the bolo and chased C but he disappeared
in actual sexual intercourse would be among the neighborhood. So A started
overcome by the obfuscation he felt when looking around for about an hour but he
he saw them in the act that he lost his head. could not find the paramour. A gave up and
The law, thus, affords protection to a was on his way home. Unfortunately, the
spouse who is considered to have acted in paramour, thinking that A was no longer
a justified outburst of passion or a state of around, came out of hiding and at that
mental disequilibrium. The offended spouse moment, A saw him and hacked him to
has no time to regain his self-control. death. There was a break of time and
Article 247 does not apply anymore
If there was already a break of time because when he gave up the search, it is a
between the sexual act and the killing or circumstance showing that his anger had
inflicting of the injury, the law presupposes already died down.
that the offender regained his reason and
therefore, the article will not apply anymore. Article 247, far from defining a felony merely
grants a privilege or benefit, more of an
As long as the act is continuous, the article exempting circumstance as the penalty is
still applies. intended more for the protection of the
accused than a punishment. Death under
Where the accused surprised his wife and exceptional character can not be qualified
his paramour in the act of illicit intercourse, by either aggravating or mitigating
as a result of which he went out to kill the circumstances.
paramour in a fit of passionate outburst.
Although about one hour had passed In the case of People v. Abarca, 153
between the time the accused discovered SCRA 735, two persons suffered physical
his wife having sexual intercourse with the injuries as they were caught in the crossfire
victim and the time the latter was actually when the accused shot the victim. A
killed, it was held in People v. Abarca, 153 complex crime of double frustrated murder
SCRA 735, that Article 247 was applicable, was not committed as the accused did not
as the shooting was a continuation of the have the intent to kill the two victims. Here,
pursuit of the victim by the accused. Here, the accused did not commit murder when
the accused, after the discovery of the act of he fired at the paramour of his wife.
Inflicting death under exceptional
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 108

circumstances is not murder. The accused The article is also made available to parents
was held liable for negligence under the first who shall surprise their daughter below 18
part, second paragraph of Article 365, that years of age in actual sexual intercourse
is, less serious physical injuries through while “living with them.” The act should
simple negligence. No aberratio ictus have been committed by the daughter with
because he was acting lawfully. a seducer. The two stages also apply. The
parents cannot invoke this provision if, in a
A person who acts under Article 247 is not way, they have encouraged the prostitution
committing a crime. Since this is merely an of the daughter.
exempting circumstance, the accused must
first be charged with: The phrase “living with them” is understood
to be in their own dwelling, because of the
(1) Parricide – if the spouse is killed; embarrassment and humiliation done not
only to the parent but also to the parental
(2) Murder or homicide – depending on abode.
how the killing was done insofar as
the paramour or the mistress is If it was done in a motel, the article does not
concerned; apply.

(3) Homicide – through simple Illustration:

negligence, if a third party is killed;
A abandoned his wife B for two years. To
(4) Physical injuries – through reckless support their children, A had to accept a
imprudence, if a third party is injured. relationship with another man. A learned of
this, and surprised them in the act of sexual
If death results or the physical injuries are intercourse and killed B. A is not entitled to
serious, there is criminal liability although Article 248. Having abandoned his family for
the penalty is only destierro. The two years, it was natural for her to feel some
banishment is intended more for the affection for others, more so of a man who
protection of the offender rather than a could help her.
penalty.
Homicide committed under exceptional
If the crime committed is less serious circumstances, although punished with
physical injuries or slight physical injuries, destierro, is within the jurisdiction of the
there is no criminal liability. Regional Trial Court and not the MTC
because the crime charged is homicide or
The article does not apply where the wife murder. The exceptional circumstances, not
was not surprised in flagrant adultery but being elements of the crime but a matter of
was being abused by a man as in this case defense, are not pleaded. It practically
there will be defense of relation. grants a privilege amounting to an
exemption for adequate punishment.
If the offender surprised a couple in sexual
intercourse, and believing the woman to be
his wife, killed them, this article may be
applied if the mistake of facts is proved.

The benefits of this article do not apply to

the person who consented to the infidelity of
his spouse or who facilitated the prostitution
of his wife.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 109

4. The killing is not parricide or

Article 248. Murder infanticide.

Elements
Homicide is qualified to murder if any of the
1. A person was killed; qualifying circumstances under Article 248
is present. It is the unlawful killing of a
2. Accused killed him; person not constituting murder, parricide or
infanticide.
3. The killing was attended by any of
the following qualifying In murder, any of the following qualifying
circumstances – circumstances is present:

a. With treachery, taking (1) Treachery, taking advantage of

advantage of superior superior strength, aid or armed men,
strength, with the aid or or employing means to waken the
armed men, or employing defense, or of means or persons to
means to waken the defense, insure or afford impunity;
or of means or persons to
insure or afford impunity; There is treachery when the offender
commits any of the crimes against
b. In consideration of a price, the person employing means,
reward or promise; methods or forms in the execution
thereof that tend directly and
c. By means of inundation, fire, especially to insure its execution
poison, explosion, shipwreck, without risk to himself arising from
stranding of a vessel, the defense which the offended
derailment or assault upon a party might make.
railroad, fall of an airship, by
means of motor vehicles, or This circumstance involves means,
with the use of any other methods, form in the execution of
means involving great waste the killing which may actually be an
and ruin; aggravating circumstance also, in
which case, the treachery absorbs
d. On occasion of any of the the same.
calamities enumerated in the
preceding paragraph, or of Illustration:
an earthquake, eruption of a
volcano, destructive cyclone, A person who is determined to kill
epidemic, or any other public resorted to the cover of darkness at
calamity; nighttime to insure the killing.
Nocturnity becomes a means that
e. With evident premeditation; constitutes treachery and the killing
would be murder. But if the
f. With cruelty, by deliberately aggravating circumstance of
and inhumanly augmenting nocturnity is considered by itself, it is
the suffering of the victim, or not one of those which qualify a
outraging or scoffing at his homicide to murder. One might
person or corpse. think the killing is homicide unless
nocturnity is considered as
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 110

constituting treachery, in which case was alleged was not proven and
the crime is murder. instead another circumstance, not
alleged, was established during the
The essence of treachery is that the trial, even if the latter constitutes a
offended party was denied the qualifying circumstance under Article
chance to defend himself because of 248, the same can not qualify the
the means, methods, form in killing to murder. The accused can
executing the crime deliberately only be convicted of homicide.
adopted by the offender. It is a
matter of whether or not the Generally, murder cannot be
offended party was denied the committed if at the beginning, the
chance of defending himself. offended had no intent to kill
because the qualifying
If the offended was denied the circumstances must be resorted to
chance to defend himself, treachery with a view of killing the offended
qualifies the killing to murder. If party. So if the killing were at the
despite the means resorted to by the “spur of the moment”, even though
offender, the offended was able to the victim was denied the chance to
put up a defense, although defend himself because of the
unsuccessful, treachery is not suddenness of the attack, the crime
available. Instead, some other would only be homicide. Treachery
circumstance may be present. contemplates that the means,
Consider now whether such other methods and form in the execution
circumstance qualifies the killing or were consciously adopted and
not. deliberately resorted to by the
offender, and were not merely
Illustration: incidental to the killing.

If the offender used superior If the offender may have not

strength and the victim was denied intended to kill the victim but he only
the chance to defend himself, there wanted to commit a crime against
is treachery. The treachery must be him in the beginning, he will still be
alleged in the information. But if the liable for murder if in the manner of
victim was able to put up an committing the felony there was
unsuccessful resistance, there is no treachery and as a consequence
more treachery but the use of thereof the victim died. This is
superior strength can be alleged and based on the rule that a person
it also qualifies the killing to murder. committing a felony shall be liable
for the consequences thereof
One attendant qualifying although different from that which he
circumstance is enough. If there are intended.
more than one qualifying
circumstance alleged in the Illustration:
information for murder, only one
circumstance will qualify the killing to The accused, three young men,
murder and the other circumstances resented the fact that the victim
will be taken as generic. continued to visit a girl in their
neighborhood despite the warning
To be considered qualifying, the they gave him. So one evening,
particular circumstance must be after the victim had visited the girl,
alleged in the information. If what they seized and tied him to a tree,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 111

with both arms and legs around the it would be arson with homicide, or
tree. They thought they would give murder.
him a lesson by whipping him with
branches of gumamela until the When a person is killed by fire, the
victim fell unconscious. The primordial criminal intent of the
accused left not knowing that the offender is considered. If the
victim died. primordial criminal intent of the
offender is to kill and fire was only
The crime committed was murder. used as a means to do so, the crime
The accused deprived the victim of is only murder. If the primordial
the chance to defend himself when criminal intent of the offender is to
the latter was tied to a tree. destroy property with the use of
Treachery is a circumstance pyrotechnics and incidentally,
referring to the manner of somebody within the premises is
committing the crime. There was no killed, the crime is arson with
risk to the accused arising from the homicide. But this is not a complex
defense by the victim. crime under Article 48. This is single
indivisible crime penalized under
Although what was initially intended Article 326, which is death as a
was physical injury, the manner consequence of arson. That
adopted by the accused was somebody died during such fire
treacherous and since the victim would not bring about murder
died as a consequence thereof, the because there is no intent to kill in
crime is murder -- although originally, the mind of the offender. He
there was no intent to kill. intended only to destroy property.
However, a higher penalty will be
When the victim is already dead, applied.
intent to kill becomes irrelevant. It is
important only if the victim did not In People v. Pugay and Samson,
die to determine if the felony is 167 SCRA 439, there was a town
physical injury or attempted or fiesta and the two accused were at
frustrated homicide. the town plaza with their
companions. All were uproariously
So long as the means, methods and happy, apparently drenched with
form in the execution is deliberately drink. Then, the group saw the
adopted, even if there was no intent victim, a 25 year old retard walking
to kill, there is treachery. nearby and they made him dance by
tickling his sides with a piece of
(2) In consideration of price, reward or wood. The victim and the accused
promises; Pugay were friends and, at times,
slept in the same place together.
(3) Inundation, fire, poison, explosion, Having gotten bored with their form
shipwreck, stranding of a vessel, of entertainment, accused Pugay
derailment or assault upon a street went and got a can of gasoline and
car or locomotive, fall of an airship, poured it all over the retard. Then,
by means of a motor vehicle, or with the accused Samson lit him up,
the use of other means involving making him a frenzied, shrieking
great waste and ruin; human torch. The retard died.

The only problem insofar as the It was held that Pugay was guilty of
killing by fire is concerned is whether homicide through reckless
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 112

imprudence. Samson only guilty of

homicide, with the mitigating Illustration:
circumstance of no intention to
commit so grave a wrong. There Two people engaged in a quarrel
was no animosity between the two and they hacked each other, one
accused and the victim such that it killing the other. Up to that point, the
cannot be said that they resort to fire crime is homicide. However, if the
to kill him. It was merely a part of killer tried to dismember the different
their fun making but because their parts of the body of the victim,
acts were felonious, they are indicative of an intention to scoff at
criminally liable. or decry or humiliate the corpse of
the victim, then what would have
(4) On occasion of any of the calamities murder because this circumstance is
enumerated in the preceding recognized under Article 248, even
paragraph c, or an earthquake, though it was inflicted or was
eruption of volcano, destructive committed when the victim was
cyclone, epidemic or any other already dead.
public calamity;
The following are holdings of the Supreme
(5) Evident premeditation; and Court with respect to the crime of murder:

(6) Cruelty, by deliberately and (1) Killing of a child of tender age is

inhumanly augmenting the suffering murder qualified by treachery
of the victim, or outraging or scoffing because the weakness of the child
at his person or corpse. due to his tender age results in the
absence of any danger to the
Cruelty includes the situation where aggressor.
the victim is already dead and yet,
acts were committed which would (2) Evident premeditation is absorbed in
decry or scoff the corpse of the price, reward or promise, if without
victim. The crime becomes murder. the premeditation the inductor would
not have induced the other to
Hence, this is not actually limited to commit the act but not as regards
cruelty. It goes beyond that because the one induced.
even if the victim is already a corpse
when the acts deliberately (3 Abuse of superior strength is
augmenting the wrong done to him inherent in and comprehended by
were committed, the killing is still the circumstance of treachery or
qualified to murder although the acts forms part of treachery.
done no longer amount to cruelty.
(4) Treachery is inherent in poison.
Under Article 14, the generic
aggravating circumstance of cruelty (5) Where one of the accused, who
requires that the victim be alive, were charged with murder, was the
when the cruel wounds were inflicted wife of the deceased but here
and, therefore, must be evidence to relationship to the deceased was not
that effect. Yet, in murder, aside alleged in the information, she also
from cruelty, any act that would should be convicted of murder but
amount to scoffing or decrying the the relationship should be
corpse of the victim will qualify the appreciated as aggravating.
killing to murder.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 113

(6) Killing of the victims hit by hand murder, or by that of parricide or

grenade thrown at them is murder infanticide.
qualified by explosion not by
treachery.
Homicide is the unlawful killing of a person
(7) Where the accused housemaid not constituting murder, parricide or
gagged a three year old boy, son of infanticide.
her master, with stockings, placed
him in a box with head down and Distinction between homicide and physical
legs upward and covered the box injuries:
with some sacks and other boxes,
and the child instantly died because In attempted or frustrated homicide, there is
of suffocation, and then the accused intent to kill.
demanded ransom from the parents,
such did not convert the offense into In physical injuries, there is none. However,
kidnapping with murder. The if as a result of the physical injuries inflicted,
accused was well aware that the the victim died, the crime will be homicide
child could be suffocated to death in because the law punishes the result, and
a few minutes after she left. not the intent of the act.
Ransom was only a part of the
diabolical scheme to murder the The following are holdings of the Supreme
child, to conceal his body and then Court with respect to the crime of homicide:
demand money before discovery of
the body. (1) Physical injuries are included as one
of the essential elements of
The essence of kidnapping or serious illegal frustrated homicide.
detention is the actual confinement or
restraint of the victim or deprivation of his (2) If the deceased received two
liberty. If there is no showing that the wounds from two persons acting
accused intended to deprive their victims of independently of each other and the
their liberty for some time and there being wound inflicted by either could have
no appreciable interval between their being caused death, both of them are
taken and their being shot, murder and not liable for the death of the victim and
kidnapping with murder is committed. each of them is guilty of homicide.

(3) If the injuries were mortal but were

only due to negligence, the crime
Article 249. Homicide committed will be serious physical
injuries through reckless imprudence
Elements as the element of intent to kill in
frustrated homicide is incompatible
1. A person was killed; with negligence or imprudence.

2. Offender killed him without any (4) Where the intent to kill is not
justifying circumstances; manifest, the crime committed has
been generally considered as
3. Offender had the intention to kill, physical injuries and not attempted
which is presumed; or frustrated murder or homicide.

4. The killing was not attended by any (5) When several assailants not acting
of the qualifying circumstances of in conspiracy inflicted wounds on a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 114

victim but it cannot be determined identified. Because if he is known but only

who inflicted which would which his identity is not known, then he will be
caused the death of the victim, all charged for the crime of homicide or murder
are liable for the victim’s death. under a fictitious name and not death in a
tumultuous affray. If there is a conspiracy,
Note that while it is possible to have a crime this crime is not committed.
of homicide through reckless imprudence, it
is not possible to have a crime of frustrated To be considered death in a tumultuous
homicide through reckless imprudence. affray, there must be:

(1) a quarrel, a free-for-all, which

Article 251. Death Caused in A should not involve organized group;
Tumultuous Affray and

Elements (2) someone who is injured or killed

because of the fight.
1. There are several persons;
As long as it cannot be determined who
2. They do not compose groups killed the victim, all of those persons who
organized for the common purpose inflicted serious physical injuries will be
of assaulting and attacking each collectively answerable for the death of that
other reciprocally; fellow.

3. These several persons quarreled The Revised Penal Code sets priorities as
and assaulted one another in a to who may be liable for the death or
confused and tumultuous manner; physical injury in tumultuous affray:

4. Someone was killed in the course of (1) The persons who inflicted serious
the affray; physical injury upon the victim;

5. It can not be ascertained who (2) If they could not be known, then
actually killed the deceased; anyone who may have employed
violence on that person will answer
6. The person or persons who inflicted for his death.
serious physical injuries or who used
violence can be identified. (3) If nobody could still be traced to
have employed violence upon the
victim, nobody will answer. The
Tumultuous affray simply means a crimes committed might be
commotion in a tumultuous and confused disturbance of public order, or if
manner, to such an extent that it would not participants are armed, it could be
be possible to identify who the killer is if tumultuous disturbance, or if
death results, or who inflicted the serious property was destroyed, it could be
physical injury, but the person or persons malicious mischief.
who used violence are known.
The fight must be tumultuous. The
It is not a tumultuous affray which brings participants must not be members of an
about the crime; it is the inability to organized group. This is different from a
ascertain actual perpetrator. It is necessary rumble which involves organized groups
that the very person who caused the death composed of persons who are to attack
can not be known, not that he can not be others. If the fight is between such groups,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 115

even if you cannot identify who, in particular, affray. So anyone who may have employed
committed the killing, the adverse party violence will answer for such serious or less
composing the organized group will be serious physical injury.
collectively charged for the death of that
person. If the physical injury sustained is only slight,
this is considered as inherent in a
Illustration: tumultuous affray. The offended party
cannot complain if he cannot identify who
If a fight ensued between 20 Sigue-Sigue inflicted the slight physical injuries on him.
Gang men and 20 Bahala-Na- Gang men,
and in the course thereof, one from each
group was killed, the crime would be Article 253. Giving Assistance to Suicide
homicide or murder; there will be collective
responsibility on both sides. Note that the Acts punished
person killed need not be a participant in the
fight. 1. Assisting another to commit suicide,
whether the suicide is consummated
or not;
Article 252. Physical Injuries Inflicted in
A Tumultuous Affray 2. Lending his assistance to another to
commit suicide to the extent of doing
Elements the killing himself.

1. There is a tumultuous affray;

Giving assistance to suicide means giving
2. A participant or some participants means (arms, poison, etc.) or whatever
thereof suffered serious physical manner of positive and direct cooperation
injuries or physical injuries of a less (intellectual aid, suggestions regarding the
serious nature only; mode of committing suicide, etc.).

3. The person responsible thereof can In this crime, the intention must be for the
not be identified; person who is asking the assistance of
another to commit suicide.
4. All those who appear to have used
violence upon the person of the If the intention is not to commit suicide, as
offended party are known. when he just wanted to have a picture taken
of him to impress upon the world that he is
committing suicide because he is not
If in the course of the tumultuous affray, satisfied with the government, the crime is
only serious or less serious physical injuries held to be inciting to sedition.
are inflicted upon a participant, those who
used violence upon the person of the He becomes a co-conspirator in the crime of
offended party shall be held liable. inciting to sedition, but not of giving
assistance to suicide because the
In physical injuries caused in a tumultuous assistance must be given to one who is
affray, the conditions are also the same. really determined to commit suicide.
But you do not have a crime of physical
injuries resulting from a tumultuous affray if If the person does the killing himself, the
the physical injury is only slight. The penalty is similar to that of homicide, which
physical injury should be serious or less is reclusion temporal. There can be no
serious and resulting from a tumultuous qualifying circumstance because the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 116

determination to die must come from the Article 254. Discharge of Firearms
victim. This does not contemplate
euthanasia or mercy killing where the crime 1. Offender discharges a firearm against or
is homicide (if without consent; with consent, at another person;
covered by Article 253).
2. Offender had no intention to kill that
person.
The following are holdings of the Supreme
Court with respect to this crime:
This crime cannot be committed through
(1) The crime is frustrated if the offender imprudence because it requires that the
gives the assistance by doing the discharge must be directed at another.
killing himself as firing upon the
head of the victim but who did not If the firearm is directed at a person and the
die due to medical assistance. trigger was pressed but did not fire, the
crime is frustrated discharge of firearm.
(2) The person attempting to commit
suicide is not liable if he survives. If the discharge is not directed at a person,
The accused is liable if he kills the the crime may constitute alarm and scandal.
victim, his sweetheart, because of a
suicide pact. The following are holdings of the Supreme
Court with respect to this crime:
In other penal codes, if the person who
wanted to die did not die, there is liability on (1) If serious physical injuries resulted
his part because there is public disturbance from discharge, the crime committed
committed by him. Our Revised Penal is the complex crime of serious
Code is silent but there is no bar against physical injury with illegal discharge
accusing the person of disturbance of public of firearm, or if less serious physical
order if indeed serious disturbance of public injury, the complex crime of less
peace occurred due to his attempt to serious physical injury with illegal
commit suicide. If he is not prosecuted, this discharge of firearm will apply.
is out of pity and not because he has not
violated the Revised Penal Code. (2) Firing a gun at a person even if
merely to frighten him constitutes
In mercy killing, the victim is not in a illegal discharge of firearm.
position to commit suicide. Whoever would
heed his advice is not really giving
assistance to suicide but doing the killing Article 255. Infanticide
himself. In giving assistance to suicide, the
principal actor is the person committing the Elements
suicide.
1. A child was killed by the accused;
Both in euthanasia and suicide, the intention
to the end life comes from the victim himself; 2. The deceased child was less than
otherwise the article does not apply. The 72 hours old.
victim must persistently induce the offender
to end his life. If there is only slight
persuasion to end his life, and the offender This is a crime based on the age of the
readily assented thereto. victim. The victim should be less than three
days old.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 117

The offender may actually be the parent of If the child is born dead, or if the child is
the child. But you call the crime infanticide, already dead, infanticide is not committed.
not parricide, if the age of the victim is less
than three days old. If the victim is three
days old or above, the crime is parricide. Article 256. Intentional Abortion

Illustration: Acts punished

An unmarried woman, A, gave birth to a 1. Using any violence upon the person
child, B. To conceal her dishonor, A of the pregnant woman;
conspired with C to dispose of the child. C
agreed and killed the child B by burying the 2. Acting, but without using violence,
child somewhere. without the consent of the woman.
(By administering drugs or
If the child was killed when the age of the beverages upon such pregnant
child was three days old and above already, woman without her consent.)
the crime of A is parricide. The fact that the
killing was done to conceal her dishonor will 3. Acting (by administering drugs or
not mitigate the criminal liability anymore beverages), with the consent of the
because concealment of dishonor in killing pregnant woman.
the child is not mitigating in parricide.

