CRIMINAL LAW 2

TITLE ONE
CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS (Articles 114 122)
ARTICLE 114 TREASON
- is committed by a Filipino citizen or an alien residing in the Philippines who levies war against the Philippine
Government or adheres to her enemies by giving them aid and comfort
ELEMENTS:
1. The offender is by birth, a Filipino Citizen or an alien residing in the Philippines, even if temporary
allegiance
The offender may either be a Filipino citizen, because a Filipino citizen owes permanent
allegiance to the Philippine Government; or another offender is a foreigner,an alien temporarily
residing in the Philippines. During his temporary stay in the Philippines, he is given protection
by the Philippine Government under its laws therefore it is but incumbent upon him to have
temporary allegiance to the Philippine Government. That is why even an alien, a foreigner
temporarily residing in the Philippines can also commit treason in times of war.
2. That there is a war in which the Philippines is involved
The second element is that there is a war in which the Philippines is involved. In the case of
Laura vs. Misa, treason is a war time offense. It can be committed only in times of war. In times
of peace, Treason remains to be dormant crime, however, the moment when an emergency
arises, the moment a war arises, it is immediately put into effect as an act self-defense and
self-preservation of the Philippine Government. Treason cannot be committed in times of
peace, because in times of peace, there are no traitors.
Who are these traitors?
These enemies are troops of the enemy state which is in war with the Philippines. Filipino men
like the MILF, NPAs, even if they are at war with the Philippine government, they cannot be
considered as enemies because they are still considered as Filipino citizens. So the aliens
refer to the citizens of the enemy state which is at war with the Philippines.
3.

That the offender either

a) Levies war against the Philippine government, or
b) Adheres to the enemies by giving them aid or comfort.
The third element refers to the mode of committing treason. treason may be committed by
either:
a. Levies war against the Philippine government,requires the concurrence of two elements:
1) there must be an actual of assembly of men
2) it is for the purpose of executing or effecting a treasonable design by force.
This means that the said offenders, Filipino citizens who are said to be in collaboration with
the enemy troops in order to hand over the Philippine Government to the enemy troops.
Absent of that collaboration, it cannot be considered as treason
b. Adheres to the enemies by giving them aid or comfort.
Adherence to the enemies mean that the Filipino citizen or the offender intentionally,
intellectually and emotionally favors the enemy. Therefore,adherence to the enemies is an
internal state of mind, it is mental state, you cannot see adherence to the enemies
How now would you know that a person is adhering to the enemy state?
It is manifested by his acts of giving aid or comfort to the enemy. That is why these
two must concur:
1. Adherence to the enemies
2. Giving them aid or comfort

Mere adherence to the enemies, without any act of giving aid or comfort to the
enemy will not bring along treason, it is the act of giving aid or comfort which is
the manifestation of the adherence to the enemies.

Page 1

CRIMINAL LAW 2

EXAMPLES OF ACTS OF ADHERING TO THE ENEMIES BY GIVING AID OR COMFORT:

o By giving the enemies information, transportation, arms, supplies, all of these will weaken the defense of
the Philippines and strengthen the enemy state.
o People vs. Perez:The court said, "the act of commandeering women or giving women to the enemy troops
in times of war, to satisfy the lust of the enemy troops is not considered as a treasonable act." Because
according the Court, whatever benefit is given to the enemy is merely trivial in nature,imperceptible and it
was not the intent of the offender (unintentionally).

There are two ways of proving treason under Article 114:

1. TESTIMONY OF TWO WITNESSES, AT LEAST, TO THE SAME OVERT ACT, OTHERWISE KNOWN
AS THE "TWO-WITNESS RULE"
There must be two witnesses who will prove only on the commission by the offender of an overt act
showing that he adheres to the enemy. Therefore, treason cannot be proven by mere substantial
evidence. There must be direct evidence, a witness to this act of giving aid or comfort to the enemy.
2. CONFESSION OF THE OFFENDER OR THE ACCUSED MADE IN AN OPEN COURT
Confession of guilt must be made before a court. Extra-judicial confession will not give rise to
conviction in case of the crime of treason.

ILLUSTRATION:
Q: What if there is war which the Philippines is involved? X was among those who committed treason against the
government. now X in committing treason killed a public officer of the government of the Philippines, in furtherance
of his act of treason. Will such act amounting to murder give rise to a separate and distinct crime? Will you charge
him for two crimes based on treason and murder?
A: There is only one crime committed by him and the crime committed is treason. Common crimes
such as Murder, physical injuries, homicide, arson, if they are committed in furtherance to, in connection
with or incidentally to treason shall be absorbed in the crime of treason because they are atrocities for war
and therefore, they are considered as absorbed in the crime of treason. It cannot even be complex, they
are considered absorbed in the crime of treason.
Q: What if A, B and C, conspired and agreed to commit treason against the Philippine Government. After their
conspiracy and agreement, A went to X. A told his friend X that he was in conspiracy with B and C to commit
treason against the Philippine Government. After A told him such conspiracy with X, A left. X, despite knowledge of
the conspiracy to commit treason among A, B, and C, did not disclose such information to the proper authorities.
What crime/crimes is/are committed by A, B, C, and X?
A: A, B, and C are liable for the conspiracy to commit treason. There is a meeting of two or more
persons come to an agreement to commit the crime of treason and decide to commit it.There is proposal to
commit treason when a person has decided to commit the crime of treason and proposes its execution to
some other person or persons. The moment that other person whom the proposal was given, raise to the
commission of crime, we no longer have proposal, but we have Conspiracy to commit treason. In the
problem, A, B, and C, conspired, agreed to commit the crime of treason against the Philippine government,
therefore they are all liable for conspiracy to commit treason.
Q: X, who had knowledge of the conspiracy to commit treason among A, B, and C, however, despite that
knowledge, he did not disclose it to the proper authorities. What is the liability of X?
A: X is liable for misprision of treason is committed by any person who owes permanent allegiance to
the Philippine Government who fails to disclose of knowledge to commit treason as soon as possible to the
proper authorities.In the problem, C, despite having knowledge of the conspiracy to commit treason among
A, B, and C did not divulge it, did not disclose it to the proper authorities, therefore, X is liable for misprision
of treason.

TREASON can be committed both by Filipino citizens and a foreigner temporarily residing in the Philippines,
but MISPRISION OF TREASON can only be committed by a Filipino citizen who owes permanent allegiance to
the Philippine government, it cannot be committed by a foreigner residing in the Philippines.

ARTICLE 117 ESPIONAGE

Page 2

CRIMINAL LAW 2
There are two ways of committing espionage under Article 117:
I.
By entering, without authority therefor, a warship, fort, or naval or military establishment or
reservation to obtain any information, plans, photographs or other data of a confidential nature,
relative to the defense of the Philippines
The offender can be any person. He can be a Filipino citizen, or a foreigner, or he can be a public
officer or employee, or he can be a private individual.
When will the crime of espionage arise?
Under the first mode, the crime of espionage will arise moment the offender enters the warship, fort or
naval or military establishment or reservation, without authority if his intention is to obtain any
information, plans, photographs or other data of a confidential nature, relative to the defense of the
Philippines.

II.

It is not necessary that for the crime to arise that he is successful in obtaining the data. It is not
necessary that he indeed obtained the data. The mere act of entering without authority is sufficient if his
intention is to obtain the data of confidential manner relative to the defense of the Philippines.

By disclosing to the representative of a foreign nation the contents of the articles, data or
information referred to in paragraph No. 1 of art. 117, which he had in his possession by reason of
the public office he holds.
This mode of committing espionage can only be committed by a public officer who has been trusted, by
reason of his public position, of articles, data of confidential nature relative to the defense of the
Philippines.
The crime of espionage will arise the moment the offender divulges or discloses the data and
information to a representative of a foreign nation.
So even if he is in possession of the same, but he does not divulge it to any representative of a foreign
nation, the crime will not arise.
Espionage can be committed in BOTH, in times of peace and in times of war.

ARTICLE 118 INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS

ELEMENTS:
1. That the offender performs unlawful or unauthorized acts by the Philippine government.
2. That the said act provoke or give occasion for a war involving or liable to involve the Philippines or expose
Filipino citizens to reprisals on their persons and property while they are in a foreign country.
3. He is not legally authorized to do so.

Inciting to war connotes that there is yet no war. It is committed in times of peace.

Case of CAPTAIN MENDOZA

Hostage drama in Luneta. There were Hongkong citizens boarded the bus and here comes captain
mendoza who was no longer a member of the military, he entered the bus, with different weapons and
grenades and even killed some hongkong citizens. Captain mendoza performed unlawful, unauthorized
acts which expose overseas Filipino workers in Hongkong and china to reprisals on their person or
property. In fact, there were news at that time that Hongkong or China would be engaging in war with the
Philippines. Head captain Mendoza, one of the crimes that may be held against him is inciting to war or
giving motives for reprisals.
ARTICLE119 VIOLATION OF NEUTRALITY
ELEMENTS:
1. The crime is committed when there is a war but the Philippines is not involved in the said war and;
2. The competent authority issued a regulation for the purpose of enforcing neutrality among Filipino citizens
and ;
3. The offender violates such regulation imposed.

Page 3

CRIMINAL LAW 2

Here, there is war but the Philippines is not involved in the said war.

Q: There is a war between country X and country Y. Here comes Pedro, a Filipino citizen, he was siding with
country X. Is he liable?
A: No, he is not liable of violation of neutrality because in the problem, it did not say that the competent
authority (the President) issued a proclamation or regulation imposing neutrality.

The violation will only arise if there is a proclamation or regulation imposing neutrality and a Filipino citizen
violates such declaration or regulation issued by a competent authority. Therefore, absence of such declaration
of neutrality, the crime of violation of neutrality does not arise.

ARTICLE120 CORRESPONDENCE WITH HOSTILE COUNTRY

ELEMENTS:
1. That it is in time of war in which the Philippines is involved.
2. That the offender makes correspondence with an enemy country or any territory occupied by enemy troops.
3. That the correspondence is either
a.) Prohibited by the Philippine Government
b.) Carried on in ciphers or conventional signs
c.) Containing notice or information which might be useful to the enemy

Here, there is a war in which the Philippines is involved.

Q: The Philippines is at war with the another country. Here comes X, a Filipino citizen, he has a pen pal who is a
citizen of the country which is at war with the Philippines. The competent authority or the President issued a
declaration of proclamation saying that there should be no correspondence to the enemy state. But X missed his
penpal, and so, he wrote in a small piece of paper, "i love you, i miss you, muamua!" Is X liable of the crime of
correspondence with the enemy?
A:X is liable because there was a declaration issued by a competent authority that correspondence with the
hostile country is prohibited and if there is no declaration, proclamation coming from the competent authority
prohibiting correspondence, the crime will only arise if the said crime is carried on in ciphers or conventional
signs or Containing notice or information which might be useful to the enemy.
ARTICLE 121 FLIGHT TO ENEMY'S COUNTRY
ELEMENTS:
1. That there is s war in which the Philippines is involved.
2. That the offender must be owing allegiance to the Philippine Government
3. That the offender attempts to flee or go to enemy's country
4. That going to the enemy country is prohibited by a competent authority

There must be a declaration or a proclamation issued by a competent authority, that no Filipino shall flee to the
enemy's country and the offender violates such proclamation.
Mere attempt will readily rise to the crime. It is not necessary that the offender has actually gone to the country.
There must be declaration or proclamation prohibiting flight to enemy state.

ARTICLE 122 PIRACY

ELEMENTS:
1. The first element is where the vessel is located. The vessel can either be on the high seas or on
Philippine waters (this was brought about by the amendment of RA 7659). Before the amendment of
RA 7659, Piracy under Article 122 can only be committed when the vessel is on the high seas. But
because of this amendment brought about by RA 7659, Piracy now under Article 122 can be committed
when the vessel is on Philippine waters.
2. The second element provides for the offenders. The offenders must NOT be members of the
complement or passengers of the vessel. Therefore, the offenders must be STRANGERS to the vessel.
They must be coming from the outside, not from the inside.

Page 4

CRIMINAL LAW 2
3. The third element refers to the mode of committing piracy.
a. The offenders either ATTACK or SEIZE the vessel.
b. The offenders either SEIZE IN WHOLE or IN PART the cargo, the equipment or the personal
belongings of the passengers or members of the complement.

Based on these elements, you will notice that piracy is akin to robbery. It is in effect robbery. It is just called
piracy because the object of the thing is either the vessel or the cargo or equipment of the said vessel. There is
also the use of force or intimidation. There is also the use of violence against persons. There is also intent to
gain.So it is akin, similar to robbery.

ARTICLE122 MUTINY
COMMITTED WHEN:
1. The vessel is either on the high seas or on Philippine waters
2. The OFFENDERS are MEMBERS OF THE COMPLEMENT or PASSENGERS OF THE VESSEL
3. The offenders raise a commotion or disturbance on the board the ship against the lawful command of
the captain or the commander of the ship.
In mutiny, there is no taking because in mutiny there is no intent to gain. Mutiny is the rising of commotion, a
resistance against the lawful command, against the lawful authority of the commander or captain of the ship.
Since in mutiny, there is no intent to gain, mutiny is akin to sedition. The rising of commotion, an uprising, an act of
dissent against lawful authority.
SO HOW DO YOU DISTINGUISH PIRACY VS. MUTINY?
1. In piracy, the offenders are strangers to the vessel, whereas, in mutiny, the offenders are necessarily inside
the vessel, they are either members of the complement or passengers of the vessel
2. In Piracy, there is intent to gain because it is similar to robbery, whereas, in mutiny, there is no intent to gain
because the essence of the crime is to go against the lawful authority of the commander of the ship.
ILLUSTRATION:
Q: The vessel is on the sea going to Mindoro. So while the ship is on its way to Mindoro, suddenly there comes a
big storm. The commander or the captain of the ship said that they should first move towards the shore and let the
storm comes calm in order to ensure the safety of the passengers of the vessel. The passengers of the vessel and
members of the complement didnt want the decision of the said captain of the ship and so they seize the captain of
the ship and manned the vessel until they reach Mindoro. What crime, if any, is committed by these members of the
complement and passengers of the vessel?
A: They are liable of MUTINY. The vessel is on Philippine waters. The offenders are members of the
complement and they go against the lawful authority of the captain of the ship. Therefore they are liable of
mutiny.
Q: While a vessel is on Philippine waters, here comes a second vessel. Four men from the second vessel boarded
the first vessel and at gunpoint, took the cargo and equipment of the said vessel. Placed them in the second vessel
and off they went. What crime is committed by these four men?
A: They are liable of PIRACY UNDER ARTICLE 122. The vessel is on Philippine waters, the offenders
are not members of the complement or passengers of the ship. They seize the cargo and equipment of the
vessel. Therefore, it is piracy under Article 122.
Q: The vessel is on Philippine waters. While the vessel is on Philippine waters, the members of the complement
and passengers of the said vessel in conspiracy with one another took the cargo and equipment of the said vessel,
and then they boarded a second vessel and off they went. What crime is committed by the members of the
complement and passengers of the said vessel?
A: The members of the complement and passengers of the vessel committed ACTS OF PIRACY
because they seize in whole or in part the cargo or equipment of the vessel but NOT PIRACY UNDER
ARTICLE 122 because in Article 122, it is a requisite that the offenders must be strangers to the vessel.
Here, the offenders are members of the complement and passengers of the vessel. So the crime
committed is PIRACY BUT UNDER PD 532.

Page 5

CRIMINAL LAW 2
ANTI-PIRACY AND ANTI-ROBBERY LAW OF 1974 (PD 532)
Under PD 532, piracy is committed by attacking or seizing the vessel or seizing in whole or in part the cargo,
equipment or personal belongings of the members of the complement or passengers of the vessel IRRESPECTIVE
of the value thereof, committed by means of force and violence and committed by any person whether he may a
member of the complement or passenger of the vessel or strangers to the vessel BUT the vessel is on Philippine
waters. Therefore, for PIRACY UNDER PD 532 to arise, it necessary that the vessel is on Philippine waters.If the
vessel is on the high seas, immediately rule out PD 532.
HOW COULD YOU KNOW IF IT IS PIRACY UNDER PD 532 OR PIRACY UNDER ARTICLE 122 OF RPC?
If the vessel is on Philippine waters, your choice is either Piracy under PD 532 or Piracy Article 122.
Where lies the difference?
Since Article 122 of RPC is the main law, we have to reconcile it with PD 532. Or PD 532
must be reconciled with Article 122. Piracy under PD 532, the offenders can be any
person. He can be a stranger. He can be members of the complement.
Therefore, where does PD 532 apply?
It will apply when the offenders are members of the complement or passengers of the
vessel and the vessel is on the Philippine waters.
Q: The vessel is on Philippine waters, suddenly men from the outside committed acts of piracy. What crime is
committed?
A: Piracy under Article 122
Q: The vessel is on Philippine waters. Acts of piracy were committed by the members of the complement or
passengers of the vessel. What crime is committed?
A: Piracy under PD 532
Q: What if the vessel is on the high seas? While the vessel is on the high seas, there comes a second vessel. Four
men from the second vessel boarded the first vessel and at gunpoint took the cargo and equipment of the first
vessel. What crime is committed by these four men?
A: Piracy under Article 122. The vessel is on the high seas. The offenders are not members of the
complement or the passengers of the vessel. They seize in whole or in part the cargo and equipment of the
said vessel.
Q: While the vessel is on the high seas,members of the complement or passengers of the vessel in conspiracy with
one anothertook away the cargo and equipment of the vessel. What crime is committed?
NOTE: It is not piracy under Article 122 because here, the offenders are members of the
complement or passengers of the vessel. In Article 122, it is required that the offenders must be
strangers to the vessel. It cannot be piracy under PD 532 because the vessel must be on Philippine
waters. In our problem, the vessel is on the high seas. So, what crime is committed?
A: Again, piracy is akin to robbery. Since Piracy under Article 122 and Piracy under PD 532 do not apply,
the crime committed is ROBBERY IN AN UNINHABITED PLACE.
ARTICLE 123 QUALIFIED PIRACY
What are the circumstances which will qualify piracy?
Under Article 122, the following circumstances will qualify piracy:
1. Whenever the offender have seized a vessel by boarding or firing upon; or
2. Whenever the offenders have aband0ned their victims without means of saving
themselves; or
There is intent to kill.
3. Whenever the crime is accompanied by murder, homicide, physical injuries or rape
Whenever these four crimes accompanied the act of piracy, it will not bring about a
separate and distinct crime or a separate and distinct charge of murder, homicide,
physical injuries or rape. These crimes are absorbed because they are circumstances
which will qualify the penalty to death.
NOTE: These circumstances are separate and distinct from each other. It is not necessary that all
of themmust be present. The presence of one will qualify piracy. Notice the conjunction OR. These

Page 6

CRIMINAL LAW 2
are qualifying circumstances which are prejudicial to the accused therefore they must be strictly
construed.
ILLUSTRATION:
Q: What if the vessel is on Philippine waters, and there comes a second vessel. Four men from the second vessel
boarded the first vessel and at gunpoint, they asked the passengers to give to them all their valuables. One woman
didnt want to give her wedding ring because it was so precious to her and so one of the men forcibly took the
wedding ring from the finger such that the finger was severed from it. What crime is committed?
A: QUALIFIED PIRACY because piracy was accompanied by physical injuries.
Q: What if in the same problem, the woman didnt want to give the ring, one of the men slapped the woman on the
face three times and the face of the woman became reddish. She suffered slight physical injuries. What about the
fact that the injury suffered was only slight?
A: It will not make a difference although the injury suffered was only slight. In the third circumstance which
will qualify piracy, the word physical injuries is used in its generic sense. Therefore, whatever be of kind of
physical injuries, whether serious or slight for as long as it was accompanied by piracy, it will be considered
as qualified piracy.
Q: What if in the same problem, the woman didnt want to give the ring and one of the men touched the private
parts of the said woman and after touching the private parts of the said woman with lust, he forcibly took the ring.
What crime is committed by the said men?
A: All of them will be liable for piracy. However, the man who touched the private part of the woman will be
liable for two crimes: piracy and acts of lasciviousness. Acts of lasciviousness is not mentioned in Article
123. Therefore, its presence will not qualify piracy. It will bring about a separate and distinct charge of acts
of lasciviousness.
So, only these four crimes (murder, homicide, physical injuries and rape) will qualify piracy. If other crime is
committed and accompanied by piracy and is not among these four crimes mentioned in Article 123, it will
bring about a separate and distinct charge.
QUALIFIED MUTINY
Insofar as mutiny is concerned, what are the circumstances which will qualify mutiny?
In Article 123, there is no specific mention of qualified mutiny, however according to Reyes and other
legal luminaries, of the three circumstances stated in Article 123, paragraphs 2 and 3 are considered as
circumstances which will qualify mutiny. That is:
1. whenever the offenders have abandoned their victims without means of saving themselves;
or
2. whenever the crime is accompanied with murder, homicide, physical injuries or rape
According to Reyes and other legal luminaries, only these two are considered qualified
in mutiny because in mutiny, the offenders are necessarily, ordinarily inside the vessel
because they are members of the complement or passengers of the vessel.
ANTI-HIJACKING LAW (R.A. No. 6235 otherwise known as An Act Prohibiting Certain Acts inimical to Civil
Aviation)
Under RA 6235, there are four prohibited acts.
1. By compelling the pilot of an aircraft of Philippine registry to change its course or destination OR by seizing
or usurping control thereof while it is in flight
2. By compelling an aircraft of foreign registry to land in Philippine territory OR by seizing or usurping control
thereof while the same is in Philippine territory

These are the first two prohibited acts. How could you distinguish the first act from the second act?
If the aircraft is of Philippine registry, the seizure or usurpation to amount in violation of RA 6235,
requires that the aircraft must be in flight. An aircraft is in flight the moment all its external doors
had been closed, following embarkation until any of it external doors had been opened for
purposes of disembarkation.

Page 7

CRIMINAL LAW 2
On the other hand, if the aircraft is of foreign registry, the seizure or usurpation did not need while
it is in flight. For as long as the aircraft of foreign registry is within the Philippine territory, seizure
or usurpation thereof will bring about violation of RA 6235 even if all its doors are opened; even if
it is not in flight.
Insofar as these two prohibited acts are concerned, what are the circumstances which will qualify the
penalty?
Under RA 6235, the following circumstances will qualify the first two acts:
a. By firing upon the pilot or the member of the crew or passenger of the aircraft; or
b. By exploding or attempting to explode by mean of a bomb or explosive for purposes of
destroying the aircraft; or
c. Whenever the crime is accompanied by murder, homicide, serious physical injuries or rape

NOTE: In case of piracy, the law uses the word physical injuries in its generic sense.
Whatever be the kind of physical injury that will accompany piracy, the crime committed is
qualified piracy. But in case of hijacking under RA 6235, the law is specific; it must be
serious physical injuries. Therefore, if the physical injuries that would accompany the act of
usurpation and seizure of the aircraft would only be less serious physical injuries or slight
physical injuries, the penalty is not qualified. The penalty is qualified because from the
penalty of 12 to 20 years, it would become 15 years to death.

3. By carrying or loading on board a PASSENGER AIRCRAFT operating as a public utility in the Philippines
materials or substances which are explosive, flammable, corrosive or poisonous
4. By shipping, carrying or loading on board a CARGO AIRCRAFT operating as a public utility in the
Philippines materials or substances which are explosive, flammable, corrosive or poisonous in a manner
not in accordance with the rules and regulations of the Air Transportation Office
HOW WOULD YOU DISTINGUISH THE 3RD FROM THE 4TH ACT?
If the aircraft is a PASSENGER AIRCRAFT, the mere act of carrying or loading explosive, flammable,
corrosive or poisonous substances will immediately constitute a violation of RA 6235.
If however the aircraft is a CARGO AIRCRAFT, the loading of these poisonous substances, flammable
substances, is allowed because it is a cargo aircraft. The crime will only arise if such act of loading is
not in accordance with the rules and regulations of the Air Transportation Office.
HUMAN SECURITY ACT OF 2007 (R.A. No. 9372)
Q: What if there is a bus and the bus is parked at Lunetapark and it was full of children. And here comes X, X had
different kinds of explosive all over his body. And at gunpoint, entered the said bus and told the children to keep
quiet. Thereafter, there is a cartolina on the glass window of the said bus. Written on the cartolina were his
demands to the government. His demands were first, that his brother, a member of NPA and who is being
incarcerated by the military be released and his second demand, was that funds be transferred to his account. So
these were the demands made by X against the government. Because of this, the parents of the children arrived,
the media arrived, all the cabinet secretaries arrived. Only the president did not arrive. So everybody was there.
They were afraid that the children might die so there was chaos in the entire Philippines. It took the members of the
military and police 12 hours to subdue X. So after 12 hours, they were able to arrest X. What crime, if any, may be
filed against X?
A: X will be charged of the crime of terrorism under RA 9372, the Human Security Act of 2007. Under
Section 3 of Ra 9372, terrorism is committed when the offender commits any of the following acts
punishable under the RPC:
a. Piracy
b. Rebellion
c. Coup dEtat
d. Murder
e. Kidnapping and Serious Illegal Detention
f. Crimes involving Destruction
If the offender commits any of these acts punishable under the RPC or any of the following acts punishable
under special penal laws:

Page 8

CRIMINAL LAW 2
1. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup dEtat), including acts committed by private persons;
4. Article 248 (Murder);
5. Article 267 (Kidnapping and Serious Illegal Detention);
6. Article 324 (Crimes Involving Destruction,
or under
1. Presidential Decree No. 1613 (The Law on Arson);
2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession,
Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)
If the offender commits any of these crimes under the RPC and any of the crimes under special penal laws,
thereby sowing and creating a condition widespread and extraordinary fear and panic among the populace
in order to coerce the government to give in to an unlawful demand, he is liable of terrorism and the penalty
is 40 years imprisonment without the benefit of parole under the Indeterminate Sentence Law. So it is the
maximum penalty of 40 years. He has to serve it totally. Even if he has already served the minimum, he
cannot be given the benefit of parole under the Indeterminate Sentence Law. So it is necessary that he
must commit any of these predicate crimes and after committing these predicate crimes, where lies the
difference? Because his act that sowed and created fear and panic among the populace coupled with an
unlawful demand against the government.
Q: So let us say that X was charged with terrorism based on a valid complaint or information a case of terrorism
was filed against him before the RTC. However, after trial on the merits, the judge acquitted him. According to the
judge, the prosecution failed to prove the guilt of the accused beyond reasonable doubt therefore acquittal for
reasonable doubt. Since he is acquitted of terrorism under RA 9372, can he still be prosecuted for his predicate
crime of kidnapping and illegal detention because he detained the children for more than 12 hours? Can he still be
prosecuted for Illegal and Unlawful Possession of Firearms, Ammunitions or Explosives because he was full of
firearms and ammunitions and explosives?
A: No more. Because of Section 49 of RA 9372. Under Section 49 of RA 9372, whenever a person has
been charged of terrorism, or any act punishable under RA 9372, based on the valid complaint or
information, sufficient information and substance to bring about and thereafter he is acquitted or the case is
dismissed, he can no longer be subsequently prosecuted for any other felony or offense necessarily
included in the crime charged. The crime of kidnapping and serious illegal detention is necessarily included
in terrorism because it is one of the predicate crimes. Likewise, violation of PD 1866, as amended Illegal
and Unlawful Possession of Firearms is also necessarily included in terrorism because it is one of the
predicated crimes in terrorism. Or any of these predicated crimes, he can no longer be charged because
they are necessarily included in terrorism. This is known as the ABSORPTION PRINCIPLE in terrorism.
Q: But what if in the same problem, while X was waiting for his demands to be given by the government, he saw a
girl and with lewd design, he touched the private parts of the seven-year old girl. Therefore he committed a violation
of RA 7610 the Anti-Child Abuse Law. He was acquitted of terrorism. Can the state prosecute him for violation of RA
7610?
A: Yes, because it is not among the predicate crimes. It is not a crime necessarily included in the crime
of terrorism.
TITLE TWO
CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE (Articles 124 133)
The acts under TITLE TWO are made criminal because they both appease the Bill of Rights. The rights stated
under the Constitution and the first of these is under ARTICLE 124, 125 and 126 Arbitrary Detention.

Page 9

CRIMINAL LAW 2
3 KINDS OF ARBITRARY DETENTION:
1. Arbitrary Detention by detaining a person without legal ground under Article 124
2. Arbitrary Detention by failing to deliver the detained person to the proper judicial authorities within 12, 18 or
36 hours under Article 125
3. Arbitrary Detention by delaying the release of prisoners despite the judicial or executive order to do so
under Article 126
ARTICLE124 ARBITRARY DETENTION BY DETAINING A PERSON WITHOUT LEGAL GROUND
ELEMENTS:
1. That the offender is a public officer or employee
Who is the offender in Article 124?
The offender is a public officer or employee. BUT NOT ALL PUBLIC OFFICERS OR
EMPLOYEES can commit arbitrary detention. The public officer of employee can commit
arbitrary detention are only those who have been vested with authority to effect arrest and
detain a person or at least to cause the detention of a person.
Public officers who have been vested with authority to effects arrest and detain a person are
POLICE OFFICERS. On the other hand, public officers vested with authority to cause the detention
of a person are MEMBERS OF CONGRESS. They can order the detention of a person who has
been cited of contempt for failing to accurate their proof, or we have JUDGES they can order the
summary detention of persons cited in contempt of court.
2. That he detains a person
The second element requires that the offender detains a person.
So when is there detention?
There is detention when the offended party is placed in incarceration. When the offended party
is placed behind bars or when the offended party is restrained of his person or liberty.
In order to amount arbitrary detention there must be an act of restraint on the person or
liberty of the offended party. Absent that intent, absent the actual restraint on the person or
liberty of the offended party It can be any other crime BUT NOT ARBITRARY DETENTION.
Therefore, Supreme Court said that intent to detain must be manifest, it must be evident.
Absent that, it can be any other crime but not arbitrary detention.
3. That the detention is without legal grounds
The third element requires that the detention must be without legal ground.
So when is detention without legal grounds under Article 124?
1. When the said offended party was arrested without a warrant of arrest.
2. When the said offended party was arrested and his arrest and detention does not fall under
any of the circumstances or a valid warrantless arrest.
3. When he is not suffering from violent insanity or any other ailment which requires
compulsory confinement.
All of these are not considered valid grounds for detention.
So to reverse, what are the valid grounds for detention?
The following are valid grounds for detention:
a.) If the person does not receive and detained by virtue of a warrant of arrest.
b.) If a person was arrested and detained under any of the circumstances for a valid
warrantless arrest
c.) If a person was suffering violent insanity or any illness which requires compulsory
confinement.
These are the valid ground for the arrest and detention of a person.
ILLUSTRATION:
Q: So if a person, driving his vehicle entered a one way street and in violation of the LTO rules and regulation, was
stopped by police officer, his license was taken and gave him a ticket and was bought to the nearest PNP station
and was placed behind bars. He was detained. That was 8 oclock in the morning then the arresting officer left. And
on the afternoon, the police officer returned to the police station. Upon his arrival, he immediately released the

Page 10

CRIMINAL LAW 2
incarcerated person whom he detained for entering a one way street. Is the said police officer liable for arbitrary
detention under Article 124?
A: YES, he is liable ofARBITRARY DETENTION. He is a public officer vested with authority to effect
arrest and detain a person. If he detained the person, the detention was without legal ground. It is without
legal ground because entering a one way street and violating the traffic rules and regulation is not a ground
for incarceration. It is not a ground for a person to be placed behind bars. If a person committed a violation
of traffic rules and regulation like entering a one way street or beating the red light, he should only be given
a ticket. There should not even be a confiscation of license. After that, he should be allowed to leave but
that is not a ground for him to be placed under detention. Since the officer detained the person without any
legal ground HE IS LIABLE FOR ARBITRARY DETENTION.
Q: What if X is suspected to be a snatcher and many complaints was filed against him. One time, when the police
officers were conducting a patrol they saw X who was perhaps waiting for a ride. When the police officers saw X
they immediately arrested X and brought him to the nearest police station. They told X that he is to be investigated
for he is said to be a cellphone snatcher. So he was brought to the investigation room however, the investigation
officer was not around so the arresting officer told him that he needs to be investigated and that he can leave but he
must make sure to come back for purposes of investigation otherwise if he does not come back the next time they
see him they will kill him. So because of that, X would get out of the precinct but would immediately return. Are the
police officers liable for arbitrary detention?
A: NO, the police officers are not liable for arbitrary detention. There is no intent to restrain or detain
the person or liberty of X, the offended party. In order to amount to arbitrary detention it is necessary that
the intent of the public officer to restrain the person or liberty of the offended party must be manifest and it
must be evident. In this case however, it is not.
Even if there is a threat on the part of the police officer there is however no intent to detain X. What are the
crimes if any are the police officer liable for?
They committed GRAVE THREATS because they threatened to kill X if he would not come back. It is
the grave threats that made X come back in the police station.
ARTICLE125 ARBITRARY DETENTION BY FAILING TO DELIVER THE DETAINED PERSON TO THE
PROPER JUDICIAL AUTHORITIES WITHIN 12, 18 OR 36 HOURS
ELEMENTS:
1. The offender here is a public officer or employee vested with authority to effect arrest and detain a
person
2.
That offender has detained a person for some legal ground
The second element requires that the offender arrests and detains a person
for some legal
ground.
What are these legal grounds referred to under Article 125?
The legal ground being referred to in Article 125 is not the fact that the said arrest was made by
virtue of a warrant of arrest because if the offended party was arrested by the public officer by
virtue of a valid warrant of arrest he does not have the obligation to deliver him to the proper
judicial authorities.
So what are these valid instances in arresting a person?
These refer to circumstances of valid warrantless arrests under Section 5 Rule 112 of the
Rules of Court. It requires that a peace officer or a private individual may even without a
warrant arrest a person under the following circumstances:
a.) That in his presence the person to be arrested has committed, is actually committing,
or is attempting to commit a crime. This is otherwise known as INFLAGRANTE
DELICTO ARREST
b.) When a crime has in fact just been committed, and the police officer has probable
cause to believe based on personal knowledge of facts and circumstances that the
person to be arrested is the one who committed the crime. This is otherwise known as
HOT PURSUIT ARREST.
c.) When the person to be arrested is a prisoner who has escaped from a penal
establishment or a place where he is serving final sentence or temporarily detained

Page 11

CRIMINAL LAW 2
while his case is pending, or has escaped while being transferred from one penal
institution to another.
These are the circumstances for a valid warrantless arrest. These are the
circumstances referred to in the second element of Article 125.
3. That the offender fails to deliver the person arrested to the proper judicial authorities within 12, 18 or 36
hours.
The third element requires that that the offender fails to deliver the person arrested to the proper
judicial authorities within 12, 18 or 36 hours.
What do you mean by delivery?
Delivery does not mean that you really have to deliver the physical body of the person arrested
to the court. It means constructive delivery or legal delivery, meaning, the filing of the
appropriate case before the proper court. That is delivery to proper judicial authorities - filing of
the case before the proper court.
The law says that a public officer must deliver to the proper judicial authorities. So judicial authority,
what does it mean?
The proper judicial authorities refers to COURTS OF JUSTICES OR JUDGES OF THE
COURTS THAT HAS THE POWER TO ORDER THE INCARCERATION OR DETENTION OF
A PERSON OR HIS TEMPORARY RESTRAIN UPON POSTING OF APPROPRIATE
COMPLAIN.
The FISCAL does not belong to the proper judicial authority because he belongs to the
executive branch. The Fiscal is under the Department of Justice and not under the Supreme
Court. The head of the Fiscal is Secretary De Lima and the President and not Chief Justice
Sereno. Thats why a Fiscal is not within the meaning of a judicial authority. Second, the fiscal
may fix or the fiscal may recommend the bail but he does not have the power to fix the bail and
allow the accused to go on temporary liberty. Only the judges are allowed to fix the bail and
order the temporary liberty of the accused until upon the posting of the said bail.
The law says that a public officer must deliver the person arrested to proper judicial authority within:
a) 12 hours, for crimes punishable by light penalties, or their equivalent
b) 18 hours, for crimes punishable by correctional penalties, or their equivalent
c) 36 hours, for crimes punishable by afflictive or capital penalties, or their equivalent
ILLUSTRATION:
Q: What if a person has been arrested Inflagrante Delicto in possession of an unlicensed firearm. Possession of
unlicensed firearm is punished by a special penal law (P.D. 1866 as amended). Is the arresting officer required to
deliver the accused to the proper judicial authorities? Does Article 125 apply even to violation of special penal laws?
A: Yes, because the law says or their equivalent. 12 hours, for crimes punishable by light penalties,
or their equivalent. That means all their equivalent refers to their equivalent even in cases of violation of
special penal laws. Therefore, even if the crime committed or the crime for which the offender is being
arrested is based on violation of special penal laws, the arresting police officer has the obligation to deliver
the person arrested to the proper judicial authorities in consonance with Article 125 of the Revised Penal
Code.
Q: What if the police officers caught X in the actual act of killing Y. So they saw X and Y fighting and they saw X
stabbed Y to death. Therefore, X is liable of homicide. They arrested X and that was Saturday, 3 oclock in the
afternoon. Sunday, there is no office. The following day, Monday, happens to be declared a special non-working
holiday. Therefore, the police officers were able to deliver X to the proper judicial officer only on Tuesday, 8 oclock
in the morning. They were able to file the case in the Fiscals office for purposes of proceedings Tuesday, 8 oclock
in the morning, beyond 36 hours which was required by law. Are the police officers liable for arbitrary detention?
A: NO, the police officers are not liable for arbitrary detention. The Secretary of the Department of
Justice has made a legal opinion that the said 12, 18 and 36 hours refers to WORKING HOURS. These
refer to the time when the courts are open in order to receive the cases to be filed against them. This does
not include the crime wherein the courts are closed and they did not receive the complaint or information to
be filed against the accused.