If the crime committed by A is parricide Elements

because the age of the child is three days
old or above, the crime of the co-conspirator 1. There is a pregnant woman;
C is murder. It is not parricide because he
is not related to the victim. 2. Violence is exerted, or drugs or
beverages administered, or that the
If the child is less than three days old when accused otherwise acts upon such
killed, both the mother and the stranger pregnant woman;
commits infanticide because infanticide is
not predicated on the relation of the 3. As a result of the use of violence or
offender to the offended party but on the drugs or beverages upon her, or any
age of the child. In such a case, other act of the accused, the fetus
concealment of dishonor as a motive for the dies, either in the womb or after
mother to have the child killed is mitigating. having been expelled therefrom;

Concealment of dishonor is not an element 4. The abortion is intended.

of infanticide. It merely lowers the penalty.
If the child is abandoned without any intent
to kill and death results as a consequence, Abortion is the violent expulsion of a fetus
the crime committed is not infanticide but from the maternal womb. If the fetus has
abandonment under Article 276. been delivered but it could not subsist by
itself, it is still a fetus and not a person.
If the purpose of the mother is to conceal Thus, if it is killed, the crime committed is
her dishonor, infanticide through abortion not infanticide.
imprudence is not committed because the
purpose of concealing the dishonor is Distinction between infanticide and abortion
incompatible with the absence of malice in
culpable felonies. It is infanticide if the victim is already a
person less that three days old or 72 hours
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 118

and is viable or capable of living separately

from the mother’s womb. If it could be shown that the child, if not
killed, would not have survived beyond 24
It is abortion if the victim is not viable but hours, the crime is abortion because what
remains to be a fetus. was killed was a fetus only.

In abortion, the concealment of dishonor as

Abortion is not a crime against the woman a motive of the mother to commit the
but against the fetus. If mother as a abortion upon herself is mitigating. It will
consequence of abortion suffers death or also mitigate the liability of the maternal
physical injuries, you have a complex crime grandparent of the victim – the mother of
of murder or physical injuries and abortion. the pregnant woman – if the abortion was
done with the consent of the pregnant
In intentional abortion, the offender must woman.
know of the pregnancy because the
particular criminal intention is to cause an If the abortion was done by the mother of
abortion. Therefore, the offender must have the pregnant woman without the consent of
known of the pregnancy for otherwise, he the woman herself, even if it was done to
would not try an abortion. conceal dishonor, that circumstance will not
mitigate her criminal liability.
If the woman turns out not to be pregnant
and someone performs an abortion upon But if those who performed the abortion are
her, he is liable for an impossible crime if the parents of the pregnant woman, or
the woman suffers no physical injury. If she either of them, and the pregnant woman
does, the crime will be homicide, serious consented for the purpose of concealing her
physical injuries, etc. dishonor, the penalty is the same as that
imposed upon the woman who practiced the
Under the Article 40 of the Civil Code, birth abortion upon herself .
determines personality. A person is
considered born at the time when the Frustrated abortion is committed if the fetus
umbilical cord is cut. He then acquires a that is expelled is viable and, therefore, not
personality separate from the mother. dead as abortion did not result despite the
employment of adequate and sufficient
But even though the umbilical cord has means to make the pregnant woman abort.
been cut, Article 41 of the Civil Code If the means are not sufficient or adequate,
provides that if the fetus had an intra-uterine the crime would be an impossible crime of
life of less than seven months, it must abortion. In consummated abortion, the
survive at least 24 hours after the umbilical fetus must be dead.
cord is cut for it to be considered born.
One who persuades her sister to abort is a
Illustration: co-principal, and one who looks for a
physician to make his sweetheart abort is
A mother delivered an offspring which had an accomplice. The physician will be
an intra-uterine life of seven months. Before punished under Article 259 of the Revised
the umbilical cord is cut, the child was killed. Penal Code.

If it could be shown that had the umbilical

cord been cut, that child, if not killed, would Article 257. Unintentional Abortion
have survived beyond 24 hours, the crime is
infanticide because that conceived child is 1. There is a pregnant woman;
already considered born.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 119

2. Violence is used upon such Under Article 4, paragraph 1 of the Revised

pregnant woman without intending Penal Code, any person committing a felony
an abortion; is criminally liable for all the direct, natural,
and logical consequences of his felonious
3. The violence is intentionally exerted; acts although it may be different from that
which is intended. The act of employing
4. As a result of the violence, the fetus violence or physical force upon the woman
dies, either in the womb or after is already a felony. It is not material if
having been expelled therefrom. offender knew about the woman being
pregnant or not.

Unintentional abortion requires physical If the act of violence is not felonious, that is,
violence inflicted deliberately and voluntarily act of self-defense, and there is no
by a third person upon the person of the knowledge of the woman’s pregnancy, there
pregnant woman. Mere intimidation is not is no liability. If the act of violence is not
enough unless the degree of intimidation felonious, but there is knowledge of the
already approximates violence. woman’s pregnancy, the offender is liable
for unintentional abortion.
If the pregnant woman aborted because of
intimidation, the crime committed is not Illustration:
unintentional abortion because there is no
violence; the crime committed is light The act of pushing another causing her to
threats. fall is a felonious act and could result in
physical injuries. Correspondingly, if not
If the pregnant woman was killed by only physical injuries were sustained but
violence by her husband, the crime abortion also resulted, the felonious act of
committed is the complex crime of parricide pushing is the proximate cause of the
with unlawful abortion. unintentional abortion.

Unintentional abortion may be committed

through negligence as it is enough that the Questions & Answers
use of violence be voluntary.

Illustration: 1. A pregnant woman decided

to commit suicide. She jumped out of a
A quarrel ensued between A, husband, and window of a building but she landed on a
B, wife. A became so angry that he struck passerby. She did not die but an abortion
B, who was then pregnant, with a soft drink followed. Is she liable for unintentional
bottle on the hip. Abortion resulted and B abortion?
died.
No. What is contemplated in
In US v. Jeffry, 15 Phil. 391, the Supreme unintentional abortion is that the force or
Court said that knowledge of pregnancy of violence must come from another. If it was
the offended party is not necessary. In the woman doing the violence upon herself,
People v. Carnaso, decided on April 7, it must be to bring about an abortion, and
1964, however, the Supreme Court held therefore, the crime will be intentional
that knowledge of pregnancy is required in abortion. In this case, where the woman
unintentional abortion. tried to commit suicide, the act of trying to
commit suicide is not a felony under the
Criticism: Revised Penal Code. The one penalized in
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 120

suicide is the one giving assistance and not 4. Said physician or midwife took
the person trying to commit suicide. advantage of his or her scientific
knowledge or skill.
2. If the abortive drug used in
abortion is a prohibited drug or regulated
drug under Presidential Decree No. 6425 If the abortion is produced by a physician to
(The Dangerous Drugs Act of 1972), as save the life of the mother, there is no
amended, what are the crimes committed? liability. This is known as a therapeutic
abortion. But abortion without medical
The crimes committed are (1) necessity to warrant it is punishable even
intentional abortion; and (2) violation of the with the consent of the woman or her
Dangerous Drugs Act of 1972. husband.

Illustration:
Article 258. Abortion Practiced by the
Woman Herself or by Her Parents A woman who is pregnant got sick. The
doctor administered a medicine which
Elements resulted in Abortion. The crime committed
was unintentional abortion through
1. There is a pregnant woman who has negligence or imprudence.
suffered an abortion;

2. The abortion is intended; Question & Answer

3. Abortion is caused by –
What is the liability of a physician
a. The pregnant woman herself; who aborts the fetus to save the life of the
mother?
b. Any other person, with her
consent; or None. This is a case of therapeutic
abortion which is done out of a state of
c. Any of her parents, with her necessity. Therefore, the requisites under
consent for the purpose of Article 11, paragraph 4, of the Revised
concealing her dishonor. Penal Code must be present. There must
be no other practical or less harmful means
of saving the life of the mother to make the
Article 259. Abortion Practiced by A killing justified.
Physician or Midwife and Dispensing of
Abortives
Article 260. Responsibility of
Elements Participants in A Duel

1. There is a pregnant woman who has Acts punished

suffered an abortion;
1. Killing one’s adversary in a duel;
2. The abortion is intended;
2. Inflicting upon such adversary
3. Offender, who must be a physician physical injuries;
or midwife, caused or assisted in
causing the abortion; 3. Making a combat although no
physical injuries have been inflicted.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 121

If one challenges another to a duel by

shouting “Come down, Olympia, let us
Persons liable measure your prowess. We will see whose
intestines will come out. You are a coward if
1. The person who killed or inflicted you do not come down”, the crime of
physical injuries upon his adversary, challenging to a duel is not committed.
or both combatants in any other What is committed is the crime of light
case, as principals. threats under Article 285, paragraph 1 of the
Revised Penal Code.
2. The seconds, as accomplices.

Article 262. Mutilation

There is no such crime nowadays because
people hit each other even without entering Acts punished
into any pre-conceived agreement. This is
an obsolete provision. 1. Intentionally mutilating another by
depriving him, either totally or
A duel may be defined as a formal or partially, of some essential organ for
regular combat previously consented to by reproduction;
two parties in the presence of two or more
seconds of lawful age on each side, who Elements
make the selection of arms and fix all the
other conditions of the fight to settle some 1. There be a castration, that is,
antecedent quarrel. mutilation of organs
necessary for generation,
If these are not the conditions of the fight, it such as the penis or ovarium;
is not a duel in the sense contemplated in
the Revised Penal Code. It will be a quarrel 2. The mutilation is caused
and anyone who killed the other will be purposely and deliberately,
liable for homicide or murder, as the case that is, to deprive the
may be. offended party of some
essential organ for
The concept of duel under the Revised reproduction
Penal Code is a classical one.
2. Intentionally making other mutilation,
that is, by lopping or clipping off any
Article 261. Challenging to A Duel part of the body of the offended
party, other than the essential organ
Acts punished for reproduction, to deprive him of
that part of his body.
1. Challenging another to a duel;

2. Inciting another to give or accept a Mutilation is the lopping or clipping off of

challenge to a duel; some part of the body.

3. Scoffing at or decrying another The intent to deliberately cut off the

publicly for having refused to accept particular part of the body that was removed
a challenge to fight a duel. from the offended party must be established.
If there is no intent to deprive victim of
Illustration: particular part of body, the crime is only
serious physical injury.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 122

b. Loses the use of any such

The common mistake is to associate this member; or
with the reproductive organs only.
Mutilation includes any part of the human c. Becomes incapacitated for
body that is not susceptible to grow again. the work in which he was
theretofore habitually
If what was cut off was a reproductive organ, engaged, in consequence of
the penalty is much higher than that for the physical injuries inflicted;
homicide.
3. When the person injured –
This cannot be committed through criminal
negligence. a. Becomes deformed; or

b. Loses any other member of

Article 263. Serious Physical Injuries his body; or

How committed c. Loses the use thereof; or

1. By wounding; d. Becomes ill or incapacitated

for the performance of the
2. By beating; work in which he was
habitually engaged for more
3. By assaulting; or than 90 days in consequence
of the physical injuries
4. By administering injurious substance. inflicted;

4. When the injured person becomes ill

In one case, the accused, while conversing or incapacitated for labor for more
with the offended party, drew the latter’s than 30 days (but must not be more
bolo from its scabbard. The offended party than 90 days), as a result of the
caught hold of the edge of the blade of his physical injuries inflicted.
bolo and wounded himself. It was held that
since the accused did not wound, beat or
assault the offended party, he can not be The crime of physical injuries is a crime of
guilty of serious physical injuries. result because under our laws the crime of
physical injuries is based on the gravity of
the injury sustained. So this crime is always
Serious physical injuries consummated, notwithstanding the opinion
of Spanish commentators like Cuello Calon,
1. When the injured person becomes Viada, etc., that it can be committed in the
insane, imbecile, impotent or blind in attempted or frustrated stage.
consequence of the physical injuries
inflicted; If the act does not give rise to injuries, you
will not be able to say whether it is
2. When the injured person – attempted slight physical injuries, attempted
less serious physical injuries, or attempted
a. Loses the use of speech or serious physical injuries unless the result is
the power to hear or to smell, there.
or loses an eye, a hand,
afoot, an arm, or a leg; The reason why there is no attempted or
frustrated physical injuries is because the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 123

crime of physical injuries is determined on consider the period of incapacity

the gravity of the injury. As long as the from work.
injury is not there, there can be no
attempted or frustrated stage thereof. (3) When the injury created a deformity
upon the offended party, you
Classification of physical injuries: disregard the healing duration or the
period of medical treatment involved.
(1) Between slight physical injuries and At once, it is considered serious
less serious physical injuries, you physical injuries.
have a duration of one to nine days
if slight physical injuries; or 10 days So even though the deformity may
to 20 days if less serious physical not have incapacitated the offended
injuries. Consider the duration of party from work, or even though the
healing and treatment. medical treatment did not go beyond
nine days, that deformity will bring
The significant part here is between about the crime of serious physical
slight physical injuries and less injuries.
serious physical injuries. You will
consider not only the healing Deformity requires the concurrence
duration of the injury but also the of the following conditions:
medical attendance required to treat
the injury. So the healing duration (1) The injury must produce
may be one to nine days, but if the ugliness;
medical treatment continues beyond
nine days, the physical injuries (2) It must be visible;
would already qualify as less serious
physical injuries. The medical (3) The ugliness will not
treatment may have lasted for nine disappear through natural
days, but if the offended party is still healing process.
incapacitated for labor beyond nine
days, the physical injuries are Illustration:
already considered less serious
physical injuries. Loss of molar tooth – This is not
deformity as it is not visible.
(2) Between less serious physical
injuries and serious physical injuries, Loss of permanent front tooth – This
you do not consider the period of is deformity as it is visible and
medical treatment. You only permanent.
consider the period when the
offended party is rendered Loss of milk front tooth – This is not
incapacitated for labor. deformity as it is visible but will be
naturally replaced.
If the offended party is incapacitated
to work for less than 30 days, even
though the treatment continued Question & Answer
beyond 30 days, the physical injuries
are only considered less serious
because for purposes of classifying The offender threw acid on the face
the physical injuries as serious, you of the offended party. Were it not for timely
do not consider the period of medical attention, a deformity would have
medical treatment. You only been produced on the face of the victim.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 124

After the plastic surgery, the offended party otherwise subjecting him to physical or
was more handsome than before the injury. psychological suffering of injury. These do
What crime was committed? In what stage not include any physical, mental,
was it committed? psychological testing and training procedure
and practice to determine and enhance the
The crime is serious physical injuries physical and psychological fitness of the
because the problem itself states that the prospective regular members of the below.
injury would have produced a deformity.
The fact that the plastic surgery removed Organizations include any club or AFP, PNP,
the deformity is immaterial because in law PMA or officer or cadet corps of the CMT or
what is considered is not the artificial CAT.
treatment but the natural healing process.
Section 2 requires a written notice to school
In a case decided by the Supreme Court, authorities from the head of the organization
accused was charged with serious physical seven days prior to the rites and should not
injuries because the injuries produced a exceed three days in duration.
scar. He was convicted under Article 263 (4).
He appealed because, in the course of the Section 3 requires supervision by head of
trial, the scar disappeared. It was held that the school or the organization of the rites.
accused can not be convicted of serious
physical injuries. He is liable only for slight Section 4 qualifies the crime if rape, sodomy
physical injuries because the victim was not or mutilation results therefrom, if the person
incapacitated, and there was no evidence becomes insane, an imbecile, or impotent or
that the medical treatment lasted for more blind because of such, if the person loses
than nine days. the use of speech or the power to hear or
smell or an eye, a foot, an arm or a leg, or
Serious physical injuries is punished with the use of any such member or any of the
higher penalties in the following cases: serious physical injuries or the less serious
physical injuries. Also if the victim is below
(1) If it is committed against any of the 12, or becomes incapacitated for the work
persons referred to in the crime of he habitually engages in for 30, 10, 1-9
parricide under Article 246; days.

(2) If any of the circumstances It holds the parents, school authorities who
qualifying murder attended its consented or who had actual knowledge if
commission. they did nothing to prevent it, officers and
members who planned, knowingly
Thus, a father who inflicts serious physical cooperated or were present, present alumni
injuries upon his son will be liable for of the organization, owner of the place
qualified serious physical injuries. where such occurred liable.

Makes presence a prima facie presumption

Republic Act No. 8049 (The Anti-Hazing of guilt for such.
Law)

Hazing -- This is any initiation rite or Article 264. Administering Injurious

practice which is a prerequisite for Substances or Beverages
admission into membership in a fraternity or
sorority or any organization which places Elements
the neophyte or applicant in some
embarrassing or humiliating situations or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 125

1. Offender inflicted upon another any b. Persons of rank or person in

serious physical injury; authority, provided the crime
is not direct assault.
2. It was done by knowingly
administering to him any injurious
substance or beverages or by taking If the physical injuries do not incapacitate
advantage of his weakness of mind the offended party nor necessitate medical
or credulity; attendance, slight physical injuries is
committed. But if the physical injuries heal
3. He had no intent to kill. after 30 days, serious physical injuries is
committed under Article 263, paragraph 4.

Article 265. Less Serious Physical Article 265 is an exception to Article 48 in

Injuries relation to complex crimes as the latter only
takes place in cases where the Revised
Matters to be noted in this crime Penal Code has no specific provision
penalizing the same with a definite, specific
1. Offended party is incapacitated for penalty. Hence, there is no complex crime
labor for 10 days or more (but not of slander by deed with less serious
more than 30 days), or needs physical injuries but only less serious
medical attendance for the same physical injuries if the act which was
period of time; committed produced the less serious
physical injuries with the manifest intent to
2. The physical injuries must not be insult or offend the offended party, or under
those described in the preceding circumstances adding ignominy to the
articles. offense.

Qualified as to penalty Article 266. Slight Physical Injuries and

Maltreatment
1. A fine not exceeding P 500.00, in
addition to arresto mayor, shall be Acts punished
imposed for less serious physical
injuries when – 1. Physical injuries incapacitated the
offended party for labor from one to
a. There is a manifest intent to nine days, or required medical
insult or offend the injured attendance during the same period;
person; or
2. Physical injuries which did not
b. There are circumstances prevent the offended party from
adding ignominy to the engaging in his habitual work or
offense. which did not require medical
attendance;
2. A higher penalty is imposed when
the victim is either – 3. Ill-treatment of another by deed
without causing any injury.
a. The offender’s parents,
ascendants, guardians, This involves even ill-treatment where there
curators or teachers; or is no sign of injury requiring medical
treatment.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 126

Slapping the offended party is a form of ill- felonies referred to is under 12 years of age.
treatment which is a form of slight physical The clear intention is to punish the said
injuries. crimes with a higher penalty when the victim
is a child of tender age. Incidentally, the
But if the slapping is done to cast dishonor reference to Article 249 of the Code which
upon the person slapped, the crime is defines and penalizes the crime of homicide
slander by deed. If the slapping was done were the victim is under 12 years old is an
without the intention of casting dishonor, or error. Killing a child under 12 is murder, not
to humiliate or embarrass the offended party homicide, because the victim is under no
out of a quarrel or anger, the crime is still ill- position to defend himself as held in the
treatment or slight physical injuries. case of People v. Ganohon, 196 SCRA
431.
Illustration:
For murder, the penalty provided by the
If Hillary slaps Monica and told her “You Code, as amended by Republic Act No.
choose your seconds . Let us meet behind 7659, is reclusion perpetua to death –
the Quirino Grandstand and see who is the higher than what Republic Act no. 7610
better and more beautiful between the two provides. Accordingly, insofar as the crime
of us”, the crime is not ill-treatment, slight is murder, Article 248 of the Code, as
physical injuries or slander by deed; it is a amended, shall govern even if the victim
form of challenging to a duel. The criminal was under 12 years of age. It is only in
intent is to challenge a person to a duel. respect of the crimes of intentional
mutilation in paragraph 2 of Article 262 and
The crime is slight physical injury if there is of serious physical injuries in paragraph 1 of
no proof as to the period of the offended Article 263 of the Code that the quoted
party’s incapacity for labor or of the required provision of Republic Act No. 7160 may be
medical attendance. applied for the higher penalty when the
victim is under 12 years old.

Republic Act No. 7610 (Special

Protection of Children against Child Article 266-A. Rape, When and How
Abuse, Exploitation and Discrimination Committed
Act), in relation to murder, mutilation or
injuries to a child Elements under paragraph 1

The last paragraph of Article VI of Republic 1. Offender is a man;

Act No. 7610, provides:
2. Offender had carnal knowledge of a
“For purposes of this Act, the penalty for the woman;
commission of acts punishable under
Articles 248, 249, 262 (2) and 263 (1) of Act 3. Such act is accomplished under any
No 3815, as amended of the Revised Penal of the following circumstances:
Code for the crimes of murder, homicide,
other intentional mutilation, and serious a. By using force or intimidation;
physical injuries, respectively, shall be
reclusion perpetua when the victim is under b. When the woman is deprived
twelve years of age.” of reason or otherwise
unconscious;
The provisions of Republic Act No. 7160
modified the provisions of the Revised
Penal Code in so far as the victim of the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 127

c. By means of fraudulent
machination or grave abuse Classification of rape
of authority; or
(1) Traditional concept under Article 335
d. When the woman is under 12 – carnal knowledge with a woman
years of age or demented. against her will. The offended party
is always a woman and the offender
is always a man.
Elements under paragraph 2
(2) Sexual assault - committed with an
1. Offender commits an act of sexual instrument or an object or use of the
assault; penis with penetration of mouth or
anal orifice. The offended party or
2. The act of sexual assault is the offender can either be man or
committed by any of the following woman, that is, if a woman or a man
means: uses an instrument on anal orifice of
male, she or he can be liable for
a. By inserting his penis into rape.
another person's mouth or
anal orifice; or Rape is committed when a man has carnal
knowledge of a woman under the following
b. By inserting any instrument circumstances:
or object into the genital or
anal orifice of another person; (1) Where intimidation or violence is
employed with a view to have carnal
3. The act of sexual assault is knowledge of a woman;
accomplished under any of the
following circumstances: (2) Where the victim is deprived of
reason or otherwise unconscious;
a. By using force or intimidation;
or (3) Where the rape was made possible
because of fraudulent machination
b. When the woman is deprived or abuse of authority; or
of reason or otherwise
unconscious; or (4) Where the victim is under 12 years
of age, or demented, even though
c. By means of fraudulent no intimidation nor violence is
machination or grave abuse employed.
of authority; or
Sexual assault is committed under the
d. When the woman is under 12 following circumstances:
years of age or demented.
(1) Where the penis is inserted into the
anal or oral orifice; or
Republic Act No. 8353 (An Act
Expanding the Definition of the Crime of (2) Where an instrument or object is
Rape, Reclassifying the Same as A inserted into the genital or oral
Crime against Persons, Amending for orifice.
the Purpose the Revised Penal Code)
repealed Article335 on rape and added a
chapter on Rape under Title 8.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 128

If the crime of rape / sexual assault is the children or relatives by

committed with the following circumstances, consanguinity within the 3rd
the following penalties are imposed: civil degree;

(1) Reclusion perpetua to death/ prision (d) Where the victim is a

mayor to reclusion temporal -- religious, that is, a member
of a legitimate religious
(a) Where rape is perpetrated by vocation and the offender
the accused with a deadly knows the victim as such
weapon; or before or at the time of the
commission of the offense;
(b) Where it is committed by two
or more persons. (e) Where the victim is a child
under 7 yrs of age;
(2) Reclusion perpetua to death/
reclusion temporal -- (f) Where the offender is a
member of the AFP, its
(a) Where the victim of the rape paramilitary arm, the PNP, or
has become insane; or any law enforcement agency
and the offender took
(b) Where the rape is attempted advantage of his position;
but a killing was committed
by the offender on the (g) Where the offender is
occasion or by reason of the afflicted with AIDS or other
rape. sexually transmissible
diseases, and he is aware
(3) Death / reclusion perpetua -- thereof when he committed
the rape, and the disease
Where homicide is committed by was transmitted;
reason or on occasion of a
consummated rape. (h) Where the victim has
suffered permanent physical
(4) Death/reclusion temporal -- mutilation;

(a) Where the victim is under 18 (i) Where the pregnancy of the
years of age and the offender offended party is known to
is her ascendant, stepfather, the rapist at the time of the
guardian, or relative by rape; or
affinity or consanguinity
within the 3rd civil degree, or (j) Where the rapist is aware of
the common law husband of the victim’s mental disability,
the victim’s mother; or emotional disturbance or
physical handicap.
(b) Where the victim was under
the custody of the police or
military authorities, or other Prior to the amendment of the law on rape,
law enforcement agency; a complaint must be filed by the offended
woman. The persons who may file the
(c) Where the rape is committed same in behalf of the offended woman if she
in full view of the victim’s is a minor or if she was incapacitated to file,
husband, the parents, any of were as follows: a parent; in default of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 129

parents, a grandparent; in default or When the victim is below 12 years old, mere
grandparent, the judicial guardian. sexual intercourse with her is already rape.
Even if it was she who wanted the sexual
Since rape is not a private crime anymore, it intercourse, the crime will be rape. This is
can be prosecuted even if the woman does referred to as statutory rape.
not file a complaint.
In other cases, there must be force,
If carnal knowledge was made possible intimidation, or violence proven to have
because of fraudulent machinations and been exerted to bring about carnal
grave abuse of authority, the crime is rape. knowledge or the woman must have been
This absorbs the crime of qualified and deprived of reason or otherwise
simple seduction when no force or violence unconscious.
was used, but the offender abused his
authority to rape the victim. Where the victim is over 12 years old, it
must be shown that the carnal knowledge
Under Article 266-C, the offended woman with her was obtained against her will. It is
may pardon the offender through a necessary that there be evidence of some
subsequent valid marriage, the effect of resistance put up by the offended woman.
which would be the extinction of the It is not, however, necessary that the
offender’s liability. Similarly, the legal offended party should exert all her efforts to
husband may be pardoned by forgiveness prevent the carnal intercourse. It is enough
of the wife provided that the marriage is not that from her resistance, it would appear
void ab initio. Obviously, under the new law, that the carnal intercourse is against her will.
the husband may be liable for rape if his
wife does not want to have sex with him. It Mere initial resistance, which does not
is enough that there is indication of any indicate refusal on the part of the offended
amount of resistance as to make it rape. party to the sexual intercourse, will not be
enough to bring about the crime of rape.
Incestuous rape was coined in Supreme
Court decisions. It refers to rape committed Note that it has been held that in the crime
by an ascendant of the offended woman. In of rape, conviction does not require medico-
such cases, the force and intimidation need legal finding of any penetration on the part
not be of such nature as would be required of the woman. A medico-legal certificate is
in rape cases had the accused been a not necessary or indispensable to convict
stranger. Conversely, the Supreme Court the accused of the crime of rape.
expected that if the offender is not known to
woman, it is necessary that there be It has also been held that although the
evidence of affirmative resistance put up by offended woman who is the victim of the
the offended woman. Mere “no, no” is not rape failed to adduce evidence regarding
enough if the offender is a stranger, the damages to her by reason of the rape,
although if the rape is incestuous, this is the court may take judicial notice that there
enough. is such damage in crimes against chastity.
The standard amount given now is P
The new rape law also requires that there 30,000.00, with or without evidence of any
be a physical overt act manifesting moral damage. But there are some cases
resistance, if the offended party was in a where the court awarded only P 20,000.00.
situation where he or she is incapable of
giving valid consent, this is admissible in An accused may be convicted of rape on
evidence to show that carnal knowledge the sole testimony of the offended woman.
was against his or her will. It does not require that testimony be
corroborated before a conviction may stand.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 130

This is particularly true if the commission of

the rape is such that the narration of the Is there a complex crime under Article 48 of
offended woman would lead to no other kidnapping with rape? Read kidnapping.
conclusion except that the rape was
committed.
TITLE IX. CRIMES AGAINST PERSONAL
Illustration: LIBERTY AND SECURITY

Daughter accuses her own father of having Crimes against liberty

raped her.
1. Kidnapping and serious illegal
Allegation of several accused that the detention (Art. 267);
woman consented to their sexual
intercourse with her is a proposition which is 2. Slight illegal detention (Art. 268);
revolting to reason that a woman would
allow more than one man to have sexual 3. Unlawful arrest (Art. 269);
intercourse with her in the presence of the
others. 4. Kidnapping and failure to return a
minor (Art. 270);
It has also been ruled that rape can be
committed in a standing position because 5. Inducing a minor to abandon his
complete penetration is not necessary. The home (Art. 271);
slightest penetration – contact with the labia
– will consummate the rape. 6. Slavery (Art. 272);

On the other hand, as long as there is an 7. Exploitation of child labor (Art. 273);
intent to effect sexual cohesion, although
unsuccessful, the crime becomes attempted 8. Services rendered under compulsion
rape. However, if that intention is not in payment of debts (Art. 274).
proven, the offender can only be convicted
of acts of lasciviousness.
Crimes against security
The main distinction between the crime of
attempted rape and acts of lasciviousness is 1. Abandonment of persons in danger
the intent to lie with the offended woman. and abandonment of one's own
victim (Art. 275);
In a case where the accused jumped upon a
woman and threw her to the ground, 2. Abandoning a minor (Art. 276);
although the accused raised her skirts, the
accused did not make any effort to remove 3. Abandonment of minor by person
her underwear. Instead, he removed his entrusted with his custody;
own underwear and placed himself on top of indifference of parents (Art. 277);
the woman and started performing sexual
movements. Thereafter, when he was 4. Exploitation of minors (Art. 278);
finished, he stood up and left. The crime
committed is only acts of lasciviousness and 5. Trespass to dwelling (Art. 280);
not attempted rape. The fact that he did not
remove the underwear of the victim 6. Other forms of trespass (Art. 281);
indicates that he does not have a real
intention to effect a penetration. It was only 7. Grave threats (Art. 282);
to satisfy a lewd design.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 131

8. Light threats (Art. 283); kidnapped or detained or

threats to kill him are made;
9. Other light threats (Art. 285); or

10. Grave coercions (Art. 286); d. The person kidnapped or

detained is a minor, female,
11. Light coercions (Art. 287); or a public officer.

12. Other similar coercions (Art. 288);

If there is any crime under Title IX which
13. Formation, maintenance and has no corresponding provision with crimes
prohibition of combination of capital under Title II, then, the offender may be a
or labor through violence or threats public officer or a private person. If there is
(Art. 289); a corresponding crime under Title II, the
offender under Title IX for such similar crime
14. Discovering secrets through seizure is a private person.
of correspondence (Art. 290);
When a public officer conspires with a
15. Revealing secrets with abus of office private person in the commission of any of
(Art. 291); the crimes under Title IX, the crime is also
one committed under this title and not under
16. Revealing of industrial secrets (Art. Title II.
292).
Illustration:

Article 267. Kidnapping and Serious If a private person commits the crime of
Illegal Detention kidnapping or serious illegal detention, even
though a public officer conspires therein, the
Elements crime cannot be arbitrary detention. As far
as that public officer is concerned, the crime
1. Offender is a private individual; is also illegal detention.

2. He kidnaps or detains another, or in In the actual essence of the crime, when

any other manner deprives the latter one says kidnapping, this connotes the idea
of his liberty; of transporting the offended party from one
place to another. When you think illegal
3. The act of detention or kidnapping detention, it connotes the idea that one is
must be illegal; restrained of his liberty without necessarily
transporting him from one place to another.
4. In the commission of the offense,
any of the following circumstances is The crime of kidnapping is committed if the
present: purpose of the offender is to extort ransom
either from the victim or from any other
a. The kidnapping lasts for person. But if a person is transported not
more than 3 days; for ransom, the crime can be illegal
detention. Usually, the offended party is
b. It is committed simulating brought to a place other than his own, to
public authority; detain him there.

c. Any serious physical injuries When one thinks of kidnapping, it is not only
are inflicted upon the person that of transporting one person from one
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 132

place to another. One also has to think of woman was already crying and wanted to
the criminal intent. be brought home. Tom imposed the
condition that Nicole should first marry him.
Forcible abduction -- If a woman is Nicole found this as, simply, a mission
transported from one place to another by impossible. The crime committed in this
virtue of restraining her of her liberty, and case is grave coercion. But if after they
that act is coupled with lewd designs. drove to Cavite, the suitor placed the
woman in a house and would not let her out
Serious illegal detention – If a woman is until she agrees to marry him, the crime
transported just to restrain her of her liberty. would be serious illegal detention.
There is no lewd design or lewd intent.
If the victim is a woman or a public officer,
Grave coercion – If a woman is carried the detention is always serious – no matter
away just to break her will, to compel her to how short the period of detention is.
agree to the demand or request by the
offender. Circumstances which make illegal detention
serious
In a decided case, a suitor, who cannot get
a favorable reply from a woman, invited the (1) When the illegal detention lasted for
woman to ride with him, purportedly to take three days, regardless of who the
home the woman from class. But while the offended party is;
woman is in his car, he drove the woman to
a far place and told the woman to marry him. (2) When the offended party is a female,
On the way, the offender had repeatedly even if the detention lasted only for
touched the private parts of the woman. It minutes;
was held that the act of the offender of
touching the private parts of the woman (3) If the offended party is a minor or a
could not be considered as lewd designs public officer, no matter how long or
because he was willing to marry the how short the detention is;
offended party. The Supreme Court ruled
that when it is a suitor who could possibly (4) When threats to kill are made or
marry the woman, merely kissing the serious physical injuries have been
woman or touching her private parts to inflicted; and
“compel” her to agree to the marriage, such
cannot be characterized as lewd design. It (5) If it shall have been committed
is considered merely as the “passion of a simulating public authority.
lover”. But if the man is already married,
you cannot consider that as legitimate but Distinction between illegal detention and
immoral and definitely amounts to lewd arbitrary detention
design.
Illegal detention is committed by a private
If a woman is carried against her will but person who kidnaps, detains, or otherwise
without lewd design on the part of the deprives another of his liberty.
offender, the crime is grave coercion.
Arbitrary detention is committed by a public
officer who detains a person without legal
Illustration: grounds.

Tom Cruz invited Nicole Chizmacks for a The penalty for kidnapping is higher than for
snack. They drove along Roxas Boulevard, forcible abduction. This is wrong because if
along the Coastal Road and to Cavite. The the offender knew about this, he would
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 133

perform lascivious acts upon the woman because the provision specifically refers to
and be charged only for forcible abduction “victim”. Accordingly, the rulings in cases of
instead of kidnapping or illegal detention. People v. Parulan, People v. Ging Sam,
He thereby benefits from this absurdity, and other similar cases where the accused
which arose when Congress amended were convicted for the complex crimes of
Article 267, increasing the penalty thereof, kidnapping with murder have become
without amending Article 342 on forcible academic.
abduction.
In the composite crime of kidnapping with
Article 267 has been modified by Republic homicide, the term “homicide” is used in the
Act No. 7659 in the following respects: generic sense and, thus, covers all forms of
killing whether in the nature of murder or
(1) Illegal detention becomes serious otherwise. It does not matter whether the
when it shall have lasted for more purpose of the kidnapping was to kill the
than three days, instead of five days victim or not, as long as the victim was killed,
as originally provided; or died as a consequence of the kidnapping
or detention. There is no more separate
(2) In paragraph 4, if the person crime of kidnapping and murder if the victim
kidnapped or detained was a minor was kidnapped not for the purpose of killing
and the offender was anyone of the her.
parents, the latter has been
expressly excluded from the If the victim was raped, this brings about the
provision. The liability of the parent composite crime of kidnapping with rape.
is provided for in the last paragraph Being a composite crime, not a complex
of Article 271; crime, the same is regarded as a single
indivisible offense as in fact the law
(3) A paragraph was added to Article punishes such acts with only a single
267, which states: penalty. In a way, the amendment
depreciated the seriousness of the rape
When the victim is because no matter how many times the
killed or dies as a victim was raped, there will only be one
consequence of the kidnapping with rape. This would not be the
detention or is raped, consequence if rape were a separate crime
or is subjected to from kidnapping because each act of rape
torture, or would be a distinct count.
dehumanizing acts,
the maximum penalty However for the crime to be kidnapping with
shall be imposed. rape, the offender should not have taken the
victim with lewd designs as otherwise the
This amendment brings about a crime would be forcible abduction; and if the
composite crime of kidnapping with victim was raped, the complex crime of
homicide when it is the victim of the forcible abduction with rape would be
kidnapping who was killed, or dies committed. If the taking was forcible
as a consequence of the detention abduction, and the woman was raped
and, thus, only one penalty is several times, there would only be one
imposed which is death. crime of forcible abduction with rape, and
each of the other rapes would constitute
distinct counts of rape. This was the ruling
Article 48, on complex crimes, does not in the case of People v. Bacalso.
govern in this case. But Article 48 will
govern if any other person is killed aside,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 134

In People v. Lactao, decided on October 4. The crime is committed without the

29, 1993, the Supreme Court stressed that attendance of any of the
the crime is serious illegal detention if the circumstances enumerated in Article
purpose was to deprive the offended party 267.
of her liberty. And if in the course of the
illegal detention, the offended party was
raped, a separate crime of rape would be This felony is committed if any of the five
committed. This is so because there is no circumstances in the commission of
complex crime of serious illegal detention kidnapping or detention enumerated in
with rape since the illegal detention was not Article 267 is not present.
a necessary means to the commission of
rape. The penalty is lowered if –

In People v. Bernal, 131 SCRA 1, the (1) The offended party is voluntarily
appellants were held guilty of separate released within three days from the
crimes of serious illegal detention and of start of illegal detention;
multiple rapes. With the amendment by
Republic Act No. 7659 making rape a (2) Without attaining the purpose;
qualifying circumstance in the crime of
kidnapping and serious illegal detention, the (3) Before the institution of the criminal
jurisprudence is superseded to the effect action.
that the rape should be a distinct crime.
Article 48 on complex crimes may not apply One should know the nature of the illegal
when serious illegal detention and rape are detention to know whether the voluntary
committed by the same offender. The release of the offended party will affect the
offender will be charged for the composite criminal liability of the offender.
crime of serious illegal detention with rape
as a single indivisible offense, regardless of When the offender voluntarily releases the
the number of times that the victim was offended party from detention within three
raped. days from the time the restraint of liberty
began, as long as the offender has not
Also, when the victim of the kidnapping and accomplished his purposes, and the release
serious illegal detention was subjected to was made before the criminal prosecution
torture and sustained physical injuries, a was commenced, this would serve to
composite crime of kidnapping with physical mitigate the criminal liability of the offender,
injuries is committed. provided that the kidnapping or illegal
detention is not serious.

Article 268. Slight Illegal Detention If the illegal detention is serious, however,
even if the offender voluntarily released the
Elements offended party, and such release was within
three days from the time the detention
1. Offender is a private individual; began, even if the offender has not
accomplished his purpose in detaining the
2. He kidnaps or detains another, or in offended party, and even if there is no
any other manner deprives him of criminal prosecution yet, such voluntary
his liberty. release will not mitigate the criminal liability
of the offender.
3. The act of kidnapping or detention is
illegal; One who furnishes the place where the
offended party is being held generally acts
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 135

as an accomplice. But the criminal liability circumstances in Article 267 has been
in connection with the kidnapping and proved beyond a reasonable doubt. The
serious illegal detention, as well as the fact that the victim has been missing for six
slight illegal detention, is that of the principal years raises a presumption of death, but
and not of the accomplice. from this disputable presumption of death, it
should not be further presumed that the
Before, in People v. Saliente, if the persons who were last seen with the
offended party subjected to serious illegal absentee is responsible for his
detention was voluntarily released by the disappearance.
accused in accordance with the provisions
of Article 268 (3), the crime, which would
have been serious illegal detention, became Article 269. Unlawful Arrest
slight illegal detention only.
Elements
The prevailing rule now is Asistio v. Judge,
which provides that voluntary release will 1. Offender arrests or detains another
only mitigate criminal liability if crime was person;
slight illegal detention. If serious, it has no
effect. 2. The purpose of the offender is to
deliver him to the proper authorities;
In kidnapping for ransom, voluntary release
will not mitigate the crime. This is because, 3. The arrest or detention is not
with the reimposition of the death penalty, authorized by law or there is no
this crime is penalized with the extreme reasonable ground therefor.
penalty of death.

What is ransom? It is the money, price or This felony consists in making an arrest or
consideration paid or demanded for detention without legal or reasonable
redemption of a captured person or persons, ground for the purpose of delivering the
a payment that releases a person from offended party to the proper authorities.
captivity.
The offended party may also be detained
The definition of ransom under the Lindberg but the crime is not illegal detention
law of the U.S. has been adopted in our because the purpose is to prosecute the
jurisprudence in People v. Akiran, 18 person arrested. The detention is only
SCRA 239, 242, such that when a creditor incidental; the primary criminal intention of
detains a debtor and releases the latter only the offender is to charge the offended party
upon the payment of the debt, such for a crime he did not actually commit.
payment of the debt, which was made a
condition for the release is ransom, under Generally, this crime is committed by
this article. incriminating innocent persons by the
offender’s planting evidence to justify the
In the case of People v. Roluna, decided arrest – a complex crime results, that is,
March 29, 1994, witnesses saw a person unlawful arrest through incriminatory
being taken away with hands tied behind his machinations under Article 363.
back and was not heard from for six years.
Supreme Court reversed the trial court If the arrest is made without a warrant and
ruling that the men accused were guilty of under circumstances not allowing a
kidnapping with murder. The crime is only warrantless arrest, the crime would be
slight illegal detention under Article 268, unlawful arrest.
aggravated by a band, since none of the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 136

If the person arrested is not delivered to the

authorities, the private individual making the In People v. Mendoza, where a minor child
arrest incurs criminal liability for illegal was taken by the accused without the
detention under Article 267 or 268. knowledge and consent of his parents, it
was held that the crime is kidnapping and
If the offender is a public officer, the crime is serious illegal detention under Article 267,
arbitrary detention under Article 124. not kidnapping and failure to return a minor
under Article 270.
If the detention or arrest is for a legal
ground, but the public officer delays delivery
of the person arrested to the proper judicial Article 271. Inducing A Minor to
authorities, then Article 125 will apply. Abandon His Home

Note that this felony may also be committed Elements

by public officers.
1. A minor (whether over or under
seven years of age) is living in the
Article 270. Kidnapping and Failure to home of his parents or guardians or
Return A Minor the person entrusted with his
custody;
Elements
2. Offender induces said minor to
1. Offender is entrusted with the abandon such home.
custody of a minor person (whether
over or under seven years but less
than 21 years of age); Article 272. Slavery

2. He deliberately fails to restore the Elements

said minor to his parents or
guardians. 1. Offender purchases, sells, kidnaps
or detains a human being;

If any of the foregoing elements is absent, 2. The purpose of the offender is to

the kidnapping of the minor will then fall enslave such human being.
under Article 267.