Page 12

CRIMINAL LAW 2
ARTICLE126 ARBITRARY DETENTION BY DELAYING THE RELEASE OF PRISONERS DESPITE THE
JUDICIAL OR EXECUTIVE ORDER TO DO SO
ELEMENTS:
1. The offender is a public officer or employee
2. That there is a judicial or executive order for the release of the prisoner or detention prisoner, or that
there is a proceeding upon a petition for the liberation of such person.
3. That the offender without good/valid reason delays: (1) the service of the notice of such order to the
prisoner; or (2) the performance of such judicial or executive order for the release of the prisoner; or (3)
the proceeding upon a petition for the release of such person.
NOTE: What is punishable is the delay without valid reason, the delay of the release of the prisoner despite the
judicial or executive order to do so.
Example of judicial order for the release of a prisoner lets say that a person has been charged in court and
the public prosecutor failed to present any evidence for consecutive times and no witnesses has ever been
presented since the beginning. The judge will dismiss the case and order the release of the accused from
jail. This is an example of a judicial order for the release of a prisoner. Or lets say the judge acquitted the
accused then he will order the release of the said accused from jail.
How about an example of an executive order for a release of a prisoner? A person was arrested and placed
behind bars and proceeding was filed before the fiscals office. The fiscal ordered the release of the
prisoner. This is an example of executive order for the release the prisoner.
Q: What if X has been charged of two crimes - Illegal sales of dangerous drugs and illegal possession of dangerous
drugs? So, two crimes were filed against him. The illegal possession of dangerous drugs was filed before the RTC
Branch 6 on the other hand; the illegal sale was filed before RTC Branch 87. Two different courts were filed with. In
the illegal possession of dangerous drugs which was filed in RTC Branch 6, no witnesses were ever presented and
so the judge immediately declared the dismissal of the case and he ordered that X should already be released from
jail. However, the case for illegal sale of dangerous drugs under RTC Branch 87 is still ongoing. The jail warden
receives the order coming from the judge RTC Branch 6 that X should be released. The jail warden did not compel.
Is the jail warden liable for arbitrary detention under Article 126 - Arbitrary Detention by delaying the release of
prisoners despite the judicial or executive order to do so?
A: NO, the jail warden is not liable for arbitrary detention under Article 126 because there is still
another pending case against the said prisoner before another court. Therefore, it is incumbent upon him
not to compel with the judge of Branch 6 since there is another case in Branch 87 which is still ongoing.
What the law punishes is delay without valid reason for the release of the prisoner.
ARTICLE127 EXPULSION
Expulsion is committed by public officers or employees who shall expel any person from the Philippines or who
compels him to change his residence without any lawful authority to do so.Again, the offender is a public officer or
employee who acts either:
a.) By expelling a person from the Philippines
b.) By compelling a person to change his residence

What the law prohibits is that if this public officer or employee expels him from the Philippines or compels
him to change his residence without lawful authority to do so because there are persons who have been
authorized by law to deport a person from the Philippines or to compel a person to change his residence.

For example, the President has the power to deport or expel a person from the Philippines. Another
example is a foreigner who is known to be a persona non grata; the President may order his deportation to
his home.

The courts on the other hand, have the power to compel a person to change his place of residence. Lets
say the offender is a concubine and the penalty to be imposed to a concubine is destierro. Therefore, the
concubine is prohibited from entering a particular place based on the judgment of the court. Now,
theprohibited place from which she is prohibited from entering is the place where she lives. She cannot
enter the said place therefore; the court is empowered to compel her to change her place of residence
because she cannot enter the place wherein her house is situated.

Page 13

CRIMINAL LAW 2
VIOLATION OF DOMICILE (ARTICLE 128, 129, 130)
a public officer or employee entered into a dwelling of another which is not armed with a search warrant
different prohibited acts constituting violation of domicile:
I.
By entering any dwelling against the will of the owner thereof; or
II.
By searching papers or other effects found therein without the previous consent of such owner; or
III.
By refusing to leave the premises, after having surreptitiously entered
ARTICLE128 VIOLATION OF DOMICILE
ELEMENTS:
1. The offender is a public officer or employee
Who is the offender in the violation of domicile?
He must be a public officer or employee acting under color of authority
A public officer or employee is said to be acting under color of authority if he has been vested with the
authority to implement a search warrant, but when he entered in the said dwelling, he is not armed with
a search warrant. Therefore, he was acting under color of authority.
Even if he is a public officer or employee, but he did not act under color of authority, is liable only, not
for violation of domicile, but is either liable for qualified trespass to dwelling or trespass to property
because the public officer or employee is acting under his private capacity.
2. He was not authorized by a judicial order to enter the dwelling and/or make a search therein for papers or
other effects
The second element requires that entering upon the dwelling of another which is not authorized by
a judicial order. The judicial order refers to a search warrant
3. He either enters the dwelling of another against the will of the latter or searching for papers or other effects
found therein without the consent of the owner, or after having surreptitiously entered the dwelling, being
discovered and asked to leave, he refuses to leave.
The third elements provides for the different modes of violation of domicile
(These three modes are separate and distinct from each other do not look for all the three modes in a problem,
violation of one of them will bring about violation of domicile)
1. By entering any dwelling against the will of the owner thereof; or
- There must a prohibition, an opposition from entering. It can either be an implied or expressed opposition from
entering.
Example:
implied opposition the door is closed. It can be said that the owner is saying that No one can enter my
house
expressed prohibition when the owner is inside the house and the officer knocks upon the door and
upon seeing the officer, the owner closes the door.
if there are sayings Do not enter, No entry
- It does not mean entering without the consent. An entry without the consent is not an entry against the will.
- When you say entry against the will, there must be an opposition or a prohibition from entering the dwelling.
2. By searching papers or other effects found therein without the previous consent of the owner; or
- The consent of the owner matters. Even if the public officer or employee is allowed inside, the fact that he is
allowed inside does not mean that he is allowed to conduct the search.
- He must ask first for the previous consent of the owner before proceeding with the search. Without the previous
consent of the owner to conduct the search, any search would be a violation of domicile.
3. By refusing to leave the premises, after having surreptitiously entered the dwelling
- it is his refusal to leave the premises that will bring about the violation of domicile, NOT the surreptitiously
entering. But it is required that entering must be done surreptitiously.

Page 14

CRIMINAL LAW 2
-

Surreptitious entering means entering the dwelling secretly, candidly.

Therefore, it is important that he mus-t refuse to leave after being discovered and asked to leave in order to
amount to violation of domicile.
Mere surreptitious entering will not bring about violation of domicile.

ILLUSTRATION:
Q:What if the door of the house was opened, a police officer without being armed with a search warrant, entered
the door of the house and went up to the sala. The owner of the house saw him and asked him to leave, and he left.
Is he liable for violation of domicile?
A: He is not liable for violation of domicile. When the door of the house is open, there is no prohibition;
there is no opposition from entering. Anybody may enter even without a search warrant; therefore, since
there is no prohibition or opposition from entering, violation of domicile cannot be committed under the first
act. Under the second act, it cannot be committed because he did not conduct the search. The third act
also not done because the entering of the house is not done surreptitiously.
Q: What if in the same problem, the door of the house was opened, a public officer with the intent to conduct a
search warrant entered the house, when he was in the sala, the owner of the house saw him and told him to leave.
He did not leave; he just stayed there and sat on the sofa. Is he liable for violation of domicile?
A: He is not liable for violation of domicile. Under the first act, is entry against the will? NO, the door
was opened. Therefore, there was no opposition or prohibition from entering. Under the second act, he did
not conduct a search. Under the third act, is the entering done surreptitiously? NO, because the door of
the house was opened; therefore, he did not violate any of the following acts amounting to violation of
domicile.
But he did not leave the house, although the owner of the house asked him to leave. Is he liable?
Yes. He is liable for unjust vexation. (Nangiinislangsiya)
Although he did not the house, he cannot be liable for violation of domicile because his act does
not constitute the acts prohibited by Article 128.
Q: The door of the house was closed, but it was not locked. A police officer without a search warrant opened the
door, realizing it was not locked, entered the house and went up to the sala intending to conduct the search. Before
he could conduct the search, the owner of the house saw him, and told him to leave and he left. Is he liable for
violation of domicile?
A: Yes. He is laible for violation of domicile. Even if he left the said place upon being told to do it, he is
already liable because his entry was against the will of the owner. The door was closed although it was not
locked. Therefore, there was an implied opposition, an implied prohibition from entering.When he entered
without a search warrant intending to conduct a search is already a violation of domicile
Q: What if the police officer knocked on the door of the house of X. X opened the door, upon seeing the public
officers, X allowed them to enter. The police officer told X that they were looking for a stolen car stereo in the
neighborhood; we are going to conduct a search in your house. X said, "No, you cannot conduct a search inside my
house. The police officers agreed and left the house. Are they liable for violation of domicile?
A: They are not liable. It is not entry against the will. They did not conduct a search. The entry was not
done surreptitiously. It does not fall any of the acts, therefore, they are not liable for violation of domicile.
Q: In the same problem, when they told the owner that they were conducting a search for the stolen car stereo, the
owner of the house said, No, you cannot conduct a search. There is nothing stolen inside my house but the police
officers proceeded with the search.
A: This time, they are liable for violation of domicile because they made a search without the previous
consent of the owner under the second act of Art. 128
Q: What if in the same problem, the owner of the house told the police officers, No you cannot conduct a search,
there is nothing stolen inside my house The police officers obliged, they were going to leave the house, obeying
the order of the owner. However, on their way out, before they could go out, they saw near the door, a table and on
top of it, there were drug paraphernalia, contraband. And so, they seized and confiscated the contraband and then
thereafter they leave the house. Are they liable for violation of domicile? Are the evidences confiscated admissible
against the owner?

Page 15

CRIMINAL LAW 2
A: They are not liable of violation of domicile. When they were told not to conduct the search, they did
not conduct the search and they were about to leave, therefore, not liable for violation of domicile. But they
confiscated the drug paraphernalia that they saw. Yes, the confiscated drug paraphernalia were admissible
against the owner because they were contraband. They are illegal per se. And the police officers saw them
without conducting the search, they saw them inadvertently. Even without conducting the search, the police
officers would see contraband, narcotics, in their presence, in their plain view, they are mandated by law to
seize and confiscate the same under the plain view doctrine. So in this case, these drug paraphernalia
where under the plain view and therefore under the obligation to seize and confiscate them and these are
admissible as evidence against the owner of the house.
Q: What if a police officer was conducting a surveillance of X, a well-known drug pusher, so he was always within
the vicinity of the house of X. One time, it was the birthday of X, the gate of the house was open, and the door of
the house was opened. The police officer disguised himself as one of the guests and he entered the house together
with the flow of the guests. His intention was to conduct a search. He was already about to conduct the search
when the owner of the house recognized him. The owner of the house came up to him. I know you, you are a
police officer. Get out of my house right now and he left. Is he liable for violation of domicile?
A: No, he is not liable for violation of domicile. The entry was done surreptitiously, secretly, candidly, he
was in disguise. It was not against the will of the owner because the gates and the door were open. He did
not conduct the search because the owner saw him before he could do so. The entry was done
surreptitiously. He was discovered and ordered to leave, and he left. Therefore, he is not liable for violation
of domicile
However, upon being discovered and ordered to leave and stayed in the house.
Here, he is not liable for violation of domicile.

Under Articles 129 and 130, there is still violation of domicile despite the public officer or employee is armed
with a search warrant.

ARTICLE129 SEARCH WARRANTS MALICIOUSLY OBTAINED AND ABUSE IN THE SERVICE OF THOSE
LEGALLY OBTAINED
Prohibited acts violation of domicile is committed through:
I.
By procuring a search warrant without just cause
When a public officer or employee conducts a search and the search warrant was an illegally
procured search warrant. It was procured without just cause.
SEARCH WARRANT is an order in writing, issued in the name of the People of the Philippines, signed by a judge
and directed to a peace officer, commanding him to search for personal property described therein and to bring to
court the particular things to be seized.
Before a search warrant may be issue, the following are the requisites to a valid search warrant:
1.) It is required that it is for one specific offense.
2.) There must be probable cause
3.) The probable cause must be determined personally by the issuing judge
4.) The said probable cause was determined by the issuing judge personally through searching questions and
answers in writing, under oath or affirmation as the testimony given by applicant of the said search warrant or
any witnesses he may produce.
5.) The applicant of the search warrant and his witnesses must testify only as to facts personally known to them
6.) The said search warrant must specifically state the place to be searched and the place to be seized.
-

If any of these requisites is wanting, then the said search warrant is illegally procured. It is procured without just
cause
A search conducted by virtue of a search warrant illegally procured without just cause is a kin to a search
without a search warrant.

Q: What if the police officer was armed with a search warrant, he procured the search warrant illegally without just
cause. The police had an enemy, B, then proceeded to a judge to issue a search warrant testifying under oath, the

Page 16

CRIMINAL LAW 2
he is positive under his surveillance that B was in possession of an unlicensed firearm inside his house. The judge
believed the police and issued a search warrant against B. The police officer is now armed with a search warrant,
and went to the house of B and showed it to B. B, upon reading the search warrant, knew it was maliciously
procured, it was procured without just cause. Should B allow the police officer to conduct the search?
A: Yes. Even if the said search warrant was procured without just cause, the police officer must be allowed
to enter and conduct the search, because of the so-called, REGULARITY OF PERFORMANCE OF DUTY
on the part of the judge in issuing the said search warrant. He is armed with a search warrant issued by the
judge and therefore, he must allow him to enter his house and to conduct his search.
What now would be the remedy of the owner of the house?
The owner of the house has the following remedies:
1.) He can file a motion to quash the said warrant
2.) He can file a motion to suppress the evidence that have been confiscated inside the house.
In addition to these motions, he can file a case of violation of domicile against the said public
officer who conducted the search. Violation of domicile under Art. 129 because he procured the
said search warrant without just cause.
So in other words, the said police officers must be allowed to enter and allowed to conduct the
search and the owner of the house shall have the abovementioned remedies thereafter.
II.

By exceeding his authority or by using unnecessary severity in executing a search warrant

legally procured
A search warrant is valid only for a period of 10 days from the date of its issuance appearing on the
search warrant.

ILLUSTRATION:
A search warrant was dated Dec. 1, a police officer received it on Dec 3. The search was conducted Dec. 13. The
said search warrant is already invalid.

When they conducted the said search on Dec. 13, they already exceeded the authority in the said
search warrant. Therefore, they are liable of violation of domicile under Article 129.
Q: What if the said search warrant says that they could conduct the search, anytime of the day. They conducted the
search at night time.
A: They are liable of violation of domicile under Article 129 because they exceeded the authority in the
said search warrant.
A search warrant may only be conducted at day time. It may only be implemented at day time, EXCEPTIONS:
When there is a specific order in the search warrant stating that if can be conducted at anytime of
the day or night.
Absence of such order in the said search warrant, a search warrant can only be implemented at
day time.
Q: What if a search warrant was issued against X, the place to be search is located at 123 valentiono St. They
police went there. The house was owned not by X, but by Y. So they look for the house of X, the house of X was
321 valentino St. They presented a search warrant to X. X said, you cannot conduct a search inside my house.
The address in the search warrant is 123 valentinost. and my address is 321 valentinost. Nevertheless, the officers
conducted the search and they found the illegal items inside the house. Are the police officers liable of violation of
domicile? Are the confiscated admissible evidence against the owner?
A: The officers are liable for the violation of domicile. When they conducted the said search, on a house
that has a different address from that said search warrant, they exceeded their authority in the said search
warrant. The search warrant is so worded, expressly, as to the thing or place to be searched. The police
officer cannot exercise discretion. They have to follow what is stated in the search warrant. The moment
they did not follow what is stated in the search warrant, then they exceeded the authority.

In that case, when there is variance between what is stated in the search warrant and the actual facts of the
case to be searched, the have to go back to the judge that issued the said search warrant and they have to

Page 17

CRIMINAL LAW 2
ask or move for the amendment of the said search warrant.
Q: What if the third punishable act under Art. 129 amounting to the violation of domicile, when the public officer or
employee exercised excessive severity in the implementation of the said search warrant.
What if a search warrant is issued against X, the police officers went to the house of X, upon reaching the
house of X, they showed the warrant to X and he allowed them to enter. The search warrant said that they could
search for dangerous drugs, particularly, shabu. In searching for shabu, they turned upside down and deliberately
destroyed each and every furniture and appliance inside the house of X. When the wife of X saw this, she told the
police officers to stop, but she was slapped twice. she then suffered less serious physical injuries. In deliberately
destroying the furniture and appliances of X, the public officers committed malicious mischief. In slapping the wife,
they committed less serious physical injuries. What crime/crimes would you file against the police officers?
A: You have to file 3 cases:
1. Violation of domicile because they exercised excessive severity in the implementation of the said
search warrant. They need not destroy the property. They need not slap the wife. All of these are
excess of the search warrant.
Therefore they should be filed in violation of Art. 129, violation of domicile, for exercising
excessive severity.
2. Malicious mischief for destroying the furniture and appliances
3. less serious physical injuries for slapping the wife
Are you going to file all 3 cases or is it absorbed and must be file within the court?

Violation of domicile cannot absorb malicious mischief nor less serious physical injuries.

Although in reality, these two are merely the manifestations of the excess in the implementation of the
said search warrant, they cannot be absorbed, they cannot be complex. Under Art. 129, he expressly
prohibits such absorption and such complexity of crimes

Under Article 129, the liability for violation of domicile shall be in addition to the liability attaching to the
offender for commission of any other crime. Therefore, if aside from violation of domicile, Another crime
is committed by the police officers, they had to be charged with all these cases. Art. 129 prohibits the
complexing of a crime. It also prohibits the absorption of this crime, therefore all 3 cases must be filed
against the said police officers.
ARTICLE130 SEARCHING DOMICILE WITHOUT WITNESSES
Prohibited act:
I.
By conducting a search in the absence of the owner of the house, or any member of his family, or
two witnesses residing in the same locality
ILLUSTRATION:
Q: What if under Article 130, violation of domicile is committed when the search was conducted in the absence of
the owner of the house, or any member of his family or two witnesses residing from the same locality.
A search warrant was issued against X and the police officers went to the house of X. They showed the
search warrant to X and they were allowed inside to conduct the search. In conducting the search, the search was
witnessed by 2 barangay tanods who came with them, who arrived with them in the house of X. in the conduct of
the search, they told the owner of the house, X, that his wife and his two children to remain in the sala while they
conduct the search inside the bedroom of X. In conducting the search in the bedroom of X, the search was
witnessed by 2 barangay tanods and they found 2 plastic sachets of shabu underneath the pillow inside the
bedroom of X. Are the police officers liable of violation of domicile under Article 130? Are the evidence seized
admissible against the owner?
A: The police officers are liable of violation of domicile under Article 130.
Article 130 provides for an hierarchy of witnesses who must be present in the conduct of the search. The
law says it must witnessed by the owner of the house, it is only in the absence of the owner of the house
that it must be witnessed by any member of his family. It is only in the absence of the owner of the house or
any member of his family that there must be 2 witnesses residing from the same locality.
In the problem, the owner of the house was there, the members of his family were there but, they were
not allowed to witness the said search. Therefore, the said search was conducted in violation of Article

Page 18

CRIMINAL LAW 2
130 and any evidence confiscated will be inadmissible against the owner of the house for being fruits of
poisonous tree under the exclusionary rule in Political Law
GALVANTE VS. CASIMIRO
The Supreme Court says,
There is no such crime as illegal search. So, what is prohibited only the searching of the dwelling under
Article 129. But, in case of search under vehicle or any other places, there is no such thing as illegal search. The
remedy is to file an action for damages, a civil action for damages.
ARTICLE131 PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS
This is committed by a public officer or employee who commits any of the following acts:
I.
By prohibiting or by interrupting, without legal ground, the holding of a peaceful meeting, or by
dissolving the same. (any peaceful meeting)
II.
By hindering any person from joining any lawful association or from attending any of its meetings.
III.
By prohibiting or hindering any person from addressing, either alone or together with others, any
petition to the authorities for the correction of abuses or redress of grievances.

For the crime to arise, it is necessary that the meeting that was prevented, interrupted or dissolved must be a
peaceful meeting and it must be for any lawful purpose. If the meeting is not a peaceful meeting or if the
meeting is not for lawful purpose, a public officer or employee has all the rights to prevent, interrupt or dissolve
the said meeting.

This is in the exercise of the freedom of speech, freedom of expression and freedom of assembly. However,
these 3 freedoms are not absolute. The Supreme Court has enjoined the power of the State to regulate these
meetings through permits.
Before any of these peaceful meetings for a lawful purpose may be held in a public place, there must be a permit
coming from the local authority of the place. The permit is only to regulate the said meeting and not to prohibit it.
Regulate as to the time, place and to the date, so that the public would not be in inconvenience.
ARTICLE132 INTERRUPTION OF RELIGIOUS WORSHIP
ELEMENTS:
1. This is committed by an offender who is again a public officer or employee.
2. Then there is a religious ceremony or manifestations of any religion are about to take place or are
going on.
3. That the offender prevents or disturbs the said religious worship or religious ceremony.
If the offender makes us of violence or threats in committing the crime, such use of violence or threats
would not constitute a separate and distinct charge. Rather it is considered as an aggravating or
qualifying circumstance which would mean an imposition of a higher penalty.
ILLUSTRATION:
Q: So what if there is a barrio fiesta and the priest is about to celebrate the mass. Here comes X and he went to the
priest and point the gun to the priest. Then the priest was about to celebrate the mass. At first the priest did not
mind him. But X intentionally pointed the gun to the head of the priest and said, I will kill you if you will celebrate
the mass! So the priest did not celebrate the mass and all the faithful went out of the church. What crime if any is
committed by X?
A: X is liable for interruption of religious worship under Article 132. What about the fact that he
pointed a gun at the head of the priest? Would it constitute a separate and distinct crime of grave threats? It
will not. The fact that threats were employed in the commission of the crime would only mean the penalty
will be imposed in its maximum period. It would be considered an aggravating circumstance in committing
the crime of interruption of religious worship. BUT, IT WILL BRING ABOUT A SEPARATE AND DISTINCT
CHARGE FOR GRAVE THREATS OR EVEN UNDER LIGHT THREATS.
ARTICLE133 OFFENDING THE RELIGIOUS FEELINGS
ELEMENTS:
1. Committed by a public officer or employee or a private individual.

Page 19

CRIMINAL LAW 2

The first element provides for the offender. The offender may be a public officer or employee or
a private individual. This is the only crime under Title Two where the offender can be a private
individual. From Article 124 to Article 132 under Title Two, the offender can ONLY be a public
officer or employee. The only exception is Article 133, offending the religious feelings wherein
the offender can either be a public officer or employee or a private individual. The reason is,
whoever may be the offender, a public officer or employee or a private individual, there will be
the same offense made on the feelings of the faithful.

2. The said offender performs acts (1) in a place devoted to religious worship, or (2) during the celebration
of any religious ceremony.
The second element requires that the offender performs acts notoriously offensive to the
feelings of the faithful. Acts notoriously offensive to the feelings of the faithful are those acts
directed against their religious dogma, ritual, faith of the religion, or mocks, ridicule, or scoffs of
the said dogma, ritual, faith or he attempts to damage the object of veneration of a certain
religion. The law says notoriously offensive, according to Reyes, it means that it is offensive
to all kinds of religion. If the same thing would be done to any religion they will also be
offended.
3. That the acts must be notoriously offensive to the feelings of the faithful.
The third element requires that the said acts notoriously offensive to the feelings of the faithful
can be committed only (1) in a place devoted to religious worship, or (2) during the celebration
of any religious ceremony. The law uses the word or therefore, if the act is done in a place
devoted to religious worship, it is not necessary that there be a religious ceremony ongoing.
Because it can either be with or without a religious ceremony for as long as the place is
devoted for religious worship.
ILLUSTRATION:
Q: So what if X (A private individual) entered a catholic church after that the tabernacle was opened and he took out
the chalice and inside the chalice was the host which was being received by Catholics during communion. He
poured the host in the floor then he destroyed them, spit on them and stepped on them. Is he liable under Article
133?
A: YES. The act he performed is notoriously offensive to the feelings of the Catholics. If the same act
is done to the object of veneration of the Buddhists or if the same act is done to the object of veneration of
the Muslims, they will also be offended. Therefore, it is notoriously offensive to the feelings of the faithful
because even if it is applied to other religions they would be offended too. And it was done in a place
devoted to religious worship because it is done inside the church even if no religious ceremony is ongoing.
Q: What if inside the PICC there was this art exhibit ongoing and one artist, this was a controversy before right?
There was this picture of Jesus Christ and on the picture of Jesus Christ he put a representation of a penis on his
face. Is the said artist liable under Article 133 offending the religious feelings?
A: NO. He cannot be liable for offending religious feelings under Article 133. Because the PICC is not
a place devoted for religious worship and the art exhibit is not a celebration of a religious ceremony.
Therefore, since the last element is not present even if it offends religious feelings, he cannot be held liable
under Article 133 for the absence of the 3rd element.
TITLE THREE
CRIMES AGAINST PUBLIC ORDER (Articles 134 160)
ARTICLE134 - REBELLION OR INSURRECTION
ELEMENTS:
1. That there must be (a) public uprising, and (b) taking arms against the Government
2. That the purpose of the uprising or movement is either
a.
to remove from the allegiance to said Government or its laws:
(1)
the territory of the Philippines or any part thereof; or
(2)
any body of land, naval or other armed forces; or
b.
to deprive the Chief Executive or Congress, wholly or partially, of any their powers or prerogatives.

Page 20

CRIMINAL LAW 2

The essence or the gravamen of REBELLION is :

The armed uprising against the Philippine Government. So it is a public uprising with the taking up of arms. AN
ARMED PUBLIC UPRISING.
In case of Rebellion, it can be committed by any person, or with a participation of the public.

THE LEADERS - Any person who

(a) promotes
(b) maintains or
(c) heads a rebellion or insurrection
THE PARTICIPANTS Any person who
(a) participates
(b) executes the commands of others in rebellion or insurrection
ARTICLE134-A COUP DETAT
ELEMENTS:
1. That the offender is a person or persons belonging to the military or police or holding any public office or
employment;
2. That it is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy or
stealth;
3. That the attack is directed against duly constituted authorities of the Republic of the Philippines, or any
military camp or installation, communication networks, public utilities or other facilities needed for the
exercise and continued possession of power;
4. That the purpose of the attack is to seize or diminish state power.

Committed by any person or persons belonging to the military or police or holding any public office or
employment, with or without civilian support, carried out singly or simultaneously anywhere in the Philippines
for the purpose of seizing or diminishing state power.

The essence of COUP DETAT is a swift attack directed against the duly constituted authorities, with or without
civilians.
REBELLION
Essence an Armed public Uprising against the
Government
Crime of the Masses, it involves a multitude of
people

Purpose Overthrow the Government of the

Philippines and replace it with the Government
of the Rebels
Can only be committed by means of force and
violence

COUP DETAT
Essence swift attack against the duly
constituted authorities
It can be committed with or without the
participation of the public because it says, with
or without civilian support, provided it has been
committed by any member of the military, the
police or those holding public office or
employment.
Purpose only to diminish state power, to
destabilize the government, not entirely to
overthrow the government.
Can be committed not only by means of force
and violence but also by means of intimidation,
threat, strategy or stealth

THE LEADERS - Any person who

(a) leads
(b) directs or
(c) command others to undertake a coup detat
THE PARTICIPANTS Any member of the Government who

Page 21

CRIMINAL LAW 2
(a) participates
(b) executes the commands of others in undertaking a coup detat
Any person who is not in the Government service who
(a) Participates
(b) Supports
(c) Finances
(d) abets or
(e) aids in the undertaking of a coup detat

What if common crimes are committed in the course of Rebellion?

Common crimes committed in furtherance of, incident to or in connection with Rebellion are considered as
ABSORBED in the crime of Rebellion known as the THEORY OF ABSORPTION IN REBELLION.

THEORY OF ABSORPTION IN REBELLION

Whenever in the course of committing rebellion, murder, homicide, arson, physical injuries, other common
crimes are committed, and these common crimes are in furtherance to, incident to, in connection with
Rebellion is considered as absorbed in the crime of Rebellion. Therefore, only one charge of Rebellion
should be charged against the said offender.
ENRILE v SALAZAR
Senator Juan Ponce Enrile was charged with the Following crimes:
1. charged with Rebellion
2. charged with multipleMurder
3. Multiple frustrated murder
4. violation of PD 1829 obstruction of Justice because he harbored or concealed then Colonel Gregorio
Honasan.

What did the Supreme Court say?

The Supreme Court said:
only one charge and it should be rebellion. The violation of PD 1829, the multiple murder and multiple
frustrated murder are absorbed in Rebellion under the theory of absorption in Rebellion.
The Supreme Court further said that although violation of PD 1829 is a violation of a special penal law, still
if it is committed in furtherance of Rebellion, it can still be absorbed in the crime of Rebellion.

ILLUSTRATION:
Q: What if a police officer was on his way to the office, suddenly here comes a member of the NPA, he saw the
police officer and shot him. What crime is committed? is it Rebellion or murder?
Rebellion can only be absorbed common crime such as murder, if the commission of the crimes
was done in furtherance of Rebellion. Therefore, it is necessary that there must be evidence shown
in what way the said killing has promoted, fostered the idea of the Rebels. Absent any connection
with the commission of the common crime and the furtherance of rebellion, the appropriate charge
is only murder, homicide, arson or physical injuries as the case maybe.
A: In the case, the proper charged would be murder. There was no evidence showing in what way the
said NPA has promoted the ideas of the Rebels in killing of the said police officer. Absent of that evidence, it
would be a charge of murder and not rebellion.
Rebellion is a continuing crime. Therefore, these NPA who rebelled against the Government, to overthrow
the Government, that one time uprising is sufficient, they are already considered as rebels because it is a
continuing offense.
GONZALES v ABAYA
Senator Trillanes and company was charged with 2 crimes, coup detat in the RTC of Makati and the violation of
articles of war, particularly acts of unbecoming of an officer and a gentleman filed before the military court. While
the case was pending in the RTC of Makati, the lawyer filed a petition, a motion, saying that the violation of the

Page 22

CRIMINAL LAW 2
articles of war should be absorbed by the case filed before the RTC of Makati. Can Coup detat absorb the
violations of article of war?

The Supreme Court ruled in the NEGATIVE.

According to the Supreme Court, for the theory of absorption to apply, it is necessary that both cases
must be heard or may be heard before the same civilian court.

In this case, the coup detat must be heard in a civilian court, RTC of Makati, whereas the violations of
the articles of war can be heard only before a military court. Therefore, one cannot absorb the other.

Second reasoning given by the Supreme Court, for the theory to absorption to apply, it is necessary that
both crimes are punished by the same penal statute

Third reasoning, violation of the articles of war is sui generis. It is a kind of its own. Nothing compares to
it. Therefore, it cannot be absorbed by any other crime.
ARTICLE136 CONSPIRACY AND PROPOSAL TO COMMIT COUP DETAT, REBELLION OR INSURRECTION
There is CONSPIRACY TO COMMIT REBELLION when two or more persons come into an agreement
concerning the commission of rebellion (to rise publicly and take arms against the Government to any of
the purposes of rebellion) and decide to commit it.
There is PROPOSAL TO COMMIT REBELLION when a person who decides to commit rebellion proposes
its execution to another person it is necessary that the other person would not agree, if that person agree,
then it is already conspiracy to commit rebellion
Conspiracy is a bilateral act which involves two or more persons, whereas proposal is a unilateral act only
one person decides to commit the crime and he proposes its execution to another person.
There is a conspiracy to commit coup detat the same way of committing it. Also the proposal to commit coup
detat.
ARTICLE138 INCITING TO REBELLION OR INSURRECTION
Inciting to Rebellion is a crime under the Revised Penal Code.
ELEMENTS:
1. It is committed by any person who does not take up arms or is not in open hostility with the Government
2. he incites others to uprise for any of the purposes of rebellion (incite others to the execution of any of the
acts of rebellion)
3. by means of speeches, proclamations, writings, emblems, banners or other representations tending to the
same end.
There is NO SUCH CRIME AS INCITING TO COUP DETAT.
SEDITION (ARTICLE 139)
ELEMENTS:
1. That the offender rise (1) publicly, and (2) tumultuously;
2. That they employ force, intimidation or other means outside of legal methods;
3. That the offenders employ any of those means to attain any of the following objectives:
a.
To prevent the promulgation or execution of any law or the holding of any popular election
b.
To prevent the National Government, or any provincial or municipal government, or any public
officer thereof from freely exercising its or his functions, or prevents the execution of any
administrative order;
c.
To inflict any act of hate or revenge upon the person or property of any public officer or employee;
d.
To commit, for any political or social end, any act of hate or revenge against private persons or any
social class; and
e.
To despoil, for any political or social end, any person, municipality or province or the National
Government of all its property or any part thereof
There is a public uprising again but no taking up of arms but it is done tumultuously by means of force,
intimidation or any other means outside the legal methods.

Therefore, based on the objects of sedition, the purposes of sedition can either be political in nature or social in
nature.

The purpose of sedition is not to overthrow the government but to go against what the government wants to

Page 23

CRIMINAL LAW 2

implement. To go against a new law, an administrative order or public officer or employee.

It is a disturbance, a commotion against the lawful command of the authority.
The rallies that you see everyday, the rallies against a new law to be implemented, they are considered as
ordinary protest or rallies, but the moment they are carried outside of legal methods, by means of force and
violence, they will become to be a seditious act.

So, sedition is like any other rally, it only becomes seditious because there is the public uprising, done
tumultuously, by means of force, violation or any other means outside of the legal method.
REBELLION
SEDITION
Both have a public uprising
Objective Political in Objective can either
nature
be Political or social in
To
overthrow
the nature
Government
and
to
replace the it with the
Government
of
the
Rebels

ARTICLE141 CONSPIRACY TO COMMIT SEDITION

There is a crime conspiracy to commit sedition but not proposal to commit sedition. A proposal to commit
sedition is not a punishable act under the RPC.
ARTICLE142 INCITING TO SEDITION
ELEMENTS:
1. The offender is not a participant (does not take direct part) in the crime of sedition
2. He incites others to uprise for any of the purposes of sedition
3. By means of speeches, proclamations, writings, emblems, cartoon, banners, or other representation
tending to the same end.

Inciting to Rebellion or Inciting to Sedition can only be committed by a person who is not a participant in the
Rebellion or the Sedition, because if he is a participant in the Rebellion or Sedition, the appropriate charge
is Rebellion or Sedition as the case may be. Not merely inciting to Rebellion or Sedition.

Inciting to Sedition is committed not only by inciting others for any of the purposes of sedition. Different acts
of inciting to sedition:
I.
Inciting others to the accomplishment of any of the acts which constitute sedition by means of
speeches, proclamations, writings, emblems, etc.
II.
Uttering seditious words or speeches which tend to disturb the public peace
III.
Writing, publishing or circulating scurrilous libels against the Government, or any of the duly constituted
authorities thereof, which tend to disturb the public peace.

USE OF UNLICENSED FIREARM (PD 1866 as amended by RA 8294 otherwise known as the laws on
illegal/unlawful possession, manufacture, dealing in, acquisition or disposition of firearms, ammunition or
explosives or instruments used in the manufacture of firearms, ammunition or explosives)
See: People vs. Ladjaalam and Celino Sr. vs. People
Under Section 1 If the use of an unlicensed firearm is in furtherance of, incident to, or in connection with
the crime of rebellion or sedition, or attempted coup dtat, such use of unlicensed firearm shall be
absorbed in the crime of rebellion, sedition or attempted coup dtat.