If the accused is any of the parents, Article This is committed if anyone shall purchase,
267 does not apply; Articles 270 and 271 kidnap, or detain a human being for the
apply. purpose of enslaving him. The penalty is
increased if the purpose of the offender is to
If the taking is with the consent of the assign the offended party to some immoral
parents, the crime in Article 270 is traffic.
committed.
This is distinguished from illegal detention
In People v. Generosa, it was held that by the purpose. If the purpose of the
deliberate failure to return a minor under kidnapping or detention is to enslave the
one’s custody constitutes deprivation of offended party, slavery is committed.
liberty. Kidnapping and failure to return a
minor is necessarily included in kidnapping The crime is slavery if the offender is not
and serious illegal detention of a minor engaged in the business of prostitution. If
under Article 267(4).
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 137

he is, the crime is white slave trade under

Article 341. Elements

1. The place is not inhabited;

Article 273. Exploitation of Child Labor
2. Accused found there a
Elements person wounded or in danger
of dying;
1. Offender retains a minor in his
services; 3. Accused can render
assistance without detriment
2. It is against the will of the minor; to himself;

3. It is under the pretext of reimbursing 4. Accused fails to render

himself of a debt incurred by an assistance.
ascendant, guardian or person
entrusted with the custody of such 2. Failing to help or render assistance
minor. to another whom the offender has
accidentally wounded or injured;

Article 274. Services Rendered under 3. By failing to deliver a child, under

Compulsion in Payment of Debt seven years of age, whom the
offender has found abandoned, to
Elements the authorities or to his family, or by
failing to take him to a safe place.
1. Offender compel a debtor to work for
him, either as household servant or
farm laborer; Under the first act, the offender is liable only
when he can render such assistance
2. It is against the debtor’s will; without detriment to himself, unless such
omission shall constitute a more serious
3. The purpose is to require or enforce offense. Where the person is already
the payment of a debt. wounded and already in danger of dying,
there is an obligation to render assistance
only if he is found in an uninhabited place.
Article 275. Abandonment of Persons in If the mortally wounded, dying person is
Danger and Abandonment of One’s Own found in a place not uninhabited in legal
Victim contemplation, abandonment will not bring
about this crime. An uninhabited place is
Acts punished determined by possibility of person
receiving assistance from another. Even if
there are many houses around, the place
may still be uninhabited if possibility of
receiving assistance is remote.
1. Failing to render assistance to any
person whom the offender finds in If what happened was an accident at first,
an uninhabited place wounded or in there would be no liability pursuant to Article
danger of dying when he can render 12 (4) of the Civil Code – damnum absque
such assistance without detriment to injuria. But if you abandon your victim, you
himself, unless such omission shall will be liable under Article 275. Here, the
constitute a more serious offense. character of the place is immaterial. As
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 138

long as the victim was injured because of 2. He delivers said minor to a

the accident caused by the offender, the public institution or other
offender would be liable for abandonment if persons;
he would not render assistance to the victim.
3. The one who entrusted such
child to the offender has not
Article 276. Abandoning A Minor consented to such act; or if
the one who entrusted such
Elements child to the offender is absent,
the proper authorities have
1. Offender has the custody of a child; not consented to it.

2. The child is under seven years of 2. Neglecting his (offender’s) children

age; by not giving them the education
which their station in life requires
3. He abandons such child; and financial condition permits.

4. He has no intent to kill the child Elements:

when the latter is abandoned.
1. Offender is a parent;

Circumstances qualifying the offense 2. He neglects his children by

not giving them education;
1. When the death of the minor
resulted from such abandonment; or 3. His station in life requires
such education and his
2. If the life of the minor was in danger financial condition permits it.
because of the abandonment.

Article 278. Exploitation of Minors

Article 277. Abandonment of Minor by
Person Entrusted with His Custody; Acts punished
Indifference of Parents
1. Causing any boy or girl under 16
Acts punished years of age to perform any
dangerous feat of balancing,
1. Delivering a minor to a public physical strength or contortion, the
institution or other persons without offender being any person;
the consent of the one who
entrusted such minor to the care of 2. Employing children under 16 years
the offender or, in the absence of of age who are not the children or
that one, without the consent of the descendants of the offender in
proper authorities; exhibitions of acrobat, gymnast,
rope-walker, diver, or wild-animal
Elements tamer, the offender being an acrobat,
etc., or circus manager or engaged
1. Offender has charge of the in a similar calling;
rearing or education of a
minor; 3. Employing any descendant under 12
years of age in dangerous
exhibitions enumerated in the next
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 139

preceding paragraph, the offender 16 years old as in the Revised Penal Code.
being engaged in any of the said As long as the employment is inimical –
callings; even though there is no physical risk – and
detrimental to the child’s interest – against
4. Delivering a child under 16 years of moral, intellectual, physical, and mental
age gratuitously to any person development of the minor – the
following any of the callings establishment will be closed.
enumerated in paragraph 2, or to
any habitual vagrant or beggar, the Article 278 has no application if minor is 16
offender being an ascendant, years old and above. But the exploitation
guardian, teacher or person will be dealt with by Republic Act No. 7610.
entrusted in any capacity with the
care of such child; and If the minor so employed would suffer some
injuries as a result of a violation of Article
5. Inducing any child under 16 years of 278, Article 279 provides that there would
age to abandon the home of its be additional criminal liability for the
ascendants, guardians, curators or resulting felony.
teachers to follow any person
engaged in any of the callings Illustration:
mentioned in paragraph 2 or to
accompany any habitual vagrant or The owner of a circus employed a child
beggar, the offender being any under 16 years of age to do a balancing act
person. on the tightrope. The crime committed is
exploitation of minors (unless the employer
is the ascendant of the minor who is not
The offender is engaged in a kind of below 12 years of age). If the child fell and
business that would place the life or limb of suffered physical injuries while working, the
the minor in danger, even though working employer shall be liable for said physical
for him is not against the will of the minor. injuries in addition to his liability for
exploitation of minors.
Nature of the Business – This involves
circuses which generally attract children so
they themselves may enjoy working there Article 280. Qualified Trespass to
unaware of the danger to their own lives Dwelling
and limbs.
Elements
Age – Must be below 16 years. At this age,
the minor is still growing. 1. Offender is a private person;

If the employer is an ascendant, the crime is 2. He enters the dwelling of another;

not committed, unless the minor is less than
12 years old. Because if the employer is an 3. Such entrance is against the latter’s
ascendant, the law regards that he would will.
look after the welfare and protection of the
child; hence, the age is lowered to 12 years.
Below that age, the crime is committed. Two forms of trespass

But remember Republic Act No. 7610 1. Qualified trespass to dwelling – This
(Special Protection of Children against Child may be committed by any private
Abuse, Exploitation and Discrimination Act). person who shall enter the dwelling
It applies to minors below 18 years old, not of another against the latter’s will.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 140

The house must be inhabited at the

time of the trespass although the “Against the will” -- This means that the
occupants are out. Or offender entrance is, either expressly or impliedly,
breaks in with force and violence prohibited or the prohibition is presumed.
(Article 280). Fraudulent entrance may constitute
trespass. The prohibition to enter may be
2. Trespass to property - Offender made at any time and not necessarily at the
enters the closed premises or time of the entrance.
fenced estate of another; such close
premises or fenced estate is To prove that an entry is against the will of
uninhabited; there is a manifest the occupant, it is not necessary that the
prohibition against entering such entry should be preceded by an express
closed premises or fenced estate; prohibition, provided that the opposition of
and offender has not secured the the occupant is clearly established by the
permission of the owner or caretaker circumstances under which the entry is
thereof (Article 281). made, such as the existence of enmity or
strained relations between the accused and
(See also Presidential Decree No. 1227 the occupant.
regarding unlawful entry into any military
base in the Philippines.) On violence, Cuello Calon opines that
violence may be committed not only against
persons but also against things. So,
Dwelling – This is the place that a person breaking the door or glass of a window or
inhabits. It includes the dependencies door constitutes acts of violence. Our
which have interior communication with the Supreme Court followed this view in People
house. It is not necessary that it be the v. Tayag. Violence or intimidation must,
permanent dwelling of the person. So, a however, be anterior or coetaneous with the
person’s room in a hotel may be considered entrance and must not be posterior. But if
a dwelling. It also includes a room where the violence is employed immediately after
one resides as a boarder. the entrance without the consent of the
owner of the house, trespass is committed.
If the purpose in entering the dwelling is not If there is also violence or intimidation, proof
shown, trespass is committed. If the of prohibition to enter is no longer
purpose is shown, it may be absorbed in the necessary.
crime as in robbery with force upon things,
the trespass yielding to the more serious Distinction between qualified trespass to
crime. But if the purpose is not shown and dwelling and violation of domicile
while inside the dwelling he was found by
the occupants, one of whom was injured by Unlike qualified trespass to dwelling,
him, the crime committed will be trespass to violation of domicile may be committed only
dwelling and frustrated homicide, physical by a public officer or employee and the
injuries, or if there was no injury, unjust violation may consist of any of the three
vexation. acts mentioned in Article 128 – (1) entering
the dwelling against the will of the owner
If the entry is made by a way not intended without judicial order; (2) searching papers
for entry, that is presumed to be against the or other effects found in such dwelling
will of the occupant (example, entry through without the previous consent of the owner
a window). It is not necessary that there be thereof; and (3) refusing to leave the
a breaking. dwelling when so requested by the owner
thereof, after having surreptitiously entered
such dwelling.
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Cases when Article 280 does not apply: 2. Making such threat without the
offender attaining his purpose;
(1) When the purpose of the entrance is
to prevent serious harm to himself, 3. Threatening another with the
the occupant or third persons; infliction upon his person, honor or
property or that of his family of any
(2) When the purpose of the offender in wrong amounting to a crime, the
entering is to render some service to threat not being subject to a
humanity or justice; condition.

(3) Anyone who shall enter cafes,

taverns, inns and other public Threat is a declaration of an intention or
houses while they are open . determination to injure another by the
commission upon his person, honor or
Pursuant to Section 6, Rule 113 of the property or upon that of his family of some
Rules of Court, a person who believes that wrong which may or may not amount to a
a crime has been committed against him crime:
has every right to go after the culprit and
arrest him without any warrant even if in the (1) Grave threats – when the wrong
process he enters the house of another threatened to be inflicted amounts to
against the latter’s will. a crime. The case falls under Article
282.
Article 281. Other forms of trespass
(2) Light threats – if it does not amount
Elements to a crime. The case falls under
Article 283.
1. Offender enters the closed premises
or the fenced estate of another; But even if the harm intended is in the
nature of a crime, if made orally and in the
2. The entrance is made while either of heat of anger and after the oral threat, the
them is uninhabited; issuer of the threat did not pursue the act,
the crime is only other light threats under
3. The prohibition to enter is manifest; Article 285.

4. The trespasser has not secured the To constitute grave threats, the threats must
permission of the owner or the refer to a future wrong and is committed by
caretaker thereof. acts or through words of such efficiency to
inspire terror or fear upon another. It is,
Article 282. Grave Threats therefore, characterized by moral pressure
that produces disquietude or alarm.
Acts punished:
The greater perversity of the offender is
1. Threatening another with the manifested when the threats are made
infliction upon his person, honor or demanding money or imposing any
property or that of this family of any condition, whether lawful or not, and the
wrong amounting to a crime and offender shall have attained his purpose.
demanding money or imposing any So the law imposes upon him the penalty
other condition, even though not next lower in degree than that prescribed for
unlawful, and the offender attained the crime threatened to be committed. But
his purpose; if the purpose is not attained, the penalty
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 142

lower by two degrees is imposed. The Article 283. Light Threats

maximum period of the penalty is imposed if
the threats are made in writing or through a Elements
middleman as they manifest evident
premeditation. 1. Offender makes a threat to commit a
wrong;
Distinction between threat and coercion:
2. The wrong does not constitute a
The essence of coercion is violence or crime;
intimidation. There is no condition involved;
hence, there is no futurity in the harm or 3. There is a demand for money or that
wrong done. other condition is imposed, even
though not unlawful;
In threat, the wrong or harm done is future
and conditional. In coercion, it is direct and 4. Offender has attained his purpose or,
personal. that he has not attained his purpose.

Distinction between threat and robbery:

In order to convict a person of the crime of
(1) As to intimidation – In robbery, the light threats, the harm threatened must not
intimidation is actual and immediate; be in the nature of crime and there is a
in threat, the intimidation is future demand for money or any other condition is
and conditional. imposed, even though lawful.

(2) As to nature of intimidation – In

robbery, the intimidation is personal; Question & Answer
in threats, it may be through an
intermediary.
Blackmailing constitutes what crime?
(3) As to subject matter – Robbery
refers to personal property; threat It is a crime of light threat under
may refer to the person, honor or Article 283 if there is no threat to publish
property. any libelous or slanderous matter against
the offended party. If there is such a threat
(4) As to intent to gain – In robbery, to make a slanderous or libelous publication
there is intent to gain; in threats, against the offended party, the crime will be
intent to gain is not an essential one of libel, which is penalized under Article
element. 356. For example, a person threatens to
expose the affairs of married man if the
(5) In robbery, the robber makes the latter does not give him money. There is
danger involved in his threats intimidation done under a demand.
directly imminent to the victim and
the obtainment of his gain immediate, The law imposes the penalty of bond for
thereby also taking rights to his good behavior only in case of grave and
person by the opposition or light threats. If the offender can not post the
resistance which the victim might bond, he will be banished by way of
offer; in threat, the danger to the destierro to prevent him from carrying out
victim is not instantly imminent nor his threat.
the gain of the culprit immediate.

Article 285. Other Light Threats

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Acts punished
Grave coercion arises only if the act which
1. Threatening another with a weapon, the offender prevented another to do is not
or by drawing such weapon in a prohibited by law or ordinance. If the act
quarrel, unless it be in lawful self- prohibited was illegal, he is not liable for
defense; grave coercion.

2. Orally threatening another, in the If a person prohibits another to do an act

heat of anger, with some harm because the act is a crime, even though
constituting a crime, without some sort of violence or intimidation is
persisting in the idea involved in his employed, it would not give rise to grave
threat; coercion. It may only give rise to threat or
physical injuries, if some injuries are
3. Orally threatening to do another any inflicted. However, in case of grave
harm not constituting a felony. coercion where the offended party is being
compelled to do something against his will,
whether it be wrong or not, the crime of
Article 286. Grave Coercions grave coercion is committed if violence or
intimidation is employed in order to compel
Acts punished him to do the act. No person shall take the
law into his own hands.
1. Preventing another, by means of
violence, threats or intimidation, from Illustration:
doing something not prohibited by
law; Compelling the debtor to deliver some of his
properties to pay a creditor will amount to
2. Compelling another, by means of coercion although the creditor may have a
violence, threats or intimidation, to right to collect payment from the debtor,
do something against his will, even if the obligation is long over due.
whether it be right or wrong.
The violence employed in grave coercion
Elements must be immediate, actual, or imminent. In
the absence of actual or imminent force or
1. A person prevented another from violence, coercion is not committed. The
doing something not prohibited by essence of coercion is an attack on
law, or that he compelled him to do individual liberty.
something against his will; be it right
or wrong; The physical violence is exerted to (1)
prevent a person from doing something he
2. The prevention or compulsion be wants to do; or (2) compel him to do
effected by violence, threats or something he does not want to do.
intimidation; and
Illustration:
3. The person that restrained the will
and liberty of another had not the If a man compels another to show the
authority of law or the right to do so, contents of the latter’s pockets, and takes
or in other words, that the restraint the wallet, this is robbery and not grave
shall not be made under authority of coercion. The intimidation is a means of
law or in the exercise of any lawful committing robbery with violence or
right. intimidation of persons. Violence is inherent
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 144

in the crime of robbery with violence or

intimidation upon persons and in usurpation
of real properties because it is the means of The first paragraph deals with light
committing the crime. coercions wherein violence is employed by
the offender who is a creditor in seizing
Exception to the rule that physical violence anything belonging to his debtor for the
must be exerted: where intimidation is so purpose of applying the same to the
serious that it is not a threat anymore – it payment of the debt.
approximates violence.
In the other light coercions or unjust
In Lee v. CA, 201 SCAR 405, it was held vexation embraced in the second paragraph,
that neither the crime of threats nor coercion violence is absent.
is committed although the accused, a
branch manager of a bank made the In unjust vexation, any act committed
complainant sign a withdrawal slip for the without violence, but which unjustifiably
amount needed to pay the spurious dollar annoys or vexes an innocent person
check she had encashed, and also made amounts to light coercion.
her execute an affidavit regarding the return
of the amount against her better sense and As a punishable act, unjust vexation should
judgment. According to the court, the include any human conduct which, although
complainant may have acted reluctantly and not productive of some physical or material
with hesitation, but still, it was voluntary. It harm would, however, unjustifiably annoy or
is different when a complainant refuses vex an innocent person.
absolutely to act such an extent that she
becomes a mere automaton and acts It is distinguished from grave coercion under
mechanically only, not of her own will. In the first paragraph by the absence of
this situation, the complainant ceases to violence.
exits as an independent personality and the
person who employs force or intimidation is, Illustration:
in the eyes of the law, the one acting; while
the hand of the complainant sign, the will Persons stoning someone else’s house. So
that moves it is the hand of the offender. long as stoning is not serious and it is
intended to annoy, it is unjust vexation. It
disturbs the peace of mind.
Article 287. Light Coercions
The main purpose of the statute penalizing
Elements coercion and unjust vexation is precisely to
enforce the principle that no person may
1. Offender must be a creditor; take the law into his hands and that our
government is one of laws, not of men. The
2. He seizes anything belonging to his essence of the crimes is the attack on
debtor: individual liberty.

3. The seizure of the thing be

accomplished by means of violence Article 288. Other Similar Coercions
or a display of material force
producing intimidation; Acts punished:

4. The purpose of the offender is to 1. Forcing or compelling, directly or

apply the same to the payment of indirectly, or knowingly permitting
the debt. the forcing or compelling of the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 145

laborer or employee of the offender Capital or Labor through Violence or

to purchase merchandise of Threats
commodities of any kind from him;
Elements
Elements:
1. Offender employs violence or threats,
1. Offender is any person, in such a degree as to compel or
agent or officer of any force the laborers or employers in
association or corporation; the free and legal exercise of their
industry or work;
2. He or such firm or
corporation has employed 2. The purpose is to organize, maintain
laborers or employees; or prevent coalitions of capital or
labor, strike of laborers or lockout of
3. He forces or compels, employers.
directly or indirectly, or
knowingly permits to be
forced or compelled, any of Article 290. Discovering Secrets through
his or its laborers or Seizure of Correspondence
employees to purchase
merchandise or commodities Elements
of any kind from him or from
said firm or corporation. 1. Offender is a private individual or
even a public officer not in the
2. Paying the wages due his laborer or exercise of his official function;
employee by means of tokens or
object other than the legal tender 2. He seizes the papers or letters of
currency of the Philippines, unless another;
expressly requested by such laborer
or employee. 3. The purpose is to discover the
secrets of such another person;
Elements:
4. Offender is informed of the contents
1. Offender pays the wages due of the papers or letters seized.
a laborer or employee
employed by him by means
of tokens or object; This is a crime against the security of one’s
papers and effects. The purpose must be to
1. Those tokens or objects are discover its effects. The act violates the
other than the legal tender privacy of communication.
currency of the Philippines;

3. Such employee or laborer According to Ortega, it is not necessary that

does not expressly request the offender should actually discover the
that he be paid by means of contents of the letter. Reyes, citing People
tokens or objects. v. Singh, CA, 40 OG, Suppl. 5, 35,
believes otherwise.

Article 289. Formation, Maintenance,

and Prohibition of Combination of The last paragraph of Article 290 expressly
makes the provision of the first and second
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 146

paragraph thereof inapplicable to parents,

guardians, or persons entrusted with the 3. He reveals such secrets.
custody of minors placed under their care or
custody, and to the spouses with respect to
the papers or letters of either of them. The An employee, manager, or servant who
teachers or other persons entrusted with the came to know of the secret of his master or
care and education of minors are included principal in such capacity and reveals the
in the exceptions. same shall also be liable regardless of
whether or not the principal or master
In a case decided by the Supreme Court, a suffered damages.
spouse who rummaged and found love
letters of husband to mistress does not The essence of this crime is that the
commit this crime, but the letters are offender learned of the secret in the course
inadmissible in evidence because of of his employment. He is enjoying a
unreasonable search and seizure. The confidential relation with the employer or
ruling held that the wife should have applied master so he should respect the privacy of
for a search warrant. matters personal to the latter.

Distinction from estafa, damage to property, If the matter pertains to the business of the
and unjust vexation: employer or master, damage is necessary
and the agent, employee or servant shall
If the act had been executed with intent of always be liable. Reason: no one has a
gain, it would be estafa; right to the personal privacy of another.

If, on the other hand, the purpose was not to

defraud, but only to cause damage to Article 292. Revelation of Industrial
another’s, it would merit the qualification of Secrets
damage to property;
Elements
If the intention was merely to cause
vexation preventing another to do 1. Offender is a person in charge,
something which the law does not prohibit employee or workman of a
or compel him to execute what he does not manufacturing or industrial
want, the act should be considered as establishment;
unjust vexation.
2. The manufacturing or industrial
Revelation of secrets discovered not an establishment has a secret of the
element of the crime but only increases the industry which the offender has
penalty. learned;

3. Offender reveals such secrets;

Article 291. Revealing Secrets with
Abuse of Office 4. Prejudice is caused to the owner.