Therefore, the use of unlicensed firearm in case of rebellion or sedition, or attempted coup dtat will not
bring about a separate or distinct charge. There is only one crime that is rebellion or sedition, or attempted

Page 24

CRIMINAL LAW 2
coup dtat. The use of unlicensed firearm is not even an aggravating circumstance. It is absorbed in the
crime of rebellion or sedition, or attempted coup dtat.

Under the same Section 1 of PD 1866 as amended by RA 8294, if the use of an unlicensed firearm is in the
crime of homicide or murder, as the case may be, the use of unlicensed firearm shall be considered as an
aggravating circumstance. So in the law, it is an AGGRAVATING CIRCUMSTANCE.

WHAT KIND OF AGGRAVATING CIRCUMSTANCE?

As decided by the Supreme Court in number of cases, it is a SPECIAL AGGRAVATING
CIRCUMSTANCE which cannot be offset by any mitigating circumstance. The Supreme Court also
held that the use of the word homicide or murder under Section 1 is in its generic sense, therefore,
whatever be the kind of killing for as long as the unlicensed firearm is used, such use of unlicensed
firearm is considered as a SPECIAL AGGRAVATING CIRCUMSTANCE.
ILLUSTRATION:
Q: So if a son had an argument with his father, in the course of the argument with his father, the son killed the
father, the firearm was recovered. What crime or crimes would you file against the son?
A: The son is liable of the crime ofPARRICIDE, for having killed his own father. The use of unlicensed
firearm shall be considered as a SPECIAL AGGRAVATING CIRCUMSTANCE. Because as held by the
Supreme Court, the use of the word murder is in its generic sense, therefore it includes any kind wherein
the imposable penalty is RECLUSION PERPETUA TO DEATH such as Parricide.
Under Section 1 of PD 1866 as amended, it also provided that a person can only be held liable of illegal possession
of unlicensed firearm provided that no other crime was committed by the person arrested. It is necessary that no
other crime was committed by the person arrested.
PEOPLE VS. LADJAALAM
The police officers armed with a warrant of arrest went to the house of WalpanLadjaalam to effect the
warrant of arrest. WalpanLadjaalam, upon seeing the police officers, fired shots at the officers. Hence, he
was charged with direct assault with multiple attempted homicide. Aside from that, he was also charged
with illegal possession of unlicensed firearms. He was convicted of both crimes before the Regional Trial
Court. On appeal before the Supreme Court, SC said the illegal possession of firearms case should be
dismissed. He should be acquitted in the said case because he committed another crime, and that is,
DIRECT ASSAULT WITH MULTIPLE ATTEMPTED HOMICIDE.
What about in the case of CELINO, SR. VS. PEOPLE?
In this case, it was election time, there was a COMELEC gun ban. A person was found in possession of an
unlicensed firearm. Arrested, he was charged of 2 crimes: (1) violation of the COMELEC gun ban, and (2)
illegal possession of unlicensed firearms. During the arraignment for the violation of the COMELEC gun
ban, he pleaded not guilty. However, during the arraignment for illegal possession of an unlicensed firearm,
he filed a motion to quash the information. According to him, he cannot be charged of illegal possession of
an unlicensed firearm because the law says that you can only be charged of illegal possession of an
unlicensed firearm provided that no other crime is committed by the person arrested. He said here, he
committed violation of COMELEC gun ban, therefore, he can no longer be liable for violation of PD 1866
that is Illegal Possession of Unlicensed Firearm.
IS HIS CONTENTION CORRECT?
His contention is wrong because according to the Supreme Court, when the law says provided that
no other crime is committed by the person arrested, the word committed means that there is already
a final determination of guilt a final conviction of guilt based on a successful prosecution or a judicial
admission. Therefore, the word committed means he has already been held guilty beyond reasonable
doubt a final judgment.

In the case of CELINO SR., he was not yet convicted. He was only being prosecuted. He was only being charged
of illegal possession of unlicensed firearm. Therefore, both cases can proceed. He can be charged both of illegal
possession of unlicensed firearms and violation of COMELEC gun ban. However, the moment he is convicted of
violation of COMELEC gun ban, he should be acquitted of illegal possession of unlicensed firearm, because this

Page 25

CRIMINAL LAW 2
time, the law says provided that no other crime is committed by the person arrested. Therefore, a final conviction
is necessary before the illegal possession of unlicensed firearm may be dismissed or he may be acquitted
of the same. So that is the relation of PD 1866 to sedition, rebellion and coup dtat.
ARTICLE143 ACTS TENDING TO PREVENT THE MEETING OF THE ASSEMBLY AND SIMILAR BODIES
Punishes acts preventing the meeting of Congress
The crime is committed if there is a projected or actual meeting of the Congress and the offender, by
means of force or fraud, prevents such meeting
The offender here is any person: he may be a private individual, public officer or employee
It is necessary that the offender prevents the meeting of the Congress or any of its committees, or
constitutional committees or any provincial city or municipal board.
ILLUSTRATION:
Q: So what if there is a meeting of the SangguniangPanlungsod. It was being presided by the Vice Mayor as the
presiding officer of the city council. During the session of the SangguniangPanlungsod, here comes the mayor
together with some police officers. They entered the session of and disturbed and prevented the said meeting by
force. What crime, if any, was committed?
A: It is the violation of Article 143 ACTS TENDING TO PREVENT THE MEETING OF CONGRESS AND
SIMILAR BODIES.
ARTICLE144 DISTURBANCE OF PROCEEDINGS
Punishes disturbance of proceedings
In disturbance of proceedings, there is a meeting of Congress or of any of its committees or
subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or
city or municipal council or board
The offender either disturbs any of such proceedings or he behaves while in the presence of such
proceedings in such a manner as to interrupt the proceedings or impair the respect due it.
So here, it is necessary that the offender, who was present in the meeting, either he disturbs the said
proceeding, or while being there, he performed an act which impair the respect due to them or which
interrupted the said proceeding
ILLUSTRATION:
Q: The FREEDOM OF INFORMATION BILLwas on the committee level. It was votation time. On the right side of
the said place or meeting, there were some observers or people who were coming from the media. On the left side,
there were ordinary people who do not agree on the freedom of information bill. It was time to vote for the passage
of Freedom of Information bill, the members of the committee were voting when suddenly some members of the
media immediately pulled out a placard and shouted: YES TO FREEDOM TO INFORMATION BILL!Are they liable
of any crime?
A: YES. They are liable of disturbance of proceedings under Article 144. Because while in the
presence of the said meeting, they behaved in such a manner as to interrupt the proceedings, or impair the
respect due it.
ARTICLE145 VIOLATION OF PARLIAMENTARY IMMUNITY
Punishes violation of parliamentary immunity
There are TWO (2) ACTS PUNISHED IN VIOLATION OF PARLIAMENTARY IMMUNITY:
1. Penalty: Prision Mayor committed by any person who by means of force, intimidation, fraud
or threat, or any other means and by said means, he tried to prevent any member of the
Congress either from attending any meeting of the Congress or its committees or
subcommittees, constitutional commissions or committees or divisions thereof , from
expressing his opinions or casting his vote
can be committed by anyone (private individual, public officer or employee)
2. Penalty: PrisionCorreccional can only be committed by a public officer or employee who
shall, while the Congress is in regular or special session, arrest or search any member thereof,

Page 26

CRIMINAL LAW 2
except in case such member has committed a crime punishable under this Code by a penalty
higher than prision mayor.
Offender should be only a public officer or employee and not any individual
because any individual cannot make a search or arrest a member of the Congress
It is necessary that at the time of the arrest, the member of Congress, the
Congress must be in its regular or special session.
Likewise, it is necessary that the said member of Congress has committed a crime
which is not higher than Prision Mayor.
ILLUSTRATION:
Q: How about in the case of PanfiloLacson?
A: The case against Sen. Lacson was fortunately dismissed by the Court of Appeals. But let us say, it is not
dismissed by the Court of Appeals, he was being charged of double murder Dacer-Corbito double murder
slay. He went into hiding. Let us say that he made his appearance. Can he be arrested even if the
Congress is in regular or special session? YES. Because the crime committed by him is punishable by a
crime committer higher than prision mayor. It is punishable by reclusion perpetua. Therefore, had it not
been dismissed by Congress and he apparently appeared and the Congress is in regular or special
session, he could be arrested.
Q: What if a Congressman is charged with the crime of libel before the RTC. The RTC issued a warrant of arrest
against the Congressman. The police officers armed with a warrant of arrest went inside the walls of Congress and
they arrested the said Congressman. Are the police officers liable under this Article?
A:YES, they are liable for violation of parliamentary immunity under the second. Because at the time
the Congress is in its regular session and they arrested the said Congressman, Libel under Article 355 is
punishable only by Prision Correcional in its minimum and medium period, therefore it is below Prision
Mayor, hence, the Congressman cannot be arrested while the Congress is in its regular or special session.
Q: What if Congressman A is charged with the crime of attempted homicide. The fiscal found probable cause, the
case was filed in court. The court agrees with the fiscal and a warrant of arrest was issued against Congressman A.
The warrant of arrest was issued by the judge on December 24, the police officers had possession of the said
warrant of arrest on December 25, on Christmas Day. While Congressman was inside his house, the police officers
arrived and arrested the said Congressman for having been charged of the crime of Attempted Homicide. The
penalty for Attempted Homicide is Prision Correcional because under Article 249, the penalty for Homicide is
Reclusion Temporal and the attempted is two degrees lower, one degree is Prision Mayor, two degrees lower is
Prision Correcional, therefore, the penalty to be imposed in this Attempted Homicide is Prision Correcional. So the
police officers armed with a warrant of arrest went inside the house of the Congressman and arrested him on
Christmas Day, December 25, are the police officers liable for violating parliamentary immunity under Article 145?
A:YES, they are liable for violation of Parliamentary Immunity.Because during Christmas break or
during Holy week break or any other kind of break, Congress is still in its regular session. Because as
stated in Political Law, in Constitution, when does Congress start? 4 th Monday of July, that is when the
President states his SONA. When does Congress ends? 30 days before the start of Congress. Therefore,
during Christmas break or during Holy week break or any other break, the Congress is still in its regular
session. Any arrest of a member of Congress during this time, if the said member of Congress has not
committed a crime where a penalty is higher than Prision Mayor, shall be punished as violation
parliamentary immunity under Article 145.
ARTICLE146 ILLEGAL ASSEMBLY
There are 2 KINDS OF ILLEGAL ASSEMBLY:
I.
Any meeting attended by armed persons for the purpose of committing any of the crimes punishable
under this Code
ELEMENTS:
1. That there be a meeting, a gathering or group of persons, whether in fixed place or
moving
2. The meeting is attended by armed persons
3. The purpose of the meeting is to9 commit any of the crimes punishable under the
Code

Page 27

CRIMINAL LAW 2
II.

Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of
treason, rebellion or insurrection, sedition or assault upon a person in authority or his agents
ELEMENTS:
1. There is a meeting, a gathering or group of persons, whether in fixed place or moving
2. The audience, whether armed or not, is incited to the commission of the crime of
treason, rebellion, or insurrection, sedition or direct assault
The said gathering of men or men, may or may not be armed. It is not required that
they be armed. Provided that the audience where incited to commit treason,
rebellion, or insurrection, sedition or assault upon a person in authority or his
agents)

In case of illegal assembly, it is only necessary that there be a meeting, the meeting must be attended by
armed persons, under the first mode. In here, when it says armed persons, it is not required that all those
persons present in the meeting must be with arms. It suffices that one, two or more, or some of them would
be with arms.
When we say arms, it does not only mean firearms, it refers to any things, knives, stones, anything which
can cause violence or injury to another person.
It is necessary however, that the purpose of the meeting is unlawful that is to commit any of the crimes
punishable under the RPC.
Under the second mode of committing illegal assembly, again there is a meeting, and there is no requisite
that those in attendance must be armed, therefore, they may or may not be with arms. But it is requires for
the crime to arise that the audience must be incited to commit treason, rebellion, or insurrection, sedition or
assault upon a person in authority or his agents. Otherwise, the crime will not arise.
In case of illegal assembly, the organizers or leader of the meeting will be criminally liable, as well as the
persons merely present in the said meeting.
Under Article 146, first paragraph, last sentence it is provided that persons who are merely present at
the meeting shall be punished by Arresto Mayor, unless they are armed, the penalty shall be Prision
Correcional, therefore, whether you are armed or not, you can be held criminally liable for illegal assembly, it
will only differ in the penalty.
o If you are armed - Prision Correcional
o Not armed - Arresto Mayor (lower)

ARTICLE147 ILLEGAL ASSOCIATIONS

WHAT ARE ILLEGAL ASSOCIATIONS?
1. Associations totally or partially organized for the purpose of committing any of the crimes punishable under
the Code
2. Associations totally or partially organized for some purpose contrary to public morals
In case of illegal associations, it is necessary that there be a formation of a group, not merely a meeting and
in the said association, not only the members of the association should be penalized, but also the founders,
directors and president of the said association or organization should be held criminally liable.
ILLEGAL ASSEMBLY
the purpose will always be a violation under the
RPC. Even under the second mode inciting to
commit treason, rebellion, or insurrection, sedition
or assault upon a person in authority or his agents
Necessary that there is an actual meeting or
assembly
Meeting and the attendance at such meeting are
the acts punished

ILLEGAL ASSOCIATION
the purpose of the association may be for purpose
of committing crimes violating the RPC or even in
violation of special penal laws, provided that it is in
violation of special penal law, it must be against
public morals
Not necessary that there be an actual meeting
Act of forming or organizing and membership in the
association are the acts punished

ILLUSTRATION:

Page 28

CRIMINAL LAW 2
Q: So what if A, B and C gathered 20 persons and proposed to them the idea of committing simultaneous bank
robbery all over Metro Manila, so they will commit robbery in 4 banks simultaneously. So these 20 men agreed to
the said commission of bank robbery, and after they have come to the agreement, here comes the police, the police
got a tip from an informer, the police arrived and they were all arrested. What crime or crimes if any should they be
charged of?
A:They could not be charged of any crime. There is no such thing as conspiracy to commit robbery.
Because in robbery, robbery is only a mode of committing the crime, it is not a crime by itself, unlike in case
of treason, rebellion, there is such a crime of conspiracy to commit treason, conspiracy to commit rebellion,
and they are punished by such acts. There is no such crime as conspiracy to commit robbery. So here,
conspiracy is a mere preparatory act which is not yet punishable by law. For them to be punished, it is
necessary that they must at least perform an overt act directly connected to bank robbery. So here, they
just merely conspired to commit robbery without the performance of any overt act directly connected to
robbery. Hence, they are not criminally liable. What they did is only a preparatory act not directly connected
to robbery.
Q: Why not illegal assembly?
A: Because in the problem, it is not mentioned that the persons were armed. Also, the crime of bank
robbery is not among the crimes mentioned in the second act.
Q: Why not illegal association?
A: Because what they did was only a mere meeting, it was not an organization or association.
- Therefore, they are not liable of any crime.
LET US ADD FACTS TO THE PROBLEM.
Q: Let us say A, B, and C gathered 20 men 10 were armed and the other 10 were not armed. Again, they
conspired and agreed to commit simultaneous bank robbery all over Metro Manila. After their agreement here
comes the police officers, the police officers arrested them. Of what crime or crimes may the police officer file
against them?
A:They should be charged of illegal assembly under the first act. They have the gathering of men and
their purpose is to commit a crime punishable under the RPC which is robbery and it is attended by armed
persons, even if only 10 were with arms, still it is considered as illegal assembly. Because the law does not
require a number as to the persons who should be armed. So, all of them should be held criminally liable.
A, B and C, as leaders or organizers of the said meeting, are liable for illegal assembly. Those persons who
are armed, the penalty is higher than those who are not armed. Prision Correcional if they are armed
Arresto Mayor if they are not armed
Q: What if A, B and C gathered 1000 men and women. Their intention was to incite the people to uprise against the
government to overthrow the present administration. These 1000 men and women arrived in the said designated
place. These 1000 men and women were arranging the chairs when suddenly here comes the police officers who
got a tip about the said meeting. The police officers immediately arrested A, B and C and the 1000 men and
women. What crime or crimes if any may these 1000 men and women be charged of?
A:They have not committed any crime. It cannot be under the first act of illegal assembly because the
said 1000 men and women were not armed. It cannot be under the second act of illegal assembly, because
for one to be liable under this act, note that even if not all of them need not to be armed, it is required that
the audience must be incited to commit treason, rebellion, or insurrection, sedition or assault upon a person
in authority or his agents. Here the intention of A, B and C is to incite them to commit rebellion, BUT there
was no statement in the problem that they were indeed incited to commit rebellion. In fact, they were just
arranging the chairs, the meeting was only about to begin. Therefore, they have not yet committed any
crime.
Q: What if the jueteng lords of Southern Tagalog gathered, they gathered in Batangas. So their purpose was to
define ways and means to propagate jueteng considering that the government would not want to legalize jueteng,
their decision was define ways and means to propagate jueteng by using minors, those 15 years of age or below as
kubrador in the case of jueteng, so that was the purpose of their meeting. In the said meeting, they elected their
would-be president, vice president, treasurer, etc. So they formed an organization, an association and they said that
at the end of the month, they would meet and define ways and means to propagate jueteng. The police officers
arrived and they were all arrested. But they are not with arms, it is not mentioned that any of them were with arms.

Page 29

CRIMINAL LAW 2
A:The crime committed is illegal association under Article 147. It is an association totally and partially
organized for some purpose contrary to public morals. Jueteng is in violation of PD 1602, illegal gambling
as amended and it is against public morals because it has not yet been legalized by law.
ARTICLE148 DIRECT ASSAULT
The two forms in committing the crime of direct assault under Article 148 are:
I.
Without public uprising, by employing FORCE or INTIMIDATION for the attainment of any of the purposes
enumerated defining the crimes of rebellion and sedition.
The intention of the offender is to commit any of the purposes of rebellion or sedition.
PURPOSES OF REBELLION:
1. To remove from the allegiance to the Government or its laws:
(a) the territory of the Philippines or any part thereof; or
(b) any body of land, naval, or other armed forces; or
2. To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or
prerogatives.
PURPOSES OF SEDITION:
1. To PREVENT the promulgation or execution of any law or the holding of any popular election;
2. To PREVENT the National Government, or any provincial or municipal government or any
public officer thereof from freely exercising its or his functions, or PREVENT the execution of
any administrative order;
3. To INFLICT any act of hate or revenge upon the person or property of any public officer or
employee;
4. To COMMIT, for any political or social end, any act of hate or revenge against private persons
or any social class;
5. To DESPOIL, for any political or social end, any person, municipality, province, or the National
Government of all its property or any part thereof
NOTE: The law says that there is no public uprising, therefore whenever there is actual
commission of rebellion or sedition, direct assault can never be committed because the element of
direct assault in whatever form is that there be no public uprising, on the other hand, a necessary
element in the crime of sedition or rebellion is there be public uprising.
ELEMENTS:
1. The offender employs force or intimidation
2. AIM of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of
the crime of sedition
3. There is no public uprising
II.

Without public uprising, by ATTACKING, by EMPLOYING FORCE, or by SERIOUSLY INTIMIDATING or

SERIOUSLY RESISTING any person in authority or any of his agents, while in the performance of official
duties, or on the occasion of such performance.
Most popular form of direct assault
ELEMENTS:
1. The offender
a. Makes an attack,
b. Employs force,
c. Makes a serious intimidation, or
d. Makes a serious resistance
If the offended party is a person in authority, the attack or the employment of force
need not be serious because under Article 148, the mere act of laying of hands in the
person in authority is already qualified direct assault. Therefore, the mere act of pushing a
person in authority is already qualified direct assault because the offender already laid
hands upon a person in authority. Hence, it need not be serious. However, if the offended
party is a mere agent of a person in authority, it is necessary that the employment of
force must be serious. The reason is that in order to show defiance of law against a mere
agent of person in authority, it is necessary that the attack or force employed must be
serious in nature.

Page 30

CRIMINAL LAW 2

If what has been done is intimidation or resistance, to amount to direct assault, it must
always be serious whether the offended party is a person in authority or a mere agent of a
person in authority.

2. The second element requires that the assault is against a person in authority or an agent of a
person in authority
Who are these so-calledpersons in authority? (Art 152)
1. Any person directly vested with jurisdiction, whether as an individual or as a member of
some court or government-owned and controlled corporation, board or commission
2. A barangay captain and a barangay chairman
3. Teachers, professors, or persons charged with the supervision of public or duly
recognized private schools, colleges or institutions
4. Lawyers while engaged in their professional duties or while in the act of their
professional duties

Who is an agent of a person in authority? (Art 152, par 2)

A person who, by direct provision of law, by election or by appointment by competent
authority, is charged with the maintenance of public order and the protection and
security of life and property (e.g. police officer, councilors). Likewise, it is stated that any
person who comes to the aid of a person in authority is deemed an agent of person in
authority.

3. The third element provides that at the time of the assault, the person in authority is engaged in the
performance of his official duties or the attack was on occasion of such performance of official duty.
Direct assault can be committed whether the public officer or employee.
Direct assault can be committed whether the public officer or agent of a person in
authority is in the engaged in the performance of his official duties or on occasion of
such performance.
If a person in authority or his agent is engaged in the performance of his official duty at
the time of the assault, regardless of the motive of the offender, direct assault will
always arise. Whether there is a personal vendetta, whether it is a public reason or
whatever reason, there is always direct assault. There is defiance of authority because
the person in authority or his agent is actually engaged in the performance of official
duty
But if the person in authority or his agent is not engaged in the performance of his
official duty at the time of the assault, motive on the part of offender becomes material.
You have to determine the motive on the part of the offender. If the motive on the part of
the offender is a personal vendetta, the crime committed is murder, homicide, serious
physical injuries or less serious physical injuries, as the case may be. But if the motive
is by reason of the authorities past performance of his official duty, the crime committed
is still direct assault.
The phrase on occasion of such performance means that the said assault was by
reason of the past performance of official duty. So on occasion means it is by reason
of the past performance of official duty.
4. The fourth element provides that the offender knows him to be a person in authority or an agent of
a person in authority. So it is that the offender knows him to be a person in authority because
otherwise, he cannot be said that he defied the law, he defied the authority. In the first place, he
didnt know that the person he is attacking is a person in authority or an agent of a person in
authority.
5. The fifth element requires that there be no public uprising.
QUALIFIED DIRECT ASSAULT
There are three circumstances which will qualify direct assault:

Page 31

CRIMINAL LAW 2
1. When the assault is committed by means of a weapon;
WEAPON - firearms, knives or any other items which will inflict injury.
2. When the offender is a public officer or employee;
So when a public officer or employee attacks a person in authority, it is always qualified direct assault.
3. When the offender lays hands upon a person in authority
Will only lie if the laying of hands is upon a person in authority.
Any of these three circumstances will qualify direct assault.
NOTE: The first two qualifying circumstance affects both a person in authority or agent of a person in authority.
However, the third qualifying circumstance (laying hands upon a person in authority) will only lie if the offended
party is a person in authority. Mere laying of hands to an agent of person in authority is not qualified. It will only
qualify if the laying of hands is upon a person in authority.
COMPLEX CRIME OF DIRECT ASSAULT:
Whenever the crime of direct assault is committed, and there is a resulting felony (e.g. death, physical injuries), you
always complex it.
Under Article 48, you should always complex it because from a single act, two or more grave or less grave felonies
had resulted. Under Article 48, Book I, you have to complex it. So it could be:
o Direct assault with Murder
o Direct assault with Homicide
o Direct assault with Serious Physical Injuries
o Direct assault with Less Serious Physical Injuries

But if the resulting felony is only SLIGHT PHYSICAL INJURIES, you cannot complex it. It is prohibited
under Article 48 because:
1. It is only a light felony. Under Article 48, you can only complex two or more grave or less grave
felonies but not a light felony.
2. Slight physical injury or light felony is already absorbed in direct assault because whenever you
assault somebody, definitely, somehow, any injury would happen to him. That is why it is already
absorbed in direct assault.

ILLUSTRATION:
Q: What if the city mayor attended the flag ceremony. It was a mandate. So there was this flag ceremony attended
by the city mayor. After the flag ceremony, the mayor went to the platform and was making an announcement to the
city hall employees. Suddenly here comes X. X went near the mayor and shot the mayor on the head. The mayor
died. What crime is committed by X?
A: QUALIFIED DIRECT ASSAULT WITH MURDER. The city mayor was engaged in the performance of
his official duty at the time of the assault therefore it is direct assault. Because the city mayor was engaged
in the performance of his official duty regardless of the motive of X, even if it is by mayors past
performance of official duty or by reason of personal vendetta, regardless of the motive of X, the offender,
since the mayor is engaged in the performance of his official duty, it is direct assault.
Now, the mayor died. Therefore there is a resulting felony of murder because obviously there was
treachery; therefore, it is direct assault with murder.
Now, the offender made use of a weapon, he made use of a pistol gun, a firearm which is a qualifying
circumstance, therefore, the crime committed is QUALIFIED DIRECT ASSAULT WITH MURDER.
(EXAM TIP: the corresponding explanation must be completewhat is the qualifying circumstance, what is
direct assault, what is a complex crime)
Q: What if the city mayor has just attended a Sunday mass. He and his wife and children were getting out of the
church when suddenly here comes X. X, onboard the motorcycle went straight to the city mayor and fired at the
head of the city mayor. The city mayor died. It was found that X was a former employee of the city hall, who was
dismissed by the city mayor because he engaged in an anomalous transaction. What crime is committed by X?

Page 32

CRIMINAL LAW 2
A:QUALIFIED DIRECT ASSAULT WITH MURDER.The city mayor was not engaged in the performance of
his official duty. Since the city mayor was not engaged in the performance of his official duty, he is a person
in authority, you have to know the reason, the motive of the offender.
The offender was a city hall employee who was dismissed by the city mayor, therefore the motive was by
reason of the past performance of the said person in authority. So it is by reason of the past performance of
his official duty, the attack, the firing was done on occasion of such performance of official duty therefore
the crime committed is direct assault.
The mayor died. Obviously there was treachery therefore it is direct assault with murder.
The offender made use of a firearm, which is a qualifying circumstance in direct assault therefore it is
QUALIFIED DIRECT ASSAULT WITH MURDER.
Q: What if in the same problem, here comes X, the mayor was coming out of the church, X shot the city mayor.
Now X happened to be a former gardener who was dismissed from the service of the household because he
performed a wrongful act while gardening. Therefore his reason was a personal vendetta. What crime is committed
by X?
A: X committed a crime ofMURDER. Obviously, there was treachery on the part of X.
It is not direct assault because the mayor was not engaged in the performance of his official duty and the
reason behind the assault was personal vendetta. Therefore it cannot be said that the attack was on
occasion of such performance of official duty.
Q: What if the judge has just rendered judgment. After rendering the judgment, after finding the accused guilty
beyond reasonable doubt, the accused got mad. He jumped on the judge and he boxed the judge several times.
The court interpreter, the person nearest to the judge, came to the aid of the judge. This angered the accused. The
accused got mad at the court interpreter and he boxed the court interpreter as well. Thereafter the security guards
arrived and took away the said accused. The judge suffered serious physical injuries whereas the court interpreter
suffered slight physical injuries. What crime or crimes is/are committed by the accused, first against the judge, and
second against the court interpreter?
A: As against the judge, the accused is liable of the crime of QUALIFIED DIRECT ASSAULT WITH
SERIOUS PHYSICAL INJURIES. The judge is a person in authority under Article 152. He was engaged in
the performance of his official duty at the time of the assault therefore the crime committed is direct assault.
It has a resulting felony, serious physical injuries; therefore it should be direct assault with serious physical
injuries. The accused in boxing the judge, laid hands upon a person in authority therefore it is QUALIFIED
DIRECT ASSAULT WITH SERIOUS PHYSICAL INJURIES.
As against the court interpreter, the accused is liable of the crime of DIRECT ASSAULT. At the time
the court interpreter came to the aid of a person in authority, who was the victim of direct assault. Note
under Article 152, any person who comes to the aid of a person in authority is deemed an agent of a person
in authority therefore, when the court interpreter came to the aid of the said judge, who was a person in
authority, he became an agent of a person in authority. And under Article 148, any attack on an agent of a
person in authority is direct assault. Therefore the crime committed is direct assault. The said interpreter
suffered slight physical injury. You cannot complex it because it is only a light felony. Therefore it is only
direct assault not complex. The said accused laid hands upon the court interpreter, would you qualify it?
No, because he is mere agent of person in authority. Therefore the crime committed is only direct assault.
ARTICLE149 INDIRECT ASSAULT
Indirect assault can be committed only when a direct assault is also committed
ELEMENTS:
1.An AGENT of a person in authority is the victim of any of the forms of direct assault defined in Article 148.
2. A person comes to the aid of such agent
3. Offender makes use of force or intimidation upon such person coming to the aid of the agent.
Q: What if a police officer was manning the traffic and it was a heavy traffic so the vehicles were stuck. What if one
of the owners of the vehicles got mad at the police officer and he went straight to the police officer, who at the time
has no pistol, and boxed the police officer. While he was boxing a police officer a pedestrian saw the incident .the
pedestrian came to the aid of the police officer. This angered the owner of the vehicle so he, too, boxed the said

Page 33

CRIMINAL LAW 2
pedestrian. The said pedestrian suffered slight physical injuries while the police officer suffered less serious
physical injuries. What crime or crimes is/are committed by the said owner of the vehicle against:
a. The police officer
b. The pedestrian?
A: a. DIRECT ASSAULT WITH LESS SERIOUS PHYSICAL INJURIES. The said owner of the vehicle
boxed the said police officer. The police officer is an agent of a person in authority under Article 152
because he was charged with the maintenance of public order. The police officer is in the actual
performance of his official duty at the time of the assault therefore the crime committed is direct assault.
There is also a resulting felony which is less serious physical injuries, a less grave felony; therefore we
have to complex it, direct assault with less serious physical injuries. The offender laid hands upon the
police officer, however, laying of hands will not qualify because he is a mere agent of person in authority;
therefore the crime committed against the police officer is direct assault with less serious physical injuries.
(NOTE: an MMDA officer is also an agent of a person in authority because he is charged with the
maintenance of public order and the protection and security of life and property)
b. INDIRECT ASSAULT under Art 149. An agent of a person in authority was the victim of direct assault. A
person came to his aid who is the pedestrian. When the pedestrian came to the aid of this agent of person
in authority, he did not become an agent of a person in authority under Art 152 because under Art 152, a
person would only become an agent of a person in authority if he came to the aid of a person in authority.
Here, the pedestrian merely came to the aid of an agent of a person in authority who is the police officer.
Therefore, when the pedestrian came to the aid of the police officer, he did not become also an agent of a
person in authority; as such, the crime committed is INDIRECT ASSAULT. When the pedestrian came to
the aid of the police officer, force and intimidation were employed against him so the crime committed by
the owner of the vehicle against the pedestrian is indirect assault.
Are you going to complex it to the crime of slight physical injuries?
No, because it is absorbed and it is only a light felony.
Under Article 149, INDIRECT ASSAULT is committed if a person in authority or an agent of a person in
authority is the victim of direct assault. Any person who came to his aid and that person was employed with
force or intimidation by the offender.
Why is it in the given problem, when the person under attacked is a person in authority and when someone
came to his aid, and that someone was also attacked, the crime committed is direct assault against that
someone. But when the victim of direct assault is a mere agent of a person in authority, and someone came to
his aid, and that someone was also attacked, the crime is indirect assault.
The reason is that the Congress amended Article 152 without correspondingly amending Article
149.
Based on the amendment made by Congress in Article 152, it is stated that any person who comes
to the aid of a person in authority is deemed an agent of person in authority. And if an agent of a
person in authority is attacked, such attack is under Article 148 which is direct assault and not
indirect assault under Article 149.
But if the victim of the said direct assault is a mere agent of a person in authority, and someone
who comes to his aid will not become an agent of a person in authority; therefore when he is also
attacked, it will only be indirect assault under Article 149.

In statcon, when there are two provisions which are contrary, you reconcile. So to reconcile, Article 149 or
indirect assault will only apply if the victim of direct assault is a mere agent of person in authority and
someone came to his aid, and that someone was also employed with force and intimidation.

ARTICLE150 DISOBEDIENCE TO SUMMONS ISSUED BY THE NATIONAL ASSEMBLY, ITS COMMITTEES

OR SUBCOMMITTTES, BY THE CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES, SUBCOMITTEES OR
DIVISIONS
Acts Punished:
I.
By refusing, without legal excuse, to obey summons issued by the Congress or any of its extensions or
any of its standing committees or subcommittees, by the Constitutional Commissions, its committees,
subcommittees or any other body which has the power to issue summons.

Page 34

CRIMINAL LAW 2

Under the first act, for the crime to arise, it is necessary that the offenders refusal to obey the
summons is without any legal excuse. If there is a valid reason, a legal excuse, why the offender
didnt attend the said committee hearing of the congress or why he failed to comply with the said
summons or any of the acts under Art. 150; the crime will not arise.

II.

By refusing to be sworn or placed under affirmation while being before such legislative or constitutional
body or official.
Under the second act the public official or the person was required to appear in the said meeting
and obey the summons however, the moment he appeared in the said meeting, he refused to be
sworn to. He does not want to be sworn to and he refused to be placed under affirmation before
such legislative or constitutional body. Art. 150 is still violated.

III.

By refusing to answer any legal inquiry or to produce any books, papers, documents, or records in his
possession, when required by them to do so in the exercise of their functions.

IV.

By refusing another from attending as a witness in such legislative or constitutional body.

Under the fourth act punished, the said offender did not fail to attend in the summons; he restrained
another from attending as a witness. He prevented another person in attending as a witness in
such legislative or constitutional body hearing.

V.

By inducing disobedience to a summons or refusal to be sworn by any such body or official.

NOTE that Congress where it be the House of Representatives or the Senate has the power to
issue summons because they have the power to investigate that is inquiry in aid of legislation.
Whatever be the findings in the said investigating body, it will be used in the making of a bill, a
proposal. NOTE that they dont have the power to file a case so whatever be the product of their
investigation, they will give it either to the Ombudsman or to the DOJ. It is upto the DOJ or to the
Ombudsman to file a case because the purpose of the Senate or the HOR is only inquiry in aid of
legislation.

ILLUSTRATION:
Q: What if there is this committee hearing, an investigation about anomalous transactions entered into by a former
officials of the DENR. While the said official received the summons, he failed to appear because he was at St.
Lukes. He was confined because he was suffering from hypertension. Can he be held liable under Art. 150?
A: He cannot be held liable because he has a legal excuse to attend or to obey the summons issued by the
Congress. The moment that there is a legal excuse, the crime will not arise BUT if his measure is without
any legal excuse NOTE that aside from violation of Art. 150, he can also be held liable or cited for contempt
by the said committee of Congress and usually when cited for contempt, he is placed in detention in the
Senate Blue Ribbon Committee.
Q: He obeyed the summons, he appeared, he allowed himself to be sworn in however, the moment that the
Senators asked him questions, and he refused to answer the questions. He said: I invoke my right against selfincrimination. When he was solely required to produce the books which were confirmed to be in his possession; He
didnt want to produce the said books because according to him, the production of these books would incriminate
himself. Can he be held liable under Art. 150?
A: He cannot. If the answer to any of the questions or if the conduction of the same will incriminate the
person in the said crime; he has the right not to do so. Under the Constitution, No person can be compelled
to be a witness against himself and asking him, requiring him, ordering him to produce the books or to
answer any questions which would incriminate himself is akin to making him a witness against himself and
it is unconstitutional.
ARTICLE151 RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF
SUCH PERSON
Punishes two acts:
I.
RESISTANCE AND SERIOUS DISOBEDIENCE (PAR 1)
ELEMENTS:
1.The person in authority or his agent

Page 35

CRIMINAL LAW 2
a. is engaged in the performance of official duty; or
b. gives a lawful order to the offender
2.Offender resists or seriously disobey such person in authority or his agent
3.That such resistance or disobedience will not amount to
a. direct assault (Art 148),
b. indirect assault (Art 149); or
c. disobedience to summons issued by Congress
II.

SIMPLE DISOBEDIENCE (PAR 2)

ELEMENTS:
1.An AGENT of a person in authority
a. is engaged in the performance of official duty; or
b. gives a lawful order to the offender
2.The offender disobeys such order of the agent
3.Such disobedience is not serious in nature

ILLUSTRATION:
Q: What if the mayor has a project, a cleaning act operation in order to prevent dengue. So they were cleaning up
the canals. While the mayor was cleaning up the canals together with other city hall employees, here comes Mang
Pedro who had taken beer and was a little tipsy. So the went there and was shouting and making noise, disturbing
the people who were busy cleaning up the canals. And so the police officer cleaning told Mang Pedro to go home
because he was disturbing the cleaning up operation. Mang Pedro, instead of going home, merely sat nearby the
canal being cleaned by the people. What crime, if any, did Mang Pedro commit?
A: Mang Pedro committed SIMPLE DISOBEDIENCE UNDER ARTICLE 151 par 2. Article 151, second
paragraph, simple disobedience is committed when an agent of a person in authority is engaged in the
performance of official duty or gives a lawful order to the offender, that the offender disobeys and such
disobedience is not of serious nature. In the problem, it was the police officer, an agent of a person in
authority, who gave the order to Mang Pedro and Mang Pedro disobeyed him but such disobedience was
not serious in nature because he merely sat nearby the canal; therefore there was no showing that such
disobedience is serious in nature so the crime committed is simple disobedience.
Q: Is there direct assault with robbery? Lets say that the city mayor was assaulted and thereafter he took the watch
of the mayor.
A: No, there is no such crime. The crime committed is not direct assault with robbery. It is already
robbery with any resulting felony, if there is one.
What if the original motive was to assault the city mayor?
If the original motive is to assault the city mayor and not to commit robbery, but the offender took the
watch, there will be two crimes because the offender already performed two acts.
If there are two separate and distinct crimes, there shall be two information that will be filed to the court.
If it is a complex crime, only one information is filed before the court.
If the intention is to rob, and in the occasion of the said robbery, homicide, serious physical injuries,
rape, intentional mutilation, arson was committed, the crime committed under Article 294 is robbery
with homicide, robbery with intentional mutilation, robbery with rape, robbery with arson or robbery with
serious physical injuries.
If the original intention was to assault the city mayor and thereafter he committed robbery, there will be
two acts. Because his intention was to assault and thereafter he committed the second act of taking
away the personal property of the city mayor.
In case of DIRECT ASSAULT WITH MURDER or HOMICIDE, it is considered a complex crime under
Article 48 because based on the single act performed, two or more grave or less grave offense was
committed. Because with the single act of boxing, the offender committed direct assault and
serious/less serious physical injuries.
ARTICLE152 PERSONS IN AUTHORITHY AND AGENTS OF PERSONS IN AUTHORITY
Q: Who are persons in authority?
A: The following are the persons in authority:
1.Municipal Mayors

Page 36

CRIMINAL LAW 2
2.Division Superintendent of schools
3.Public and private school teachers
4.Teacher-nurse
5.President of the sanitary division
6.Provincial Fiscal
7.Judges
8.Lawyers in actual performance of duties
9.Sangguniang Bayan member
10. Barangay Chairman
Q: Who is an agent of a person in authority?
A: Those who are in charged with:
The maintenance of public order; and
The protection and security of life and property
ARTICLE153 TUMULTS AND OTHER DISTURBANCES
Acts punished:
I.
Causing any serious disturbances in a public place, office or establishment;
For the said disturbance to be considered as a violation of Art 153; it is necessary that the said
offender deliberately intended to disturb the said meeting or public place. It was a planned
intentional act.
II.

Interrupting or disturbing performances, functions or gatherings, or peaceful meetings, if the act is not
included in Arts. 131 and 132;
NOTE that there is a qualification made by law provided that the said interruption or
disturbance of public gatherings, functions and peaceful meetings must not fall as a violation
under Art 131 or Art 132.

III.

Making any outcry tending to incite rebellion or sedition in any meeting, association or public place.

IV.

Displaying placards or emblems which provoke a disturbance of public order in such place;
Whether this making of an outcry or the displaying of placards or emblems, it is necessary that
such act of displaying placards or emblems must be an unconscious outburst of emotion. It
must not be intentionally calculated to incite people to rebel or to commit sedition because
otherwise, the crime would be inciting to rebellion or inciting to sedition.

V.

Burying with pomp the body of a person who has been legally executed.
When you say legally executed; it means that the said person has committed a heinous crime.
The penalty prescribed by law is death and so he was killed by means of lethal injection but at
present because of Republic Act No. 9346, we have no more death penalty. Death Penalty is
prohibited to be imposed.

But in burying with pomp the body of the person who has been legally executed; the said
person must be legally executed because the said person has committed a heinous crime yet
when he was buried he was buried with such extravagance as if as he is a hero, as if as the
government has committed a crime in legally executing him therefore it causes sympathy
arising on the part of the people hence, it was a disturbance of public order.

If any of these prohibited acts constituting violation of Art 153 is committed by more than 3
persons who are provided with arms or any means of violence it is said to be tumultuous
therefore there must be at least four persons who are armed or provided with means of
violence for it to be considered as tumultuous.

SO WHERE LIES THE DIFFERENCE BETWEEN ART 153 AND ART 131 OR 132?

Page 37

CRIMINAL LAW 2

Article 153 punishes TUMULTS ANS OTHER DISTURBANCES OF PUBLIC ORDER, Article 131 punishes
PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS, Article 132 punishes
INTERRUPTING OF RELIGIOUS FEELINGS

Articles 131 and 132 can only be committed by a Public Officer. It cannot be committed by a private
individual whereas under Art 153, it can be committed both by a Public Officer and a private individual.

What if the offender is a public officer and he disturbs a peaceful meeting. How would you distinguish if it is a
violation of Art 153 or a violation of Art 131?

First, In Art 131, the public officer must not be a participant in the meeting that he disturb or interrupted.
He must be an outsider, a stranger in the said meeting. On the other hand, in Art 153, the said Public
Officer must be a participant, one in attendance in the said meeting.
Second, in Art 131, the mere intention of the public officer is to prevent a person from freely exercising his
freedom of speech and expression whereas in Art 153, the intention of the offender is to disturb public
peace and tranquility.

ILLUSTRATION:
Q: What if since RH Bill was enacted into law, there was a huge rally at the EDSA Shrine which was initiated by the
members of the CBCP. They were against this law and they encouraged the people to file a case before the
Supreme Court questioning the constitutionality of the said law. At first, the head of the CBCP spoke then after him
another person, a private individual spoke, the head of the organization spoke and he kept on attacking and
attacking the President. He said that the President bribed the members of the Congress in order to pass this bill so
he kept on attacking and attacking the President. One of the police officers, who was assigned to maintain the
peace and order in the place, heard the attacks against the President. This Police Officer was indebted to the
President he owed his position to the President. He went straight to the person talking against the President and
told him to stop. When he didnt stop, the Police Officer fired shots in the air and the people scampered away and
the peaceful meeting/gathering was dissolved/ interrupted. What crime was committed by the Police Officer?
A: The crime committed by the Police Officer is not Art 153 but Art 131.Because the distinctions lie in
this case. First, the said Public Officer, a Police Officer is not a participant in the said meeting. He is a
stranger, an outsider in the said meeting. Second, his only purpose is to prevent the said person in freely
exercising his freedom of speech and expression, it is his right to express his anger against the President
yet the said person prevented him in exercising such freedom of Speech and expression therefore the
Police Officer is liable under Art 131 and not under Art 153.
For him to be liable under Art 153, lets say that he is a public officer, he is a participant in the said meeting
and while participating in the said meeting, he interrupted the said meeting in order for him to cause a
disturbance of the said meeting. The crime is Art 153.
Q: There was this peaceful gathering, lets say a public meeting, a peaceful meeting about the increase of fares of
the MRT and the LRT. One of the participants therein, one of the persons therein went to the platform and took the
mic and then he incite the people, induced the people to go to the streets, uprise, rebel against the government, to
overthrow the government. What crime was committed?
A:The crime committed was inciting to rebellion.
Q: What if, he was among the participants. The head of the meeting, the Public Officer was discussing about the
increase of fares of the MRT and LRT. This person could no longer control his emotions. Suddenly he stood up and
he said: buwisitnagobyernonaitonaiinisnako. Dapatnatayong mag rebeldesagobyernowalangginawakundi increase
ng taxes. They go and rebel against the government. What crime was committed?
A:Tumults and other disturbances of public order. It is just an unconscious outburst of emotions not an
intentionally calculated to incite people to rebel against the government.
ARTICLE154 UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCESActs
punished:

Page 38

CRIMINAL LAW 2
I.
II.
III.

IV.

By publishing or causing to be published by means of printing lithography or any other means of

publication, as news any false news which may endanger the public order, or cause damage to the
interest or credit of the State.
By encouraging disobedience to the law or to the constituted authorities or by praising, justifying ot
extolling any act punished by law, by the same means or by words, utterances or speeches.
By maliciously publishing or causing to be published any official resolution or document without proper
authority, or before they have been published officially.
NOTE that in the third act there is the word Malicious. The offender must maliciously publish or
cause to be published any official resolution. If the publication of the official resolution without
official authority or the publication was not done maliciously, there was no intent to cause
damage, it was not done maliciously. Art 154 is not violated. It is necessary that the said
publication must be done maliciously under the third act.
By printing, publishing or distributing (or causing the same) books, pamphlets, periodicals, or leaflets
which do not bear the real printers name or which are classified as anonymous.
It is necessary that any publication has contained the real printers name. It must have been
anonymous. The publisher, the printer, the author, must be stated even at the bottom.

Q: What if the Philippine Daily Inquirer has as its headline: KC Concepcion said..PioloPascual is gay. So that is
the headline of the Philippine Daily Inquirer. It was posted. KC never categorically stated that Piolo is gay, she only
impliedly stated it but she never categorically stated it. So the Daily Inquirer published a false news and
PioloPascual filed a case in violation of Art 154 against the Philippine Daily Inquirer. The Philippine Daily Inquirer
knew that it is a false news yet they still published it as news.
A: Art. 154 is not violated because whether or notPiolo is gay it will not endanger public order. It will not
cause damage to the credit or interest of the state.
Q: What if the headline of the Philippine Daily Inquirer said: Tomorrow, Megamall will be bombed from a very
reliable source. That was the headline of the Philippine Daily Inquirer. The Philippine Daily Inquirer later on learned
that it was false nevertheless; since it was already there they still published it and distributed it. Can they be held
liable under Art 154?
A: Yes because the said news will endanger public order. It can cause damage to the credit or interest
of the state. Imagine Megamall will be bomb, no person will go to the said place, tourists will not go to the
said place therefore it will endanger public order and can cause damage to the interest of the state when
the said newspaper published it despite knowing that it was false news. Art 154 is violated.
Q: What if members of the CBCP, they are against the RH Law. They made leaflets, pamphlets and distributed it to
all persons in the church, in market.. Therein is stated: Anyone who would obey or comply with the RH Bill which is
a Catholic will be ex-communicated. Can they be held liable of Art 154?
A:Yes because they encouraged disobedience to the law. It has been enacted into law and by
encouraging the people that they would be ex-communicated if you will obey it, then you can be held liable
for unlawful use of means of publication.
ARTICLE155 ALARMS AND SCANDALS
Acts punished:
I.
Discharging any firearm, rocket, firecracker, or other explosives within any town or public place
calculated to cause (which produces) alarm or danger.
II.
Instigating or taking an active part in any charivari or other disorderly meeting offensive to another or
prejudicial to public tranquility.
Charivari includes a medley of discordant voices, a mock serenade of discordant noises made
on kettles, tins, horns, etc. designed to annoy and insult.
III.
Disturbing the public peace while wandering about at night or while engaged in any other nocturnal
amusement.
IV.
Causing any disturbance or scandal in public places while intoxicated or otherwise, provided Art 153 is
not applicable
ILLUSTRATION:

Page 39

CRIMINAL LAW 2
Q: In a public park, there were so many people here comes X. X went in the middle of the park and fired shots in
the air. The people were so afraid they scampered away. What crime is committed?
A: Alarms and Scandals under Art 155. His act can cause damage to public peace and tranquility.
Q: What if in the same problem, in a public park, there were so many people and here comes X. X saw his enemy
Y. He took out his firearm, aiming his firearm at Y without any intent to kill because he knew Y would not be killed
and he discharged the firearm. What crime is committed?
A: The crime committed is illegal discharged of firearms under Art. 1254.
Q: What if in the same public place, X saw his enemy Y. He pulled out his firearm with intent to kill, he aimed his
firearm at Y, discharged the firearm but Y was not killed. What crime was committed?
A: Attempted murder or Homicide as the case may be.
In case of alarms and scandals, the only intention of the offender is to cause damage to public
peace and tranquility that is to cause alarm and danger. That is his intention.

In Illegal Discharge of Firearms under Art 1254 his intention is to threaten the said person or any
other persons. He aimed the firearm and discharges the firearm pointing at a particular person
absent: intent to kill. There was no intent to kill, it is illegal discharge of firearm.
But given in the same problem, he knows his enemy, pointed the firearm at his enemy but with
intent to kill. He discharged the firearm but his enemy was not killed. It is attempted homicide or
murder as the case may be. Since there is an intent to kill on the part of the offender even if the
victim was not killed it is still in the attempted stage.

Q: What if in the same problem, it was in a public place, X went to the said place, he saw his enemy Y. He went
near Y, took out his gun and poked the gun at Y but did not discharge the said gun. What crime is committed?
A:The crime committed is other light threats. NOTE that under other light threats the offender merely
poked the firearm at the victim without discharging or firing the firearm. If the firearm has been discharged,
3 crimes may be committed depending on the intent. It can be alarms and scandals, illegal discharge of
firearms or attempted homicide or murder as the case may be.
Q: You have a neighbor, it was his birthday. They rented a videoke and kept on singing along till 12mn. The guests
already left, the birthday celebrant was the only one left, its already 1:30am and hes still singing at the top of his
voice with the use of the mic. His neighbors cannot sleep because of his ugly voice. Everyone in the neighborhood
could hear him and cannot sleep. Can he be held liable under Art 155 alarms and scandals?
A: Yes. He can be held liable under alarms and scandals because his only intention that night is to cause a
disturbance of public peace and order.
Q: Lets say a person was intoxicated. He was drunk. He was on his way home. He was singing at the top of his
voice. Is he liable for alarms and scandals?
A: No because it is normal to sing at the top of his voice.
Q: What if he saw this lead pipe (tubo) and upon seeing this lead pipe, he would bang all the gates that he would
pass by. Is he liable for alarms and scandals?
A: Yes because his acts caused damage to public peace and tranquility.
ARTICLE156 DELIVERING PRISONERS FROM JAIL
ELEMENTS:
1. That there is a person confined in a jail or penal establishment.
2. That the offender removes therefrom such persons, or helps the escape of such person.

The PENALTY for the crime is QUALIFIED if violence or intimidation has been used in the commission of the
crime also if bribery is used in delivering prisoners from jail.

Who is the offender?

The offender is any person. He can be a private individual or a public officer or employee provided that he
is not the custodian of the said prisoner because if the offender who helped in the escape of the prisoner

Page 40

CRIMINAL LAW 2
from jail is the custodian of the said prisoner, the crime is under Art 223 Infidelity in the custody of prisoners
because the element of breach of trust and confidence reposed on him by the government.
Who is the prisoner being referred to in delivering persons from jail?
He can be a detention prisoner or a prisoner convicted by final judgment for as long as he is in a jail or
penal institution.
A detention prisoner is a prisoner who is behind bars but the case against him is ongoing either
because the crime he committed is a non-bailable offense and evidence of guilt is strong or the crime
he committed is a bailable offense but he does not have the enough funds to put up the required bail.
The prisoners at the provincial jail, city jail, municipal jail, they are merely detention prisoners. They are
not yet convicts. They are only accused, suspects therefore they are presumed innocent unless and
until proven that theyre guilty of the crime charged. They are merely detention prisoners.

On the other hand, a prisoner that is convicted by final judgment is one who has been convicted by
the lower court and who did not appeal his conviction within the period to perfect an appeal then the
judgment becomes final and executory. He has to serve the sentence. Or he has been convicted then
he appealed to the higher court within the period to perfect an appeal and the said higher court affirmed
the said conviction. The conviction will now become final and executory so he is now a prisoner
convicted by final judgment. Generally, they are those who are serving sentence in Muntinlupa.

ILLUSTRATION:
Q: Lets say A is a prisoner convicted by final judgment. He is serving his sentence in Muntinlupa. B his friend
visited him. B was a rich man. He planned As escape on his birthday. He did this by talking to the jail warden
custodian. B the friend gave the jail warden custodian P500,000.00. He gave bribe to the jail warden custodian to
allow A his friend to escape at that night. He also went to the guard at the entrance gate of the New Bilibid Prison
and gave the guard P100,000.00, also to allow his friend to leave at that night. That night, A escaped and left the
penal institution. He went to the house of another friend who harbored him and concealed him despite the fact that
he was an escapee from a penal institution. What are the crimes committed by A (the prisoner), B (the friend), jail
warden custodian, the guard of the penal institution, and the friend who harbored him?
A: A is liable of evasion of service of sentence under Art 157. He is a prisoner convicted by final judgment
therefore he is liable for evasion of service of sentence.
Q: What if he is not serving his sentence in Muntinlupa. Lets say he is just a detention prisoner. Can he be held
liable for evasion of service of sentence?
A: No. Evasion of service of sentence can only be committed by a prisoner convicted by final judgment.
In the given problem, A is convicted by final judgment therefore A is liable for evasion of service of
sentence under Art 157.

B the friend is liable under Art 156 Delivering prisoners from jail qualified by the giving of bribe
therefore his penalty will be qualified because he gave bribe money inorder to help in the escape of his
friend. He will not be liable for another crime of corruption of public official because the giving of bribe is
considered clearly as a qualifying or as an aggravating circumstance in delivering prisoners from jail.

The jail warden custodian who received the bribed money and allowed As escape is liable under Art
223 infidelity in the custody of prisoners. Aside from that, he is also liable for direct bribery
because in case of infidelity in the custody of prisoners, the giving and receiving of bribe is not a
qualifying or aggravating circumstance therefore the jail warden custodian will be liable for 2 crimes;
Infidelity in the custody of prisoners and direct bribery for having received the bribed money in the
amount of P500,000.00.

The guard at the entrance gate of the penal institution will be liable for delivering prisoners from
jail. He is not the custodian and he helped in the escape/removal of the prisoner from jail. Therefore,
he is liable for delivering prisoners from jail. The fact that he received bribed money will not make him

Page 41

CRIMINAL LAW 2
liable of direct bribery because in delivering prisoners from jail, it is only a qualifying circumstance
which will only increase the imposable penalty.
The friend who harbored and concealed him will be liable under PD 1829 that is obstruction of
justice. It is committed by any person who willfully or deliberately obstructs or impedes the
investigation or the apprehension of a criminal.
Why not an accessory?
o Because I did not mention in the problem the crime committed by the prisoner. For an accessory to
the crime, it is necessary that the crime committed by the prisoner must be treason, parricide,
murder, attempt to take the life of the chief executive or is known to be habitually guilty of some
other crime. I did not mention the crime committed by the prisoner. Therefore his liability is under
PD 1829 Obstruction of Justice.

ARTICLE157 EVASION OF SERVICE OF SENTENCE (Art 157)

ELEMENTS:
1. That the offender is a convict by final judgment.
2. That he is serving his sentence which consists in deprivation of liberty.
3. That he evades the service of his sentence by escaping during the term of his sentence.

Evasion of service of sentence can only be committed by a person convicted by final judgment. It cannot be
committed by a mere detention prisoner.

PENALTY IS QUALIFIED if such evasion or escape takes place:

1. By means of unlawful entry
2. By breaking doors, windows, gates, walls, roofs or floors;
3. By using picklocks, false keys, disguise, deceit, violence or intimidation; or
4. Through connivance with other convicts or employees of the penal institution.
ILLUSTRATION:
Q: You often read in the newspapers, heard over the radios, watch on TV, 5 prisoners escaped from the Caloocan
city jail, 10 prisoners escaped from Palawan Provincial Jail. Did they commit evasion of service of sentence?
A: No. These persons did not commit evasion of service of sentence under art 157 because they are
merely detention prisoners. For evasion of sentence to arise, the prisoner who has escaped must be a
prisoner convicted by final judgment.
Under Art 157, the said prisoner the said prisoner must be serving which involves deprivation of liberty and
he escapes during the service of his sentence by evading the service of sentence.
The law says, it is a prisoner serving his sentence which involves deprivation of liberty. It is necessary that
the sentence imposed on him must involve deprivation of liberty either it is behind bars or he has been
convicted of a crime wherein the penalty is destierro. Even if the penalty prescribed is destierro, the
moment he enters the place wherein he is prohibited from entering in the judgment of the court, he also
committed evasion of service of sentence.
Destierro under Art 27; Destierro is also a penalty which involves deprivation of liberty although
partial not complete deprivation of liberty because the offender or the convict is not allowed to enter
a place designated in the judgment of the court. The moment he enters the said place, he commits
evasion of service of sentence.
ARTICLE158 EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF
CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES (ART 158)
ELEMENTS:
1. That the offender is a convict by final judgment who is confined in a penal institution.
2. That there is a disorder resulting from ---a. Conflagration
b. Earthquake
c. Explosion
d. Similar catastrophe
e. Mutiny in which he has not participated

DISORDERS,

Page 42

CRIMINAL LAW 2
3. That the offender evades the service of his sentence by leaving the penal institution where he is confined,
on the occasion of such disorder or during the mutiny.
4. That the offender fails to give himself up to the authorities within 48 hours following the issuance of a
proclamation by the Chief Executive announcing the passing away of such calamity.

It is required under Art 158 that the prisoner is serving his sentence in a penal institution.
In this kind of evasion of service of sentence under Art 158, the crime will arise not upon the act of leaving the
penal institution but upon the convicts failure to return/to give himself to the proper authorities within 48 hours.
That is only when the crime will arise.

ILLUSTRATION:
Q: What if there was this earthquake, X was a prisoner convicted by final judgment. Everything was shaking and
because of the earthquake, X escaped the penal institution. He went to the house of his mother. That night while
watching the television, he saw the president announced/declared that the calamity had already ceased/passed
away. Within 48hrs he returned. What is the effect on his criminal liability?
A:If the said convict escaped and returned to the proper authorities within 48hrs; there shall be a
credit or a deduction from his sentence. There is 1/5 deduction/credit from his sentence. Under Art 98
this is special time allowance for loyalty. He was too loyal to the government that even if he already left the
penal institution he still returned; such kind of loyalty must be rewarded.
Q: What if 48hrs had lapsed, still he did not return. What is the effect of his criminal liability?
A:There will be an additional penalty imposed on him. 1/5 on the basis of the remainder of his sentence
but note that it shall not exceed six months.
Q: There was this earthquake, everything was shaking. He just hid under the table. He did not leave the penal
institution. He was so loyal to the government that he did not even think to leave. Will he be given credit?
A:No. Under Art 158 there is no credit to be given to him. Under Art 98, there is no special time
allowance of loyalty for just hiding under the table and not leaving the penal institution.
Q: Why those who are loyal to the government and did not leave the penal institution be not given credit? Isnt it
unfair?
A: The reason is that prisoners are considered as accountabilities of the government. It is the duty of the
government to protect the prisoners. In times of calamities or public disorders, the state cannot protect
these prisoners therefore the State encourages them to leave inorder to protect themselves. But important
thing is that they show their loyalty to the government hence they will return.
ARTICLE159 EVASION OF SERVICE OF SENTENCE BY VIOLATION OF CONDITIONAL PARDON
ELEMENTS:
1. The offender was a convict
2. He was granted a conditional pardon by the Chief Executive
3. He violated any of the conditions of such pardon
TWO KINDS OF PARDON:
1. Absolute Pardon which totally extinguishes the criminal liability
2. Conditional Pardon which partially extinguishes criminal liability.
Conditional Pardon is said to only partially extinguishes criminal liability because the said pardon is
subject to strict terms and conditions. Therefore, there must be an acceptance in the part of the
prisoner granted pardon. The moment he accepts the conditional pardon, it means it is incumbent upon
him to comply to all of the strict conditions. The moment he violate any of the terms and conditions he
commits evasion of service of sentence because it shows that he just accepted the conditional pardon
so as to free himself from taking place behind bars.
Is violation of conditional pardon a substantive offense or not?
It depends. If you will look at Art 159, there are 2 situations. Under Art 159, if the penalty remitted by
the grant of pardon does not exceed 6yrs, the moment he violates any of the conditional pardon, there
is a new penalty imposed upon him that is prisioncorreccional minimum 6 months and 1 day to 2 years

Page 43

CRIMINAL LAW 2
and 4 months. A new penalty is imposed on him therefore in this case, violation of the conditional
pardon is a substantive offense because a new penalty is imposed on him. BUT on the second part of
Art 159, if the penalty remitted is more than 6 years; no new penalty is imposed on him for having
violated the terms of the pardon. He is only required to serve the remainder of the sentence. In this
case, violation of the conditional pardon is not a substantive offense because there is no new penalty
imposed for the commission of the crime.
ARTICLE160 COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR
ANOTHER PREVIOUS OFFENSE
ELEMENTS:
1. The offender was already convicted by final judgment of one offense.
2. He committed a new felony before beginning to serve such sentence or while serving the same.
Who is a quasi-recidivist?
A quasi-recidivist is any person who shall commit a felony after having been convicted by final judgment
before serving his sentence or while serving his sentence.
Under Art 160 it is stated that the maximum penalty prescribed by law shall be imposed therefore it is a special
aggravating circumstance.
Art 160 is a misplaced article because book 2 is about felonies and art 160 is a special aggravating
circumstance.

TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST (Articles 161 189)
ARTICLE161 COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINE
ISLANDS, FORGING THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE
Acts punished:
I.
Forging the Great Seal of the Government of the Philippines.
II.
Forging the signature of the President.
III.
Forging the stamp of the President.

Art 161 punishes the person who forges the great seal of the Philippines, signature of the chief executive and
forging the stamp of the chief executive.

Art 161 is the crime when the person is the one who committed the forgery, but if the offender is not the one
who forges the great seal, signature but he knows that the document contain a forge stamp, signature of the
President and despite such knowledge that it was a forgery he makes use of the same, liability is under 162.

ARTICLE162 USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP (Art 162)

ELEMENTS:
1. That the Great Seal of the Republic was counterfeited or the signature or stamp of the Chief Executive was
forged by another person.
2. That the offender knew of the counterfeiting or forgery.
3. That he used the counterfeit seal or forged signature or stamp.

Art 162 punishes the person who, despite knowledge of the forged signature, stamp or great seal of the
Republic of the Philippines still he makes use of the same document.

ILLUSTRATION:
Q: In an official document, the signature of the President was forged by A then it was given to B. B knew that it was
a forgery nevertheless he made use of the same. What crime was committed?
A:A committed a crime under 161. And B committed a crime under 162.
ARTICLE163 MAKING AND IMPORTING AND UTTERING FALSE COINS
ELEMENTS:

Page 44

CRIMINAL LAW 2
1. That there be false or counterfeited coins
2. That the offender either made, imported or uttered such coins.
3. That in case of uttering such false or counterfeited coins, he connived with the counterfeiters or importers
When is it committed?
A. Counterfeiting (imitation of false coins) is committed by any person who shall imitate a genuine
and authentic coin making it appear that it is a true, genuine, and authentic coin. The offender copies
the peculiar design of the coin and makes a spurious one out of it.
B. Importing false coins is committed by any person who shall bring into the Philippine ports any false
and counterfeited coins. It is not necessary for the offender to be liable that he shall circulate the false
coins because there is a third act of uttering false coins.
C. Uttering false coins is committed by any person who shall circulate, give away to another, pass
from one person to another any counterfeited or false coins.

In case of counterfeited or imitated false coins, it is not necessary that the coins be the subject of counterfeiting
must be of legal tender. Even if the coin is not a gold coin, if the offender copies or imitates or counterfeits the
peculiar design of the said coin; he becomes liable under Art 163.

ILLUSTRATION:
Q: A is in possession of a coin which was of legal tender during the time of Marcos in 1972. It was a proven genuine
coin. He copied the said coin and made a spurious one out of it. Is he liable under Art 163?
A: Yes he is liable for making and importing and uttering false coins under Article 163.
Q: What if while he was in possession of the said coin; he took out a part of the metal content of the said coin. Can
he be liable for Mutilation of coins under Art 164?
A:No, he cannot because in Art 164 or mutilation of coins, it is necessary that the coin subject of mutilation
must be of legal tender. It must be in present currency because otherwise, it cannot be said that the public
has been deceived.
ARTICLE164 MUTILATION OF COINS
Acts punished:
I.
Mutilating coins of the legal currency, with the further requirement that there be intent to damage or to
defraud another.
II.
Importing or uttering such mutilated coins, with the further requirement that there must be connivance with
the mutilator or importer in case of uttering.

Mutilation is the act of taking off a part of the metal content by filing it or substituting it for another metal of
inferior quality.
The offender gathers the metal dust that he has taken off from the said coin.
While the offender took out a part of the metal coin, he is in effect diminishing the intrinsic value of the said coin
therefore who would be given the said coin would be deceived of the this crime hence a crime in violation of
public interest is committed.

ILLUSTRATION:
Q: There were 3 children/adults. They were playing kara-krus. So they toss the coin, however before doing that,
they would scratch the coin on the steel therefore the metal content of the coin is diminished. Can they be held
liable under Art 164?
A: No. because there was no intent to gather the metal dust of the said coin.
Can they be held liable of any crime?
Yes. They can be held liable under PD 247

Page 45

CRIMINAL LAW 2
PD 247 punishes any person who willfully or knowingly defaces, mutilates, tears, burns or destroys any
currency notes or coins issued by the BangkoSentralngPilipinas.
In case of violation of PD 247 it is not required that there is intent to mutilate on the part of the offender. It is not
required that the offender has the intent to gather the metal dust of the coin although these are required under
Art 164.

Q: In a P 1000.00 bill, a person put his cell phone no. on it. Is he liable under PD 247?
A: Yes he is liable under PD 247.
But PD 247 is akin to a dead law because no one has been prosecuted by it.

ARTICLE165 SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE

Acts punished:
I.
Possession of coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that
it is false or mutilated.
ELEMENTS:
1. Possession,
2. With intent to utter, and
3. Knowledge
Under the first act, the offender is in possession of the false, mutilated, counterfeited coin. It is
another person who counterfeited the coin. The offender is only in possession of it but in order for
him to be held liable; he must have the knowledge that the coin is counterfeited or mutilated and
despite having such knowledge; he has the intent to utter, circulate, pass away, to give away to
another the said coin.
II.

Actually uttering such false or mutilated coin knowing the same to be false or mutilated.
ELEMENTS:
1. Actually uttering, and
2. Knowledge.
In the second act it is the act of actually circulating or uttering the counterfeited coin despite
knowledge that it is counterfeited or mutilated.

ILLUSTRATION:
Q: What if A is under surveillance, reports came to the police that he had been circulating false coins. A went to the
bakery store, he bought bread worth P 50.00. He gave the store owner 5 P 10.00 counterfeited coins. Thereafter,
after giving the counterfeited coins, he immediately left. The police arrived and A was gone and it was the owner of
the store who is left. The police officer asked the owner of the store to open the cash bin. There they saw the 5 P
10.00 coins which were counterfeited. They arrested the owner of the store. Is the owner of the store liable under
Art 165?
A:No he is not liable of selling of false coins or mutilated coins, without connivance under Article
165. First, he was caught in possession.
Was there possession?
Yes. The counterfeited coins were found in his cash drawer. Possession does not only mean
physical or actual possession. Possession means constructive possession which means that the
counterfeited or mutilated coins are in his control and custody. Therefore the first element of
possession is present.

Was there intent to utter the counterfeited coins on the part of the said owner?
Yes. The fact that he placed it in the cash drawer means he can use it to buy another thing or as a
change to the people who will buy from his bakery therefore circulation has a way from one person
to another. Therefore the second element is also present.

How about the third element of knowledge on his part the coin was counterfeited?

Page 46

CRIMINAL LAW 2

The third element is absent evidently based on the facts that the store owner has no knowledge
that the coins are counterfeited. In fact he gave bread worth P 50.00. He was also deceived. If he
had only known that the coins were counterfeited, he would not have given bread worth P 50.00.
Therefore, he may not be held liable because also he is in possession, and he has the intent to
utter the coins; he does not have the knowledge that the said coins were counterfeited.

ARTICLE166 FORGING TREASURY OR BANK NOTES OR OTHER DOCUMENTS PAYABLE TO BEARER;

IMPORTING, AND UTTERING SUCH FALSE OR FORGED NOTES AND DOCUMENTS
Acts punished:
I.
Forging or falsification of treasury or bank notes or other documents payable to bearer.
II.
Importation of such false or forged obligations or notes.
III.
Uttering of such false or forged obligations or notes in connivance with the forgers or importers.
ARTICLE167 COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO
BEARER
ELEMENTS:
1. That there be an instrument payable to order or other document of credit not payable to bearer.
2. That the offender either forged, imported or uttered such instrument.
3. That in case of uttering, he connived with the forger or importer.
ARTICLE168 ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER
INSTRUMENTS OF CREDIT
ELEMENTS:
1. That any treasury or bank note or certificate or other obligation and security payable to bearer, or any
instrument payable to order or other document of credit not payable to bearer is forged or falsified by
another person.
2. That the offender knows that any of those instruments is forged or falsified.
3. That he performs any of these acts ---a. Using any of such forged or falsified instruments; or
b. Possessing with intent to use any of such forged or falsified instruments.

An instrument is payable to bearer when it can be transferred by mere delivery.

e.g. Check payable to cash. Whoever is in possession of the said check can come to the bank. It
can be transferred by mere delivery.

On the other hand a check is payable to order where it can be transferred by mere delivery when there is an
endorsement coming from the person named or specified therein. It is an instrument payable to the order of a
specific person or his order.
e.g. Payable to the order of Charmaine. This cannot be transferred from one person to another
without an order coming from Charmaine.

ARTICLE169 HOW FORGERY IS COMMITTED (Art 169)

1. By giving to a treasury or bank note or any instrument payable to bearer or to order mentioned therein,
the appearance of a true and genuine document.
2. By erasing, substituting, counterfeiting, or altering by any means the figures, letters, words, or sign
contained therein.

If what has been falsified is a coin; you call it counterfeiting.

If it is the stamp, seal or signature of the President; you call it forging.
If it is treasury or bank notes; it is considered as forging.
It is a document; you call it falsification.

FALSIFICATION (ART 170, 171, 172)

Page 47

CRIMINAL LAW 2

In case of FALSIFICATION, to amount to falsification, it is necessary that the writing that is falsified must be a
document in a legal sense of the word capable of making rights and/or extinguishing an obligation. Therefore,
it must be complete in itself so that it would be sufficient in evidence.
Falsification of mere forms does not amount to falsification of a public document. Because the said form is not
yet complete in itself it has no name, no address an unfilled-out/up form. It is not falsification.

ILLUSTRATION:
Q: So what if A was found outside the building of the LTO office. He was carrying falsified unfilled-out/up forms of
drivers license. It was distinct, it was falsified, it was not the real drivers license form. He was arrested by the NBI.
Can he be held liable for falsification of a public document?
A: NO. Because what he is carrying is only an unfilled-out form. It is not yet complete in itself. It is not yet
capable of creating rights or extinguishing an obligation. It is not yet susceptible of evidence of the facts
stated thereon.
Q: So what crime if any was committed by A?
A: A merely committed violation of Article 176 that is mere possession of instrument or implements for
falsification, but not yet falsification of a public document.
There 4 types of documents which may be falsified:
1. PUBLIC DOCUMENT a document which is issued by a notary public or competent public official with the
solemnities required by law
2. OFFICIAL DOCUMENT a document issued by a public official in the exercise of his official functions
3. COMMERCIAL DOCUMENT any document defined and regulated by the Code of Commerce or any
other mercantile law
4. PRIVATE DOCUMENT a document, a deed or instrument executed by a private person without the
intervention of the notary public of any other person legally authorized, by which document some
disposition or agreement is proved, evidenced or set forth
Is a public document distinct from an official document?

All official documents are considered as public documents, but not all public documents are
considered official documents. Before a public document may be considered as an official
document, it is necessary that it shall be issued by a public officer in the exercise of his official
functions. There is a law that requires a public officer to issue the said public document, then it
becomes an official document.

A PRIVATE DOCUMENT, one which has been executed by a private person, if there is no intervention of public
official.

A PRIVATE DOCUMENT however, even though executed by a private person without the intervention of a
notary public or a legally authorized person, can also become a public document. That is when the said private
document is submitted to the public officer and it becomes part of the public records. The moment the said
private document becomes part of the public records, it is now a public document and when it is issued and it is
falsified, what is falsified is a public document and no more a private document.