Elements
A business secret must not be known to
1. Offender is a manager, employee or other business entities or persons. It is a
servant; matter to be discovered, known and used by
and must belong to one person or entity
2. He learns the secrets of his principal exclusively. One who merely copies their
or master in such capacity; machines from those already existing and
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functioning cannot claim to have a business 15. Swindling (Art. 315);

secret, much less, a discovery within the
contemplation of Article 292. 16. Other forms of swindling (Art. 316);

17. Swindling a minor (Art. 317);

TITLE X. CRIMES AGAINST PROPERTY
18. Other deceits (Art. 318);
Crimes against property
19. Removal, sale or pledge of
1. Robbery with violence against or mortgaged property (Art. 319);
intimidation of persons (Art. 294);
20. Destructive arson (Art. 320);
2. Attempted and frustrated robbery
committed under certain 21. Other forms of arson (Art. 321);
circumstances (Art. 297);
22. Arson of property of small value (Art.
3. Execution of deeds by means of 323);
violence or intimidation (Art. 298);
23. Crimes involving destruction (Art.
4. Robbery in an inhabited house or 324);
public building or edifice devoted to
worship (Art. 299); 24. Burning one’s own property as
means to commit arson (Art. 325);
5. Robbery in an inhabited place or in a
private building (Art. 302); 25. Setting fire to property exclusively
owned by the offender (Art. 326);
6. Possession of picklocks or similar
tools (Art. 304); 26. Malicious mischief (Art. 327);

7. Brigandage (Art. 306); 27. Special case of malicious mischief

(Art. 328);
8. Aiding and abetting a band of
brigands (Art. 307); 28. Damage and obstruction to means
of communication (Art. 330);
9. Theft (Art. 308);
29. Destroying or damaging statues,
10. Qualified theft (Art. 310); public monuments or paintings (Art.
331).
11. Theft of the property of the National
Library and National Museum (Art.
311); Article 293. Who Are Guilty of Robbery

12. Occupation of real property or Robbery – This is the taking or personal

usurpation of real rights in property property belonging to another, with intent to
(Art. 312); gain, by means of violence against, or
intimidation of any person, or using force
13. Altering boundaries or landmarks upon anything.
(Art. 313);
Elements of robbery in general
14. Fraudulent insolvency (Art. 314);
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1. There is personal property belonging

to another; 6. When in the course of its execution,
the offender shall have inflicted upon
2. There is unlawful taking of that any person not responsible for the
property; commission of the robbery any of
the physical injuries in consequence
3. The taking must be with intent to of which the person injured becomes
gain; and deformed or loses any other
member of his body or loses the sue
4. There is violence against or thereof or becomes ill or
intimidation of any person, or force incapacitated for the performance of
upon anything. the work in which he is habitually
engaged for more than 90 days or
the person injured becomes ill or
Article 294. Robbery with Violence incapacitated for labor for more than
against or Intimidation of Persons 30 days;

Acts punished 7. If the violence employed by the

offender does not cause any of the
1. When by reason or on occasion of serious physical injuries defined in
the robbery (taking of personal Article 263, or if the offender
property belonging to another with employs intimidation only.
intent to gain), the crime of homicide
is committed;
Violence or intimidation upon persons may
2. When the robbery is accompanied result in death or mutilation or rape or
by rape or intentional mutilation or serious physical injuries.
arson;
If death results or even accompanies a
3. When by reason of on occasion of robbery, the crime will be robbery with
such robbery, any of the physical homicide provided that the robbery is
injuries resulting in insanity, consummated.
imbecility, impotency or blindness is
inflicted; This is a crime against property, and
therefore, you contend not with the killing
4. When by reason or on occasion of but with the robbery.
robbery, any of the physical injuries
resulting in the loss of the use of As long as there is only one (1) robbery,
speech or the power to hear or to regardless of the persons killed, the crime
smell, or the loss of an eye, a hand, will only be one (1) count of robbery with
a foot, an arm, or a leg or the loss of homicide. The fact that there are multiple
the use of any such member or killings committed in the course of the
incapacity for the work in which the robbery will be considered only as
injured person is theretofore aggravating so as to call for the imposition
habitually engaged is inflicted; of the maximum penalty prescribed by law.

5. If the violence or intimidation If, on the occasion or by reason of the

employed in the commission of the robbery, somebody is killed, and there are
robbery is carried to a degree also physical injuries inflicted by reason or
unnecessary for the commission of on the occasion of the robbery, don’t think
the crime; that those who sustained physical injuries
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 149

may separately prosecute the offender for stepped on a child less than three days old.
physical injuries. Those physical injuries The crime is not robbery with infanticide
are only considered aggravating because there is no such crime. The word
circumstances in the crime of robbery with homicide as used in defining robbery with
homicide. homicide is used in the generic sense. It
refers to any kind of death.
This is not a complex crime as understood
under Article 48, but a single indivisible Although it is a crime against property and
crime. This is a special complex crime treachery is an aggravating circumstance
because the specific penalty is provided in that applies only to crimes against persons,
the law. if the killing in a robbery is committed with
treachery, the treachery will be considered a
In Napolis v. CA, it was held that when generic aggravating circumstance because
violence or intimidation and force upon of the homicide.
things are both present in the robbery, the
crime is complex under Article 48. When two or more persons are killed during
the robbery, such should be appreciated as
In robbery with violence of intimidation, the an aggravating circumstance.
taking is complete when the offender has
already the possession of the thing even if As long as there is only one robbery,
he has no opportunity to dispose of it. regardless of the persons killed, you only
have one crime of robbery with homicide.
In robbery with force upon things, the things Note, however, that “one robbery” does not
must be brought outside the building for mean there is only one taking.
consummated robbery to be committed.
Illustration:

On robbery with homicide Robbers decided to commit robbery in a

house, which turned out to be a boarding
The term “homicide” is used in the generic house. Thus, there were different boarders
sense, and the complex crime therein who were offended parties in the robbery.
contemplated comprehends not only There is only one count of robbery. If there
robbery with homicide in its restricted sense, were killings done to different boarders
but also with robbery with murder. So, any during the robbery being committed in a
kind of killing by reason of or on the boarder’s quarter, do not consider that as
occasion of a robbery will bring about the separate counts of robbery with homicide
crime of robbery with homicide even if the because when robbers decide to commit
person killed is less than three days old, or robbery in a certain house, they are only
even if the person killed is the mother or impelled by one criminal intent to rob and
father of the killer, or even if on such there will only be one case of robbery. If
robbery the person killed was done by there were homicide or death committed,
treachery or any of the qualifying that would only be part of a single robbery.
circumstances. In short, there is no crime of That there were several killings done would
robbery with parricide, robbery with murder, only aggravate the commission of the crime
robbery with infanticide – any and all forms of robbery with homicide.
of killing is referred to as homicide.
In People v. Quiñones, 183 SCRA 747, it
Illustration: was held that there is no crime of robbery
with multiple homicides. The charge should
The robbers enter the house. In entering be for robbery with homicide only because
through the window, one of the robbers the number of persons killed is immaterial
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 150

and does not increase the penalty committed, the owner of the place tried to
prescribed in Article 294. All the killings are wrest the arm of the robber. A person
merged in the composite integrated whole several meters away was the one who got
that is robbery with homicide so long as the killed. The crime was held to be robbery
killings were by reason or on occasion of with homicide.
the robbery.
Note that the person killed need not be one
In another case, a band of robbers entered who is identified with the owner of the place
a compound, which is actually a sugar mill. where the robbery is committed or one who
Within the compound, there were quarters is a stranger to the robbers. It is enough
of the laborers. They robbed each of the that the homicide was committed by reason
quarters. The Supreme Court held that of the robbery or on the occasion thereof.
there was only one count of robbery
because when they decided and determined Illustration:
to rob the compound, they were only
impelled by one criminal intent to rob. There are two robbers who broke into a
house and carried away some valuables.
With more reason, therefore, if in a robbery, After they left such house these two robbers
the offender took away property belonging decided to cut or divide the loot already so
to different owners, as long as the taking that they can go of them. So while they are
was done at one time, and in one place, dividing the loot the other robber noticed
impelled by the same criminal intent to gain, that the one doing the division is trying to
there would only be one count of robbery. cheat him and so he immediately boxed him.
Now this robber who was boxed then pulled
In robbery with homicide as a single out his gun and fired at the other one killing
indivisible offense, it is immaterial who gets the latter. Would that bring about the crime
killed. Even though the killing may have of robbery with homicide? Yes. Even if the
resulted from negligence, you will still robbery was already consummated, the
designate the crime as robbery with killing was still by reason of the robbery
homicide. because they quarreled in dividing the loot
that is the subject of the robbery.
Illustration:
In People v. Domingo, 184 SCRA 409, on
On the occasion of a robbery, one of the the occasion of the robbery, the storeowner,
offenders placed his firearm on the table. a septuagenarian, suffered a stroke due to
While they were ransacking the place, one the extreme fear which directly caused his
of the robbers bumped the table. As a death when the robbers pointed their guns
result, the firearm fell on the floor and at him. It was held that the crime committed
discharged. One of the robbers was the was robbery with homicide. It is immaterial
one killed. Even though the placing of the that death supervened as a mere accident
firearm on the table where there is no safety as long as the homicide was produced by
precaution taken may be considered as one reason or on the occasion of the robbery,
of negligence or imprudence, you do not because it is only the result which matters,
separate the homicide as one of the product without reference to the circumstances or
of criminal negligence. It will still be robbery causes or persons intervening in the
with homicide, whether the person killed is commission of the crime which must be
connected with the robbery or not. He need considered.
not also be in the place of the robbery.
Remember also that intent to rob must be
In one case, in the course of the struggle in proved. But there must be an allegation as
a house where the robbery was being
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 151

to the robbery not only as to the intention to must have the intent to take personal
rob. property before the killing.

If the motive is to kill and the taking is It must be conclusively shown that the
committed thereafter, the crimes committed homicide was committed for the purpose of
are homicide and theft. If the primordial robbing the victim. In People v. Hernandez,
intent of the offender is to kill and not to rob appellants had not thought of robbery prior
but after the killing of the victims a robbery to the killing. The thought of taking the
was committed, then there are will be two victim’s wristwatch was conceived only after
separate crimes. the killing and throwing of the victim in the
canal. Appellants were convicted of two
Illustration: separate crimes of homicide and theft as
there is absent direct relation and intimate
If a person had an enemy and killed him connection between the robbery and the
and after killing him, saw that he had a killing.
beautiful ring and took this, the crime would
be not robbery with homicide because the
primary criminal intent is to kill. So, there On robbery with rape
will be two crimes: one for the killing and
one for the taking of the property after the This is another form of violence or
victim was killed. Now this would bring intimidation upon person. The rape
about the crime of theft and it could not be accompanies the robbery. In this case
robbery anymore because the person is where rape and not homicide is committed,
already dead. there is only a crime of robbery with rape if
both the robbery and the rape are
For robbery with homicide to exist, homicide consummated. If during the robbery,
must be committed by reason or on the attempted rape were committed, the crimes
occasion of the robbery, that is, the would be separate, that is, one for robbery
homicide must be committed “in the course and one for the attempted rape.
or because of the robbery.” Robbery and
homicide are separate offenses when the The rape committed on the occasion of the
homicide is not committed “on the occasion” robbery is not considered a private crime
or “by reason” of the robbery. because the crime is robbery, which is a
crime against property. So, even though
Where the victims were killed, not for the the robber may have married the woman
purpose of committing robbery, and the idea raped, the crime remains robbery with rape.
of taking the money and other personal The rape is not erased. This is because the
property of the victims was conceived by the crime is against property which is a single
culprits only after the killing, it was held in indivisible offense.
People v. Domingo, 184 SCRA 409, that
the culprits committed two separate crimes If the woman, who was raped on the
of homicide or murder (qualified by abuse of occasion of the robbery, pardoned the rapist
superior strength) and theft. who is one of the robbers, that would not
erase the crime of rape. The offender
The victims were killed first then their would still be prosecuted for the crime of
money was taken the money from their robbery with rape, as long as the rape is
dead bodies. This is robbery with homicide. consummated.
It is important here that the intent to commit
robbery must precede the taking of human If the rape is attempted, since it will be a
life in robbery with homicide. The offender separate charge and the offended woman
pardoned the offender, that would bring
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 152

about a bar to the prosecution of the the latter, the criminal intent to gain must
attempted rape. If the offender married the precede the intent to rape.
offended woman, that would extinguish the
criminal liability because the rape is the
subject of a separate prosecution. On robbery with physical injuries

The intention must be to commit robbery To be considered as such, the physical

and even if the rape is committed before the injuries must always be serious. If the
robbery, robbery with rape is committed. physical injuries are only less serious or
But if the accused tried to rape the offended slight, they are absorbed in the robbery.
party and because of resistance, he failed to The crime becomes merely robbery. But if
consummate the act, and then he snatched the less serious physical injuries were
the vanity case from her hands when she committed after the robbery was already
ran away, two crimes are committed: consummated, there would be a separate
attempted rape and theft. charge for the less serious physical injuries.
It will only be absorbed in the robbery if it
There is no complex crime under Article 48 was inflicted in the course of the execution
because a single act is not committed and of the robbery. The same is true in the case
attempted rape is not a means necessary to of slight physical injuries.
commit theft and vice-versa.
Illustration:
The Revised Penal Code does not
differentiate whether rape was committed After the robbery had been committed and
before, during or after the robbery. It is the robbers were already fleeing from the
enough that the robbery accompanied the house where the robbery was committed,
rape. Robbery must not be a mere accident the owner of the house chased them and
or afterthought. the robbers fought back. If only less serious
physical injuries were inflicted, there will be
In People v. Flores, 195 SCRA 295, separate crimes: one for robbery and one
although the offenders plan was to get the for less serious physical injuries.
victim’s money, rape her and kill her, but in
the actual execution of the crime, the But if after the robbery was committed and
thoughts of depriving the victim of her the robbers were already fleeing from the
valuables was relegated to the background house where the robbery was committed,
and the offender’s prurient desires surfaced. the owner or members of the family of the
They persisted in satisfying their lust. They owner chased them, and they fought back
would have forgotten about their intent to and somebody was killed, the crime would
rob if not for the accidental touching of the still be robbery with homicide. But if serious
victim’s ring and wristwatch. The taking of physical injuries were inflicted and the
the victim’s valuables turned out to be an serious physical injuries rendered the victim
afterthought. It was held that two distinct impotent or insane or the victim lost the use
crimes were committed: rape with homicide of any of his senses or lost a part of his
and theft. body, the crime would still be robbery with
serious physical injuries. The physical
In People v. Dinola, 183 SCRA 493, it was injuries (serious) should not be separated
held that if the original criminal design of the regardless of whether they retorted in the
accused was to commit rape and after course of the commission of the robbery or
committing the rape, the accused committed even after the robbery was consummated.
robbery because the opportunity presented
itself, two distinct crimes – rape and robbery In Article 299, it is only when the physical
were committed – not robbery with rape. In injuries resulted in the deformity or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 153

incapacitated the offended party from labor

for more than 30 days that the law requires If it was inflicted when the thieves/robbers
such physical injuries to have been inflicted are already dividing the spoils, it cannot be
in the course of the execution of the robbery, considered as inflicted in the course of
and only upon persons who are not execution of the robbery and hence, it will
responsible in the commission of the not give rise to the crime of robbery with
robbery. serious physical injuries. You only have
one count of robbery and another count for
But if the physical injuries inflicted are those the serious physical injuries inflicted.
falling under subdivision 1 and 2 of Article
263, even though the physical injuries were If, during or on the occasion or by reason of
inflicted upon one of the robbers themselves, the robbery, a killing, rape or serious
and even though it had been inflicted after physical injuries took place, there will only
the robbery was already consummated, the be one crime of robbery with homicide
crime will still be robbery with serious because all of these – killing, rape, serious
physical injuries. There will only be one physical injuries -- are contemplated by law
count of accusation. as the violence or intimidation which
characterizes the taking as on of robbery.
Illustration: You charge the offenders of robbery with
homicide. The rape or physical injuries will
After the robbers fled from the place where only be appreciated as aggravating
the robbery was committed, they decided to circumstance and is not the subject of a
divide the spoils and in the course of the separate prosecution. They will only call for
division of the spoils or the loot, they the imposition of the penalty in the
quarreled. They shot it out and one of the maximum period.
robbers was killed. The crime is still
robbery with homicide even though one of If on the occasion of the robbery with
the robbers was the one killed by one of homicide, robbery with force upon things
them. If they quarreled and serious physical was also committed, you will not have only
injuries rendered one of the robbers one robbery but you will have a complex
impotent, blind in both eyes, or got insane, crime of robbery with homicide and robbery
or he lost the use of any of his senses, lost with force upon things (see Napolis v. CA).
the use of any part of his body, the crime This is because robbery with violence or
will still be robbery with serious physical intimidation upon persons is a separate
injuries. crime from robbery with force upon things.

If the robbers quarreled over the loot and Robbery with homicide, robbery with
one of the robbers hacked the other robber intentional mutilation and robbery with rape
causing a deformity in his face, the crime are not qualified by band or uninhabited
will only be robbery and a separate charge place. These aggravating circumstances
for the serious physical injuries because only qualify robbery with physical injuries
when it is a deformity that is caused, the law under subdivision 2, 3, and 4 of Article 299.
requires that the deformity must have been
inflicted upon one who is not a participant in When it is robbery with homicide, the band
the robbery. Moreover, the physical injuries or uninhabited place is only a generic
which gave rise to the deformity or which aggravating circumstance. It will not qualify
incapacitated the offended party from labor the crime to a higher degree of penalty.
for more than 30 days, must have been
inflicted in the course of the execution of the In People v. Salvilla, it was held that if in a
robbery or while the robbery was taking robbery with serious physical injuries, the
place. offenders herded the women and children
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 154

into an office and detained them to compel

the offended party to come out with the
money, the crime of serious illegal detention Article 295. Robbery with Physical
was a necessary means to facilitate the Injuries, Committed in An Uninhabited
robbery; thus, the complex crimes of Place and by A Band
robbery with serious physical injuries and
serious illegal detention. Robbery with violence against or
intimidation of person qualified is qualified if
But if the victims were detained because of it is committed
the timely arrival of the police, such that the
offenders had no choice but to detain the 1. In an uninhabited place;
victims as hostages in exchange for their
safe passage, the detention is absorbed by 2. By a band;
the crime of robbery and is not a separate
crime. This was the ruling in People v. 3. By attacking a moving train, street
Astor. car, motor vehicle, or airship;

4. By entering the passengers’

On robbery with arson compartments in a train, or in any
manner taking the passengers
Another innovation of Republic Act No. thereof by surprise in the respective
7659 is the composite crime of robbery with conveyances; or
arson if arson is committed by reason of or
on occasion of the robbery. The composite 5. On a street, road, highway or alley,
crime would only be committed if the and the intimidation is made with the
primordial intent of the offender is to commit use of firearms, the offender shall be
robber and there is no killing, rape, or punished by the maximum periods of
intentional mutilation committed by the the proper penalties prescribed in
offender during the robbery. Otherwise, the Article 294.
crime would be robbery with homicide, or
robbery with rape, or robbery with
intentional mutilation, in that order, and the Article 296 defines a robbery by a band as
arson would only be an aggravating follows: when at least four armed
circumstance. It is essential that robbery malefactors take part in the commission of a
precedes the arson, as in the case of rape robbery.
and intentional mutilation, because the
amendment included arson among the rape
and intentional mutilation which have Requisites for liability for the acts of the
accompanied the robbery. other members of the band

Moreover, it should be noted that arson has 1. He was a member of the band;
been made a component only of robbery
with violence against or intimidation of 2. He was present at the commission
persons in said Article 294, but not of of a robbery by that band;
robbery by the use of force upon things in
Articles 299 and 302. 3. The other members of the band
committed an assault;
So, if the robbery was by the use of force
upon things and therewith arson was 4. He did not attempt to prevent the
committed, two distinct crimes are assault.
committed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 155

1. Offender is inside a dwelling house,

Article 298. Execution of Deeds by public building, or edifice devoted to
Means of Violence or intimidation religious worship, regardless of the
circumstances under which he
Elements entered it;

1. Offender has intent to defraud 2. Offender takes personal property

another; belonging to another, with intent to
gain, under any of the following
2. Offender compels him to sign, circumstances:
execute, or deliver any public
instrument or document. a. By the breaking of doors,
wardrobes, chests, or any
3. The compulsion is by means of other kind of locked or sealed
violence or intimidation. furniture or receptacle; or

b. By taking such furniture or

Article 299. Robbery in An Inhabited objects away to be broken or
House or Public Building or Edifice forced open outside the
Devoted to Worship place of the robbery.

Elements under subdivision (a)

"Force upon things" has a technical
1. Offender entered an inhabited house, meaning in law. Not any kind of force upon
public building things will characterize the taking as one of
robbery. The force upon things
2. The entrance was effected by any of contemplated requires some element of
the following means: trespass into the establishment where the
robbery was committed. In other words, the
a. Through an opening not offender must have entered the premises
intended for entrance or where the robbery was committed. If no
egress; entry was effected, even though force may
have been employed actually in the taking
b. By breaking any wall, roof or of the property from within the premises, the
floor, or breaking any door or crime will only be theft.
window;
Two predicates that will give rise to the
c. By using false keys, crime as robbery:
picklocks or similar tools; or
1. By mere entering alone, a robbery
d. By using any fictitious name will be committed if any personal
or pretending the exercise of property is taken from within;
public authority.
2. The entering will not give rise to
3. Once inside the building, offender robbery even if something is taken
took personal property belonging to inside. It is the breaking of the
another with intent to gain. receptacle or closet or cabinet where
the personal property is kept that will
give rise to robbery, or the taking of
Elements under subdivision (b): a sealed, locked receptacle to be
broken outside the premises.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 156

Breaking of the door under Article299 (b) –

If by the mere entering, that would already Originally, the interpretation was that in
qualify the taking of any personal property order that there be a breaking of the door in
inside as robbery, it is immaterial whether contemplation of law, there must be some
the offender stays inside the premises. The damage to the door.
breaking of things inside the premises will
only be important to consider if the entering Before, if the door was not damaged but
by itself will not characterize the crime as only the lock attached to the door was
robbery with force upon things. broken, the taking from within is only theft.
But the ruling is now abandoned because
Modes of entering that would give rise to the the door is considered useless without the
crime of robbery with force upon things if lock. Even if it is not the door that was
something is taken inside the premises: broken but only the lock, the breaking of the
entering into an opening not intended for lock renders the door useless and it is
entrance or egress, under Article 299 (a). therefore tantamount to the breaking of the
door. Hence, the taking inside is
Illustration: considered robbery with force upon things.