It is necessary to distinguish the kind of document that is being falsified - whether it is a public, official,
commercial or private because of the different effects.

If what has been falsified is a PUBLIC, OFFICIAL OR COMMERCIAL DOCUMENT, damage or intent to cause
damage to the offended party or to any other person is not an element.

Page 48

CRIMINAL LAW 2

On the other hand, if what has been falsified is a PRIVATE DOCUMENT, for the crime to arise, it is necessary
that there must be damage or at least, intent to cause damage to the private offended party or to any other
party.
If what has been falsified is a PUBLIC OR OFFICIAL DOCUMENT, it is not necessary that there be damage or
intent to cause damage. Because a public document an official document - is presumed authentic and legal.
It is presumed to be prima facie evidence of the facts stated therein.
As such, the moment it is falsified,
the crime will immediately arise, without need that there be damage on the part of the offended party. Because
in Falsification of a Public Document, what has been violated is the PERVERSION OF TRUTH being solemnly
proclaimed by the said document. Hence DAMAGE IS NOT AN ELEMENT.

ARTICLE171 FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE OR NOTARY OR ECCLESIASTICAL

MINISTER
The first kind of falsification under Article 171, we have the falsification committed by a public officer, employee
or notary public or an ecclesiastical minister.
ELEMENTS:
1. The offender is a public officer, employee, notary public or an ecclesiastical minister.
2. He takes advantage of his official position.
The offender is said to have taken advantage of his position or office when:
a. He has the duty to make or prepare or to otherwise intervene in the preparation of the
document; or
b. He has the official custody of the document which he falsifies
3. That the said offender falsifies a document by committing any of the following modes stated therein:
a. By counterfeiting or imitating any handwriting, signature or rubric.
b. Causing it to appear that persons have participated in any act or proceeding when they did not
in fact so participate.
c. Attributing to persons who have participated in an act or proceeding statement other than those
in fact made by them
d. Making untruthful statements in a narration of facts
e. Altering true dates
f. Making any alteration or intercalation in a genuine document which changes its meaning
g. Issuing in authenticated form a document purporting to be a copy of any original document
when no such copy a statement contrary to, or different from that of the genuine original
h. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry or
official book.
i.
4. In case the offender is an ecclesiastical minister, the act of falsification is committed with respect to any
record or document of such character that the falsification may affect the civil status of persons.
EXPLANATIONS:
1. The offender is a public officer, employee, notary public or an ecclesiastical minister.
If the offender is an ecclesiastical minister, for him to be liable under Article 171, it is necessary that
the document that he falsifies must affect the civil status of a person.
If the document falsified by an ecclesiastical minister will not affect the civil status of a person, he is
still liable for falsification, but not under Art. 171, rather under Art. 172.
So, a priest falsified the communion certificates of one of the students/pupils receiving the first
communion, the crime committed is falsification under Art. 172, not under Art. 171 because a
certificate of communion will not affect the civil status of the said child.
2. He takes advantage of his official position.
It requires that the offender takes advantage of his official position.
The offender is said to have taken advantage of his position or office when:
a. He has the duty to make or prepare or to otherwise intervene in the preparation of the
document; or

Page 49

CRIMINAL LAW 2
b. He has the official custody of the document which he falsifies
3. That the said offender falsifies a document by committing any of the following modes stated therein:
If you will look at Art. 171, it does not state the kind of document that has been falsified, it may not
be stated because it necessarily follows that the document falsified is a public or official document
because the offender is public officer or employee or notary public. Therefore necessarily, the
document being falsified in Art. 171 is a public official or official document.
Art. 171 provides for the DIFFERENT ACTS OF FALSIFICATION. These acts of falsification are also applicable in
Art. 172:
I.
BY COUNTERFEITING OR IMITATING ANY HANDWRITING, SIGNATURE OR RUBRIC.
So what is COUNTERFEITING?
The offender is said to have counterfeited a signature, handwriting or rubric if he has imitated an
official handwriting, signature or rubric.
So there is an original handwriting or signature and the offender imitiated or copied the said original
handwriting or signature.
Is COUNTERFEITING the same as FEIGNING?
Feigning a handwriting, signature or rubric is NOT THE SAME as counterfeiting. When you say
FEIGNING, it means simulating a handwriting, signature or rubric. That is, making a handwriting,
signature or rubric out of nothing which does not exist. It is an imaginable, an inexistent
handwriting, signature or rubric.
II.

CAUSING IT TO APPEAR THAT PERSONS HAVE PARTICIPATED IN ANY ACT OR PROCEEDING WHEN
THEY DID NOT IN FACT SO PARTICIPATE.
Q: What if a notary public issued, he prepared or issued an extrajudicial settlement of an estate. In the said
extrajudicial settlement of an estate, it is stated that all the heirs of a certain decedent can already agree by
themselves to partition the property. So it is an extrajudicial settlement of an estate and in it, the notary public made
it appear that all the 12 heirs of the decedent had participated, but un truth and in fact, two of the heirs where in
another country and they did not participate in the execution of this extrajudicial settlement of the estate. Is the
notary public liable?
A: YES. The notary public is LIABLE under the second act (causing it to appear that persons have
participated in any act or proceeding when they did not in fact so participate). He caused it to appear
that A and B participated in the execution of the extrajudicial settlement of the estate, when they did not in
fact so participate.

III.

ATTRIBUTING TO PERSONS WHO HAVE PARTICIPATED IN AN ACT OR PROCEEDING STATEMENT

OTHER THAN THOSE IN FACT MADE BY THEM
So under the third act, persons participated in an act or proceeding, they made statements therein,
however, the offender in a document may appear that these persons have made certain statements
which were not in fact made by them.
Q: So what if in the SangguniangPanglungsod, an ordinance was being passed. There was a votation, majority of
the councilors voted, two of the councilors dissented and their vote were NO. they just stated that they were voting
in the negative, but, they did not give any explanation for their dissent or the vote of NO. however, in the minutes
appeared by the Sangguniang Secretary, the latter made it appear that the two councilors made statements that
they voted NO because the said ordinance is contrary to law. Is the said secretary liable for falsification?
A: YES. He is a public officer. He is the one who prepared the minutes for the SangguniangPanglungsod
and he made it appear that the 2 councilors stated that the said ordinance is contrary to law and in truth
and fact, they did not made those statements. So the said secretary is liable for falsification.

IV.

MAKING UNTRUTHFUL STATEMENTS IN A NARRATION OF FACTS

The evidence of this act of falsification requires:

Page 50

CRIMINAL LAW 2
i.
ii.
iii.
iv.

That the offender makes in a document untruthful statement in a narration of facts;

That he has legal obligation to disclose the truth of the facts narrated by him
The facts narrated by the offender are absolutely false
The untruthful narration must be such as to effect the integrity of the document and that the
offender does so with the intent to injure or prejudice another person

It is necessary that the intention of the intention of the offender must be to INJURE ANOTHER
PERSON.
In case of making false statements in a narration of facts, it is necessary that the offender must have
the legal obligation to disclose the truth in the said narration of facts.
Absence of such legal obligation, then it cannot be said that he is liable for falsification.
When you say legal obligation, there is a law which requires him to state nothing but the truth in the
said document.

Q: So what if the offender, a public officer, falsified the statement in his residence certificate or community tax
certificate. Although he stated his true name, he did not state his address, citizenship, etc. So makes false
statement of facts in his residence certificate or community tax certificate, otherwise known as cedula. So he was
charged with falsification. He contended that there is no law which requires him to state the truth in his residence
certificate. Is his contention correct?
A: His contention is wrong. According to a ruling in the Supreme Court, if it is a residence certificate or
community tax certificate, there need not be a law which requires a person to state the truth in the said
residence certificate, it is inherent in the kind of document. Since it is a residence certificate or cedula, it is
inherent that in this document, nothing but the truth must be stated no falsity. Because it requires
identification.
V.

ALTERING TRUE DATES

It is necessary that what has been altered must be a true date and in the alteration of the said true
date, the document will no longer have any effect.

VI.

MAKING ANY ALTERATION OR INTERCALATION IN A GENUINE DOCUMENT WHICH CHANGES ITS

MEANING
2 ACTS:
i.
The offender makes an alteration
ii.
The offender makes an intercalation in a genuine document which changes its meaning
ALTERATION changes in a document
INTERCALATION there must be some insertion made in the said document, in a genuine document
that changed the meaning of the said document

VII.

ISSUING IN AUTHENTICATED FORM A DOCUMENT PURPORTING TO BE A COPY OF ANY ORIGINAL

DOCUMENT WHEN NO SUCH COPY A STATEMENT CONTRARY TO, OR DIFFERENT FROM THAT OF
THE GENUINE ORIGINAL
2 ACTS PUNISHED:
1. The offender issued in an authenticated form a document purporting to be an authenticated copy of
an original document, but no such original exists
2. By including such copy a statement contrary to or different from a genuine original
ILLUSTRATION:
Q: What if a notary public issued a deed of absolute sale and he said that it is an original copy of a deed of absolute
sale between A and B. A selling his property to B, but in truth and in fact, no such deed of absolute sale was
executed between A and B. Is the notary public liable?
A: YES. He is liable under the second act of falsification in the seventh act of the 3 rd element in Art. 171.
Q: What if a civil registrar issued a certificate of live birth. So here comes A. A was asking that he should be given a
certified copy of a certificate of live birth. In the said certificate of live birth issued by the said civil registrar, there

Page 51

CRIMINAL LAW 2
was a statement that A was an illegitimate child, but in the original copy of the certificate of live birth submitted to
the office of the Office of the Civil Registrar, there was no such statement. Is the civil registrar liable?
A: YES. He is liable under the second act of falsification in the seventh act of the 3 rd element in Art. 171.
Because he included in the said copy a statement contrary to or different from that of a genuine original.
VIII. INTERCALATING ANY INSTRUMENT OR NOTE RELATIVE TO THE ISSUANCE THEREOF IN A
PROTOCOL, REGISTRY OR OFFICIAL BOOK.
INTERCALATION making any insertion in any instrument or note
So these acts, under ARTICLE 171, are also the very same acts punished under Art. 172.

ARTICLE172 FALSIFICATION BY PRIVATE INDIVIDUALS AND USE OF FALSIFIED DOCUMENTS

THREE PUNISHABLE ACTS/FELONIES?
I.
Falsification of a public, official or commercial document by a private individual
So in case of FALSIFICATION OF A PUBLIC, OFFICIAL OR COMMERCIAL DOCUMENT by a
PRIVATE INDIVIDUAL, is just the same as ARTICLE 171 they only differ in that in Art. 171, the
offender is a public officer or employee.
In ARTICLE 172, yes, the document falsified is a public, official or commercial document, but, the
offender is a private individual even if the offender is a private individual, since the document falsified is
a public, official or commercial document, DAMAGE OR INTENT TO CAUSE DAMAGE IS NOT AN
ELEMENT.
II.

Falsification of private document by any person

The document falsified is a PRIVATE DOCUMENT. The offender is any person. He can be a private
individual, he can be a private officer or employee for as long as the document falsified is a private
document, it necessary that there must be damage caused to a third person or at least the intention of
the offender is to CAUSE DAMAGE.
Absence of damage or intent to cause damage, then falsification of a private document will not arise.

III.

Use of falsified document

A document has been falsified and the offender uses the said document.
If the falsified document is used in a JUDICIAL PROCEEDING, again, DAMAGE or INTENT TO
CAUSE DAMAGE is NOT AN ELEMENT because it is a judicial proceeding.
But if the said falsified document is used in any other transaction, this time, damage or intent to cause
damage is an ELEMENT.

ARTICLE173 FALSIFICATION OF WIRELESS TELEGRAPH AND TELEPHONE MESSAGES

Punishable acts
I.
Uttering fictitious, wireless, telegraph or telephone message
II.
Falsifying wireless, telegraph or telephone message
III.
Using such falsified message

If the act punished is UTTERING FICTITIOUS, WIRELESS, TELEGRAPH OR TELEPHONE MESSAGES and
FALSIFYING WIRELESS, TELEGRAPH OR TELEPHONE MESSAGES, note that these can only be committed
by a person working in a department, agency or corporation which is engaged in a business of receiving and
sending wireless, telegraph and telephone messages.
Under the third act USING FALSIFIED WIRELESS, TELEGRAPH OR TELEPHONE MESSAGES, this time, it
can be committed by any person.
Articles 174 and 175 refer to the persons who shall be criminally liable in case of falsified document.
ARTICLE174 FALSE MEDICAL CERTIFICATES, FALSE CERTIFICATES OF MERIT OR SERVICE, ETC

Page 52

CRIMINAL LAW 2

Under Art. 174, if the offender is a PHYSICIAN OR SURGEON who issues a false medical certificate in the
practice of his profession, he becomes liable under Art. 174.
Likewise, Art. 174 punishes a PUBLIC OFFICER who issues a false certificate of merit, service or good
conduct, moral character, etc.
And, under Art. 174, ANY PRIVATE INDIVIDUAL who falsifies a medical certificate or certificate of merit or
service or good conduct shall be also criminally liable.
The offender is the person who falsifies, issues the false medical certificate or certificate or merit.
If the offender is not the falsifier, but he knows that the said document is falsified and he makes use of the
same, his liability is under Art. 175.

ARTICLE175 USING FALSE CERTIFICATE

Under Art. 175, the offender knows that the medical certificate or certificate of merit has been falsified and
despite that knowledge, he makes use of the same.
ILLUSTRATION:
Q: So what if the defense counsel is about to present his witness. The witness is a person who was present in the
scene of the crime who actually saw the incident that is according to the defense counsel. However, on the date
of the said hearing, the said witness failed to appear, the defense counsel said to the judge: Your Honor, my
witness is in the hospital, he cannot even get out of bed. He is very, very sick. The judge, however, was doubtful of
the said manifestation of the defense counsel and so the judge told the defense counsel: Okay, let him appear in
the next hearing and make sure that he brings with him a medical certificate to show that indeed he can testify in
this hearing. With that, the defense counsel informed the witness of the said order of the court. The said witness
was in that time, healthy, it is just that he was too afraid to testify. However, in the next hearing, he is deemed
required to produce a medical certificate showing that he was bedridden. And so, he went to his medical doctor. He
asked the doctor to issue a medical certificate saying that he was very, very sick and that he could not get out of
bed on the said date. The said doctor issued the said medical certificate and then his witness appeared on the
second hearing and presented him to the court. It was submitted to the records of the court. What crime or crimes
is/are committed by doctor or the physician as well as by the witness?
A: The PHYSICIAN is liable under Art. 174. He issues a false medical certificate in the exercise or in the
practice of his profession.
On the other hand, the WITNESS, despite knowledge that it is a falsified medical certificate, still made use
of the same and he presented and submitted it to the court.
ARTICLE176 MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR
FALSIFICATION
This is the felony that is if a person was found in possession of unfilled-out forms of drivers license, he can be
held liable for falsification of a public document and liable only in Article 176.
Under Art. 176, what was being punished are:
1. Making or introducing into the Philippines any stamps, dies, marks or other instruments or implements for
counterfeiting or falsification.
2. Possessing with intent to use the instrument or implements for counterfeiting or falsification made in or
introduced into the Philippines by another person.
ARTICLE177 USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS
I.
Usurpation of authority is committed when a person knowingly and falsely represents himself to be an
officer or agent of any department of the Philippine government or agency thereof or of a foreign
government.
The crime will immediately arise from the mere act of person of knowingly and falsely representing
himself to be an officer or agent of any department or agency of the Philippines or of a foreign country.
It is not necessary for the offender to commit any act, to perform any act. It suffices that he falsely
represents himself to be an officer or agent of the Philippine government. The crime will immediately
arise. However, the said false representation, aside from being done knowingly, must be such that he
intended to be known by such other person or by public as a representative or agent of Philippine
government.

Page 53

CRIMINAL LAW 2
II.

There is usurpation of official function if any person performs an act pertaining to a person in authority or a
public officer of the Philippine Government or of a foreign government or agency thereof, under pretense of
official position, and without being lawfully entitled to do so.
It is necessary that the offender performs an act. Mere representation will not suffice. It is necessary that
he performs an act pertaining to a person in authority or a public officer of any department or agency of
the Philippine government or of a foreign government.
In usurpation of official functions, it is necessary that the act pertaining to a person in authority or a
public officer must be under pretense of official position and without being lawfully entitled to do so.

ILLUSTRATION:
Q: What if an administrative case was filed against the mayor before the Office of the Ombudsman. During the
investigation of the case, the Ombudsman preventively suspended the mayor for a period of six months. The DILG
implemented the suspension order and the vice-mayor was made the acting mayor. However, upon advice of his
counsel, the suspended mayor began working, began performing the acts of being a mayor after 90 days of
preventive suspension. That is because according to his counsel, he can only be suspended for a period of 90
days. So on the 91st day of his suspension, he again began assuming the function of a mayor. He signed
documents, he issued memorandum, etc. as the city mayor. Is he liable under Article 177 for usurpation of official
function?
A: Yes, he is liable for usurpation of official function under Article 177. The reason is that he is still
under preventive suspension. Unless and until it is lifted by the Ombudsman and the said lifting was
implemented by the DILG, he remains to be a suspended mayor. And for having acted, for having
performing an act pertaining to the office of a mayor, he is said to be committed a violation of Article 177,
usurpation of official function.
Q: What if there was heavy traffic. So there was no MMDA officer or policeman manning the traffic. One of the
owners of the vehicle caught in the traffic alighted from the vehicle and he manned the traffic to ease the flow of the
traffic. The said man performed an act pertaining to an officer of the MMDA, pertaining to a traffic enforcer. Is the
said man liable for usurpation of official function?
A: NO. While the man performed however he did not do so under pretense of official position and without
being lawfully entitled to do so. There was no intent on his part to falsely represent himself as to be in that
position. There was no false pretense of official position therefore he cannot be held liable under Article 177
or usurpation of official function because his act was only done out of pacific (promote peace; to end a
conflict) spirit to help ease the said traffic.
ARTICLE178 USING FICTITIOUS NAME AND CONCEALING TRUE NAME
Punishes two acts:
I. USING FICTITIOUS NAME
Committed by any person who shall use a name other than his real name publicly for concealing a
crime, or evade the execution of a judgment, or to cause damage to public interest.
ELEMENTS:
1. The offender uses a name other than his real name
2. That he uses that fictitious name publicly
3. That the purpose of the offender is either:
a. to conceal a crime; or
b. to evade execution of a judgment; or
c. to cause damage to public interest.
II. CONCEALING TRUE NAME
ELEMENTS:
1. The offender conceals
a. his true name; AND
b. all other personal circumstances
2. That the purpose is only to conceal his identity
HOW WOULD YOU DISTINGUISH IF THE CRIME COMMITTED IS USING FICTITIOUS NAME OR
CONCEALING TRUE NAME?

Page 54

CRIMINAL LAW 2

In case of using fictitious name, the use of a name other than his real name, is done publicly. There is the
element of publicity. Whereas, in case of concealing true name, it is not necessary that the use of another
name, concealing his true and real name must be done publicly.
Using fictitious name and concealing true name differ in purposes. In case of using fictitious name, the
purpose is to conceal a crime, evade the execution of judgment or to cause damage to public interest. On
the other hand, in concealing true name, the only purpose of the offender is to conceal his true and real
identity.

ANTI-ALIAS LAW (C.A. No. 142, as amended)

SO RELATED IN ARTICLE 178 IS C.A. 142 AS AMENDED
What is an alias? What does C.A. 142, as amended, or the Anti-Alias Law provide?
According to the SC, an alias is a name or names use intended to be used by a person publicly and
habitually, usually in business transaction other than the name registered at birth for the first time before the
local civil registrar.
Under C.A. 142 as amended, except as pseudonym, in literary, cinema, television, radio and other
entertainment purposes, and in athletic events wherein the use of a pseudonym is a normal practice, no
person can use any name other than his name by which he is registered at birth at the local civil registrar or
by which he is registered by the Bureau of Immigration upon his entry into the Philippines.
The use of any other name must only be upon approval by the judicial or competent authority.
Therefore, no person can use any other name other than the name by which he is baptized at the office of
the civil registrar in your place other than the name by which he is recorded in Bureau of Immigration, if
case he is a foreigner coming here in the Philippines. He can only use his name. EXCEPT if he is an actor,
if he is an athlete, then he is allowed to use a pseudonym. When he is a writer of a book, then he is allowed
to use a pseudonym, a pen name other than his real name because it is a normal practice OR if he files the
use of a substitute name before the court and he is allowed by judicial or competent authority to use any
other name, then he can also use another name. But outside these, a person can only use the name by
which he is registered at the office of civil registrar.
CESARIO URSUA v. CA
The said accused made use of a different name. he used the name of Oscar Perez in the office of the
Ombudsman as he was trying to get a copy of the complaint filed against him. It was however discovered
that a case of violation of CA 142 was filed against him.
The SC held that he is not criminally liable. The SC acquitted the accused because according to the SC,
the use of the name Oscar Perez in an isolated transaction, without any showing, absent an evidence that
henceforth he wanted to be known by the name of Oscar Perez in not within the prohibition of CA 142 as
amended. There was no evidence that showed that henceforth he wanted to be known by that name. There
was no showing that henceforth, he wanted to be called by the said name therefore it cannot be said that
Oscar Perez is an alias of the accused.
PEOPLE v. ESTRADA
In this case, the former president made use of the name Jose Velarde in signing a trust account. So he
signed a trust account, using the name Jose Velarde and so he was charged with violation of CA 142 as
amended.
Again, the SC said, the use by Erap of the name Jose Velarde in a single, isolated transcation, without any
showing that henceforth he wanted to be known by such name, is not within the prohibition of CA 142 as
amended. First, it was not done publicly and was in fact done secretly in the presence of Laquian and Chua
and the said act of signing does not make it public because these two are his close friends therefore it was
done secretly, in a discreet manner. Hence, it was not done publicly. It was also not done habitually. The
element of habituality is not present because there was no showing that in any other transaction, he made
use of the name Jose Velarde. Hence, he was also acquitted although convicted by Sandiganbayan, he
was acquitted by the SC.
Q: What if a lawyer was having a massage in a sauna bath parlor. He did not know that as a front it is a sauna bath
parlor but in truth and in fact, it was a prostitution den. At the time that he was having this massage service, the
police raided the place because they were able to secure a search warrant. And among those arrested was the said

Page 55

CRIMINAL LAW 2
attorney. The said attorney was brought to the PNP station and he was asked of his name, ashamed to reveal his
true identity, his true name, he said that he was Y and did not state that he was Atty. X. However, when he was
asked his residence, he stated the truth. As of the name of his wife, he stated the truth. As of the name of his
children, he stated the truth. Is he liable for using fictitious name?
A: He is not liable for using fictitious name. First, he did not do so publicly. Second, his use of the name
was not done to conceal a crime, to evade the execution of sentence or to cause damage to public interest
none of these purposes is present; therefore he is not liable for using fictitious name.
Is he liable for concealing true name?
No, he is not liable for concealing true name. Although he concealed his real name, Atty. X, he did
not conceal his other personal circumstances. He divulged his address. He divulged the name of his
wife, the names of his children; therefore, it cannot be said that he has the intention to conceal his true
identity. In fact, his true identity can easily be verified just by going to the said address; therefore he is
not also liable for concealing true name.
Is he liable under CA 142, as amended?
He is also not liable under CA 142, as amended, because the use of the name Y in a single
transaction, in a single isolated transaction, without any showing that henceforth he wanted to be
known as Y is not within the prohibition of CA 142, as amended.
ARTICLE179 ILLEGAL USE OF UNIFORMS AND INSIGNIA
Committed by any person who makes use of any insignia, uniform or dress which pertains to an office not
being held by the offender or to a class of person of which he is not a member and he makes use of such
insignia, uniform or dress publicly and improperly.
ELEMENTS:
1. The offender makes use of INSIGNIA, UNIFORM or DRESS
2. That the insignia, uniform or dress pertains to an office not being held by the offender or to a class of
person of which he is not a member.
3. That the said insignia, uniform or dress is used publicly and improperly.
The offender uses the insignia, uniform or dress of an office not held by him or a by a class of person of which
he is not a member and he used the same publicly and improperly.
ILLUSTRATION:
Q: What if a person was wearing a uniform. So he said that it was a uniform of a certain organization known as H
world but in fact, no such organization ever existed. Is he liable under Article 179?
A: No, he is not liable of Illegal use of insignia, uniform or dress Article 179. The reason is that H
world does not belong to any office, doesnt refer to a class of persons; therefore, he is not liable under
Article 179.
Q: What if a person made use of a uniform of a prisoner. So you see a person, he was receiving a holy communion,
he was wearing an orange t-shirt with a big letter P at the back which means Prisoner. Can he be held liable under
Article 179?
A: He is not liable of Illegal use of insignia, uniform or dress under Article 179. Although he used the
uniform of a prisoner, it is not an office held by the offender, it is not also a class of persons. When you say a class
of persons of which he is a member, it refers to a dignified class of persons. He is assuming that he belongs to the
said class of persons. Here, he is even belittling himself because he was wearing a uniform of a prisoner. Hence, it
cannot be said that he violated Article 179.
FALSE TESTIMONY (ART 180, 181, 182)
False testimony can either be false testimony in criminal cases (Articles 180 and 181), false testimony in
civil cases (Article 182) and false testimony in other cases.
False testimony in criminal cases can either be: (1) false testimony against a defendant (Article 180) and
(2) false testimony favorable to defendant (Article 181).
ARTICLE180 FALSE TESTIMONY AGAINST A DEFENDANT
In a criminal proceeding, the offender-witness testified falsely against a defendant knowing that his
testimony is false and then the said defendant is either acquitted or convicted.

Page 56

CRIMINAL LAW 2
ELEMENTS:
1. That there be a criminal proceeding
2. That the offender testifies falsely under oath against the defendant therein.
3. That the offender who gives false testimony knows that it is false.
4. That the defendant against whom the false testimony is given is either acquitted or convicted in a final
judgment. (People v. Maneja)
ARTICLE181 FALSE TESTIMONY FAVORABLE TO DEFENDANT
In a criminal proceeding, the offender-witness testified falsely in favor of the defendant and he knew that his
testimony is indeed false.

Whether it be a false testimony against or false testimony in favor of a defendant, it is immaterial whether the
court will consider or not the said false testimony. The case may be filed.

ILLUSTRATION:
Q: What if A is being prosecuted for the crime of homicide, for having killed the victim. So while he is being
prosecuted, the fiscal presented a witness. This witness was also brought in by the heirs of the victim. The heirs of
the victim said that the witness saw the said act of killing. The fiscal believed and the fiscal presented the said
witness. The witness however was not present at the scene of the crime but in his testimony the witness said that
he was present at the scene of the crime and that he actually saw the accused stabbing the victim to death. The
accused, A knew that the witness was testifying falsely because he knew that at the scene of the crime, it was only
he and the victim who were present. After trial on the merits, the judge, acquitted the said accused A. In other
words, the judge did not give weight to the testimony of the false witness. Can A still file a case against the false
witness?
A:Yes, A can still file a case of false testimony against the false witness. He can still file a case of
false testimony against the said false witness even of the court did not consider the said false testimony.
Even if the court did not give any merit on the said false testimony and acquitted him. The crime will arise
the moment the said offender testified falsely in open court whether in favor or against a defendant.
Q: What if in the same case, A was being prosecuted for homicide. Then the prosecution presented the witness.
The witness testified falsely against the defendant saying that he saw the actual act of killing. After trial on the
merits, the judge convicted the accused, the judge believed the false testimony and so the judge convicted him.
Upon conviction, within 15 days from the promulgation of judgment, the said accused, the said convict, filed an
appeal before the CA. While the case was pending before the CA, can the said accused, the convicted person,
already file a case of false testimony against the false witness who testified against him?
A:Not yet. Any case would still be a premature case. In fact, you would not know what court will have
jurisdiction. You would not know if the court that will have jurisdiction over the false testimony is the RTC or
the MTC because the penalty to be imposed on the false witness is always dependent on the penalty
imposed on the convict.
Under Article 180, if the defendant has been convicted and the penalty imposed is capital punishment or
death then the false witness shall be imposed with a penalty of reclusion temporal. If the defendant, upon
conviction is imposed with a penalty of reclusion perpetua and reclusion temporal, the penalty will be
imposed on the false witness is prision mayor. If the said defendant is convicted and the penalty imposed
on him is any other afflictive penalty, the penalty to be imposed on the false witness is prision correcional.
On the other hand, if the penalty imposed on the said defendant is prision correcional, arresto mayor, fine
or he was acquitted. If he was acquitted, the penalty to be imposed on the said person who testified falsely
is arresto mayor.
So in this case, the penalty on the false witness is always dependent on the penalty to be imposed by the
court on the defendant; therefore, there must first be a final conviction by final judgment.
NOTE: if it is an acquittal, the case can be immediately filed because an acquittal is immediately executory.
You cannot appeal an acquittal. It is immediately executory.
Q: So the case was filed against A for homicide, here comes a witness, the witness testified falsely in favor of the
accused. Can the private complainant, the heirs of the victim, immediately file a case of false testimony against the
witness right after the giving thereof?

Page 57

CRIMINAL LAW 2
A: Yes, because in case of false testimony in favor of the defendant, the penalty of the false witness is not
dependent on the penalty to be imposed on the said accused or defendant.
ARTICLE182 FALSE TESTIMONY IN CIVIL CASES
Right after the giving of the false testimony, the private complainant or the aggrieved party, can immediately
file a case against the false witness who testified in favor of the defendant.
ELEMENTS:
1. The testimony must be given in a civil case
2. The testimony must relate to the issues presented in said case (relative or pertinent)
3. The testimony must be false
4. The false testimony must be given by the defendant knowing the same to be false.
5. The testimony must be malicious and given with intent to affect the issues presented in the said case
(U.S. v. Aragon)
In case of false testimony in a civil case, right after the giving of the false testimony, the false witness can
be immediately prosecuted in court.
In order to amount in false testimony in civil cases, there must be litigation. Take for example a sum of
money, breach of contract. If the false testimony is given in a special proceeding, for example, petition for
nullity of marriage, petition for separation, petition for habeas corpus, these are special proceedings and a
false testimony of a person who testified falsely during this special proceeding, the case is under Article
183, false testimony in other proceedings.
ARTICLE183 PERJURY
PERJURY is the willful and deliberate assertion of falsehood on a material matter made before an officer duly
authorized to receive and administer oath.
ELEMENTS:
1. The accused made a statement under oath or executed an affidavit upon a material matter
There are two ways of committing perjury:
The offender either:
1. Makes a statement under oath (he makes a false testimony); or
2. Executes an affidavit on a material matter (if it is an affidavit, it is also required under
oath)
2. The said statement under oath or affidavit was made before a competent officer duly authorized to
receive and administer oath
In order to amount to perjury, it is necessary that the said oath must be given before an officer duly
authorized to receive and administer. Otherwise, it cannot be considered as perjury because the
essence of perjuryis the violation of the solemnity of oath.
If the person who received the oath is not duly authorized, it cannot be said that there is a violation
of the solemnity of the oath.
3. That in the said statement or affidavit, the offender makes a willful and deliberate assertion of falsehood
It is necessary for perjury to arise that the offender deliberately, knowingly ascertained a falsehood.
There was a deliberate intent on his part; therefore, good faith is a defense in perjury.
Perjury likewise cannot be committed out of mere negligence. It is necessary that there must be a
deliberate intent on his part to assert a falsity either in the statement or affidavit.
4. The said statement or affidavit containing falsity is required by law.
If it is not required by law then it cannot be considered as a crime.
ILLUSTRATION:
Q: What if X made a false statement in a criminal proceeding, what crime is committed?
A: The crime committed is FALSE TESTIMONY.
Q: A makes a statement in a labor case against B. What crime is committed?
A: The crime committed is PERJURY.

Page 58

CRIMINAL LAW 2

If the false statement under oath is made in a judicial proceeding whether it be a criminal or civil proceeding,
the crime committed is FALSE TESTIMONY. If the said false statement, however, is made in a non-judicial
proceeding, administrative proceedings, or quasi-judicial proceedings, then the crime committed is PERJURY.
So if the false testimony or the false statement is made in a labor case, in an administrative case, in an
application for search warrant, during the preliminary investigation, before the fiscals office, the crime
committed is perjury.

Q: What if the offender makes false narration of facts in a cedula. The offender makes a false narration of facts in a
drivers license. What crime is committed?
A: FALSIFICATION.
Q: What if the offender makes a false narration of facts in a statement of assets, liabilities and net worth. So a
public officer filed a statement of assets, liabilities and net worth. It contains falsities, false narration of facts. What
is the liability?
A: The liability is PERJURY.
WHERE LIES THE DIFFERENCE BETWEEN FALSIFICATION AND PERJURY?
In falsification, the document is not required to be under oath. In case of perjury, the document is required
to be under oath.
HOW ABOUT THE DIFFERENCE OF FALSE STATEMENT AND PERJURY?
If the false statement is made in a judicial proceeding, it is false testimony. If the false statement is made in
a non-judicial proceeding or administrative proceeding or quasi-judicial proceeding, it is perjury.
ILLUSTRATION:
Q: An applicant for the bar filled out an application form for the bar, there was a statement therein, Have you ever
been fined or convicted of any crime? and the answer was no, however, in truth and in fact, he has already been
fined for the crime of jaywalking. He answered no and then this application for the bar is required to be under oath.
He was looking for a notary public since it was a Sunday, there was no office opened so he went to the legal office
of his father, hoping that there was a lawyer there. However, there was only the janitor and he asked the janitor to
sign in the notary public part and then submitted it to the office of the bar confidante. Is the said applicant for the bar
liable for perjury or is he liable for falsification?
A: He is liable of FALSIFICATION and not of perjury because the person who received and administered
the oath is not a confidante officer duly authorized to receive and administer the oath. He was a mere
janitor and not a notary public. As such, the crime committed is falsification. Again, the essence of perjury is
the violation of the solemnity of the oath.
Q: A wrote a love letter to the girl that he is pursuing. In the said love letter, he stated falsities such as You are the
only one in my life. when in truth there were three of them. He stated I love you and I miss you and they were all
falsities. He even asked it to be notarized and sent it to his third girlfriend. Is he liable for perjury?
A: No, he is not liable for perjury. He is not liable for perjury because the said love letter is not required
by law. The fourth element requires, to amount to perjury, the sworn statement under oath or the said
affidavit must be required by law because it is a crime against public interest not a crime against personal
interest.
Q: What if in a case submitted in a fiscals office, so there was a complaint and attached thereto is a sworn
statement. In the said sworn statement, the witness said that he saw the accident. He saw the accused bumped the
victim. According to him, at the time, he was watching Saksi, when suddenly a commotion occurred outside, he ran
out of the window, he saw at that particular time the accused hitting the said victim with his vehicle and so he saw
the accused that caused the death of the victim. That was his statement in the affidavit filed to the fiscals office.
During investigation, however, it was discovered he was not watching Saksi, he was watching Bandila, the news
program in ABS-CBN and not the news program in GMA. Is he liable of perjury?
A:No, he is not liable of perjury. Although it was under oath, administered by a fiscal, still it is no perjury
because it is not on a material matter. Whatever it is that he was watching at the time, even if it is cartoon, it
doesnt matter. What matters is that he heard the commotion, he ran to the window, and he saw the
accused bumping the victim. He saw that it was the accused who killed the victim and that it was the car of

Page 59

CRIMINAL LAW 2
the accused that hit the victim. Only then, it will be considered as perjury but whatever he was watching, it
was immaterial. It was not on a material matter; therefore it will not amount to perjury.
SUBORNATION OF PERJURY is committed by a person who knowingly and willfully procures another to swear
falsely and the witness suborned does testify under the circumstances rendering him guilty of perjury.
NOTE: Subornation of perjury is not expressly penalized in RPC; but the direct induction of a person by another to
commit perjury may be punished under Article 183 in relation to Article 7, meaning, the crime is plain perjury but the
one inducing another will be liable as principal by inducement and the one who testified as principal by direct
participation.
ARTICLE184 OFFERING FALSE TESTIMONY IN EVIDENCE
Committed by any person who shall offer in evidence any false testimony or any false witness either in a
judicial proceeding or in any official proceeding.
ELEMENTS:
1. The offender offered in evidence a false witness or false testimony.
2. The offender knew the witness or the testimony was false.
3. The offer was made in a judicial or official proceeding.
Is this the same as subornation of perjury?
Subornation of perjury is committed by any person who procures a false witness in order to perjures
himself and testify falsely in a case. There is no such crime as subornation of perjury under the
present RPC because we already have Article 184.
Article 184 is committed when any person who procures a witness and offers him as evidence in court
can be held liable under Article 184 or he can be held liable as a principal by inducement in false
testimony or as a principal by inducement in perjury; therefore subornation of perjury is not necessary
and it is not a crime under Philippine jurisdiction, under the RPC.
ARTICLE185 MACHINATIONS IN PUBLIC AUCTIONS
There are two acts punishable under Article 185
I.
SOLICITING GIFT OR PROMISE
By soliciting any gift or promise as a consideration for refraining from taking part in any public
auction.
The mere act of soliciting any gift or promise, so that he will refrain from taking part of the public
auction, will already give rise to the crime. It is not necessary that he actually received the gift, it is
not necessary that he actually will not participate in the said auction.
ELEMENTS:
1. There be a public auction.
2. The accused solicited any gift or a promise from any of the bidders.
3. That such gift or promise was the consideration for his refraining from taking part in that public
auction.
4. The accused had the intent to cause the reduction of the price of the thing auctioned.
II.

ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY

By attempting to cause bidders to stay away from an auction by threats, gifts, promises or any
other artifice
The mere attempt to cause bidders not to participate in the said public auction by threats, gifts or
promise will already give rise to the crime. It is not necessary that the bidders would not actually
participate.
ELEMENTS:
1. There be a public auction
2. The accused attempted to cause the bidders to stay away from that public auction.
3. It was done by threats, gifts, promises or any other artifice.
4. The accused had the intent to cause the reduction of the price of the thing auctioned.

In order to be liable for this crime, whether it be the act of solicitation or the act of attempting to cause bidders
to stay away from public auction, it is necessary that the intention of the offender is to cause the reduction of

Page 60

CRIMINAL LAW 2
the price of the thing which is the subject of the public auction. The acts complained of must be done for
the purpose of reducing the price of the thing being auctioned.

In public auction, it is necessary that the public must be able to get the best price for the thing being auctioned.
If there will be less bidders, less participants in the said public auction, then the public will not be able to get the
best price for the thing subject of the public auction. Here, if the non-participation of the other bidders was
caused by a person, then he is liable under Article 185. Again, the intention of the offender is to cause the
reduction of the price of the thing which is the subject of the public auction.

ARTICLE186 MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE

Acts punished:
I.
COMBINATION TO PREVENT FREE COMPETITION IN THE MARKET
This is committed by any person who shall enter into any contract or agreement or taking part in
any combination whether in the form of trust or otherwise, in restraint of trade or commerce or to
prevent by artificial means free competition in the market.
II.
MONOPOLY TO RESTRAIN FREE COMPETITION IN THE MARKET
This is committed by monopolizing any merchandise or object of trade or commerce or by
combining with any other person or persons in order to alter the prices thereof by spreading false
rumors or making use of any other artifice to restrain free competition in the market.
III.
MANUFACTURER, PRODUCER, OR PROCESSOR OR IMPORTER COMBINING, CONSPIRING OR
AGREEING WITH ANY PERSON TO MAKE TRANSACTIONS PREJUDICIAL TO LAWFUL
COMMERCE OR TO INCREASE THE MARKET PRICE OF MERCHANDISE

The FIRST TWO ACTS under Article 186 can be committed by any person and not necessarily by
manufacturers, producer or processors. The THIRD ACT however, can be committed only by manufacturers,
processors, producers and importers who combined with any other person or persons in order to commit a
transaction prejudicial to lawful commerce or to increase the market price of any merchandise or object of
commerce

Whether it be the first, second or third act, the mere conspiracy in order to restrain or to prevent free
competition will already give rise to the crime. It is not necessary that there be actual restraint in trade or
commerce.

ILLUSTRATION:
Q: What if Petron, Caltex and Shell connived, combined and agreed with one another to hoard fuel. They know that
the fuel prices will increase by March and so they decided to hoard it. Can they be held liable under Article 186?
Juridical corporations cannot be the subject of criminal action. First, it cannot be said that juridical persons
can act with intent. Second, you cannot imprison a juridical person in case of conviction. So if the offender
is a juridical entity, who shall be held liable?
The president, the directors or any of the members of the said corporation, association or partnership,
who knowingly permitted and allowed this combination or monopoly in restraint of trade or commerce.
Note that they must have knowingly permitted the same otherwise, they cannot be held criminally
liable.

If the objects, which are the subject of this monopoly or combination in restraint of trade or commerce are prime
commodities such as food, motor fuel, lubricants, it is not even necessary that there be conspiracy. A mere
proposal, a mere intial step to hoard, to prevent free competition in the market will already give rise to
the crime.

ARTICLE187 IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES

Committed by any person who shall imports, sells or disposes any article or merchandise made of gold, silver,
other precious materials, or their alloys
ELEMENTS:
1. The offender IMPORTS, SELLS or DISPOSES any article or merchandise made of gold, silver, other
precious materials, or their alloys

Page 61

CRIMINAL LAW 2
2. That the STAMPS, BRANDS, or MARKS of those articles or merchandise FAIL TO INDICATE the actual
fitness or quality of said metals or alloys
3. The OFFENDER KNOWS that the stamps, brands or marks fail to indicate the actual fitness or quality of
the metals or alloys.

This is considered a criminal act because the offender, despite knowing that the articles or merchandise that he
imported are misbranded, he still imports the same, sells the same or disposes the same

Mere importation is a punishable act; therefore it is not necessary for the offender to become liable under
Article 187 that he must have sold the misbranded articles or that he must have disposed the article because
mere importationwill already give rise to the crime.
TITLE FIVE
CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED DRUGS

COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (RA 9165)

SECTION 4 IMPORTATION OF DANGEROUS DRUGS AND/OR CONTROLLED PRECURSORS AND
ESSENTIAL CHEMICALS
Is committed by:
Any person, who, unless authorized by law, shall import or bring into the Philippines any dangerous
drug, regardless of the quantity and purity involved.

In one Supreme Court decision, it held that: For one to be liable for importation of dangerous drugs, it
is necessary to be proven that the dangerous drugs that were taken in a vessel came from a foreign
country with the said dangerous drugs on board the said vessel; therefore the prosecution must prove
that the vessel which came into the Philippine ports had with it the dangerous drugs . Only then can
it be said that the dangerous drugs have been imported from another country.

SECTION 5 SALE, TRADING, ADMINISTRATION, DISPENSATION, DELIVERY, DISTRIBUTION AND

TRANSPORTATION OF DANGEROUS DRUGS AND/OR CONTROLLED PRECURSORS AND ESSENTIAL
CHEMICALS
Selling Dangerous Drugs
Act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for
money of any other consideration.
ELEMENTS OF SALE OF ILLEGAL DRUGS:
1. The identity of the buyer and the seller
It is necessary that the identity of the buyer and the seller are clearly identified.
2. The object and the consideration
3. The delivery of the thing sold and the payment thereof
Because if the dangerous drugs had not been delivered, the third element is lacking, the sale is
abds forted, there is only ATTEMPTED ILLEGAL SALE of dangerous drugs not consummated
illegal sale of dangerous drugs because the third element is lacking.
Q: What if a person has been prosecuted for Illegal sale of Dangerous Drugs. The said operation was a buy bust
operation. It is an entrapment procedure which is allowed by law. Here, the criminal/evil intent originated mainly
from the offender himself thats why it is not considered as an absolutory cause. Here, the Police Officers employed
means and methods to entrap and capture the criminal in flagrante that is in the actual act of committing the crime.
So what if in the buy bust operation, the accused drug seller was arrested. In the said operation, the informant
acted as the posuer buyer. He was given marked money. The policemen ran into the place of the drug seller. Only
the poseur-buyer knocked at the door of the drug seller. The drug seller came out and the poseur-buyer said that he
wanted to buy dangerous drugs in the amount of P200. The drug seller said okay and gave 2 plastic sachets of
dangerous drugs to the poseur buyer. However, the poseur-buyer without having given the marked money yet to

Page 62

CRIMINAL LAW 2
the drug seller negligently removed his eyeglasses so the Police officers thought that that was the signal that the
sale has been consummated. They arrived at the said place and arrested the drug seller. The marked money was
not given to drug seller. Does that constitute his acquittal?
A: No provided that all the elements are present:
Note that the second element only requires the crime must be established. The corpus delicti and the price
must be established. It does not require that there must be giving of the price/money. It suffices that
the crime was established.
When the poseur-buyer said that he wants to buy illegal drugs for P200, the price has already been
established. Therefore, all the elements will suffice even if the marked money has not been given by the
buyer to the seller. In fact, even if the marked money is not presented in court it will not be a hiatus on the
evidence of the prosecution provided that the police officers and the witnesses were able to prove the crime
of illegal sale of dangerous drugs.
Q: How about the poseur-buyer? Is it necessary for the poseur buyer to testify in court? What if the prosecutor
failed to have the poseur-buyer testify in court? Does it mean to an acquittal?
A: The testimony of the poseur-buyer is not indispensable in a case of illegal sale of dangerous drugs. It is
not indispensable because the transaction can be proven by the other police officers who have witnessed
the transaction. However if the seller denies the existence of the said transaction; it is the incumbent upon
the prosecution to grove the said transaction by the presentation the said poseur-buyer.
General Rule: The testimony of the poseur-buyer is not indispensable in a case of illegal sale of dangerous
drugs.
Exemption: When the accused denies the existence of the said transaction. If the prosecution failed to
present the poseur-buyer to testify in court, it will amount to the dismissal of the case.
Q: Lets say there is this cigarette vendor on the side walk and here comes a man who parked his car near the side
walk. He called the cigarette vendor and told the cigarette vendor to deliver a package to the man inside the car
which is parked on the other side of the street. He told the cigarette vendor that he will give him P1000 if the he
agreed to deliver the package to the man inside the car which is parked at the other side of the street. The cigarette
vendor asked the man what is inside the package however the man said its none of your business to know whats
inside that. I will give you P1000 if you deliver this to the man inside that car parked at the other side of the street.
So the cigarette vendor with the P1000 got the bag and delivered it to the man at the other side of the street. He
knocked at the window and the man lowered his window. However at the time of the said delivery the police officers
arrived and arrested the cigarette vendor. Can he be prosecuted for delivery of dangerous drugs? Can he be
convicted for delivery of dangerous drugs?
A: He can be prosecuted for delivery of dangerous drugs however it is a defense on his part that he has no
knowledge that the thing he is delivering is dangerous drugs because under RA 9165, delivering has been
defined as the act of knowingly passing a dangerous drug to another, personally or otherwise, and by any
means, with or without consideration. Therefore it is necessary that the one delivering dangerous drug must
have the knowledge of the thing that he is delivering is dangerous drug.
DELIVER an act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means,
with or without consideration.
SECTION 6 MAINTENANCE OF A DEN, DIVE, OR RESORT
Any person who maintains a den, dive, or resort for the use of illegal drugs are liable under this section.
Are the owners, persons maintaining the said dangerous drug dens are only the ones who are criminally
liable?
Under Section 7 of the act, even the employees who are aware of the nature of the said den, dive or
resort for the use and sale of dangerous drugs are also criminally liable. Likewise, even persons who

Page 63

CRIMINAL LAW 2
are not employees which knowingly visit the same place despite the knowledge of the nature of such
den, dive, or resort are also criminally liable.
Q: What if the said den, dive, or resort is owned by a third person? Lets say A and B rented a house. After giving
the down payment, A and B went to the said house. A and B used the house as a den for illegal sale of dangerous
drugs. The police officers were able to secure a warrant and A and B were arrested. Can the owner of the said
house be criminally liable for the maintenance of the said den? How about the house? Can it be forfeited in favor of
the government?
A: Under Sec. 6, the said den, dive, or resort for the use of illegal sale of dangerous drugs shall be
escheated in favor of the government provided that the following circumstances concur:
1. The information must allege that the said place is intentionally being used in furtherance of illegal
sale/use of dangerous drugs.
2. Such intent must be proven by the prosecutor.
3. The owner of the said house must be included as an accused in the information or complaint.
If these 3 elements are present; then the said house shall be confiscated and escheated in favor of the
government.
SECTION 8 MANUFACTURE OF DANGEROUS DRUGS
The presence if any controlled precursor and essential chemical or laboratory equipment in the clandestine
laboratory is a prima facie evidence of manufacture of any dangerous drug.
SECTION 11 ILLEGAL POSSESSION OF DANGEROUS DRUGS
ELEMENTS OF POSSESSION OF ILLEGAL DRUGS:
1. The accused was in possession of prohibited drug
In illegal possession of dangerous drugs; the word possession does not only mean actual
possession of the dangerous drug in his body. It suffices that the said dangerous drug is found in a
place under the control and dominion of the said offender.
Q: By virtue of a search warrant the police officers conducted a search in the house of A to look for cocaine. They
looked inside the bedroom and underneath the pillow on the bedroom of A, the found several sachets of cocaine.
Can it be held that A is in possession of the said drugs?
A: Yes because it is under his control and dominion. Possession does not only mean physical or
actual possession. It also means as constructive possession for as long as the dangerous drugs is
under his control and dominion.
2. Such possession is not authorized by law
The offender is not authorized by law to possess such drugs. Dangerous drugs are per se
contraband. They are per se illegal items. The presumption is that such possession is without
authority of law. Therefore the burden of proof is on the accused to prove that he has the authority
to possess unlike illegal possession of firearms. Illegal possession of firearms is not per se
contraband therefore in illegal possession of firearms, it is the prosecution who has the burden of
proof that the said person lacks license.
3. The accused freely and consciously possessed the prohibited drug
There must be an animus posidendi on the part of the said accused. This animus posidendi on the
part of the accused is a prima facie presumed by law. The moment a person was found in
possession of dangerous drugs, the presumes that the person knows that the thing in his
possession is dangerous drugs.
SECTION 12 - ILLEGAL POSSESSION OF DRUG PARAPHERNALIA
e.g. A person was found in possession of empty plastic sachets and other instruments used for using
dangerous drugs. He is therefore liable for Illegal Possession of Drug Paraphernalia.

Page 64

CRIMINAL LAW 2
Q: What if a person was found in possession of drug paraphernalia can they avail the benefit of probation?
A: Yes he can avail for probation. The penalty prescribed by law for illegal possession of drug
paraphernalias is an imprisonment ranging from 6 months and 1 day to 4 years which is within the
probationable penalty. Under Sec. 24 of R.A. 9165, any person convicted for drug pushing and drug
trafficking, regardless of the penalty imposed by the Court, cannot avail for probation.
So under Sec. 24; only those who are convicted of drug pushing and drug trafficking which cannot avail for
probation therefore for any other violation of Dangerous Drugs Act, for as long as the penalty imposed by
the court is 6 years and below, he can avail for the benefit of probation. But if he is a drug trafficker/ pusher,
one who is engaged in selling dangerous drugs, he cannot avail of the benefit of probation even if the
penalty imposed by the court is within the probationable penalty because it is expressly prohibited by Sec.
24 of RA 9165.
SECTION 13 ILLEGAL POSSESSION OF DANGEROUS DRUGS DURING PARTIES, SOCIAL GATHERINGS
OR MEETINGS
in Sec. 13, if any person was found in possession of dangerous drug in a party, social gatherings or
meetings, or in the proximate company of at least two (2) persons; the maximum penalty prescribed by law
shall be imposed.
SECTION 15 ILLEGAL USE OF DANGEROUS DRUGS
ELEMENTS OF ILLEGAL USE OF DANGEROUS DRUGS:
1. The offender was apprehended/ arrested in the actual use of dangerous drugs.
The first element requires that the offender must be actually using, sniffing the dangerous
drugs.
2. After a confirmatory test; he was found to be positive for use of any dangerous drugs.
He was at the PNP Crime Lab and after the confirmatory test, he was found to be positive for
use of dangerous drugs.
3. No other amount of dangerous drugs must be found in his possession.
If any other amount of dangerous drugs was found in his possession, then the proper charge
would no longer be illegal use but illegal possession of dangerous drugs.
Q: The police officers saw a man snatched the cell phone of a woman. Since the police officers saw the man in
committing the crime inflagrante delicto of actual act of snatching and the man runaway, they followed the man. The
man entered the house. The police officers upon entering the house saw 3 men on a round table; they were in the
actual act of sniffing shabu. They were arrested and they were asked to stand up and fold their arms up and they
were searched. Upon the search, they found out that these 3 men; each of them was found a sachet of illegal drugs
in their pockets aside from the dangerous drug that they were using. What cases will you file against the 3 men?
A: Illegal Possession of Dangerous Drugs. No illegal use of dangerous drugs because the third element
is one thing. Lets say after the confirmatory test they were found to be positive however 3 elements must
concur: 1st element: They were caught in the actual act of sniffing shabu. 2 nd element: After confirmatory
test they were found positive of the use of dangerous drugs however the 3 rd element is lacking because
they found to have in their possession a plastic sachet of other dangerous drugs other than the one they
used. Therefore the proper crime charged is illegal possession of dangerous drugs.
SECTION 21 PROCEDURE IN THE SEIZURE AND CONFISCATION OF DANGEROUS DRUG
The apprehending team which has the initial possession of the seized/confiscated dangerous drugs shall:
1. Inventory the dangerous drugs
2. Take photographs of the same in the presence of the accused or from the person whom the
dangerous drugs have been confiscated or in the presence of his counsel, a representative
from the media, a representative from the Department of Justice, and an elected public official
who shall be given a copy of the said inventory and who shall be required to sign the same.

Page 65

CRIMINAL LAW 2
Procedure:
1. Upon seizure/ confiscation of dangerous drugs, the same must be stated in the inventory list.
2. There must be a picture taking of the dangerous drugs in the presence of the accused or from the person
whom the dangerous drugs have been confiscated or in the presence of his counsel, a representative from
the media, a representative from the Department of Justice, and an elected public official.
3. The elected public official must be required to sign the inventory list and shall be given a copy of the same.
Q: What if the police officers failed to comply with this procedure? In People vs. Sta. Maria, the police officers failed
to comply with this procedure however there was conviction. However, in the case of Dolera vs. People; the police
officers failed to comply with Sec. 21 procedure and this time there was an acquittal. Why is there an acquittal in the
case of Dolera and why is there a conviction in the case of Sta. Maria?
A: The Supreme Court held that even if there is failure to comply with the procedure underlined in Sec 21
of RA 9165 by the arresting officers, there will still be conviction if the said non-compliance is due to
justifiable reasons and provided that the police officers were able to preserve the integrity and evidentiary
bond of the confiscated dangerous drugs this is in consonance with the chain of custody rule.
If the police officers were not able to comply with the procedure due to justifiable cause, they must be able
to preserve the integrity and evidentiary bond of the confiscated dangerous drug that is; right after
confiscation, it must be marked to ensure that it was the dangerous drugs taken from the accused and must
be turned over to the forensic laboratory for testing.
CHAIN OF CUSTODY RULE
What is the Chain of Custody rule? (People v Gutierrez)
It is defined as the duly recorded authorized movements and custody of dangerous drugs from the time
of confiscation/seizure to the receipt in the forensic laboratory to safekeeping to presentation in court
for destruction.
What is the purpose Chain of Custody rule?
The purpose of Chain of Custody rule is to ensure that the dangerous drug seized/confiscated
from the accused is the very same dangerous drug which has been tested by the forensic
chemist and it is the very same dangerous drug presented in court that is; there has been no
substitution of evidence.
Dangerous drugs are so small. There can be a replacement of the effects therefore this Chain of
Custody rule will ensure that there will be no substitution of the very same dangerous drug
seized/confiscated from the accused at the time that they were presented to the court.
Q: What if a person is charged for illegal possession of dangerous drugs and during his arraignment, he pleaded
not guilty and during the pre-trial, he said that he will change his plea if he will be allowed to plead guilty for a lesser
offense of illegal possession of drug paraphernalia. So he wanted to avail of the plea-bargaining rule under the
rules of court. Under the plea-bargaining rule, you can plead guilty to a lesser offense provided that the said lesser
offense is necessary included in the offense charged. Here, the charge is illegal possession of dangerous drugs;
can he plead for a lesser offense of illegal possession of drug paraphernalia?
A: He cannot because Sec. 28 of R.A. 9165 provides that any person charged in violation of any of the
crimes charged under this act cannot avail of the plea-bargaining under the rules of court. Therefore any
person charged in violation of any of the punishable acts under R.A. 9165 cannot plead guilty to a lower
offense.
SECTION 25 A POSITIVE FINDING FOR THE USE OF DANGEROUS DRUGS SHALL BE A QUALIFYING
AGGRAVATING CIRCUMSTANCE

Page 66

CRIMINAL LAW 2
Q: A killed B. The police officers arrested A and they brought him to the crime lab to be tested for the use of illegal
use of dangerous drugs. After testing, he was found positive for the use of dangerous drugs. What is the effect of it
in the criminal liability of A?
A: Sec 25 states the a positive finding for the use of dangerous drugs shall be a qualifying aggravating
circumstance.
What is the effect of a qualifying aggravating circumstance?
It changes the nature of the crime or even without changing the nature of the crime it will bring about a
higher imposition of penalty.
SECTION 26 ATTEMPT OR CONSPIRACY
Express exception to the general rule that in case of violation of a penal law, there are no stages and there
is no conspiracy.

As a rule, in case of violation of penal law, we have no attempted stages. In violation of special penal laws,
conspiracy unless expressly provided because these are only for violation of the RPC, for felonies. One of
those exceptions is under Section 26 of RA 9165. Under Section 26 of RA 9165, any attempt or conspiracy of
any of the following acts shall be punished already by penalty prescribed by law:
1.
2.
3.
4.
5.

Importation of any dangerous drug;

Sale, trading, administration, delivery, distribution, transportation of dangerous drug;
Maintenance of a den, dive, or resort where any dangerous drug is used in any form;
Manufacture of any dangerous drug;
Cultivation or culture of plants which are the sources of dangerous drugs.

If any of these acts mentioned is committed by the offender, a mere attempt; or conspiracy will already give
rise to the crime as an exception to the rule that in case of violation of penal law, there are no stages in the
commission of the crime and conspiracy will not lie. So if any of the crime committed is any of these five
acts, mere attempt will lie against the offender, conspiracy will lie against the offender.

As held in the case of People v Rolando Laylo, the charge was only attempted illegal sale of dangerous drugs.
The sale was aborted because even before the said drug poseur was able to transfer the dangerous drug to the
police officer, the police officers already introduced themselves as such and arrested him. As such, we only have
attempted illegal sale of dangerous drugs.
SECTON 98 LIMITED APPLICABILITY OF THE RPC
In Book I, under Article 10, the provisions of the RPC shall apply suppletorily or supplementarily to the
provisions of the special penal laws UNLESS the special penal law provides otherwise.
One of the exceptions is provided for in Sec 98 of RA 9165, it is provided that the provisions of RPC, as
amended, shall not apply to the provisions of RA 9165. The law uses the word shall; therefore you cannot
apply the provision of RPC to the provisions of RA 9165.
Exception to Section 98: If the offender is a minor offender.
Where the offender is a minor, the penalty for acts punishable by life imprisonment to death
provided shall be reclusion perpetua to death.
TITLE SIX
CRIMES AGAINST PUBLIC MORALS (Articles 200 202)
ARTICLE200 GRAVE SCANDAL
Grave Scandal a highly scandalous act offensive to good morals, good customs and decency committed
in a public place or within public knowledge or public view.
ELEMENTS:
1. The offender performs an act or acts

Page 67

CRIMINAL LAW 2
2. Such act or acts be HIGHLY SCANDALOUS as offending against decency or good customs
It is necessary that the act must be highly scandalous and offensive to morals, offensive to
decency and offensive to good customs.
3. That the highly scandalous conduct is not expressly falling within any other article of this Code.
The third element requires that it must not expressly fall within any other article of this code. It
must not constitute any other violation in the RPC. Grave scandal is a crime of last resort
because you only file a complaint for grave scandal when the said act is not punishable under
any other article in the RPC.
4. The act or act complained of be committed in a public place or within the public knowledge or view.
Then the fourth element provides that the highly scandalous act must be committed either in a
public place or within public knowledge or view. If the highly scandalous act is committed in a
public place, the crime of grave scandal will immediately arise. The place being public, the law
presumes that someone may have witnessed the commission of the highly scandalous act.
However, if the crime is committed or if the highly scandalous act is committed in a private
place, for the crime of grave scandal to arise, it is necessary that it must be witnessed by one or
more persons to be said that it is within the public knowledge or public view.
ILLUSTRATION:
Q: So let us say that A and B are boyfriend and girlfriend and it is their anniversary. They went to Luneta Park and
at exactly 12 midnight, in the middle of Luneta Park, they engaged in sexual intercourse. No one witnessed their
sexual intercourse. Are they liable for grave scandal?
A: YES. They are liable for grave scandal. They have the right to engage in sexual conduct but the fact that
they performed the sexual conduct in Luneta Park, a public place makes the act offensive to public morals,
decency and good customs and the said act does not constitute any other violation in the RPC because
they have the right to engage in sexual intercourse. Therefore, the crime committed is grave scandal
because they performed the act in a public place even if no one saw the commission of the said act still,
still because it is performed in a public place , it is presumed that someone may have seen the commission
of the highly scandalous act.
Q: So what if a wife and a husband, celebrating their anniversary, engaged in sexual intercourse in their terrace.
So the act is committed in their premises, in the terrace of their house. However, the gate was open and so
passersby would see them performing the sexual intercourse. Are they liable for grave scandal?
A: YES. They are liable for grave scandal. The said act does not constitute another offense in the RPC
because they have the right to engage in sexual conduct. The sexual conduct was performed in the privacy
of their home however; people witnessed the commission of the said act. It now becomes a highly
scandalous act because it is within the knowledge of the public or within public view.
Q: What if A and B are boyfriend and girlfriend. The girlfriend is 11 yrs old and the boyfriend is 21 yrs old. And
because it is their monthsary the girlfriend thought of giving herself as a gift and engaged in sexual intercourse in a
public place Are they liable for grave scandal?
A: NO. They are not liable for grave scandal. The man is liable for statutory rape. A man who had sexual
intercourse with a child under 12 years of age, regardless of the consent, regardless of the willingness of
the said child, the man is liable for statutory rape. Because in so far as criminal law is concerned, a child
under 12 yrs old has no intelligence of his/her own and is not capable of giving a valid consent. Therefore,
even if the girl voluntarily gave herself in so far as the law is concerned, it is still statutory rape. It is not
grave scandal because the third element is wanting. The said act fall under the violation of article of RPC
that is under article 266-A for rape. As I said, grave scandal is a crime of last resort. You only charge it
when the crime committed does not constitute any other violation in the RPC.
ARTICLE201 IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS, AND INDECENT
SHOWS
Punishes:
I.
Public proclamations of doctrines openly contrary to public morals
II.
Publication of obscene literature. In case of publication of obscene literature, it is the author, the editor, the
owner or proprietor of the establishment that sells the said materials SHALL BE HELD CRIMINALLY
LIABLE.

Page 68

CRIMINAL LAW 2
III.
IV.

The third act punished is the exhibition of indecent shows, plays, scenes or acts in fairs, theaters, cinemas
or any other places.
Selling, giving away or exhibiting films,, engravings, sculptures or literature which are offensive to public
morals.

ILLUSTRATION:
Q: So what if there is this building, when the person entered the said building, on the floor of the said building were
these magazines. And the magazines contain men and women engaging in sexual intercourse, naked women and
men, and other obscene materials. Who shall be held liable when the place was raided by the police?
A: The author of the said literature, the editors publishing such literature and the owner or proprietor of the
establishment where the said magazines were being sold. They will be held criminally liable under Article
201.
VAGRANTS AND PROSTITUTES (ART 202)
Q: Let us say that there is this man, a healthy man and he can look for work but he does not want to work. So he
was just roaming around and he saw houses of prostitutes or houses of ill-fames and he is always in this places.
Can he be held liable for vagrancy?
A:NO, becausevagrancy has been decriminalized by R.A. No. 10158 which was approved on March 27,
2012. We no longer have the crime of vagrancy. No person can longer be prosecuted for being a vagrant.
How about prostitution? Is there still a crime for prostitution?
YES.
Who is a prostitute?
A prostitute is any woman who, for money or profit, indulges in sexual intercourse or lascivious
conduct. So it is the work or job of a woman. Note that the law defines it to be a woman therefore; a
man cannot be considered a prostitute. Before, if a man engages in sexual intercourse or lascivious
conduct he can be punished under Article 202 but now since vagrancy has been decriminalized by R.A.
No. 10158, he can no longer be prosecuted. Only prostitutes who are woman.
TITLE SEVEN
CRIMES COMMITTED BY PUBLIC OFFICERS (Articles 203 245)
ARTICLE203 PUBLIC OFFICERS
REQUISITES TO BE A PUBLIC OFFICER:
1. One must be taking part in the performance of public functions in the Government or one must be
performing in said Government or in any of its branches public duties as an employee, agent or
subordinate official, of any rank or class; and
2. That his authority to take part in the performance of public functions or to perform public duties must be
a. by direct provision of the law; or
b. by popular election; or
c. by appointment by competent authority
Whenever a person applies to a public office, he has the so-called, OATH OF OFFICE. If he is high-ranking official,
the oath is also before a high-ranking official. If he is a cabinet secretary, the oath is before the President or to the
Supreme Court Chief Justice. If he is only an ordinary employee, still he has oath of office. It is a document which is
entitled, OATH OF OFFICE, he merely signs it.
Felonies under TITLE SEVEN are felonies in violation of this oath of office, they can either be:
MISFEASANCE
MALFEASANCE
NON-FEASANCE
A public officer performs an
A public officer performs in his
A public officer knowingly,
official acts in a manner not in
public office an act prohibited
willfully refuses or refrains from
accordance with what the law
by law.
doing an act which is his official
provides
duty to do.

Page 69

CRIMINAL LAW 2
(GN: Improper performance of
some act which might be
lawfully done)
ARTICLE 204 TO 207

(GN: Performance of some act

which ought not to be done

(GN: Omission of some act

which ought to be performed)

ARTICLE 210-211

ARTICLE 208

ARTICLE204 KNOWINGLY RENDERING UNJUST JUDGMENT

ELEMENTS:
1. The offender is a judge
2. That he renders a judgment in a case submitted to him for decision
3. That the judgment is unjust
4. The judge knows that his judgment is unjust
UNJUST JUDGMENT is one which is contrary to law, or one that is not supported by evidence or both.
The source of unjust judgment can either be mere error or ill-will. If the source of an unjust judgment is mere
error on the part of the judge, then the said judge is not civilly, criminally, and administratively liable.
ILLUSTRATION:
In a case submitted to him for decision, the judge wrongfully interpreted a provision of law. It is a new law, there is
no jurisprudence yet, the judge wrongfully interpreted it. The judge cannot be held civilly, administratively, and more
so, criminally liable. The said judgment is an unjust judgment because it was based on this error in the
interpretation of the law. However, there was no intent on the part of the said judge. Considering the basis of the
unjust judgment is mere error. The said judge acted in good faith.
If however, the unjust judgment is based on bad faith, that is, it is based on ill-motive on the part of the said
judge, therefore, he can be held liable criminally, civilly and administratively
-

For him to be criminally liable, knowing that he rendered an unjust judgment, it is necessary that the
unjust judgment is rendered out of ill-motive or bad faith, out of greed, revenge, envy, or any other illmotive. Hence he is known to have rendered an unjust judgment.

BASED ON MERE ERROR no criminal, no civil, no administrative liability

ARTICLE205 JUDGMENT RENDERED THROUGH NEGLIGENCE
This is again committed by a judge, who in a case submitted to him for decision, renders manifestly unjust
judgment.
ELEMENTS:
1. The offender is a judge
2. That he renders a judgment in a case submitted to him for decision
3. That the judgment is manifestly unjust
4. The it is due to his inexcusable negligence or ignorance
MANIFESTLY UNJUST JUDGMENT means that it is evident that a judgment is unjust. A first year law student
would know that it is unjust, therefore it is manifestly unjust judgment, because he acted in inexcusable negligence
or ignorance.
ARTICLE206 UNJUST INTERLOCUTORY ORDER
ELEMENTS:
1. The offender is a judge
2. That he performs any of the following acts:
a. knowingly renders unjust interlocutory order or decree
b. renders a manifestly unjust interlocutory order or decree through inexcusable negligence or
ignorance
ARTICLE207 MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE
ELEMENTS:

Page 70

CRIMINAL LAW 2
1. The offender is a judge
2. There is a proceeding in his court
3. He delays the administration of justice
4. The delay is malicious, that is, delay is caused by the judge with deliberate intent to inflict damage on
either party in the case.
ARTICLE208 PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE
ACTS PUNISHABLE:
I.
By maliciously refraining from instituting prosecution against violators of the law
Note that the first crime, he knows that a crime was committed but he does not prosecute the
offender;
II.
By maliciously tolerating the commission of offenses
the second act, a crime was about to be committed, he tolerates its commission. It must be done
with MALICE. Absent malice, Article 208 will not apply.
ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES:
1. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to
prosecute, offenses.
2. That there is a dereliction of the duties of his office; that is knowing the commission of the crime, he does
not cause the prosecution of the criminal or knowing that a crime is about to be committed, he tolerates its
commission.
3. That the offender acts with malice and deliberate intent to favor the violator of the law.

Otherwise known as DERELICTION.

Can only be committed by a public officer or a officer of the law who has the duty to cause the prosecution of or
to prosecute the offenders. The said public officer commits dereliction of duty in the prosecution of offenses
under any of the following circumstances:
a. knowing the commission of the crime, he does not cause the prosecution of the criminal, or
b. knowing that a crime is about to be committed, he tolerates its commission and the said offender
acts with malice and deliberate intent to favor the violator of the law
The dereliction of duty in the prosecution of offenses cannot be committed by just any public officer.
The public officer must be charged with the prosecution of the cases or he is the one who can cause the
prosecution of these offenders.

CHARGED WITH THE PROSECUTION OF THE OFFENDERS:

- Fiscals
- Prosecutors
- State Prosecutors
THOSE WHO CAN CAUSE THE PROSECUTION OF THE OFFENDERS:
- Judges
- Barangay Chairman
- Persons in authority
ARTICLE209 BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR REVELATION OF SECRETS
ACTS PUNISHED AS BETRAYAL OF TRUST BY ATTORNEY:
I.
By causing damage to his client, either
a. by any malicious breach of professional duty
b. by inexcusable negligence or ignorance
THERE MUST BE DAMAGE TO HIS CLIENT
II.
By revealing any of the secrets of his client learned by him in his professional capacity.
DAMAGE IS NOT NECESSARY

Page 71

CRIMINAL LAW 2
III.

By undertaking the defense of the opposing party in the same case, without the consent of his first
client, after having undertaken the defense of said first client or after having received confidential
information from said client.
IF THE CLIENT CONSENTS TO THE ATTORNEYS TAKING THE DEFENSE OF THE OTHER
PARTY, THERE IS NO CRIME

ELEMENTS:
1. Causing damage to his client, either:
a. by any malicious breach of professional duty
b. by inexcusable negligence or ignorance
2. Revealing any of the secrets of his client learned by him in his professional capacity
3. Undertaking the defense of the opposing party in the same case, without the consent of his first client or
after having received confidential information from said client

Under Article 209, this betrayal of trust is IN ADDITION TO A PROPER ADMINISTRATIVE CASE which may be
filed against an attorney or solicitor. So aside from the criminal case in violation of Article 209, he can also be
charged in a case also for disbarment, for violation of lawyers oath of duty may be filed against him, and these
two cases can be proceeded at the same time.

ILLUSTRATION:
A lawyer for 3 consecutive times, without any justifiable reason, failed to file his formal offer of exhibits. During
the first time he was given 15 days, he failed to file, second time he was given 15 days, he failed to file. On the third
time, he was given 5 days still, he failed to file, without giving any justifiable reason for his non-compliance with the
order of the court. By reason thereof, there is no evidence in behalf of the defense of his client was admitted by the
Court. Because only evidences offered may be admitted by the court. And so, the judge convicted the accused, the
client was prejudiced because of the counsels malicious breach of his professional duty. It is incumbent upon any
counsel to file a pleading within the reglementary period provided by law or required by the court.
- For failing to do so without any justifiable reason, he caused damage to his client by malicious breach
of his professional duty.
Q: What if Atty. A was the counsel of X, he was behind bars for the crime of kidnapping for ransom. Atty. A visited X
to ask the facts of the case in order for him to study and to nput up a good defense. During their conversation, X
informed his counsel, Atty. A that there will be another kidnapping tomorrow night at 9PM in Quezon City, to be
done by his other gang mates who were at large. Atty. A, upon knowing this information from his client X,
immediately went to the police officers of Quezon City in order to pre-empt the commission of the crime. Is Atty. A
liable for the second act because he divulged the secrets of his client which he learned in his professional capacity?
A: Atty. A is not liable under Article 209. The secrets being referred to under Article 209 refers to the
past crimes of the said client and it refers to the facts and circumstances related to the crime which is
being handed by the said Attorney or counsel.
It does not refer to future crimes that are still about to be committed. When a lawyer takes his oath of
office, he says, or he promise, he swears that he shall be liable not only to the client, but also to the
STATE, to the GOVERNMENT.
It is his duty to the Government, to the State of any future crime that is about to be committed more than
his duty to his client. Hence, in this case, since it refers to a future crime, for the protection of the state
and the citizenry, it is incumbent upon him to divulge, disclose or to reveal the said secrets.
Q: What if A filed a case against B, Atty. X was the counsel of A, A failed to give Atty. X his appearance list for 5
consecutive hearings, no appearance list. So Atty. X, filed a motion to withdraw as counsel of A. The said motion to
withdraw was with the CONSENT OF A, because without the consent of A, the said motion to withdraw will not be
granted by the court. So the court granted and Atty. X is no longer the counsel of A. When B learned about this,
went immediately to the office of X and secured the services of X. Atty. X signed a contract and he is now the
counsel of B. Is Atty. X liable for betrayal of trust by an attorney?