The entry was made through a fire escape. If the entering does not characterize the
The fire escape was intended for egress. taking inside as one of robbery with force
The entry will not characterize the taking as upon things, it is the conduct inside that
one of robbery because it is an opening would give rise to the robbery if there would
intended for egress, although it may not be be a breaking of sealed, locked or closed
intended for entrance. If the entering were receptacles or cabinet in order to get the
done through the window, even if the personal belongings from within such
window was not broken, that would receptacles, cabinet or place where it is
characterize the taking of personal property kept.
inside as robbery because the window is not
an opening intended for entrance. If in the course of committing the robbery
within the premises some interior doors are
Illustration: broken, the taking from inside the room
where the door leads to will only give rise to
On a sari-sari store, a vehicle bumped the theft. The breaking of doors contemplated in
wall. The wall collapsed. There was a the law refers to the main door of the house
small opening there. At night, a man and not the interior door.
entered through that opening without
breaking the same. The crime will already But if it is the door of a cabinet that is
be robbery if he takes property from within broken and the valuable inside the cabinet
because that is not an opening intended for was taken, the breaking of the cabinet door
the purpose. would characterize the taking as robbery.
Although that particular door is not included
Even of there is a breaking of wall, roof, as part of the house, the cabinet keeps the
floor or window, but the offender did not contents thereof safe.
enter, it would not give rise to robbery with
force upon things. Use of picklocks or false keys refers to the
entering into the premises – If the picklock
or false key was used not to enter the
premises because the offender had already
entered but was used to unlock an interior
door or even a receptacle where the
valuable or personal belonging was taken,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 157

the use of false key or picklock will not give public building, and not a place devoted to
rise to the robbery with force upon things religious worship. Where the house is a
because these are considered by law as private building or is uninhabited, even
only a means to gain entrance, and not to though there is simulation of public authority
extract personal belongings from the place in committing the taking or even if he used a
where it is being kept. fictitious name, the crime is only theft.

The law classifies robbery with force upon Note that in the crime of robbery with force
things as those committed in: upon things, what should be considered is
the means of entrance and means of taking
(1) an inhabited place; the personal property from within. If those
means do not come within the definition
(2) public buildings; under the Revised Penal Code, the taking
will only give rise to theft.
(3) a place devoted to religious worship.
Those means must be employed in entering.
The law also considers robbery committed If the offender had already entered when
not in an inhabited house or in a private these means were employed, anything
building. taken inside, without breaking of any sealed
or closed receptacle, will not give rise to
Note that the manner of committing the robbery.
robbery with force upon things is not the
same. Illustration:

When the robbery is committed in a house A found B inside his (A’s) house. He asked
which is inhabited, or in a public building or B what the latter was doping there. B
in a place devoted to religious worship, the claimed he is an inspector from the local city
use of fictitious name or pretension to government to look after the electrical
possess authority in order to gain entrance installations. At the time B was chanced
will characterize the taking inside as robbery upon by A, he has already entered. So
with force upon things. anything he took inside without breaking of
any sealed or closed receptacle will not give
rise to robbery because the simulation of
Question & Answer public authority was made not in order to
enter but when he has already entered.

Certain men pretended to be from Article 301 defines an inhabited house,

the Price Control Commission and went to a public building, or building dedicated to
warehouse owned by a private person. religious worship and their dependencies,
They told the guard to open the warehouse thus:
purportedly to see if the private person is
hoarding essential commodities there. The Inhabited house – Any shelter, ship, or
guard obliged. They went inside and broke vessel constituting the dwelling of one or
in . They loaded some of the merchandise more persons, even though the inhabitants
inside claiming that it is the product of thereof shall temporarily be absent
hoarding and then drove away. What crime therefrom when the robbery is committed.
was committed?
Public building – Includes every building
It is only theft because the premises owned by the government or belonging to a
where the simulation of public authority was private person but used or rented by the
committed is not an inhabited house, not a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 158

government, although temporarily even if the same be broken

unoccupied by the same. open elsewhere.

Dependencies of an inhabited house, public 3. Offender took therefrom personal

building, or building dedicated to religious property belonging to another with
worship – All interior courts, corrals, intent to gain.
warehouses, granaries, barns, coachhouses,
stables, or other departments, or enclosed
interior entrance connected therewith and Under Article 303, if the robbery under
which form part of the whole. Orchards and Article 299 and 302 consists in the taking of
other lands used for cultivation or cereals, fruits, or firewood, the penalty
production are not included, even if closed, imposable is lower.
contiguous to the building, and having direct
connection therewith.
Article 304. Possession of Picklock or
Similar Tools
Article 302. Robbery in An Uninhabited
Place or in A Private Building Elements

Elements 1. Offender has in his possession

picklocks or similar tools;
1. Offender entered an uninhabited
place or a building which was not a 2. Such picklock or similar tools are
dwelling house, not a public building, especially adopted to the
or not an edifice devoted to religious commission of robbery;
worship;
3. Offender does not have lawful cause
2. Any of the following circumstances for such possession.
was present:

a. The entrance was effected Article 305 defines false keys to include the
through an opening not following:
intended for entrance or
egress; 1. Tools mentioned in Article 304;

b. A wall, roof, floor, or outside 2. Genuine keys stolen from the owner;
door or window was broken;
3. Any key other than those intended
c. The entrance was effected by the owner for use in the lock
through the use of false keys, forcibly opened by the offender.
picklocks or other similar
tools;
Brigandage – This is a crime committed by
d. A door, wardrobe, chest, or more than three armed persons who form a
any sealed or closed band of robbers for the purpose of
furniture or receptacle was committing robbery in the highway or
broken; or kidnapping persons for the purpose of
extortion or to obtain ransom, or for any
e. A closed or sealed other purpose to be attained by means of
receptacle was removed, force and violence.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 159

Article 306. Who Are Brigands robbery/brigandage under Presidential

Decree No. 532:
Elements of brigandage
(1) Brigandage as a crime under the
1. There are least four armed persons; Revised Penal Code refers to the
formation of a band of robbers by
2. They formed a band of robbers; more than three armed persons for
the purpose of committing robbery in
2. The purpose is any of the following: the highway, kidnapping for
purposes of extortion or ransom, or
a. To commit robbery in the for any other purpose to be attained
highway; by force and violence. The mere
forming of a band, which requires at
b. To kidnap persons for the least four armed persons, if for any
purpose of extortion or to of the criminal purposes stated in
obtain ransom; or Article 306, gives rise to brigandage.

c. To attain by means of force (2) Highway robbery/brigandage under

and violence any other Presidential Decree No. 532 is the
purpose. seizure of any person for ransom,
extortion or for any other lawful
purposes, or the taking away of the
Article 307. Aiding and Abetting A Band property of another by means of
of Brigands violence against or intimidation of
persons or force upon things or
Elements other unlawful means committed by
any person on any Philippine
1. There is a band of brigands; highway.

2. Offender knows the band to be of Brigandage under Presidential Decree No.

brigands; 532 refers to the actual commission of the
robbery on the highway and can be
3. Offender does any of the following committed by one person alone. It is this
acts: brigandage which deserves some attention
because not any robbery in a highway is
a. He in any manner aids, abets brigandage or highway robbery. A
or protects such band of distinction should be made between
brigands; highway robbery/brigandage under the
decree and ordinary robbery committed on
b. He gives them information of a highway under the Revised Penal Code.
the movements of the police
or other peace officers of the In People v. Puno, decided February 17,
government; or 1993, the trial court convicted the accused
of highway robbery/ brigandage under
c. He acquires or receives the Presidential Decree No. 532 and sentenced
property taken by such them to reclusion perpetua. On appeal, the
brigands. Supreme Court set aside the judgment and
found the accused guilty of simple robbery
as punished in Article 294 (5), in relation to
Distinction between brigandage under the Article 295, and sentenced them
Revised Penal Code and highway accordingly. The Supreme Court pointed
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 160

out that the purpose of brigandage “is, inter of another without the latter’s
alia, indiscriminate highway robbery. And consent;
that PD 532 punishes as highway robbery
or Brigandage only acts of robbery 2. Those who having found lost
perpetrated by outlaws indiscriminately property, fails to deliver the same to
against any person or persons on a the local authorities or to its owner;
Philippine highway as defined therein, not
acts committed against a predetermined or 3. Those who, after having maliciously
particular victim”. A single act of robbery damaged the property of another,
against a particular person chosen by the remove or make use of the fruits or
offender as his specific victim, even if objects of the damage caused by
committed on a highway, is not highway them;
robbery or brigandage.
4. Those who enter an enclosed estate
In US v. Feliciano, 3 Phil. 422, it was or a field where trespass is forbidden
pointed out that highway robbery or or which belongs to another and,
brigandage is more than ordinary robbery without the consent of its owner,
committed on a highway. The purpose of hunt or fish upon the same or gather
brigandage is indiscriminate robbery in fruits, cereals or other forest or farm
highways. If the purpose is only a particular products.
robbery, the crime is only robbery or
robbery in band, if there are at least four
armed participants. Elements

Presidential Decree No. 532 introduced 1. There is taking of personal property;

amendments to Article 306 and 307 by
increasing the penalties. It does not require 2. The property taken belongs to
at least four armed persons forming a band another;
of robbers. It does not create a
presumption that the offender is a brigand 3. The taking was done with intent to
when he an unlicensed firearm is used gain;
unlike the Revised Penal Code. But the
essence of brigandage under the Revised 4. The taking was done without the
Penal Code is the same as that in the consent of the owner;
Presidential Decree, that is, crime of
depredation wherein the unlawful acts are 5. The taking is accomplished without
directed not only against specific, intended the use of violence against or
or preconceived victims, but against any intimidation of persons of force upon
and all prospective victims anywhere on the things.
highway and whoever they may potentially
be.

Article 308. Who Are Liable for Theft

Persons liable

1. Those who with intent to gain, but

without violence against or
intimidation of persons nor force
upon things, take personal property
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 161

Cattle Rustling and Qualified Theft of Large

Cattle – The crime of cattle-rustling is
Fencing under Presidential Decree No. defined and punished under Presidential
1612 is a distinct crime from theft and Decree No. 533, the Anti-Cattle Rustling
robbery. If the participant who profited is law of 1974, as the taking by any means,
being prosecuted with person who robbed, method or scheme, of any large cattle, with
the person is prosecuted as an accessory. or without intent to gain and whether
If he is being prosecuted separately, the committed with or without violence against
person who partook of the proceeds is liable or intimidation of person or force upon
for fencing. things, so long as the taking is without the
consent of the owner/breed thereof. The
In People v. Judge de Guzman, it was crime includes the killing or taking the meat
held that fencing is not a continuing offense. or hide of large cattle without the consent of
Jurisdiction is with the court of the place the owner.
where the personal property subject of the
robbery or theft was possessed, bought, Since the intent to gain is not essential, the
kept, or dealt with. The place where the killing or destruction of large cattle, even
theft or robbery was committed was without taking any part thereof, is not a
inconsequential. crime of malicious mischief but cattle-
rustling.
Since Section 5 of Presidential Decree No.
1612 expressly provides that mere The Presidential Decree, however, does not
possession of anything of value which has supersede the crime of qualified theft of
been subject of theft or robbery shall be large cattle under Article 310 of the Revised
prima facie evidence of fencing, it follows Penal Code, but merely modified the
that a possessor of stolen goods is penalties provided for theft of large cattle
presumed to have knowledge that the and, to that extent, amended Articles 309
goods found in his possession after the fact and 310. Note that the overt act that gives
of theft or robbery has been established. rise to the crime of cattle-rustling is the
The presumption does not offend the taking or killing of large cattle. Where the
presumption of innocence in the large cattle was not taken, but received by
fundamental law. This was the ruling in the offender from the owner/overseer
Pamintuan v. People, decided on July 11, thereof, the crime is not cattle-rustling; it is
1994. qualified theft of large cattle.

Burden of proof is upon fence to overcome Where the large cattle was received by the
presumption; if explanation insufficient or offender who thereafter misappropriated it,
unsatisfactory, court will convict. This is a the crime is qualified theft under Article 310
malum prohibitum so intent is not material. if only physical or material possession
But if prosecution is under the Revised thereof was yielded to him. If both material
Penal Code, as an accessory, the criminal and juridical possession thereof was yielded
intent is controlling. to him who misappropriated the large cattle,
the crime would be estafa under Article 315
When there is notice to person buying, there (1b).
may be fencing such as when the price is
way below ordinary prices; this may serve Presidential Decree No. 533 is not a special
as notice. He may be liable for fencing law in the context of Article 10 of the
even if he paid the price because of the Revised Penal Code. It merely modified the
presumption. penalties provided for theft of large cattle
under the Revised Penal Code and
amended Article 309 and 310. This is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 162

explicit from Section 10 of the Presidential

Decree. Consequently, the trial court 1. Taking possession of any real
should not have convicted the accused of property belonging to another by
frustrated murder separately from cattle- means of violence against or
rustling, since the former should have been intimidation of persons;
absorbed by cattle-rustling as killing was a
result of or on the occasion of cattle-rustling. 2. Usurping any real rights in property
It should only be an aggravating belonging to another by means of
circumstance. But because the information violence against or intimidation of
did not allege the injury, the same can no persons.
longer be appreciated; the crime should,
therefore be only, simple cattle-rustling.
(People v. Martinada, February 13, 1991) Elements

1. Offender takes possession of any

Article 310. Qualified Theft real property or usurps any real
rights in property;
Theft is qualified if
2. The real property or real rights
1. Committed by a domestic servant; belong to another;

2. Committed with grave abuse of 3. Violence against or intimidation of

confidence; persons is used by the offender in
occupying real property or usurping
3. The property stolen is a motor real rights in property;
vehicle, mail matter, or large cattle;
4. There is intent to gain.
4. The property stolen consists of
coconuts taken from the premises of
a plantation; Use the degree of intimidation to determine
the degree of the penalty to be applied for
5. The property stolen is fish taken the usurpation.
from a fishpond or fishery; or
Usurpation under Article 312 is committed in
6. If property is taken on the occasion the same way as robbery with violence or
of fire, earthquake, typhoon, volcanic intimidation of persons. The main
eruption, or any other calamity, difference is that in robbery, personal
vehicular accident, or civil property is involved; while in usurpation of
disturbance. real rights, it is real property. (People v.
Judge Alfeche, July 23, 1992)

Article 311. Theft of the Property of the Usurpation of real rights and property
National Library or National Museum should not be complexed using Article 48
when violence or intimidation is committed.
If the property stolen is any property of the There is only a single crime, but a two-tiered
National Library or of the National Museum penalty is prescribed to be determined on
whether the acts of violence used is akin to
Article 312. Occupation of Real Property that in robbery in Article 294, grave threats
or Usurpation of Real Rights in Property or grave coercion and an incremental
penalty of fine based on the value of the
Acts punished: gain obtained by the offender.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 163

1. Those who have the capacity or

Therefore, it is not correct to state that the means to pay rent or for legitimate
threat employed in usurping real property is housing but are squatting anyway;
absorbed in the crime; otherwise, the
additional penalty would be meaningless. 2. Also the persons who were awarded
lots but sold or lease them out;
The complainant must be the person upon
whom violence was employed. If a tenant 3. Intruders of lands reserved for
was occupying the property and he was socialized housing, pre-empting
threatened by the offender, but it was the possession by occupying the same.
owner who was not in possession of the
property who was named as the offended
party, the same may be quashed as it does Article 313. Altering Boundaries or
not charge an offense. The owner would, at Landmarks
most, be entitled to civil recourse only.
Elements

On carnapping and theft of motor vehicle 1. There are boundary marks or

monuments of towns, provinces, or
The taking with intent to gain of a motor estates, or any other marks intended
vehicle belonging to another, without the to designate the boundaries of the
latter’s consent, or by means of violence or same;
intimidation of persons, or by using force
upon things is penalized as carnapping 2. Offender alters said boundary marks.
under Republic Act No. 6539 (An Act
Preventing and Penalizing Carnapping),
as amended. The overt act which is being Article 314. Fraudulent Insolvency
punished under this law as carnapping is
also the taking of a motor vehicle under Elements
circumstances of theft or robbery. If the
motor vehicle was not taken by the offender 1. Offender is a debtor, that is, he has
but was delivered by the owner or the obligations due and payable;
possessor to the offender, who thereafter
misappropriated the same, the crime is 2. He absconds with his property;
either qualified theft under Article 310 of the
Revised Penal Code or estafa under Article 3. There is prejudice to his creditors.
315 (b) of the Revised Penal Code.
Qualified theft of a motor vehicle is the
crime if only the material or physical Article 315. Swindling (Estafa)
possession was yielded to the offender;
otherwise, if juridical possession was also Elements in general
yielded, the crime is estafa.
1. Accused defrauded another by
abuse of confidence or by means of
On squatting deceit; and

According to the Urban Development and This covers the three different ways
Housing Act, the following are squatters: of committing estafa under Article
315; thus, estafa is committed –
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 164

a. With unfaithfulness or abuse

of confidence; 4. There is a demand made by the
offended party to the offender.
b. By means of false pretenses
or fraudulents acts; or (The fourth element is not necessary
when there is evidence of
c. Through fraudulent means. misappropriation of the goods by the
defendant. [Tubb v. People, et al.,
(The first form under subdivision 1 is 101 Phil. 114] ).
known as estafa with abuse of
confidence; and the second and
third forms under subdivisions 2 and Under Presidential Decree No. 115, the
3 cover cover estafa by means of failure of the entrustee to turn over the
deceit.) proceeds of the sale of the goods,
documents, or instruments covered by a
2. Damage or prejudice capable of trust receipt, to the extent of the amount
pecuniary estimation is caused to owing to the entruster, or as appearing in
the offended party or third person. the trust receipt; or the failure to return said
goods, documents, or instruments if they
were not sold or disposed of in accordance
Elements of estafa with unfaithfulness of with the terms of the trust receipt constitute
abuse of confidence under Article 315 (1) estafa.

Under paragraph (a)

Under paragraph (c)
1. Offender has an onerous obligation
to deliver something of value; 1. The paper with the signature of the
offended party is in blank;
2. He alters its substance, quantity, or
quality; 2. Offended party delivered it to the
offender;
3. Damage or prejudice is caused to
another. 3. Above the signature of the offended
party, a document is written by the
Under paragraph (b) offender without authority to do so;

1. Money, goods, or other personal 4. The document so written creates a

property is received by the offender liability of, or causes damage to, the
is trust, or on commission, or for offended party or any third person.
administration, or under any other
obligation involving the duty to make
delivery of, or to return, the same; Elements of estafa by means of false
pretenses or fraudulent acts under Article
2. There is misappropriation or 315 (2)
conversion of such money or
property by the offender, or denial Acts punished under paragraph (a)
on his part of such receipt;
1. Using fictitious name;
3. Such misappropriation or conversion
or denial is to the prejudice of 2. Falsely pretending to possess power,
another; and influence, qualifications, property,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 165

credit, agency, business or (3) It does not cover checks where the
imaginary transactions; or purpose of drawing the check is to
guarantee a loan as this is not an
3. By means of other similar deceits. obligation contemplated in this
paragraph

Under paragraph (b) The check must be genuine. If the check is

falsified and is cashed with the bank or
Altering the quality, fineness, or weight of exchanged for cash, the crime is estafa thru
anything pertaining to his art or business. falsification of a commercial document.

The general rule is that the accused must

Under paragraph (c) be able to obtain something from the
offended party by means of the check he
Pretending to have bribed any government issued and delivered. Exception: when the
employee, without prejudice to the action for check is issued not in payment of an
calumny which the offended party may obligation.
deem proper to bring against the offender.
It must not be promissory notes, or
guaranties.
Under paragraph (d)
Good faith is a defense.
1. Offender postdated a check, or
issued a check in payment of an If the checks were issued by the defendant
obligation; and he received money for them, then
stopped payment and did not return the
2. Such postdating or issuing a check money, and he had an intention to stop
was done when the offender had no payment when he issued the check, there is
funds in the bank, or his funds estafa.
deposited therein were not sufficient
to cover the amount of the check. Deceit is presumed if the drawer fails to
deposit the amount necessary to cover the
check within three days from receipt of
Note that this only applies if – notice of dishonor or insufficiency of funds
in the bank.
(1) The obligation is not pre-existing;

(2) The check is drawn to enter into an Batas Pambansa Blg. 22

obligation;
How violated
(Remember that it is the check that
is supposed to be the sole A. 1. A person makes or draws
consideration for the other party to and issues any check;
have entered into the obligation. For
example, Rose wants to purchase a 2. The check is made or drawn
bracelet and draws a check without and issued to apply on
insufficient funds. The jeweler sells account or for value;
her the bracelet solely because of
the consideration in the check.) Thus, it can apply to pre-
existing obligations, too.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 166

3. The person who makes or (2) Estafa under Article 315 (2) (d) is a
draws and issued the check crime against property while Batas
knows at the time of issue Pambansa Blg. 22 is a crime against
that he does not have public interest. The gravamen for
sufficient funds in or credit the former is the deceit employed,
with the drawee bank for the while in the latter, it is the issuance
payment of such check in full of the check. Hence, there is no
upon its presentment; double jeopardy.