Page 72

CRIMINAL LAW 2

A: Atty. X is liable for betrayal of trust by an attorney. He takes the case of B, the opposing party, even
after he has already taken the case of A and after he has acquired valuable information about his client.
How can he prevent himself from being convicted of the betrayal of trust?

He must first secure the consent of the said first client

In the said problem, there was no consent. The said consent was only in the motion to withdraw. The said
consent in the motion to withdraw is not the consent on the acceptance of the case. For every motion to
withdraw, there must be a consent written, otherwise the court will not grant the motion to withdraw. The
consent here is to secure or to accept the service s of the other party.
Since consent was not given, he is liable for betrayal of trust by an attorney.

Just remember aside from betrayal of trust, an attorney or solicitor can also be held liable of
administrative case. So there may be disbarment.

He can be disbarred or he can be suspended by reason of committing any of these acts.

ARTICLE210 DIRECT BRIBERY

ACTS PUNISHABLE:
I.
By agreeing to perform, or by performing, in consideration of any offer, promise, gift or present an
act constituting a crime, in connection with the performance of his official duties.
ELEMENTS:
1. The offender be a public officer within the scope of Article 203
2. The offender accepts an offer or a promise or receives a gift or present by himself or through
another.
3. That such offer or promise be accepted, or received by the public officer with a view of
committing some crime.
4. That the act which the offender agrees to perform or which he executes be connected with the
performance of his official duties.
II.

By accepting a gift in consideration of the execution of an act which does not constitute a crime, in
connection with the performance of his official duty.
ELEMENTS:
1. The offender be a public officer within the scope of Article 203
2. The offender accepts an offer or a promise or receives a gift or present by himself or through
another.
3. That such offer or promise be accepted, or received by the public officer in consideration of the
execution of an act, which does not constitute a crime, but the act must be unjust
4. That the act which the offender agrees to perform or which he executes be connected with the
performance of his official duties.

III.

By agreeing to refrain, or by refraining, from doing something which it is his official duty to do, in
consideration of gift or promise.
ELEMENTS:
1. The offender be a public officer within the scope of Article 203
2. The offender accepts an offer or a promise or receives a gift or present by himself or through
another.
3. That such offer or promise be accepted, or received by the public officer to refrain from doing
something which it is his official duty to do so.
4. That the act which the offender agrees to perform or which he executes be connected with the
performance of his official duties.

Under the First Act - By agreeing to perform or performing, in consideration of offer or promise, gift or
present any act constituting a crime in connection with the performance of his official duties
- If the thing which the public officer is required to do, is an act which will constitute a crime, a mere
agreement to do so, will already give rise to direct bribery. It is not necessary that he actually commits the
crime, it is not necessary that he actually receives the gift or present.

A MERE AGREEMENT WILL SUFFICE.

Page 73

CRIMINAL LAW 2
Likewise in the Third Act - By agreeing to refrain or by refraining from doing an act which is his
official duty to do, in consideration of an offer, promise, gift or present.
- If the thing that a public officer is required to do, is to refrain from doing an act which is his official duty to
do, a mere agreement to refrain to do an act will already give rise to direct bribery. It is not necessary to
refrain from doing an act, it is not necessary to receive the said gift.
However, if the thing that a public officer is required to do, does not constitute a crime, under the
Second Act, mere agreement will not suffice. There must be actual acceptance of the thing. There must be
acceptance of the gift, in consideration of the execution of an act which does not constitute a crime in connection
with the performance of his official duty. WHY?
- because the thing that he is being required to do is not a criminal act. It is his official thing to do, but he
doesnt want to do it without the bribe first to be given to him. So it is only upon ACCEPTANCE OF THE
BRIBE that criminal liability for direct bribery will arise.
Whatever may be the act constituting direct bribery, in order to amount to direct bribery, it must always be in
connection with the performance of his official duty. If it is not in connection with his official duty, it could other crime
like estafa or swindling, but NOT DIRECT BRIBERY.
ACEJAS, III vs. PEOPLE
It is the second act of direct bribery that has been violated. The second act because it is the duty of the said
BID agent to return the passport. The duty to return the passport is not a criminal act. It is also not an act of
refraining to do so. But he does not want to perform the act without the bribe, so he becomes liable under the 2 nd
act.
ILLUSTRATION:
Q: What if a mother wanted her daughter to work in another country. The daughter was still a minor, 16 years old.
So what the mother did, was to ask the civil registrar to alter the birth date or the date in the certificate of live birth
with a promise that the first 2 months of the salary of the daughter will be given to the civil registrar. The civil
registrar altered the date in the birth certificate. What crime/crimes is/are committed by the civil registrar and by the
mother?
A: The civil registrar is liable for direct bribery because he agreed to perform an act constituting a
crime in consideration of a promise that the 2 months salary will be given to him. The said act is in
connection with his performance of his official duty. Therefore he is liable for direct bribery. He actually
performs the act, he actually committed a crime, therefore he is also liable for the falsification of a public
document because he actually altered the birth date which is a very important date in the birth certificate
so he is also liable for the falsification of a public document.
Without the said bribe, the mother would not have committed falsification, so are you going to complex
them? because direct bribery is a necessary means to commit falsification.

Even if in reality, they should be complex because direct bribery is a necessary means to commit
falsification, you cannot complex them because ARTICLE 210 PROHIBITS SUCH COMPLEXITY
OF CRIMES.
Under Article 210, it is expressly provided that the penalty for direct bribery shall be IN ADDITION TO
THE LIABILITY FOR THE CRIME COMMITTED. Here, he actually altered, actually committed the crime,
therefore his liability for falsification is in addition for his liability for direct bribery. Therefore, 2 separate
distinct charges have to be filed against the civil registrar, we have direct bribery and the other one is
falsification of the public document.
The mother is liable for corruption of public official (Art. 212). Direct bribery is the crime of the public
officer who receives the bribe. On the other hand, the private individual or the public officer who gives the
bribe is liable for corruption of public official under Art. 212. (Refer to Art. 212 elements)
The mother gives a promise under circumstances in which the public officer becomes liable for direct
bribery. She is liable for corruption of public official. The mother is also liable for falsification of a public
document as a principal by inducement. Without the bribe, without the said inducement, the said public
officer will not have committed the said falsification.

Page 74

CRIMINAL LAW 2
ARTICLE211 INDIRECT BRIBERY
ELEMENTS:
1. The offender is a public officer
2. That he accepts gifts
3. That the gifts are offered to him by reason of his office.

Indirect Bribery is committed if the public officer accepts any gift or present by reason of his office that he owns.
In case of indirect bribery, the public officer is not deemed required to do a thing. By the MERE ACCEPTANCE,
indirect bribery is consummated. NO ACCEPTANCE, NO CRIME IS COMMITTED.

ILLUSTRATION:
A is the newly appointed secretary of DENR. On his first day of office, Mr. X visited him, paid a courtesy call. Mr.
X is the president of a big logging company. They exchanged some pleasantries, thereafter, when this president of
the logging company left, he placed a small box on the table. When he left, the new DENR secretary opened the
box and it was a key to a car parked in front of the building. The new DENR secretary used it and drove the car
- He is liable for Indirect Bribery. The president of the logging company does not require him to do
anything, it was merely given to him because he was newly appointed as the DENR secretary. His
acceptance brings about consummated indirect bribery; therefore, indirect bribery has no attempted or
frustrated stage because outside acceptance, no crime is committed.
ARTICLE211-A QUALIFIED BRIBERY
ELEMENTS:
1. The offender is a public officer entrusted with law enforcement
2. The offender refrains from arresting or prosecuting an offender who has committed a crime punishable
by reclusion perpetua and/or death
3. The offender refrains from arresting or prosecuting the offender in consideration of any promise, gift or
present.

Qualified bribery is committed by any public officer who is in charge with the enforcement of the law. So, in
order to amount to qualified bribery, it is necessary that the offender whom the public officer does not want to
prosecute must have committed a crime punishable by reclusion perpetua and/or death.

ILLUSTRATION:
Q: A police officer was conducting a patrol. He saw a man behind the tree, looking at the other house adjacent to
the tree as if waiting for someone. So the police officer parked his vehicle and observed what this man would do.
The moment that a man came out of the gate of the house, this man hiding behind the tree, immediately went
directly to him and shot him 5 times, and killing him instantly. Then, the said man rode a motorcycle and left. The
police officer chased him. The Police officer arrested him, however, he gave the police officer P500,000 and told the
police officer, Mr. Police officer, you saw nothing, you heard nothing. And the police officer allowed him to leave.
What crime/crimes is/are committed by the said police officer?
A: The said police officer is liable for qualified bribery. The crime committed by the said man is
murder, because obviously, in his act of killing, there was treachery, the other party was defenseless and
obviously the said man deliberately and consciously adopted the ways means and methods employed by
him in killing the victim. Since there was treachery, the crime committed is murder, punishable by
reclusion perpetua to death. His failure to arrest and prosecute this man constitute qualified bribery
because he did so after accepting P500,000.
Q: What if a police officer was conducting a patrol, he saw A and B fighting, boxing each other, killing each other,
until they already on the ground. In the course thereof, A pulls out his balisong and stabbed B several times on the
heart, a vital organ. B died instantly. Thereafter, A ran away, the police officer tried to catch up with A and he was
able to arrest A. However A, gave the police officer P100,000. The police officer allowed him to leave. What
crime/crimes is/are committed by the said police officer?
A: The crime committed by A in killing B is precedent by a fight, therefore it is merely homicide. Homicide
is punishable only by reclusion temporal. Since it is only punishable by reclusion temporal, therefore,
qualified bribery is not applicable.

Page 75

CRIMINAL LAW 2
He committed direct bribery, because he accepts a bribe, in consideration of an act of refraining to
arrest the said criminal. He actually refrain from arresting and prosecuting the criminal, therefore in
addition to direct bribery, he also committed dereliction of duty in the prosecution of offenses because he
actually committed dereliction of duty by refraining from arresting the person who has actually committed
a crime. So this time, there are 2 crimes committed:

DIRECT BRIBERY (ARTICLE 210) AND

DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES (ARTICLE 208)

ARTICLE 212 CORRUPTION OF PUBLIC OFFICIALS
ELEMENTS:
1. The offender makes offersor promises or gives or presents to a public officer.
2. That the offers or promises are made or the gifts or the gifts or presents given to a public officer, under
circumstances that will make the public officer liable for direct bribery or indirect bribery.
THE ANTI-GRAFT AND CORRUPT PRACTICES ACT (RA 3019)
PUBLIC OFFICER - a public officer is any elective and appointive officials and employees, permanent or
temporary, whether in the classified or unclassified or exemption service receiving compensation, even
nominal, from the government. (Sec 2, RA 3019)
JAVIER v SANDIGANBAYAN
Although Javier has been appointed as a representative of the private sector, in the book publishing
board attached to the office of the president (NBDB), she is still considered as a public officer; first, the
said board functions as a collegial body performing public functions; second, according to SC, she was
receiving allowance, a salary even though nominal, from the government. Hence, she considered as a
public officer.
SECTION 3 CORRUPT PRACTICES OF PUBLIC OFFICERS
IMPORTANT PROVISIONS OF SECTION 3:
(e) Causing any undue injury to any party including the government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence.
ELEMENTS:
1. The said offender was in charge of his official, administrative or judicial function
2. That he acted with manifest partiality, evident bad faith or gross inexcusable negligence
3. The said accused caused any undue injury to any party, including the government, or gave any private
party unwarranted benefits, advantage, or preference in the discharge of his official functions.
SANTOS v PEOPLE
The Supreme Court said that there are two acts punished under Section 3 (e) of RA 3019:
1. Causing any undue injury; or
2. Giving any private party any unwarranted benefit, advantage or preference
The law uses the conjunctive or; therefore, the fact that the offender causes any undue injury to
any party or the fact that the offender gave any party unwarranted benefit, advantage or
preference, they can be charged distinctly or separately from each other.
The Supreme Court also stated that the elements of Sec 3 (e) of RA 3019
UNDUE INJURY means there must be an actual damage caused to the offended party. Absent any actual
damage caused to the offended party, then section 3 (e) is not violated.
(g) Entering, on behalf of the government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby
The public officer entered into any contract or transaction on behalf of the government. The said
contract is manifestly and grossly disadvantageous to the government.
In NAVA v PALLATTAO, the violation was Section 3 (g). The DECS officials bought laboratory science materials
and after COA audited, it was discovered that there was an overpricing. The same is true in CAUNAN v PEOPLE

Page 76

CRIMINAL LAW 2
where Joey Marquez and company bought walis-tingting, and according to the COA auditors, there was also
overpricing of these walis-tingting. But in the case of Nava, there was conviction but in the case of Caunan, there
was an acquittal.
Where lies the difference?
In the case of Nava, the COA officials proved the overpricing because they bought the very same
laboratory materials from the same supplier where the DECS officials bought and by reason thereof, it
was discovered that there was indeed an overpricing.
However, in the case of Caunan, Joey Marquez bought from a different supplier than where the COA
officials bought. The COA officials bought from a Las Pinas supplier which they compared with the price
of walis-tingting bought by Joey Marquez. Not only did they buy the said walis-tingting from a different
supplier, the walis-tingting bought by COA officials was of different specifications from that of the walistingting bought by Joey Marquez and company. Hence, the Supreme Court said that prosecution was
not able to prove beyond reasonable doubt that there was overpricing. Because the walis-tingting
bought by Joey Marquez was very much different from the walis-tingting bought by the COA officials.
They were not able to prove beyond reasonable doubt that there was overpricing because of the
difference in specifications.

In both cases, there was NO PUBLIC BIDDING.

Will the mere lack of public bidding bring about a violation of Section 3 (g) of RA 3019?
The Supreme Court said that mere lack of public bidding may mean that the government was not able
to get the best price for the thing purchased. However, it does not bring about a violation of Section
3 (g) because what Section 3 (g) requires is the transaction must be manifestly and grossly
disadvantageous to the government and mere lack of public bidding will not show such gross and
manifest disadvantage.
SECTION 4 PROHIBITION ON PRIVATE INDIVIDUALS
Under Section 4, it is unlawful for any private individual who has a close personal relation to any public
officer to request, ask or receive present from any person in any case from which the said public officer
has to control.
Close personal relation does not only include family members. It also includes those who have social
and fraternal relations; therefore even a private individual who is not in conspiracy of a public officer
can be held liable under RA 3019.
Not only public officers but also private individuals can be held liable under RA 3019.
Enumerated corrupt practices of Public Officials
(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and
regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter,
or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.

Persons liable:
1. Public officer who persuades, induces, or influences another public officer;
2. Public officer who is persuaded induced or influenced
Note: requesting or receiving any gift, present, or benefit is not required in this provision.

Page 77

CRIMINAL LAW 2
(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any
other person, in connection with any contract or transaction between the Government and any other part, wherein
the public officer in his official capacity has to intervene under the law.

Note:

the lack of demand is immaterial, the law uses the word OR between requesting and receiving.

There must be clear intention on the part of the public officer and consider it as his or her own property from
then on. Mere physical receipt unaccompanied by any other sign, circumstance or act to show acceptance is
not sufficient to lead the court to conclude that the crime has been committed

Refers to a public officer whose official intervention is required by law in a contract or transaction

(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or
for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will
secure or obtain, any Government permit or license, in consideration for the help given or to be given, without
prejudice to Section thirteen of this Act.
(d) Accepting or having any member of his family accept employment in a private enterprise which has pending
official business with him during the pendency thereof or within one year after its termination.
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of
offices or government corporations charged with the grant of licenses or permits or other concessions.
(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable
time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested
in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or
giving undue advantage in favor of or discriminating against any other interested party.
(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous
to the same, whether or not the public officer profited or will profit thereby.
(h) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in connection
with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by
any law from having any interest.
(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act
requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such
approval, even if he votes against the same or does not participate in the action of the board, committee, panel or
group.
Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly
unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong.
(j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or
not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who
is not so qualified or entitled.
(k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his
official position to unauthorized persons, or releasing such information in advance of its authorized release date.

Page 78

CRIMINAL LAW 2
Note: if damage was caused, Article 229 under the RPC is committed.
SECTION 9 PENALTIES FOR VIOLATIONS
Under Section 9, both private individuals and public officers have just the same penalty. It is six years
and one month to fifteen years plus forfeiture of the ill-gotten wealth.
SECTION 7 STATEMENT OF ASSETS AND LIABILITIES & RA 6713
When do the officers file the statement of assets, liabilities and net worth?
The said public officer can file his SALN within 30 days from assumption into office. And then it must be
filed on or before the 30th day of April of the next years and within 30 days after separation from the service.
In RA 3019, it is stated on or before 15 th of April but there is another law which provides also for the filing
of SALN and that is RA6713 which is the code of ethical standards for public officers.
Under RA 6713, and this is what is being followed, it must be on or before the 30 th day of April.
So you file first within 30 days upon assumption to office and then the years thereafter on or before the 30 th
day of April and then if you got separated from office, within 30 days from separation from office.
SECTION 8 PRIMA FACIE EVIDENCE OF AND DISMISSAL DUE TO UNEXPLAINED WEALTH
When is there a prima facie presumption of graft and corrupt practices?
There arises a prima facie presumption of graft and corrupt practices if a public officer has been found to
have in his possession money or property, whether in his name or in that name of another person, which is
manifestly out of proportion from his lawful income. There arises a prima facie presumption of graft and
corrupt practices.
SECTION 10 COMPETENT COURT & RA 8429
Where do you file a case for violation of RA 3019?
You file a case of violation of Article 3019 before the Sandiganbayan. The Sandiganbayan has jurisdiction
unless otherwise provided by law.
There is a law, RA 8429 which provides for the jurisdiction of Sandiganbayan. Under this law, if a public
officer is of salary grade 27 and above, it must be before the Sandiganbayan. If the public officer is below
salary grade 27, it must be before the RPC.
SECTION 11 PRESCRIPTION OF OFFENSES
When is the prescriptive period?
Violation for RA 3019 shall prescribe after 15 years. However, the right of the government to forfeit or to
recover ill-gotten wealth does not prescribe. So there are no latches and estoppel insofar as the right of the
government to recover ill-gotten wealth is concerned.
When do you start counting the running of the prescriptive period of crime?
From the time the crime has been committed or if it is not known, that is from the time of the discovery of
the said crime, then it is from the time of the institution of the criminal perseverance.
SECTION 13 SUSPENSION AND LOSS OF BENEFITS
Q: What if a public officer, has been charged for violation of RA 3019, the Ombudsman found probable cause. The
case was now filed before the Sandiganbayan. Is it incumbent upon the Sandiganbayan to immediately place him
under preventive suspension? Is preventive suspension automatic? Is preventive suspension mandatory?
A: Preventive suspension is mandatory but it is not automatic. There must first be a pre-suspension
period to determine the validity of the information. The moment the Sandiganbayan discovers the said
information is valid, sufficient in substance to bring about a conviction, it is now mandatory upon the
Sandiganbayan to place the said accused public officer under preventive suspension.
So it is not automatic because there must first be a pre-suspension period. The only issue in the presuspension period is the information filed by the Ombudsman against the said public officer valid, is it
sufficient enough to bring about a conviction in court? If the answer is yes, immediately, mandatory on the
part of the Sandiganbayan, a ministerial duty, the said public officer must be placed under preventive
suspension. It it ministerial not discretionary, not either or.
For how long should the suspension be?

Page 79

CRIMINAL LAW 2

The suspension must not exceed the maximum of ninety days, in consonance with Section 52 of the
Administrative Code.

SECTION 14 - EXCEPTION
Q: What if a public officer saw an old man waiting line. So the old man received a notice, the notice said that his
license is ready, it has already been approved. So he was waiting in line for the release of his license, it was
already approved. The head of office saw the old man. 85 years old, under the heat of the sun and with his frail
body. So the head of office took the man and the head of office asked the man to his office. The head of office
asked the secretary, Is the license of this man approved? The secretary said yes. The head of office said, get it.
The secretary took it and gave to the head of office. The head of office, upon seeing that it is approved, and the
man was only waiting for its release, gave it to the man; therefore the man need not wait in the long line. The man
was so thankful that the following day, the man went back to the office with two big bilaos of bibingka to the said
head of office to say thank you. The said head of office received two big bilaos of bibingka. Is the said head of office
liable under RA 3019?
A: No. It falls under the exception. Under Section 14, unsolicited gifts or presents of small or insignificant
value offered or given as a mere ordinary token of friendship or gratitude, according to local customs or usage is
excepted from the provisions of RA 3019; therefore the said public officer will not be held criminally liable.
RA 7080: ANTI-PLUNDER ACT
Ill-gotten wealth
- means any asset, property, business enterprise or material possession of any person within the purview of
Section two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates
and/or business associates by any combination or series of the following means or similar schemes:
1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any/or entity in
connection with any government contract or project or by reason of the office or position of the public officer
concerned;
3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National government or any of its
subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest
or participation including the promise of future employment in any business enterprise or undertaking;
5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or special interests;or
6. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of
the Philippines
Sec. 2. Definition of the Crime of Plunder, Penalties. Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as
described in Section 1 (d) hereof, in the aggregate amount or total value of at least Seventy-five million pesos
(P75,000,000.00), shall be guilty of the crime of plunder and shall be punished by life imprisonment with perpetual
absolute disqualification from holding any public office. Any person who participated with the said public officer in
the commission of plunder shall likewise be punished. In the imposition of penalties, the degree of participation and
the attendance of mitigating and extenuating circumstances shall be considered by the court.
Sec. 4. Rule of Evidence. For purposes of establishing the crime of plunder, it shall not be necessary to prove each
and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.

Page 80

CRIMINAL LAW 2
Sec. 6. Prescription of Crime. The crime punishable under this Act shall prescribe in twenty (20) years. However,
the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees
or transferees shall not be barred by prescription, laches, or estoppel.

RA 9745 Anti-Torture Act:

Torture refers to:
1. an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him/her or a third person information or a confession;
2. punishing him/her for an act he/she or a third person has committed or is suspected of having committed;
3. or intimidating or coercing him/her or a third person;
4. or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority.
It does not include pain or Buffering arising only from, inherent in or incidental to lawful sanctions.
Acts of torture:
(a) Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in
authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or
more parts of the body, such as:
(1) Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar
objects, and jumping on the stomach;
(2) Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or
substances not normally eaten;
(3) Electric shock;
(4) Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other
chemical substances on mucous membranes, or acids or spices directly on the wound(s);
(5) The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until
the brink of suffocation;
(6) Being tied or forced to assume fixed and stressful bodily position;
(7) Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or
electrical torture of the genitals;
(8) Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.;
(9) Dental torture or the forced extraction of the teeth;
(10) Pulling out of fingernails;
(11) Harmful exposure to the elements such as sunlight and extreme cold;
(12) The use of plastic bag and other materials placed over the head to the point of asphyxiation;
(13) The use of psychoactive drugs to change the perception, memory. alertness or will of a person, such
as:
(i) The administration or drugs to induce confession and/or reduce mental competency; or
(ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and
(14) Other analogous acts of physical torture; and
(b) "Mental/Psychological Torture" refers to acts committed by a person in authority or agent of a person in authority
which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale, such as:
(1) Blindfolding;
(2) Threatening a person(s) or his/fher relative(s) with bodily harm, execution or other wrongful acts;
(3) Confinement in solitary cells or secret detention places;
(4) Prolonged interrogation;
(5) Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner;

Page 81

CRIMINAL LAW 2
(6) Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the
belief that he/she shall be summarily executed;
(7) Maltreating a member/s of a person's family;
(8) Causing the torture sessions to be witnessed by the person's family, relatives or any third party;
(9) Denial of sleep/rest;
(10) Shame infliction such as stripping the person naked, parading him/her in public places, shaving the
victim's head or putting marks on his/her body against his/her will;
(11) Deliberately prohibiting the victim to communicate with any member of his/her family; and
(12) Other analogous acts of mental/psychological torture.
Any confession, admission or statement obtained as a result of torture shall be inadmissible in evidence in any
proceedings, except if the same is used as evidence against a person or persons accused of committing torture.
Rights of Tortured Victims:
(a) To have a prompt and an impartial investigation by the CHR and by agencies of government concerned such as
the Department of Justice (DOJ), the Public Attorney's Office (PAO), the PNP, the National Bureau of Investigation
(NBI) and the AFP. A prompt investigation shall mean a maximum period of sixty (60) working days from the time a
complaint for torture is filed within which an investigation report and/or resolution shall be completed and made
available. An appeal whenever available shall be resolved within the same period prescribed herein,
(b) To have sufficient government protection against all forms of harassment; threat and/or intimidation as a
consequence of the filing of said complaint or the presentation of evidence therefor. In which case, the State
through its appropriate agencies shall afford security in order to ensure his/her safety and all other persons involved
in the investigation and prosecution such as, but not limited to, his/her lawyer, witnesses and relatives; and
(c) To be accorded sufficient protection in the manner by which he/she testifies and presents evidence in any fora in
order to avoid further trauma.
Who are Criminally Liable. - Any person who actually participated Or induced another in the commission of torture
or other cruel, inhuman and degrading treatment or punishment or who cooperated in the execution of the act of
torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts shall be
liable as principal
Any superior military, police or law enforcement officer or senior government official who issued an order to any
lower ranking personnel to commit torture for whatever purpose shall be held equally liable as principals.
The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the
PNP and other law enforcement agencies shall be held liable as a principal to the crime of torture or other cruel or
inhuman and degrading treatment or punishment for any act or omission, or negligence committed by him/her that
shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his/her
subordinates. If he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of
torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or
has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such
knowledge, did not take preventive or corrective action either before, during or immediately after its commission,
when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading
treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to
negligence shall also be liable as principals.
Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel,
inhuman and degrading treatment or punishment is being committed and without having participated therein, either
as principal or accomplice, takes part subsequent to its commission in any of the following manner:
(a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or
other cruel, inhuman and degrading treatment or punishment;
(b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or
destroying the effects or instruments thereof in order to prevent its discovery; or(c) By harboring,
concealing or assisting m the escape of the principal/s in the act of torture or other cruel, inhuman and

Page 82

CRIMINAL LAW 2
degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the
official's public functions.
Aggravating Circumstances in torture:
(1) Torture resulting in the death of any person;
(2) Torture resulting in mutilation;
(3) Torture with rape;
(4) Torture with other forms of sexual abuse and, in consequence of torture, the victim shall have become insane,
imbecile, impotent, blind or maimed for life; and
(5) Torture committed against children.

Note:

Torture as a crime shall not absorb or shall not be absorbed by any other crime or felony committed as a
consequence, or as a means in the conduct or commission thereof. In which case, torture shall be treated
as a separate and independent criminal act whose penalties shall be imposable without prejudice to any
other criminal liability provided for by domestic and international laws. (Sec 15)

Persons who have committed any act of torture shall not benefit from any special amnesty law or similar
measures that will have the effect of exempting them from any criminal proceedings and sanctions. (sec
16)
Refouler- No person shall be expelled, returned or extradited to another State where there are substantial grounds
to believe that such person shall be in danger of being subjected to torture.
CHAPTER THREE FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS
ARTICLE 213 FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES
Article 213 punishes two (2) acts:
1 Fraud against public treasury (par.1)
2 Illegal exactions (par. 2)
ELEMENTS OF FRAUD AGAINST PUBLIC TREASURY (ART. 213, PAR. 1):
1 That the offender is a public officer
2 that he should have taken advantage of his office, that is he intervened in the transaction of his official capacity
3 That he entered into an agreement with any interested party or speculator or made use of any other scheme
with regard to:
1 furnishing supplies
2 the making of contracts
3 the adjustment or settlement of accounts relating to public property or funds
4 That the accused had intent to defraud the Government
So here, the public officer took advantage of his official position in entering into contract which involves the
furnishing of supplies, or which involves public funds or property and the intention is to DEFRAUD THE
GOVERNMENT. It is not necessary that the Government, the treasury be actually be defrauded, it suffices that
entering in the said contract, the intention of the said offender, the public officer, is to defraud the Government.

Page 83

CRIMINAL LAW 2
ELEMENTS OF ILLEGAL EXACTION (ART. 213, PAR. 2)
1 That the offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts.
2 He is guilty of any of the following acts or omissions:
1 Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law;
or
2 Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially; or
3 Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature
different from that provided by law.
Here, the offender is a COLLECTING PUBLIC OFFICER. A public officer who has been entrusted with duty to
collect taxes, licenses, fees or other imposts. Only this kind of public officer can commit this crime because
ILLEGAL EXACTION involves violation of rules on collection.
1st Act - Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by
law;or
ILLUSTRATION:
Q: There was this cashier in the city treasurers office. Here comes X, X said that he is going to get a cedula
(residence certificate) and then X said, How much am I going to pay? and then, the cashier or the collecting officer
said, you have to pay Php200 but it is actually Php20. X said, hmp, angmahalpala, ayokona. and so he left. Is
the said collecting officer liable of any crime?
A:YES, he is liable. For merely demanding an amount larger than that authorized by law, he is already
liable for ILLEGAL EXACTION under Article 213, Par. 2.
Q: He is already liable, he merely demanded, but what if in the same problem, X said he was going to get a cedula.
The collecting officer saw him and he appears to be poor man and so X asked the collecting officer, How much am
I going to pay? and the collecting officer took pity of X and said, Only Php 10. So, the poor man said, Oh, I have
more money, Ill get two. Is the collecting officer liable of any crime?
A:YES, he is liable because he demanded an amount different from that authorized by law. Note that what
the law requires is the demanding of an amount, directly or indirectly, different from or larger than those
authorized by law. Therefore, even if it is lower, so long as it is different from that provided by law, and so
long as it is demanded by the said collecting officer, then it is considered as ILLEGAL EXACTION.
It is not necessary for the said collecting officer to have misappropriate the funds, the moment that he
misappropriates the funds, in addition to illegal exaction, he may also be held liable for MALVERSATION,
because Illegal Exaction is only about the rules on collection. It has nothing to do with the appropriation or
misappropriation of funds or property. Only a violation of the rules on collection.
2nd Act - Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially;
ILLUSTRATION:
Q: So what if it was January 2, all kinds of payment are being made at the start of the year. So the collecting officer
in the treasurers office rans out of official receipt (O.R.). And so he got a half sheet of typewriting paper and he
note there about the said payment and a provisional receipt and he gave it to the same person who made the
payment. Is the said collecting officer liable of illegal exaction?
A: He IS NOT. Because he did not voluntarily fail to issue the said O.R. He ran out of the said O.R., it
was not voluntary on his part. It was an emergency situation. It is good that she even gave a provisional
receipt as a proof of payment. In this case, he cannot be held liable for illegal exaction.
3rd Act - Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature
different from that provided by law.
Here, under the third act, it does not refer to the amount of payment. It refers to the KIND OR NATURE OF
PAYMENT. So, when the law says that it should be paid in cash, ONLY CASH may be received by the said
collecting officer.

Page 84

CRIMINAL LAW 2
ILLUSTRATION:
So the collecting officer is known as a sabungero. So here comes one of the persons who was making
payment. He has no money, but said, he has a magandangtandang. And so, that was the payment received. He
commits a violation of illegal exaction.
Q: What if the person who demanded an amount or different from or larger than that which is provided for by law is
an officer, a collecting officer from the Bureau of Internal Revenue, or a collecting officer form the Bureau of
Customs. Is he liable under Article 213?
A: He is not liable for illegal exaction under Art. 213. He is liable under the Tax Code or under the
Tariffs and Customs Code. Under Art. 213, it is expressly provided that if the collecting officer is a
collecting officer coming from the Bureau of Internal Revenue or Bureau of Customs is not liable under
this Article. The reason here is that, this collecting officer from the BIR and the BOC, have the right to
ask for penalties, surcharges, and compromise. Therefore, they can always demand and amount
different from or that which is larger than that authorized by law. If they exceeded that authority, then
they are liable under the Tariffs and Customs Code or under the Tax Code, but NOT UNDER THE RPC.
ARTICLE 214 OTHER FRAUDS
ELEMENTS:
1 Offender is a public officer
2 He takes advantage of his official position
3 He commits any of the frauds or deceits enumerated in Articles 315-318
If any of the public officer commits any of the frauds or deceits constituting ESTAFA or SWINDLING, under Art.
315-318, and he does so by taking advantage of his official position, his criminal liability is Other Frauds under Art.
214.
- Not estafa, Not swindling. the reason is that in case of a public officer, there is additional penalty. If you
look at Article 214, the law says that the penalty is the same penalty as the first offense under Art. 315318. But additional to that, temporary disqualification to perpetual disqualification for having taken
advantage of his official position. Therefore, if it is a public officer who commits estafa or swindling, the
crime is under Art. 214 and there is an additional penalty.
ARTICLE 215 PROHIBITED TRANSACTIONS
ELEMENTS:
1 Offender is an appointive public officer
2 He becomes interested, directly or indirectly in any transaction of exchange or speculation
3 Transaction takes place within the territory subject to his jurisdiction
4 He becomes interested in the transaction during his incumbency
ARTICLE 216 POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER
ELEMENTS:
1 Public Officer who, directly or indirectly, became interested in any contract or business in which it was his
official duty to intervene.
2 Experts, arbitrators, and private accountants who, in like manner, took part in any contract or transaction
connected with the estate or property in the appraisal, distribution or adjudication of which they had acted
3 Guardians and executors with respect to the property belonging to their wards or the estate
CHAPTER FOUR MALVERSATION OF PUBLIC FUNDS OR PROPERTY
ARTICLE 217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY (PRESUMPTION OF MALVERSATION)
ELEMENTS:
1 Offender is a public officer or employee
2 He has the custody or control of funds or property by reason of the duties of his office
3 Those funds or property were public funds or property for which he was accountable
4 He appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted
another person to take them

Page 85

CRIMINAL LAW 2
Who is the offender?
- The offender is an accountable public officer. An accountable of public officer is an officer in the course of
the performance of his duties, receives funds or property from the government which he has the obligation
to account later. So he has in his custody, public funds or public property and he has the obligation to
account these to the Government.
Punishable acts:
1 Appropriating public funds or property
2 Taking or misappropriating the same
3 Consenting, through abandonment or negligence, permitting any other person to take such public funds or
property
4 Being otherwise guilty of the misappropriation or malversation of such funds or property
Malversation of Public Funds and Property can be committed either through a positive act, that is, that the said
public officer is the one who misappropriates, takes or appropriates the public funds and property, OR, through a
passive act, that is, through his abandonment or negligence, he permitted others to misappropriate the same.
-

Malversation can be committed either through a positive act, which is through deliberate intent or through
dolo. He is the one who appropriates or misappropriates, who took the the said public funds or property
Passive Act which is through his abandonment or negligence, or cupla. he allowed others to appropriate or
misappropriate the said public funds or property

When is there prima facie presumption of malversation?