3. The check is subsequently (3) In the estafa under Article 315 (2) (d),
dishonored by the drawee deceit and damage are material,
bank for insufficiency of while in Batas Pambansa Blg. 22,
funds or credit, or would they are immaterial.
have been dishonored for the
same reason had not the (4) In estafa under Article 315 (2) (d),
drawer, without any valid knowledge by the drawer of
reason, ordered the bank to insufficient funds is not required,
stop payment. while in Batas Pambansa Blg. 22,
knowledge by the drawer of
insufficient funds is reqired.
B. 1. A person has sufficient funds
in or credit with the drawee
bank when he makes or When is there prima facie evidence of
draws and issues a check; knowledge of insufficient funds?

2. He fails to keep sufficient There is a prima facie evidence of

funds or to maintain a credit knowledge of insufficient funds when the
to cover the full amount of check was presented within 90 days from
the check if presented within the date appearing on the check and was
90 days from the date dishonored.
appearing;
Exceptions
3. The check is dishonored by
the drawee bank. 1. When the check was presented after
90 days from date;

Distinction between estafa under Article 315 2. When the maker or drawer --
(2) (d) of the Revised Penal Code and
violation of Batas Pambansa Blg. 22: a. Pays the holder of the check
the amount due within five
(1) Under both Article 315 (2) (d) and banking days after receiving
Batas Pambansa Blg. 22, there is notice that such check has
criminal liability if the check is drawn not been paid by the drawee;
for non-pre-existing obligation.
b. Makes arrangements for
If the check is drawn for a pre- payment in full by the drawee
existing obligation, there is criminal of such check within five
liability only under Batas Pambansa banking days after notice of
Blg. 22. non-payment
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 167

The drawee must cause to be written or

stamped in plain language the reason for 1. Offender induced the offended party
the dishonor. to sign a document;

If the drawee bank received an order of 2. Deceit was employed to make him
stop-payment from the drawer with no sign the document;
reason, it must be stated that the funds are
insufficient to be prosecuted here. 3. Offended party personally signed the
document;
The unpaid or dishonored check with the
stamped information re: refusal to pay is 4. Prejudice was caused.
prima facie evidence of (1) the making or
issuance of the check; (2) the due
presentment to the drawee for payment & Under paragraph (b)
the dishonor thereof; and (3) the fact that
the check was properly dishonored for the Resorting to some fraudulent practice to
reason stamped on the check. insure success in a gambling game;

Acts punished under paragraph (e) Under paragraph (c)

1. a. Obtaining food, refreshment, 1. Offender removed, concealed or

or accommodation at a hotel, destroyed;
inn, restaurant, boarding
house, lodging house, or 2. Any court record, office files,
apartment house; documents or any other papers;

b. Without paying therefor; 3. With intent to defraud another.

c. With intent to defraud the

proprietor or manager. In Kim v. People, 193 SCRA 344, it was
held that if an employee receives cash
2. a. Obtaining credit at advance from his employer to defray his
any of the establishments; travel expenses, his failure to return
unspent amount is not estafa through
b. Using false pretense; misappropriation or conversion because
ownership of the money was transferred to
3. a. Abandoning or employee and no fiduciary relation was
surreptitiously removing any created in respect to such advance. The
part of his baggage in the money is a loan. The employee has no
establishment; legal obligation to return the same money,
that is, the same bills and coins received.
b. After obtaining credit, food,
refreshment, accommodation; In Saddul Jr. v. CA, 192 SCRA 277, it was
held that the act of using or disposing of
c. Without paying. another’s property as if it were one’s own, or
of devoting it to a purpose or use different
Estafa through any of the following from that agreed upon, is a misappropriation
fraudulent means under Article 315 (3) and conversion to the prejudice of the
owner. Conversion is unauthorized
Under paragraph (a) assumption an exercise of the right of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 168

ownership over goods and chattels for value" and upon its presentment it was
belonging to another, resulting in the dishonored by the drawee bank for
alteration of their condition or exclusion of insufficiency of funds, provided that the
the owner’s rights. drawer had been notified of the dishonor
and inspite of such notice fails to pay the
In Allied Bank Corporation v. Secretary holder of the check the full amount due
Ordonez, 192 SCRA 246, it was held that thereon within five days from notice.
under Section 13 of Presidential Decree No.
115, the failure of an entrustee to turn over Under Batas Pambansa Blg. 22, a drawer
the proceeds of sale of the goods covered must be given notice of dishonor and given
by the Trust Receipt, or to return said goods five banking days from notice within which
if they are not sold, is punishable as estafa to deposit or pay the amount stated in the
Article 315 (1) (b). check to negate the presumtion that drawer
knew of the insufficiency. After this period,
it is conclusive that drawer knew of the
On issuance of a bouncing check insufficiency, thus there is no more defense
to the prosecution under Batas Pambansa
The issuance of check with insufficient Blg. 22.
funds may be held liable for estafa and
Batas Pambansa Blg. 22. Batas Pambansa The mere issuance of any kind of check
Blg. 22 expressly provides that prosecution regardless of the intent of the parties,
under said law is without prejudice to any whether the check is intended to serve
liability for violation of any provision in the merely as a guarantee or as a deposit,
Revised Penal Code. Double Jeopardy makes the drawer liable under Batas
may not be invoked because a violation of Pambansa Blg. 22 if the check bounces. As
Batas Pambansa Blg. 22 is a malum a matter of public policy, the issuance of a
prohibitum and is being punished as a crime worthless check is a public nuisance and
against the public interest for undermining must be abated.
the banking system of the country, while
under the RevisedPenal Code, the crime is In De Villa v. CA, decided April 18, 1991,
malum in se which requires criminal intent it was held that under Batas Pambansa Blg.
and damage to the payee and is a crime 22, there is no distinction as to the kind of
against property. check issued. As long as it is delivered
within Philippine territory, the Philippine
In estafa, the check must have been issued courts have jurisdiction. Even if the check is
as a reciprocal consideration for parting of only presented to and dishonored in a
goods (kaliwaan). There must be Philippine bank, Batas Pambansa Blg. 22
concomitance. The deceit must be prior to applies. This is true in the case of dollar or
or simultaneous with damage done, that is, foreign currency checks. Where the law
seller relied on check to part with goods. If makes no distinction, none should be made.
it is issued after parting with goods as in
credit accommodation only, there is no In People v. Nitafan, it was held that as
estafa. If the check is issued for a pre- long as instrument is a check under the
existing obligation, there is no estafa as negotiable instrument law, it is covered by
damage had already been done. The Batas Pambansa Blg. 22. A memorandum
drawer is liable under Batas Pambansa Blg. check is not a promissory note, it is a check
22. which have the word “memo,” “mem”,
“memorandum” written across the face of
For criminal liability to attach under Batas the check which signifies that if the holder
Pambansa Blg. 22, it is enough that the upon maturity of the check presents the
check was issued to "apply on account or same to the drawer, it will be paid absolutely.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 169

But there is no prohibition against drawer 2. Offender who is not the owner
from depositing memorandum check in a represents himself as the owner
bank. Whatever be the agreement of the thereof;
parties in respect of the issuance of a check
is inconsequential to a violation to Batas 3. Offender executes an act of
Pambansa Blg. 22 where the check ownership such as selling, leasing,
bounces. encumbering or mortgaging the real
property;
But overdraft or credit arrangement may be
allowed by banks as to their preferred 4. The act is made to the prejudice to
clients and Batas Pambansa Blg. 22 does the owner or a third person.
not apply. If check bounces, it is because
bank has been remiss in honoring
agreement. Under paragraph 2 – by disposing of real
property as free from encumbrance,
The check must be presented for payment although such encumbrance be not
within a 90-day period. If presented for recorded
payment beyond the 90 day period and the
drawer’s funds are insufficient to cover it, Elements
there is no Batas Pambansa Blg. 22
violation. 1. The thing disposed is a real property:

Where check was issued prior to August 8, 2. Offender knew that the real property
1984, when Circular No. 12 of the was encumbered, whether the
Department of the Justice took effect, and encumbrance is recorded or not;
the drawer relied on the then prevailing
Circular No. 4 of the Ministry of Justice to 3. There must be express
the effect that checks issued as part of an representation by offender that the
arrangement/agreement of the parties to real property is free from
guarantee or secure fulfillment of an encumbrance;
obligation are not covered by Batas
Pambansa Blg. 22, no criminal liability 4. The act of disposing of the real
should be incurred by the drawer. Circular property is made to the damage of
should not be given retroactive effect. another.
(Lazaro v. CA, November 11, 1993, citing
People v. Alberto, October 28, 1993)
Under paragraph 3 – by wrongfully taking by
the owner of his personal property from its
Article 316. Other Forms of Swindling lawful possessor

Under paragraph 1 – By conveying, selling, Elements

encumbering, or mortgaging any real
property, pretending to be the owner of the 1. Offender is the owner of personal
same property;

Elements 2. Said personal property is in the

lawful possession of another;
1. There is an immovable, such as a
parcel of land or a building; 3. Offender wrongfully takes it from its
lawful possessor;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 170

4. Prejudice is thereby caused to the

possessor or third person. 3. He sells, mortgages, or in any
manner encumbers said real
property;
Under paragraph 4 – by executing any
fictitious contract to the prejudice of another 4. Such sale, mortgage or
encumbrance is without express
authority from the court, or made
Under paragraph 5 – by accepting any before the cancellation of his bond,
compensation for services not rendered or or before being relieved from the
for labor not performed obligation contracted by him.

Under paragraph 6 – by selling, mortgaging Article 317. Swindling A Minor

or encumbering real property or properties
with which the offender guaranteed the Elements
fulfillment of his obligation as surety
1. Offender takes advantage of the
Elements inexperience or emotions or feelings
of a minor;
1. Offender is a surety in a bond given
in a criminal or civil action; 2. He induces such minor to assume
an obligation or to give release or to
2. He guaranteed the fulfillment of such execute a transfer of any property
obligation with his real property or right;
properties;
3. The consideration is some loan of
money, credit or other personal
property;

4. The transaction is to the detriment of

such minor.

Article 318. Other deceits

Acts punished

1. Defrauding or damaging another by

any other deceit not mentioned in
the preceding articles;

2. Interpreting dreams, by making

forecasts, by telling fortunes, or by
taking advantage or the credulity of
the public in any other similar
manner, for profit or gain.

Article 319. Removal, Sale or Pledge of

Mortgaged Property
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 171

Acts punished 2. Offender, who is the

mortgagor of such property,
1. Knowingly removing any personal sells or pledges the same or
property mortgaged under the any part thereof;
Chattel Mortgage law to any
province or city other than the one in 3. There is no consent of the
which it was located at the time of mortgagee written on the
execution of the mortgage, without back of the mortgage and
the written consent of the mortgagee noted on the record thereof
or his executors, administrators or in the office of the register of
assigns; deeds.

Elements:
Arson
1. Personal property is
mortgaged under the Chattel Kinds of arson
Mortgage Law;
1. Arson, under Section 1 of
2. Offender knows that such Presidential Decree No. 1613;
property is so mortgaged;
2. Destructive arson, under Article 320
3. Offender removes such of the Revised Penal Code, as
mortgaged personal property amended by Republic Act No. 7659;
to any province or city other
than the one in which it was 3. Other cases of arson, under Section
located at the time of the 3 of Presidential Decree No. 1613.
execution of the mortgage;

4. The removal is permanent; Article 327. Who Are Liable for Malicious
Mischief
5. There is no written consent
of the mortgagee or his Elements
executors, administrators or
assigns to such removal. 1. Offender deliberately caused
damage to the property of another;
2. Selling or pledging personal property
already pledged, or any part thereof, 2. Such act does not constitute arson
under the terms of the Chattel or other crimes involving destruction;
Mortgage Law, without the consent
of the mortgagee written on the back 3. The act of damaging another’s
of the mortgage and noted on the property was committed merely for
record thereof in the office of the the sake of damaging it;
register of deeds of the province
where such property is located.
There is destruction of the property of
Elements: another but there is no misappropriation.
Otherwise, it would be theft if he gathers the
1. Personal property is already effects of destruction.
pledged under the terms of
the Chattel Mortgage Law;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 172

Article 328. Special Case of Malicious Persons exempted from criminal liability
Mischief
1. Spouse, ascendants and
Acts punished descendants, or relatives by affinity
in the same line;
1. Causing damage to obstruct the
performance of public functions; 2. Widowed spouse with respect to the
property which belonged to the
2. Using any poisonous or corrosive deceased spouse before the same
substance; passed into the possession of
another
3. Spreading any infection or contagion
among cattle; 3. Brothers and sisters and brothers-in-
law and sisters-in-law, if living
4. Causing damage to the property of together.
the National Museum or National
Library, or to any archive or registry,
waterworks, road, promenade, or Only the relatives enumerated incur no
any other thing used is common by liability if the crime relates to theft (not
the pubic. robbery), swindling, and malicious mischief.
Third parties who participate are not exempt.
The relationship between the spouses is not
Article 329. Other Mischiefs limited to legally married couples; the
provision applies to live-in partners.
All other mischiefs not included in the next
preceding article Estafa should not be complexed with any
other crime in order for exemption to
operate.
Article 330. Damage and Obstruction to
Means of Communication
TITLE XI. CRIMES AGAINST CHASTITY
This is committed by damaging any railway,
telegraph or telephone lines. Crimes against chastity

1. Adultery (Art. 333);

Article 331. Destroying or Damaging
Statues, Public Monuments, or Paintings 2. Concubinage (Art. 334);

3. Acts of lasciviousness (Art. 336);

Article 332. Persons Exempt from
Criminal Liability 4. Qualified seduction (Art. 337);

Crimes involved in the exemption 5. Simple seduction (Art. 338);

1. Theft; 6. Acts of lasciviousness with the

consent of the offended party (Art.
2. Estafa; and 339);

3. Malicious mischief. 7. Corruption of minors (Art. 340);

REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 173

8. White slave trade (Art. 34); woman to be married or not is a matter of

defense and its up to him to ventilate that in
9. Forcible abduction (Art. 342); formal investigations or a formal trial.
If after preliminary investigation, the public
10. Consented abduction (Art. 343). prosecutor is convinced that the man did not
know that the woman is married, then he
could simply file the case against the
The crimes of adultery, concubinage, woman.
seduction, abduction and acts of
lasciviousness are the so-called private The acquittal of the woman does not
crimes. They cannot be prosecuted except necessarily result in the acquittal of her co-
upon the complaint initiated by the offended accused.
party. The law regards the privacy of the
offended party here as more important than In order to constitute adultery, there must be
the disturbance to the order of society. For a joint physical act. Joint criminal intent is
the law gives the offended party the not necessary. Although the criminal intent
preference whether to sue or not to sue. may exist in the mind of one of the parties to
But the moment the offended party has the physical act, there may be no such
initiated the criminal complaint, the public intent in the mind of the other party. One
prosecutor will take over and continue with may be guilty of the criminal intent, the other
prosecution of the offender. That is why innocent, and yet the joint physical act
under Article 344, if the offended party necessary to constitute the adultery may be
pardons the offender, that pardon will only complete. So, if the man had no knowledge
be valid if it comes before the prosecution that the woman was married, he would be
starts. The moment the prosecution starts, innocent insofar as the crime of adultery is
the crime has already become public and it concerned but the woman would still be
is beyond the offended party to pardon the guilty; the former would have to be acquitted
offender. and the latter found guilty, although they
were tried together.
Article 333. Who Are Guilty of Adultery
A husband committing concubinage may be
Elements required to support his wife committing
adultery under the rule in pari delicto.
1. The woman is married;
There is no frustrated adultery because of
2. She has sexual intercourse with a the nature of the offense.
man not her husband;
For adultery to exist, there must be a
3. As regards the man with whom she marriage although it be subsequently
has sexual intercourse, he must annulled. There is no adultery, if the
know her to be married. marriage is void from the beginning.

Adultery is an instantaneous crime which is

Adultery is a crime not only of the married consummated and completed at the
woman but also of the man who had moment of the carnal union. Each sexual
intercourse with a married woman knowing intercourse constitutes a crime of adultery.
her to be married. Even if the man proves Adultery is not a continuing crime unlike
later on that he does not know the woman concubinage.
to be married, at the beginning, he must still
be included in the complaint or information. Illustration:
This is so because whether he knows the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 174

Madamme X is a married woman residing in

Pasay City. He met a man, Y, at Roxas
Boulevard. She agreed to go with to Baguio With respect to concubinage the same
City, supposedly to come back the next day. principle applies: only the offended spouse
When they were in Bulacan, they stayed in can bring the prosecution. This is a crime
a motel, having sexual intercourse there. committed by the married man, the husband.
After that, they proceeded again and Similarly, it includes the woman who had a
stopped at Dagupan City, where they went relationship with the married man.
to a motel and had sexual intercourse.
It has been asked why the penalty for
There are two counts of adultery committed adultery is higher than concubinage when
in this instance: one adultery in Bulacan, both crimes are infidelities to the marital
and another adultery in Dagupan City. vows. The reason given for this is that
Even if it involves the same man, each when the wife commits adultery, there is a
intercourse is a separate crime of adultery. probability that she will bring a stranger into
the family. If the husband commits
concubinage, this probability does not arise
Article 334. Concubinage because the mother of the child will always
carry the child with her. So even if the
Acts punished husband brings with him the child, it is
clearly known that the child is a stranger.
1. Keeping a mistress in the conjugal Not in the case of a married woman who
dwelling; may bring a child to the family under the
guise of a legitimate child. This is the
2. Having sexual intercourse, under reason why in the former crime the penalty
scandalous circumstances; is higher than the latter.

3. Cohabiting with her in any other Unlike adultery, concubinage is a continuing

place. crime.

Elements Article 335. Rape

1. The man is married; This has been repealed by Republic Act No.
8353 or the Anti-Rape Law of 1997. See
2. He is either – Article 266-A.

a. Keeping a mistress in the

conjugal dwelling; Article 336. Acts of Lasciviousness

b. Having sexual intercourse Elements

under scandalous
circumstances with a woman 1. Offender commits any act of
who is not his wife; or lasciviousness or lewdness;

c. Cohabiting with a woman 2. It is done under any of the following

who is not his wife in any circumstances:
other place;
a. By using force or intimidation;
3. As regards the woman, she knows
that the man is married.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 175

b. When the offended party is is a person in authority, a domestic,

deprived or reason of a househelp, a priest, a teacher or a
otherwise unconscious; or guardian, or there was a deceitful
promise of marriage which never
c. When the offended party is would really be fulfilled.
another person of either sex.
See Article 339.

Note that there are two kinds of acts of Always remember that there can be no
lasciviousness under the Revised Penal frustration of acts of lasciviousness, rape or
Code: (1) under Article 336, and (2) under adultery because no matter how far the
Article 339. offender may have gone towards the
realization of his purpose, if his participation
1. Article 336. Acts of Lasciviousness amounts to performing all the acts of
execution, the felony is necessarily
Under this article, the offended party produced as a consequence thereof.
may be a man or a woman. The
crime committed, when the act Intent to rape is not a necessary element of
performed with lewd design was the crime of acts of lasciviousness.
perpetrated under circumstances Otherwise, there would be no crime of
which would have brought about the attempted rape.
crime of rape if sexual intercourse
was effected, is acts of
lasciviousness under this article. Article 337. Qualified Seduction
This means that the offended party
is either – Acts punished

(1) under 12 years of age; or 1. Seduction of a virgin over 12 years

and under 18 years of age by certain
(2) being over 12 years of age, persons, such as a person in
the lascivious acts were authority, priest, teacher; and
committed on him or her
through violence or Elements
intimidation, or while the
offender party was deprived 1. Offended party is a virgin,
of reason, or otherwise which is presumed if she is
unconscious. unmarried and of good
reputation;
2. Article 339. Acts of Lasciviousness
with the Consent of the Offended 2. She is over 12 and under 18
Party: years of age;

Under this article, the victim is 3. Offender has sexual

limited only to a woman. The intercourse with her;
circumstances under which the
lascivious acts were committed must 4. There is abuse of authority,
be that of qualified seduction or confidence or relationship on
simple seduction, that is, the the part of the offender.
offender took advantage of his
position of ascendancy over the
offender woman either because he
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2. Seduction of a sister by her brother, For purposes of qualified seduction, virginity

or descendant by her ascendant, does not mean physical virginity. It means
regardless of her age or reputation. that the offended party has not had any
experience before.

Person liable Although in qualified seduction, the age of

the offended woman is considered, if the
1. Those who abused their authority – offended party is a descendant or a sister of
the offender – no matter how old she is or
a. Person in public authority; whether she is a prostitute – the crime of
qualified seduction is committed.
b. Guardian;
Illustration:
c. Teacher;
If a person goes to a sauna parlor and finds
d. Person who, in any capacity, there a descendant and despite that, had
is entrusted with the sexual intercourse with her, regardless of
education or custody of the her reputation or age, the crime of qualified
woman seduced; seduction is committed.

2. Those who abused confidence In the case of a teacher, it is not necessary

reposed in them – that the offended woman be his student. It
is enough that she is enrolled in the same
a. Priest; school.

b. House servant; Deceit is not necessary in qualified

seduction. Qualified seduction is committed
c. Domestic; even though no deceit intervened or even
when such carnal knowledge was voluntary
3. Those who abused their relationship on the part of the virgin. This is because in
– such a case, the law takes for granted the
existence of the deceit as an integral
a. Brother who seduced his element of the crime and punishes it with
sister; greater severity than it does the simple
seduction, taking into account the abuse of
b. Ascendant who seduced his confidence on the part of the agent. Abuse
descendant. of confidence here implies fraud.

This crime also involves sexual intercourse. Article 338. Simple Seduction
The offended woman must be over 12 but
below 18 years. Elements

The distinction between qualified seduction 1. Offender party is over 12 and under
and simple seduction lies in the fact, among 18 years of age;
others, that the woman is a virgin in
qualified seduction, while in simple 2. She is of good reputation, single or
seduction, it is not necessary that the widow;
woman be a virgin. It is enough that she is
of good repute. 3. Offender has sexual intercourse with
her;
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corruption of persons under age to satisfy

4. It is committed by means of deceit. the lust of another.

It is not required that the offender be the

This crime is committed if the offended guardian or custodian of the minor.
woman is single or a widow of good
reputation, over 12 and under 18 years of It is not necessary that the minor be
age, the offender has carnal knowledge of prostituted or corrupted as the law merely
her, and the offender resorted to deceit to punishes the act of promoting or facilitating
be able to consummate the sexual the prostitution or corruption of said minor
intercourse with her. and that he acted in order to satisfy the lust
of another.
The offended woman must be under 18 but
not less than 12 years old; otherwise, the
crime is statutory rape. Article 341. White Slave Trade

Unlike in qualified seduction, virginity is not Acts punished

essential in this crime. What is required is
that the woman be unmarried and of good 1. Engaging in the business of
reputation. Simple seduction is not prostitution;
synonymous with loss of virginity. If the
woman is married, the crime will be adultery. 2. Profiting by prostitution;

The failure to comply with the promise of 3. Enlisting the services of women for
marriage constitutes the deceit mentioned in the purpose of prostitution.
the law.

Article 342. Forcible Abduction

Article 339. Acts of Lasciviousness with
the Consent of the Offender Party Elements

Elements 1. The person abducted is any woman,

regardless or her age, civil status, or
1. Offender commits acts of reputation;
lasciviousness or lewdness;
2. The abduction is against her will;
2. The acts are committed upon a
woman who is a virgin or single or 3. The abduction is with lewd designs.
widow of good reputation, under 18
years of age but over 12 years, or a
sister or descendant, regardless of A woman is carried against her will or
her reputation or age; brought from one place to another against
her will with lewd design.
3. Offender accomplishes the acts by
abuse of authority, confidence, If the element of lewd design is present, the
relationship, or deceit. carrying of the woman would qualify as
abduction; otherwise, it would amount to
Article 340. Corruption of Minors kidnapping. If the woman was only brought
to a certain place in order to break her will
This punishes any person who shall and make her agree to marry the offender,
promote or facilitate the prostitution or the crime is only grave coercion because
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the criminal intent of the offender is to force

his will upon the woman and not really to If there is a separation in fact, the taking by
restrain the woman of her liberty. the husband of his wife against her will
constitutes grave coercion.
If the offended woman is under 12 years old,
even if she consented to the abduction, the Distinction between forcible abduction and
crime is forcible abduction and not illegal detention:
consented abduction.
When a woman is kidnapped with lewd or
Where the offended woman is below the unchaste designs, the crime committed is
age of consent, even though she had gone forcible abduction.
with the offender through some deceitful
promises revealed upon her to go with him When the kidnapping is without lewd
and they live together as husband and wife designs, the crime committed is illegal
without the benefit of marriage, the ruling is detention.
that forcible abduction is committed by the
mere carrying of the woman as long as that But where the offended party was forcibly
intent is already shown. In other words, taken to the house of the defendant to
where the man cannot possibly give the coerce her to marry him, it was held that
woman the benefit of an honorable life, all only grave coercion was committed and not
that man promised are just machinations of illegal detention.
a lewd design and, therefore, the carrying
of the woman is characterized with lewd
design and would bring about the crime of Article 343. Consented Abduction
abduction and not kidnapping. This is also
true if the woman is deprived of reason and Elements
if the woman is mentally retardate. Forcible
abduction is committed and not consented 1. Offended party is a virgin;
abduction.
2. She is over 12 and under 18 years
Lewd designs may be demonstrated by the of age;
lascivious acts performed by the offender on
her. Since this crime does not involve 3. Offender takes her away with her
sexual intercourse, if the victim is subjected consent, after solicitation or cajolery;
to this, then a crime of rape is further
committed and a complex crime of forcible 4. The taking away is with lewd
abduction with rape is committed. designs.

The taking away of the woman may be

accomplished by means of deceit at the Where several persons participated in the
beginning and then by means of violence forcible abduction and these persons also
and intimidation later. raped the offended woman, the original
ruling in the case of People v. Jose is that
The virginity of the complaining witness is there would be one count of forcible
not a determining factor in forcible abduction with rape and then each of them
abduction. will answer for his own rape and the rape of
the others minus the first rape which was
In order to demonstrate the presence of the complexed with the forcible abduction. This
lewd design, illicit criminal relations with the ruling is no longer the prevailing rule. The
person abducted need not be shown. The view adopted in cases of similar nature is to
intent to seduce a girl is sufficient. the effect that where more than one person
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 179

has effected the forcible abduction with rape, affects more the offended party than social
all the rapes are just the consummation of order. The offended party may prefer to
the lewd design which characterizes the suffer the outrage in silence rather than to
forcible abduction and, therefore, there vindicate his honor in public.
should only be one forcible abduction with
rape. In the crimes of rape, abduction and
seduction, if the offended woman had given
In the crimes involving rape, abduction, birth to the child, among the liabilities of the
seduction, and acts of lasciviousness, the offender is to support the child. This
marriage by the offender with the offended obligation to support the child may be true
woman generally extinguishes criminal even if there are several offenders. As to
liability, not only of the principal but also of whether all of them will acknowledge the
the accomplice and accessory. However, child, that is a different question because
the mere fact of marriage is not enough the obligation to support here is not founded
because it is already decided that if the on civil law but is the result of a criminal act
offender marries the offended woman or a form of punishment.
without any intention to perform the duties
of a husband as shown by the fact that after It has been held that where the woman was
the marriage, he already left her, the the victim of the said crime could not
marriage would appear as having been possibly conceive anymore, the trial court
contracted only to avoid the punishment. should not provide in its sentence that the
Even with that marriage, the offended accused, in case a child is born, should
woman could still prosecute the offender support the child. This should only be
and that marriage will not have the effect of proper when there is a probability that the
extinguishing the criminal liability. offended woman could give birth to an
offspring.
Pardon by the offended woman of the
offender is not a manner of extinguishing
criminal liability but only a bar to the TITLE XII. CRIMES AGAINST THE CIVIL
prosecution of the offender. Therefore, that STATUS OF PERSONS
pardon must come before the prosecution is
commenced. While the prosecution is Crimes against the civil status of persons
already commenced or initiated, pardon by
the offended woman will no longer be 1. Simulation of births, substitution of
effective because pardon may preclude one child for another and
prosecution but not prevent the same. concealment or abandonment of a
legitimate child (art. 347);
All these private crimes – except rape –
cannot be prosecuted de officio. If any 2. Usurpation of civil status (Art. 348);
slander or written defamation is made out of
any of these crimes, the complaint of the 3. Bigamy (Art. 349);
offended party is till necessary before such
case for libel or oral defamation may 4. Marriage contracted against
proceed. It will not prosper because the provisions of law (Art. 350);
court cannot acquire jurisdiction over these
crimes unless there is a complaint from the 5. Premature marriages (Art. 351);
offended party. The paramount decision of
whether he or she wanted the crime 6. Performance of illegal marriage
committed on him or her to be made public ceremony (Art. 352).
is his or hers alone, because the indignity or
dishonor brought about by these crimes
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 180

Article 347. Simulation of Births, The crime would fall under the
Substitution of One Child for Another, second paragraph of Article 347. The
and Concealment of Abandonment of A purpose of the woman is to cause the child
Legitimate Child to lose its civil status so that it may not be
able to share in the inheritance.
Acts punished
3. Suppose a child, one day
1. Simulation of births; after his birth, was taken to and left in the
midst of a lonely forest, and he was found
2. Substitution of one child for another; by a hunter who took him home. What
crime was committed by the person who left
3. Concealing or abandoning any it in the forest?
legitimate child with intent to cause
such child to lose its civil status. It is attempted infanticide, as the act
of the offender is an attempt against the life
of the child. See US v. Capillo, et al., 30
Illustration: Phil. 349.

People who have no child and who buy and

adopt the child without going through legal Article 349. Usurpation of Civil Status
adoption.
This crime is committed when a person
If the child is being kidnapped and they represents himself to be another and
knew that the kidnappers are not the real assumes the filiation or the parental or
parents of their child, then simulation of birth conjugal rights of such another person.
is committed. If the parents are parties to
the simulation by making it appear in the
birth certificate that the parents who bought Thus, where a person impersonates another
the child are the real parents, the crime is and assumes the latter's right as the son of
not falsification on the part of the parents wealthy parents, the former commits a
and the real parents but simulation of birth. violation of this article.

The term "civil status" includes one's public

Questions & Answers station, or the rights, duties, capacities and
incapacities which determine a person to a
given class. It seems that the term "civil
1. A woman who has given birth status" includes one's profession.
to a child abandons the child in a certain
place to free herself of the obligation and
duty of rearing and caring for the child. Article 349. Bigamy
What crime is committed by the woman?
Elements
The crime committed is abandoning
a minor under Article 276. 1. Offender has been legally married;

2. Suppose that the purpose of 2. The marriage has not been legally
the woman is abandoning the child is to dissolved or, in case his or her
preserve the inheritance of her child by a spouse is absent, the absent spouse
former marriage, what then is the crime could not yet be presumed dead
committed? according to the Civil Code;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 181

3. He contracts a second or Bigamy is a form of illegal marriage. The

subsequent marriage; offender must have a valid and subsisting
marriage. Despite the fact that the marriage
4. The second or subsequent marriage is still subsisting, he contracts a subsequent
has all the essential requisites for marriage.
validity.
Illegal marriage includes also such other
marriages which are performed without
The crime of bigamy does not fall within the complying with the requirements of law, or
category of private crimes that can be such premature marriages, or such
prosecuted only at the instance of the marriage which was solemnized by one who
offended party. The offense is committed is not authorized to solemnize the same.
not only against the first and second wife
but also against the state. For bigamy to be committed, the second
marriage must have all the attributes of a
Good faith is a defense in bigamy. valid marriage.

Failure to exercise due diligence to

ascertain the whereabouts of the first wife is Article 350. Illegal Marriage
bigamy through reckless imprudence.
Elements
The second marriage must have all the
essential requisites for validity were it not for 1. Offender contracted marriage;
the existence of the first marriage.
2. He knew at the time that –
A judicial declaration of the nullity of a
marriage, that is, that the marriage was void a. The requirements of the law
ab initio, is now required. were not complied with; or

One convicted of bigamy may also be b. The marriage was in

prosecuted for concubinage as both are disregard of a legal
distinct offenses. The first is an offense impediment.
against civil status, which may be
prosecuted at the instance of the state; the
second is an offense against chastity, and Marriages contracted against the provisions
may be prosecuted only at the instance of of laws
the offended party. The test is not whether
the defendant has already been tried for the 1. The marriage does not constitute
same act, but whether he has been put in bigamy.
jeopardy for the same offense.
2. The marriage is contracted knowing
One who, although not yet married before, that the requirements of the law
knowingly consents to be married to one have not been complied with or in
who is already married is guilty of bigamy disregard of legal impediments.
knowing that the latter’s marriage is still
valid and subsisting. 3. One where the consent of the other
was obtained by means of violence,
Distinction between bigamy and illegal intimidation or fraud.
marriage:
4. If the second marriage is void
because the accused knowingly
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 182

contracted it without complying with 2. Threatening to publish and offer to

legal requirements as the marriage prevent such publication for a
license, although he was previously compensation (Art. 356);
married.
3. Prohibited publication of acts
5. Marriage solemnized by a minister referred to in the course of official
or priest who does not have the proceedings (Art. 357);
required authority to solemnize
marriages. 4. Slander (Art. 358);

5. Slander by deed (Art. 359);

Article 351. Premature Marriage
6. Incriminating innocent person (Art.
Persons liable 363);

1. A widow who is married within 301 7. Intriguing against honor (Art. 364).
days from the date of the death of
her husband, or before having
delivered if she is pregnant at the Article 353. Definition of Libel
time of his death;
A libel is a public and malicious imputation
2. A woman who, her marriage having of a crime, or of a vice or defect, real or
been annulled or dissolved, married imaginary, or any act, omission, condition,
before her delivery or before the status, or circumstances tending to cause
expiration of the period of 301 days the dishonor, discredit, or contempt of a
after the date of the legal separation. natural or juridical person, or to blacken the
memory of one who is dead.

The Supreme Court has already taken into Elements:

account the reason why such marriage
within 301 days is made criminal, that is, 1. There must be an imputation of a
because of the probability that there might crime, or of a vice or defect, real or
be a confusion regarding the paternity of the imaginary, or any act, omission,
child who would be born. If this reason condition, status, or circumstance;
does not exist because the former husband
is impotent, or was shown to be sterile such 2. The imputation must be made
that the woman has had no child with him, publicly;
that belief of the woman that after all there
could be no confusion even if she would 3. It must be malicious;
marry within 301 days may be taken as
evidence of good faith and that would 4. The imputation must be directed at a
negate criminal intent. natural or juridical person, or one
who is dead;

TITLE XIII. CRIMES AGAINST HONOR 5. The imputation must tend to cause
the dishonor, discredit or contempt
Crimes against honor of the person defamed.

1. Libel by means of writings or similar Distinction between malice in fact and

means (Art. 355); malice in law
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 183

Malice in fact is the malice which the law in law is negated. The utterance or
presumes from every statement whose statement would not be actionable because
tenor is defamatory. It does not need proof. malice in law does not exist. Therefore, for
The mere fact that the utterance or the complainant to prosecute the accused
statement is defamatory negates a legal for libel, oral defamation or slander, he has
presumption of malice. to prove that the accused was actuated with
malice (malice in fact) in making the
In the crime of libel, which includes oral statement.
defamation, there is no need for the
prosecution to present evidence of malice. When a libel is addressed to several
It is enough that the alleged defamatory or persons, unless they are identified in the
libelous statement be presented to the court same libel, even if there are several persons
verbatim. It is the court which will prove offended by the libelous utterance or
whether it is defamatory or not. If the tenor statement, there will only be one count of
of the utterance or statement is defamatory, libel.
the legal presumption of malice arises even
without proof. If the offended parties in the libel were
distinctly identified, even though the libel
Malice in fact becomes necessary only if the was committed at one and the same time,
malice in law has been rebutted. Otherwise, there will be as many libels as there are
there is no need to adduce evidence of persons dishonored.
malice in fact. So, while malice in law does
not require evidence, malice in fact requires Illustration:
evidence.
If a person uttered that “All the Marcoses
Malice in law can be negated by evidence are thieves," there will only be one libel
that, in fact, the alleged libelous or because these particular Marcoses
defamatory utterance was made with good regarded as thieves are not specifically
motives and justifiable ends or by the fact identified.
that the utterance was privileged in
character. If the offender said, “All the Marcoses – the
father, mother and daughter are thieves.”
In law, however, the privileged character of There will be three counts of libel because
a defamatory statement may be absolute or each person libeled is distinctly dishonored.
qualified.
If you do not know the particular persons
When the privileged character is said to be libeled, you cannot consider one libel as
absolute, the statement will not be giving rise to several counts of libel. In
actionable whether criminal or civil because order that one defamatory utterance or
that means the law does not allow imputation may be considered as having
prosecution on an action based thereon. dishonored more than one person, those
persons dishonored must be identified.
Illustration: Otherwise, there will only be one count of
libel.
As regards the statements made by
Congressmen while they are deliberating or Note that in libel, the person defamed need
discussing in Congress, when the privileged not be expressly identified. It is enough that
character is qualified, proof of malice in fact he could possibly be identified because
will be admitted to take the place of malice “innuendos may also be a basis for
in law. When the defamatory statement or prosecution for libel. As a matter of fact,
utterance is qualifiedly privileged, the malice
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 184

even a compliment which is undeserved,

has been held to be libelous. Article 355. Libel by Means of Writings
or Similar Means
The crime is libel is the defamation is in
writing or printed media. A libel may be committed by means of –

The crime is slander or oral defamation if it 1. Writing;

is not printed.
2. Printing;
Even if what was imputed is true, the crime
of libel is committed unless one acted with 3. Lithography;
good motives or justifiable end. Poof of
truth of a defamatory imputation is not even 4. Engraving;
admissible in evidence, unless what was
imputed pertains to an act which constitutes 5. Radio;
a crime and when the person to whom the
imputation was made is a public officer and 6. Photograph;
the imputation pertains to the performance
of official duty. Other than these, the 7. Painting;
imputation is not admissible.
8. Theatrical exhibition;

When proof of truth is admissible 9. Cinematographic exhibition; or

1. When the act or omission imputed 10. Any similar means.

constitutes a crime regardless of
whether the offended party is a
private individual or a public officer; Article 356. Threatening to Publish and
Offer to Prevent Such Publication for A
2. When the offended party is a Compensation
government employee, even if the
act or omission imputed does not Acts punished
constitute a crime, provided if its
related to the discharged of his 1. Threatening another to publish a
official duties. libel concerning him, or his parents,
spouse, child, or other members of
his family;
Requisites of defense in defamation
2. Offering to prevent the publication of
1. If it appears that the matter charged such libel for compensation or
as libelous is true; money consideration.

2. It was published with good motives;

Blackmail – In its metaphorical sense,
3. It was for justifiable ends. blackmail may be defined as any unlawful
extortion of money by threats of accusation
or exposure. Two words are expressive of
If a crime is a private crime, it cannot be the crime – hush money. (US v. Eguia, et
prosecuted de officio. A complaint from the al., 38 Phil. 857) Blackmail is possible in (1)
offended party is necessary. light threats under Article 283; and (2)
threatening to publish, or offering to prevent
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 185

the publication of, a libel for compensation, Slander by deed refers to performance of an
under Article 356. act, not use of words.

Two kinds of slander by deed

Article 357. Prohibited Publication of
Acts Referred to in the Course of Official 1. Simple slander by deed; and
Proceedings
2. Grave slander by deed, that is,
Elements which is of a serious nature.

1. Offender is a reporter, editor or

manager of a newspaper, daily or Whether a certain slanderous act
magazine; constitutes slander by deed of a serious
nature or not, depends on the social
2. He publishes facts connected with standing of the offended party, the
the private life of another; circumstances under which the act was
committed, the occasion, etc.
3. Such facts are offensive to the honor,
virtue and reputation of said person.
Article 363. Incriminating Innocent
Persons
The provisions of Article 357 constitute the
so-called "Gag Law." Elements

1. Offender performs an act;

Article 358. Slander
2. By such an act, he incriminates or
Slander is oral defamation. There are tow imputes to an innocent person the
kinds of oral defamation: commission of a crime;

(1) Simple slander; and 3. Such act does not constitute perjury.

(2) Grave slander, when it is of a

serious and insulting nature. This crime cannot be committed through
verbal incriminatory statements. It is
defined as an act and, therefore, to commit
Article 359. Slander by Deed this crime, more than a mere utterance is
required.
Elements
If the incriminating machination is made
1. Offender performs any act not orally, the crime may be slander or oral
included in any other crime against defamation.
honor;
If the incriminatory machination was made
2. Such act is performed in the in writing and under oath, the crime may be
presence of other person or persons; perjury if there is a willful falsity of the
statements made.
3. Such act casts dishonor, discredit or
contempt upon the offended party. If the statement in writing is not under oath,
the crime may be falsification if the crime is
a material matter made in a written
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 186

statement which is required by law to have directly incriminates or imputes to an

been rendered. innocent person the commission of a crime.

As far as this crime is concerned, this has

been interpreted to be possible only in the TITLE XVI. CRIMINAL NEGLIGENCE
so-called planting of evidence.

Article 365. Imprudence and Negligence

Article 364. Intriguing against Honor
Quasi-offenses punished
This crime is committed by any person who
shall make any intrigue which has for its 1. Committing through reckless
principal purpose to blemish the honor or imprudence any act which, had it
reputation of another person. been intentional, would constitute a
grave or less grave felony or light
felony;
Intriguing against honor is referred to as
gossiping. The offender, without 2. Committing through simple
ascertaining the truth of a defamatory imprudence or negligence an act
utterance, repeats the same and pass it on which would otherwise constitute a
to another, to the damage of the offended grave or a less serious felony;
party. Who started the defamatory news is
unknown. 3. Causing damage to the property of
another through reckless
Distinction between intriguing against honor imprudence or simple imprudence or
and slander: negligence;

When the source of the defamatory 4. Causing through simple imprudence

utterance is unknown and the offender or negligence some wrong which, if
simply repeats or passes the same, the done maliciously, would have
crime is intriguing against honor. constituted a light felony.

If the offender made the utterance, where

the source of the defamatory nature of the Distinction between reckless imprudence
utterance is known, and offender makes a and negligence:
republication thereof, even though he
repeats the libelous statement as coming The two are distinguished only as to
from another, as long as the source is whether the danger that would be
identified, the crime committed by that impending is easily perceivable or not. If
offender is slander. the danger that may result from the criminal
negligence is clearly perceivable, the
Distinction between intriguing against honor imprudence is reckless. If it could hardly be
and incriminating an innocent person: perceived, the criminal negligence would
only be simple.
In intriguing against honor, the offender
resorts to an intrigue for the purpose of There is no more issue on whether culpa is
blemishing the honor or reputation of a crime in itself or only a mode of incurring
another person. criminal liability. It is practically settled that
criminal negligence is only a modality in
In incriminating an innocent person, the incurring criminal liability. This is so
offender performs an act by which he
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 187

because under Article 3, a felony may result

from dolo or culpa.

Since this is the mode of incurring criminal

liability, if there is only one carelessness,
even if there are several results, the
accused may only be prosecuted under one
count for the criminal negligence. So there
would only be one information to be filed,
even if the negligence may bring about
resulting injuries which are slight.

Do not separate the accusation from the

slight physical injuries from the other
material result of the negligence.

If the criminal negligence resulted, for

example, in homicide, serious physical
injuries and slight physical injuries, do not
join only the homicide and serious physical
injuries in one information for the slight
physical injuries. You are not complexing
slight when you join it in the same
information. It is just that you are not
splitting the criminal negligence because the
real basis of the criminal liability is the
negligence.

If you split the criminal negligence, that is

where double jeopardy would arise.