- Under Article 217, there arises prima facie presumption of malversation of public funds or property when
demand is made by a duly authorized officer to an accountable public officer to account for public funds or
property, and the same is not forthcoming
ILLUSTRATION:
So the COA auditor, appeared and conducted an audit He demanded for the said amount, the said
accountable public officer cannot reduce the said amount. There arises the prima facie presumption that he has
malverse the said public funds or property. Although that is what is written under Article 217, last paragraph. The
Supreme Court in the number of cases said:
Mere shortage in audit will not suffice. For the Prima facie presumption to arise the following requisites must
be present: - It is necessary that there must be complete, thorough and reliable audit.
- In the said complete, thorough and reliable audit, the following were discovered:
a
The public officer indeed receive the public funds or property. That is, he is an accountable public
officer
b
The said public funds and property was missing, or there was a shortage, or he cannot produce it, and
c
The said public officer cannot give a justifiable reason, a legal excuse for the said shortage or missing
of public funds or property.
If all of these are present, the Supreme Court says that there arises the prima facie presumption that there
is malversation of public funds or property. Therefore, there may NOT be direct evidence to convict one for
malversation of public funds or property. Obviously, there cannot be any witness, because when you say direct
evidence, there is a witness. Of course, he would not let anyone see him malversing the funds. It suffices in the
audit, these three things were discovered. If these three are discovered, then there arises the prima facie
presumption that there is a so-called MALVERSATION OF PUBLIC FUNDS OR PROPERTY
ILLUSTRATION:
Q: What if a man was walking, in the middle of the night, a police officer who was conducting a patrol saw
something bulging on his waist. The police officer stopped him and frisked him and there, they saw a firearm. They
ask for the license, the said man could not produce the license for the said firearm. He was arrested for illegal
possession of unlicensed firearm, and the firearm was confiscated. During the trials of the case, the fiscal move for
subpoena for the custodian of the said firearm. The custodian appeared but failed to bring the firearm. He had
already sold the said firearm confiscated. What crime is committed by the said custodian?

Page 86

CRIMINAL LAW 2
A: He is liable for Malversation under Article 217.
Q: His contention was, it cannot be malversation, because the firearm was owned by a private person. It is not a
public property, therefore I cannot be held liable for malversation. Is the contention correct?
A: His contention is wrong. The said firearm has already been confiscated by public authority,
therefore it is now deemed, CUSTODIA LEGIS. The moment it is in custodialegis, it loses its character
as a private property and it now assumes a character of a public property. Hence the crime committed is
Malversation.
Q: What if, there was this collecting officer, a cashier, and there were many persons paying. And the long line
persons paying, one cashier said that he needed to answer the call of nature, and so he asked another fellow
cashier to look after his drawer, and so, he left and went to the restroom. But he also left the key of his drawing on
the key holder. And so, the moment he left, his fellow cashier went to his drawer and opened it and took Php 2000
from the collection of A on the same day. Then A arrived, and he then accepted collections. In the afternoon, there
was a surprise audit coming from the COA. and it was discovered that based on the receipts, The php 2000 were
missing from the collection of A. Therefore, A was charged. What crime if any, has been committed by A? Is A liable
for malversation?
A: Yes, he is liable for malversation through negligence. That is the passive act. That is through his
abandonment or negligence, he permitted another person, Cashier B to misappropriate a part of his
collection for the day. Hence A is also liable for Malversation. Not B, but A, the one who went to the
restroom, because he is the one accountable for the said public funds in his drawer.
That other person, B, who took the said property is liable for qualified theft. because he was entrusted
with the same funds, and he took the same funds.
Q: What if, in the same problem, after the COA auditor found out that Php 2000 was missing, A was charged with
Malversation of public funds and property through dolo. So, in the information, it was stated that he is the one who
misappropriate, appropriates or has taken the said public funds, and so he was charged with Malversation through
dolo, through deliberate intent. That was the case filed against him because they did not know that it was B who
took the money. So, the presumption is that, he is the one who took the money, who appropriated it. During the trial
of the merits, during the presentation of the defense evidence, when it was already As term to testify, it was
divulged or disclosed to the court that it was in fact another cashier, B who misappropriated the said funds through
the negligence of A. And by reason of this evidence presented in court, the said judge, convicted A of Malversation
through culpa, in an information of malversation through dolo. Is the judge correct? can he convict A?
A: Yes, the judge is correct. The reason is that, according to the Supreme Court, whether Malversation is
committed through deliberate intent or culpa, DOLO and CULPA are merely modalities of committing the
crime. Nevertheless, it is still malversation, and if you look at Article 217, whether malversation is
committed through deliberate intent or through negligence, they just have one and the same penalties.
Further, the Supreme Court said, Malversation through negligence or culpa is NECESSARILY INCLUDED
in Malversation through deliberate intent or dolo. Hence, even if the information is Malversation through
dolo, one can be convicted of Malversation through Culpa or Negligence.
Q: What if, there was this rape in a warehouse, in the course of the said rape, dangerous drugs worth millions of
pesos were confiscated and they were placed in the PDEA warehouse. The persons therein were charged with
illegal possession of dangerous drugs. In the course of the hearing in this possession of dangerous drugs, the court
sent a subpoena to the PDEA custodian, to bring to the Court the said dangerous drugs which were confiscated.
And so, on the designated day, the said PDEA agent boarded all the dangerous drugs confiscated in a PDEA van
and off he went to the Court. However, before the PDEA agent could reach the court, here comes two motorcycles
who went in and fired at him, and he fell on his seat, lifeless. And then, a big vehicle arrived at the back of the said
PDEA van and took all the said dangerous drugs. Now the said PDEA agent was brought into the hospital and
despite the fatal wound, because of the immediate medical intervention, he survived. Is he liable of any crime?
A: Yes, he is liable of Malversation of public funds or property under Article 217 through
Negligence. There was inexcusable negligence on his part said the Supreme Court, because all by
himself, carried the millions worth of dangerous drugs in the PDEA van, considering the value of the said

Page 87

CRIMINAL LAW 2
dangerous drugs, he should have asked for back up. Yes, he survived, but he was charged with
Malversation of public funds or property through CULPA.
Q: What if, there is a public officer whose office is in pasay. He is going to have a meeting in Caloocan. And so he
went to Caloocan in one afternoon and attended the said meeting. He had to go to pasay in order to make a report,
However, the traffic was heavy, so instead of using his car on the way back, he rode the LRT. Upon reaching the
office, he realized that his bag was opened, and the cellphone which was __5:17___ by the Government was
already gone. By reason thereof, he was charged with Malversation under Article 217 because through his
negligence, the cellphone which was ____ to him by the Government and for which he is accountable to the
Government was now missing. It was taken or stolen by somebody. Is he liable? He was convicted by the
SandiganBayan but when it came to the Supreme Court, the Supreme Court acquitted him.
A: According to the Supreme Court, there was no negligence on the part of the said public officer. He
cannot be faulted for having taken the LRT because of the said heavy traffic. It cannot be said that there
was negligence on his part in placing the cellphone inside his bag, because, where else would you place a
cellphone but inside the bag for safekeeping. It would have been different while on board, he was using the
said cellphone. Hence, the Supreme Court said, there was no negligence and therefore, although convicted
by the SandiganBayan, he was acquitted by the Supreme Court.
ARTICLE 218 FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS
ELEMENTS:
1 Offender is a public officer, whether in the service or separated therefrom
2 He must be an accountable officer for public funds or property
3 He is required by law or regulation to render accounts to the Commission on Audit, or to a provincial Auditor
4 He fails to do so for a period of two months after such accounts should be rendered
ARTICLE 219 FAILURE OF RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING
THE COUNTRY
ELEMENTS:
1 Offender is a public officer
2 He must be an accountable officer for public funds or property
3 He must have unlawfully left (or be on the point of leaving) the Philippines without securing from the
Commission on Audit a certificate showing that his accounts have been finally settled
ARTICLE 220 ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (Technical Malversation)
ELEMENTS:
1 Offender s a public officer
2 there is a public fund or property under his administration
3 Such public fund or property has been appropriated by law or ordinance
4 He applies the same to a public use other than that for which such fund or property has been appropriated by
law or ordinance.
ILLUSTRATION:
Q: What if a public officer has under his administration public funds which is for a certain project. So let us say that
X is the city administrator. Under his administration, there was Php500,000, the said Php 500,000 was for the
construction of a bridge between one barangay to another barangay. Then suddenly there was a typhoon, a big
typhoon and many of the constituents were rendered homeless. And so, they had to stay in the basketball court,
they need food, clothing, water and other basic needs. And so, the city administrator made use of the Php 500,000
under his administration to buy these basic needs of his constituents. Is the said public officer, the city administrator
liable of any crime?
A: Yes, he is liable for technical Malversation under Article 220.
BEST EXAMPLE:
GMA and other head of Philhealth before was charged by Frank Chavez because of Technical
Malversation because of transfer of COA funds, which was used for Philhealth purposes during the elections. And

Page 88

CRIMINAL LAW 2
so, because of that, according to Frank Chavez, they are liable for Malversation. They were charged with Technical
Malversation. But their contention was there was a law that allowed it. If there was a law that allowed it, then, there
was no violation. But, if there is no law, there is an illegal transfer of funds, therefore, technical Malversation will
resolve.
ARTICLE 217
The public officer misappropriates the fund for his
personal use.

ARTICLE 220
The public officer did not misappropriate the funds for
his personal use, he used it for another public purpose
other than that which has been appropriated by law or
ordinance
that
is why it
is
TECHNICAL
MALVERSATION the offense is on the technicality of
the use of funds.

The public officer has in his possession public funds or

property for safekeeping. It is under his custody and
control and therefore it is for his safekeeping and he
has the obligation to account it later on to the
Government

The public officer has in his possession public funds or

property is only under his administration. Not for
safekeeping, but only for the purpose of administrating
it that is, for applying it for the purpose which it has
been appropriated by law or ordiance

ARTICLE 221 FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY

ELEMENTS:
1 That the public officer has government funds in his possession
2 That he is under obligation to make payments from such funds
3 That he fails to make payment maliciously
Punishable acts:
1 Failing to make payment by a public officer who is under obligation to make such payment from Government
funds in his possession
2 Refusing to make delivery by a public officer who has been ordered by competent authority to deliver any
property in his custody or under his administration
ARTICLE 222 OFFICERS INCLUDED IN PRECEDING PROVISIONS
Private Individual who may be liable under Art. 217-221:
1 Private Individual who in any capacity whatsoever, have charge of national, provincial or municipal funds,
revenue or property
2 Administrator, depository of funds or property attached, seized or deposited by public authority even if such
property belongs to a private individual
3 Those who acted in conspiracy in malversation
4 Accomplice and accessories to malversation
Can private property be the subject of Malversation?
- YES, under the 2nd act in Article 222, that is when the said funds or property has been attached, seized or
deposited by public authority, it now becomes in custodialegis and it now assumes the character of being
public funds or property. If any are misappropriated, then the crime committed is Malversation and not theft.
INFIDELITY IN THE CUSTODY OF PRISONERS (Articles 223, 224, 225)
ARTICLE 223 CONNIVING WITH OR CONSENTING TO EVASION
ELEMENTS:
1 Offender is a public officer
2 He has in his custody or charge a prisoner, either detention prisoner or prisoner by final judgment
3 Such prisoner escaped from his custody
4 That he was in connivance with the prisoner in the latters escape, or is with his consent

Page 89

CRIMINAL LAW 2
ARTICLE 224 EVASTION THROUGH NEGLIGENCE
ELEMENTS:
1 Offender is a public officer
2 He is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final
judgment
3 Such prisoner escapes through his negligence
ARTICLE 225 ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER
ELEMENTS:
1 Offender is a private individual
2 Conveyance (or charge) of custody of prisoner or person under arrest is confided to him
3 Prisoner or person under arrest escapes
4 Offender consents to the escape of the prisoner or person under arrest or that the escape takes place through
his negligence
Whether it be under Art. 223, 224, 225, the offender infidelity in the custody of prisoners is one who has been
entrusted with the custody and charge of the prisoner. Whether the prisoner is a prisoner convicted by final
judgment or a detention prisoner. He must be charged, he must be the custodian of the said prisoner because the
essence of the crime is the violation of the trust reposed on him. Because prisoners are accountabilities of the
Government.
Can a private individual commit infidelity?
- Yes, under Art. 225. If he is entrusted with the custody of this prisoner and the prisoner escapes, either in
connivance with him or through his negligence, then his liability is infidelity in the custody of prisoners
ILLUSTRATION:
Q: A has been charged with illegal sale of dangerous drugs. She is behind bars, it is a non-bailable offense, and
therefore, while the case is ongoing, she is behind bars. So, it was the hearing date, she was accompanied by the
jail warden, the jail guard to the court, and after trial, there was this husband and two children of the said woman
who was in jail. The husband and two children talked, and when the said woman prisoner was about to be brought
to jail, the husband talked to the jail warden. He invited the jail warden for a merienda, in a canteen inside the hall of
justice. And so, the jail warden saw nothing wrong and so, he had merienda with the woman prisoner, the husband
and the two children. The handcuffs had to be removed for the woman prisoner to eat. After eating, the woman
prisoner said that she needed to answer the call of nature, and so, she went to the restroom, also inside or within
the hall of justice. The jail guard allowed her inside while the jail guard was left outside, waiting. Hours passed, no
woman prisoner came out. It so happens that the said husband put some disguise for the woman to use so that she
could escape without being noticed by the said jail guard, and woman prisoner was able to escape without being
noticed by the said jail guard. Is the said jail guard liable for infidelity in the custody of prisoner, or is it a mere laxity
which would not amount to infidelity in the custody of prisoner?
A: People vs. Nava The Supreme Court said that mere laxity would not amount to negligence under Art.
224. Because according to the Supreme Court in that old case, the negligence being required in order that
a public officer may be entitled, must be a deliberate non-performance of his duty. Here, it is only a mere
laxity on the part of the said public officer for not having accompanying the said woman in the rest room.
Rodriguez vs. SandiganBayan(new case) The Supreme Court said otherwise. According to the
Supreme Court, the moment that a public officer, a jail warden has accompanied a prisoner outside jail, he
must not have lost sight of the said prisoner. The only obligation of the said jail warden after the trial was to
bring her back to the court. The fact that the said jail guard allowed himself to have a merienda, and even
allowed the woman prisoner to go to the restroom alone, there was laxity on the part of the said jail guard.
The Supreme Court said, LAXITY is a deliberate non-performance of his official duty as the guard of the
said prisoner, thereby amounting to infidelity in the custody of prisoner under Art. 224.
INFIDELITY IN THE CUSTODY OF DOCUMENTS (ARTICLES 226, 227, 228)
ARTICLE 226 REMOVAL, CONEALMENT OR DESTRUCTION OF DOCUMENT

Page 90

CRIMINAL LAW 2
ELEMENTS:
1 Offender is a public officer
2 He removes, destroys, or conceals documents or papers
3 Said documents or papers should have been entrusted to such public officer by reason of his office
4 Damage, whether serious or not, to a third party or to the public interest should have been caused
Under Article 226, in order for infidelity in the custody of documents to arise, it is necessary that there be
damage caused to a third person or to the public interest. If damage is serious, the penalty is QUALIFIED,
therefore, the damage may or may not be serious provided that there is damage, the crime will arise.
DAMAGE IS NECESSARY in order to give rise to infidelity in the custody of documents.
ARTICLE 227 OFFICER BREAKING SEAL
ELEMENTS:
1 Offender is a public officer
2 He is charged with the custody of papers or property
3 These papers or property are sealed by proper authority
4 He breaks the seals or permits them to be broken
Under Article 227, officer breaking the seal, infidelity in the custody of prisoners to arise, even without damage
caused to a third party or to public interest. Damage is NOT an element.
MERE BREAKING of the seal of the document will already consummate the crime.
ARTICLE 228 OPENING A CLOSED DOCUMENT
ELEMENTS:
1 Offender is a public officer
2 Any closed papers, documents, or objects are entrusted to his custody
3 He opens or permits to be opened said closed papers, documents or objects
4 He does not have proper authority
Infidelity in the custody of documents, the public officer has been entrusted with papers, documents or objects,
which have been closed by proper authority and the said public officer opened the said closed document or
permitted others to open the same. Again, Damage is NOT an element.
MERE ACT OF OPENING the said closed document will give rise to the crime.
ILLUSTRATION:
Q: What if A has been charged with illegal sale of dangerous drugs. The case was on trial, during the trial of the
case, the fiscal presented the first police officer who acted as the poseur buyer in the course of the testimony of the
police officer, the fiscal produced and showed to him for identification the marked money. So the marked money
consists of 5, 100 peso bill. The fiscal presented it to the police and the police identified it as indeed the marked
money because of the serial numbers and because of the markings, and thereafter the marked money have been
marked as Exhibit A, B, C, D, E for the prosecution. After the trial, they were placed inside an envelope and given to
the clerk of court, the custodian of the evidence which have already been marked. So trial ended that day, it was
now lunch time. The clerk of court was on her table and so the vendor arrived. The clerk of court wanted to buy
lunch and she said, how much. The vendor said it costs 50 peso. The clerk of court pulled out her money; it was a
1000 peso bill. The vendor said, anglakinamanniyan, walaakongpanukli And so, by reason thereof, he gave it
back to the clerk of court. The clerk of court said that she had no smaller bills, and he remembered the exhibits. And
so, he took 100 peso bill, marked as Exhibit E. And she paid it to the vendor and the vendor gave him the change of
50 peso. After eating, before 1:00, the said clerk of court immediately went outside to change her big 1000 peso bill
into smaller bills. When he now has these smaller bills, he got one 100 peso bill and marked it as Exhibit E and then
he signed it and placed it inside the envelope. Here comes the next hearing date, on the next hearing date, another
police officer was presented, the fiscal produced the said documentary exhibits, the marked money and asked it
from the clerk of court. So the fiscal showed it to the police officer, the police officer identified Exhibits A, B, C, D.
However, when it comes to exhibit E, the police officer said, Your Honor, it has a different serial number from the
one in our sworn statement and so because of that, an investigation happened and the court learned that it was

Page 91

CRIMINAL LAW 2
taken by said clerk of court and used in buying food. What crime, if any is committed by the said clerk of court? Is it
malversation or is it infidelity in the custody of documents?
A: The crime committed is infidelity in the custody of documents under Art. 226 by the public officer
in destroying the said document. This marked money becomes documentary evidence, the moment they
have been marked as exhibits. Money here is not used as a medium of exchange, but as documents
because they have been marked as documentary evidence. The moment they have been taken, removed,
concealed or destroyed, the crime committed is infidelity in the custody of documents because the clerk of
court is the custodian of the documentary exhibits. If money is used, not as a medium of exchange, but like
this, as documentary exhibits or any other use other than as a medium of exchange, the one who malverse,
or use it is the custodian of the said documents, the crime is infidelity in the custody of documents and NOT
malversation.
When the clerk of court took the 100 peso bill, he destroyed the exhibit, the documentary exhibit of the said
prosecution and the prosecution was seriously damaged interface.
REVELATION OF SECRETS (Article 229-230)
ARTICLE 229 REVELATION OF SECRETS BY AN OFFICER
Punishable acts:
1 By revealing any secrets which affect public interest learned by him in his official capacity
ELEMENTS:
1
Offender is a public officer
2
He knows of a secret by reason of his official capacity
3
He reveals such secret without authority or justifiable reasons
4
Damage, great or small, is cause to the public interest
It is necessary that there be Damage caused, whether serious or not.
2

Wrongfully delivering papers or copies of papers of which he may have charge and which should not be
published thereby causing damage, whether serious or not, to a third party or to public interest.
ELEMENTS:
i Offender is a public officer
ii He has charge of papers
iii Those papers should not be published
iv He delivers those papers or copies thereof to a third person
v The delivery is wrongful
vi Damage is caused to public interest

ARTICLE 230 PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL

ELEMENTS:
1 Offender is a public officer
2 He knows of the secrets of private individual by reason of his office
3 He reveals such secrets without authority or justifiable reason
Damage is NOT an element in Article 230.
ARTICLE 231 OPEN DISOBEDIENCE
ELEMENTS:
1 Offender is a judicial or executive officer
2 There is judgment, decision, or order of a superior authority
3 Such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and
issued with all the legal formalities
4 Offender without any legal justification openly refuses to execute the said judgment, decision or order which he
is duty bound to obey

Page 92

CRIMINAL LAW 2
Open Disobedience is committed by any judicial or executive officer who shall openly refuse without any legal
motive to execute a judgment or decision rendered by a superior authority in the exercise of his duty and in the
legal infirmities of the law.
ILLUSTRATION:
Q: What if in the case of Duterte, the sheriff wishes to execute a writ of execution and cause the squatters to leave
the place because of the execution issued by the court has to be implemented. Had not the sheriff performed the
said act, is he liable of any crime? Had the sheriff refused to execute the writ of execution issued by the said judge?
Is he liable of any crime?
A: Yes, he is liable of Open Disobedience under Article 231. He openly refused to execute a writ of
execution issued by a judge.
ARTICLE 232 DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER, WHEN SAID ORDER WAS
SUSPENDED BY INFERIOR OFFICER
ELEMENTS:
1 Offender is a public officer
2 An order is issued by his superior for execution
3 He has for any reason suspended the execution of such order
4 His superior disapproves the suspension of the execution of the order
5 Offender disobeys his superior despite the disapproval of the suspension
The offender refuses to disobey the suspension of the said order which was disapproved by the said public
officer.
ARTICLE 233 REFUSAL OF ASSISTANCE
ELEMENTS:
1 Offender is a public officer
2 Competent authority demands from the offender that he lend his cooperation towards the administration of
justice or other public service
3 Offender fails to do so maliciously
Public officer who shall fail to lend his cooperation towards the administration of justice or any other public
service despite demand by competent authority.
ILLUSTRATION:
Q: A raped B. B was treated by a medico legal officer at the PNP. This medico legal officer who has examined A,
issued a medical certificate, And so in the case filed by B against A for this so-called rape, the fiscal moved that
the subpoena (adjustificandum) be sent to this public officer, the medico legal office who examined the rape victim.
However, despite receipt of the said subpoena, the medico legal officer failed to appear. He did not appear without
any justifiable reason at all. The said prosecutor move again for the issuance of another subpoena, a second
subpoena. Again, despite the receipt, the medico legal officer failed to appear in court and testified and failed to
give the copy of the medico legal certificate. What crime if any has the said medico legal officer has committed?
A: He is liable for Refusal of Assistance under Article 233. It is committed by a public offcer that despite
demands of the public authority shall fail to lend his cooperation toward the administration of justice or any other
public service. Thereby, causing damage serious or not, to public interest.
NOTE: If the damage is serious, the penalty is QUALIFIED.
ARTICLE 234 REFUSAL TO DISCHARGE ELECTIVE OFFICE
ELEMENTS:
1 Offender is elected by popular election to a public office
2 He refuses to be sworn in or to discharge the duties of the said office

Page 93

CRIMINAL LAW 2
3

There is no legal motive for such refusal to be sworn in or to discharge the duties of said office

This is a crime which cannot be committed in Philippine Jurisdiction. Refusal to discharge public duties is
committed by any person entitled to a public office by means of popular election, refuses to assume to assume the
powers and duties of his office. He refuses to be sworn in. This will not happen in our lifetime. This will never
happen in the Philippine Jurisdiction because here, even if he did not win in the election, he wanted to hold office.
ARTICLE 235 MALTREATMENT OF PRISONERS
ELEMENTS:
1 Offender is a public officer or employee
2 He has under his charge a prisoner or detention prisoner
3 He maltreats such prisoner either of the following manners:
a
By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge
either:
i By the imposition of punishments not authorized by the rules and regulations
ii By inflicting such punishments (those authorized) in a cruel or humiliating manner
b
By maltreating such prisoner to extort a confession or to obtain some information from the prisoner
Who is the offender?
- Any public officer or employee
Who is the offended party?
- He must be a prisoner
In order to be considered a prisoner, it is necessary that the said person has already been arrested, brought to the
PNP station and he has been incarcerated. If he is not a prisoner, then, the crime can be physical injuries, whatever
injuries that may have been sustained by the prisoner, but NOT maltreatment of prisoners
What if maltreatment does not only include physical maltreatment. It shall also include moral, emotional,
psychological maltreatment because the law uses the phrase physical injuries or damage caused.
ILLUSTRATION:
Q: What if A has just withdrew his money from her ATM account, she placed the money inside her bag and she was
already walking towards home when suddenly here comes X. X snatched the handbag with the money. A police
officer passing by saw the incident and on boarded their mobile patrol. They were able to arrest the man, took the
bag and returned it to the said victim. Thereafter, they placed X inside the mobile patrol. While inside, they kicked,
mold the man. And so, the man suffered less serious physical injuries. What crime is committed by the said police
officers?
A: The crime committed is less serious physical injuries. It is not maltreatment of prisoners because
the said person, X, is not yet a prisoner. He is only a person under arrest because he has just been arrested for
having committed a crime, but he is not yet a prisoner. In order to be considered as a prisoner, he must be brought
to the PNP station, taken a picture, left view, side view, front view, thumbmark and incarcerated. He is now an
accountability of the Government, he is now a prisoner. But before that, he is not yet a prisoner. He is only a person
under arrest. That is why in the problem, the police officers are liable only for less serious physical injuries and not
of maltreatment of prisoners.
Q: What if in the same problem, they chased the man. They were able to catch the said man and brought him to the
PNP station. Booked him and incarcerated him, and all the things needed to be done to a prisoner. Later, he was
brought out of jail for investigation to be brought in the Investigation section. In the investigation, he was being
forced to admit to the commission of the crime. And so, by reason thereof, the police officer boxed him and gave
him a huge black eye. The left eye suffered so much that he lost sight, amounting to serious physical injuries. What
are the crimes committed by the police officer?
A: Two crimes Maltreatment of Prisoners and Serious Physical Injuries.

Page 94

CRIMINAL LAW 2
Maltreatment of Prisoners because he is a prisoner who was maltreated in order to extort a confession and
Serious physical injuries because by reason of the injury inflicted, he lost an eye.
Q: Are you going to complex them? because a single act constitute a grave and less grave felony, are you going to
complex them under Art. 48?
A: No. You cannot complex them. Because under Article 235, it is expressly provided that the liability for
maltreatment of prisoners shall be in addition to the liability for any other physical injuries or damage caused.
Therefore two crimes will be charged against the police officer.
There is also a violation of R.A. 9745, Anti-Torture Act, because under Section 14 of the Anti-Torture Act,
Torture shall not absorb and shall not be absorbed by any other crime committed as a consequence.
Therefore, he can also be held liable under the so-called Anti-Torture Law.
ARTICLE 236 ANTICIPATION OF DUTIES OF A PUBLIC OFFICE
ELEMENTS:
1 That the offender is entitled to hold a public office or employment either by election or appointment
2 Shall assume the performance of the duties and powers of a public official or employee
3 Without being sworn into office or having given the bond required by law
ARTICLE 237 PROLONGING PERFORMANCE OF DUTIES AND POWERS
ELEMENTS:
1 That the offender is holding a public office
2 That the period allowed by law for him to exercise such function and duties has already expired
3 That the offender continues to exercise such function and duties
ARTICLE 238 ABANDONMENT OF OFFICE OR POSITION
ELEMENTS:
1 That the offender is holding a public office
2 That he formally resigns from his office
3 But before the acceptance of his resignation, he abandons his office
Abandonment of office is committed by a public officer who has already formally resigns from his position, and
having formally resigned from his position, he abandons to the detriment of public service. Despite the fact that his
resignation has not yet been accepted by a superior authority. Under Labor Law, when you are an employee, when
you file a resignation, it does not mean you are already resigned. There must be an ACCEPTANCE from the
superior officer before it can be said that he have already resigned.
So here, the public officer has already formally resigned, his resignation has not been accepted, yet he
abandons to the detriment of public service. What is the penalty?
- In the abandonment of office, the penalty is QUALIFIED if the purpose of the said public officer is to evade
the prosecution punishment of the crime involving violation of Title 1 Book 2 (Crimes against National
Security), or Chapter 1 Title 3 of Book 2 (Rebellion, Coup detat, Sedition, etc.)
ARTICLE 239 USURPATION OF LEGISLATIVE POWERS
ELEMENTS:
1 That the offender is an executive or judicial officer
2 That he:
a
Makes general rules and regulations beyond the scope of his authority, or
b
Attempts to repeal a law, or
c
Suspend the execution of thereof
NOTE: It can only be committed by an executive or judicial officer
ARTICLE 240 USURPATION OF EXECUTIVE FUNCTIONS
ELEMENTS:
1 That the offender is a judge

Page 95

CRIMINAL LAW 2
2

That the offender:

a
Assumes the power exclusively vested to executive authorities of the Government, or
b
Obstructs executive authorities from the lawful performance of their functions
NOTE: It can only be committed by a Judge
ARTICLE 241 USURPATION OF JUDICIAL FUNCTIONS
ELEMENTS:
1 That the offender is holding office under the Executive Branch of the Government
2 That he:
a
Assumes the power exclusively vested in the Judiciary, or
b
Obstructs the execution of any order or decision given by a judge within his jurisdiction
NOTE: It can only be committed by a public officer of the Executive Branch of the Government
Therefore, if the person who assumes judicial power does not belong to the Executive Branch, but belongs
to the legislative branch, the crime is not Usurpation of Judicial Function, but USURPATION OF PUBLIC
FUNCTION AND OFFICIAL AUTHORITY under Article 177, because Article 239, 240 and 241 are specific as to
the offenders.
So, let us say, in the one who encroached upon the powers of the Judge, does not belong to the executive
branch but he is legislator, it cannot be considered as usurpation of judicial functions, rather it will beUsurpation Of
Public Function And Official Authority Under Article 177.
ARTICLE 242 DISOBEYING REQUEST OF DISQUALIFICATION
ELEMENTS:
1 That the offender is a public officer
2 That a proceeding is pending before such public officer
3 That there has been a question regarding the jurisdiction brought before the proper authority
4 There is a question brought before the proper authority regarding his jurisdiction, which is yet to be decided
ARTICLE 243 ORDERS OR REQUESTS BY EXECUTIVE OFFICERS TO ANY JUDICIAL AUTHORITY
ELEMENTS:
1 That the offender is an executive officer
2 That the offender addresses any order or suggestion to any judicial authority
3 That the order or suggestion relates to any case or business within the exclusive jurisdiction of the courts of
justice
ARTICLE 244 UNLAWFUL APPOINTMENTS
ELEMENTS:
1 Offender is a public officer
2 He nominates or appoints a person to a public office
3 Such person lacks the legal qualification thereof
4 Offender knows that his nominee or employee lacks the qualifications at the time he made the nomination or
appointment
ARTICLE 245 ABUSES AGAINST CHASTITY
ELEMENTS:
1 That the offender is a public officer
2 That he solicits or makes any indecent or immoral advances to a woman
3 That the offended party is a woman who is:
a
Interested in matters pending before the public officer for his decision or where the public officer is
required to submit a report or to consult with a superior officer; or
b
Under the custody of the offender, who is a warden or other public officer directly charged with the care
and custody of prisoners or persons under arrest; or
c
The wife, daughter, sister or any relative falling within the same degree of affinity of the person under the
custody and charge of the offender
How are abuses against chastity is committed?

Page 96

CRIMINAL LAW 2
-

There are three acts. (Refer to the elements)

1 Public officer solicits or makes any indecent or immoral advances to a woman who is interested in
matters pending before his for his decision or where the public officer is required to submit a report
or to consult with a superior officer
2 Warden or other public officer directly charged with the care and custody of prisoners or persons
under arrest, and he solicits or makes any indecent or immoral advances to a woman
3 Warden or other public officer directly charged with the care and custody of prisoners or persons
under arrest, and the said officer makes any indecent or immoral advances to the wife, daughter,
sister or any relative falling within the same degree of affinity of the male prisoner.

Who is the offender?

- He must be a public officer because there must be abuse of public office in making immoral or indecent
advances.
Essence of the crime is taking advantage of ones position in soliciting or making immoral or indecent advances.
Mere act of soliciting or making immoral and indecent advances will already give rise to the crime. It is not
necessary that the woman will comply with the said solicitation or immoral or indecent advances.
The solicitation must not be the gospel type of solicitation. It must be bad, persistent, threatening such that if the
woman would not comply then it would adverse on her part.
If a jail warden impregnated a female detainee, even if they love one another, still liable because detainees are
liabilities of the state.
TITLE EIGHT
CRIMES AGAINST PERSONS (ARTICLES 246 266-A)
ART 246 PARRICIDE
ELEMENTS:
1. That a person is killed
2. That the deceased is killed by the accused
3. That the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other
ascendant, or legitimate other descendant, or legitimate spouse of the accused
Parricide is committed when a person kills his father, mother, child, whether legitimate or illegitimate, legitimate
other ascendant, legitimate other descendant, or legitimate spouse. Therefore the offended party or deceased
or the victim is specified, he must be the father, mother, child whether legitimate or illegitimate, legitimate other
ascendant, legitimate other descendant, or legitimate spouse.
Parricide is a crime based on relationship.
What kind of relationship?
First, it must be a legitimate relationship except in the case of parent and child.
Second, the said relationship must be in the direct line
Third, the relationship must be by blood (grandfather killed a grandson, a mother killing a son, a son
killing a father)
Q: So a father killed an illegitimate son. What crime is committed?
A: It is parricide. Although the crime is based on legitimate relationship, the exception is in case of
children, whether legitimate or illegitimate.
Q: A brother killed another brother. Is the crime committed parricide?
A: No, the crime committed is murder or homicide, as the case may be and not parricide because
the relationship between a brother and another brother is in the collateral line and not in the direct line.
Q: What if a stepfather killed his stepson?
A: The stepfather is not liable for parricide. It can either be murder or homicide, as the case may be,
because their relationship is not based on blood.
Again, the relationship must be legitimate, in the direct line and by blood.

Page 97

CRIMINAL LAW 2
In Parricide, the circumstance which will qualify is the relationship, therefore relationship between the offender
and the offended party must be stated in the information.
Q: Let us say that the husband killed the wife. In the information filed by the fiscal, the fiscal failed to state that the
husband is the legal husband of the said victim. However, during trial, by virtue of a certificate of marriage, it was
proven that the accused was the legal husband of the said victim-wife. Can the husband be convicted of parricide?
A: No, the husband cannot be convicted of parricide. This is because the relationship was not alleged
in the information although proven during trial. Since the relationship between the husband and the wife is
not alleged in the information, although proven during trial, he cannot be convicted of parricide. It can only
be murder or homicide, as the case may be.

Q: What if a husband wanted to kill his wife. So he has a mistress, the husband wanted to dispose his wife.
However, he cannot do it on his own and so the husband hired a high-profile killer, he paid the man 100,000 pesos
to kill the wife. And so the man conducted surveillance on the wife, checked the itinerary of the wife and so when
the wife was getting out of the grocery, here comes the killer. The killer, on board a motorcycle, went directly to the
wife, shot her and off he went. The wife died. What crime/crimes is/are committed?
A: The husband is liable for principal but said killer is liable for murder. Conspiracy will not lie.
Although they conspired for the killing of the wife, the husband, being the principal by inducement and the
killer, being the principal by direct participation, conspiracy will not lie. This is because the circumstance
which qualifies parricide, the relationship, is personal to the husband and cannot be transferred to a
stranger. That is why there will two informations filed, one is parricide as against the husband as a principal
by inducement and the other one is murder as against the killer.
ART 247 DEATH OR PHYSICAL INJURIES INFLICTED UNDER EXCEPTIONAL CIRCUMSTANCES
ELEMENTS:
1 That a legally married person or a parent surprises his spouse or his daughter, the latter under 18 years
of age and living with him, in the act of committing sexual intercourse with another person.
2 That the said legally married spouse he or she kills any or both of them or inflicts upon any or both of
them any serious physical injury in the act or immediately thereafter
3 That he has not promoted or facilitated the prostitution of his wife or daughter, or that he or she has not
consented to the infidelity of the other spouse.
FIRST REQUISITE/ELEMENT:
Under the first element, it is required that the legally married spouse surprises the other spouse while in the
actual act of sexual intercourse with another person. So note the surprising must be in the actual act of
sexual intercourse and NOT before, NOT after.
If you will read the book of Reyes, Justice Laurel, naghinanakitsya. Sabinya, Why? Why should it be in the
actual act of sexual intercourse, you already saw your spouse with another man, why wait for the sexual
intercourse? You know it will happen, why wait for it for Article 247? This is what Justice Laurel said. But the
Supreme Court said no, the surprising must be in the act of sexual intercourse with another person. Not
before, not after, not during the preliminaries.
SECOND REQUISITE/ELEMENT:
The second element requires that the said legally married spouse kills any or both of them or he inflicts
serious physical injuries upon any or both of them. Again, while in the act of sexual intercourse or
immediately thereafter. There is no question as to the actual act of sexual intercourse but what about
immediately thereafter?
What does the phrase immediately thereafter mean?
The Supreme Court said, immediately thereafter means there must not be lapse of time between the
surprising and the killing or infliction of serious physical injuries. Therefore the surprising and the killing
or infliction of serious physical injuries must be a continuing process.
Q: What if the husband arrived home and the wife arrived home from the market. She was about to go the kitchen
when suddenly, she heard voices in the masters bedroom and so she opened the said masters bedroom and saw
her legal husband in actual sexual intercourse with another person. Notice that the law says, other person which
means it could be a man or a woman. Upon seeing that, the wife who still has a knife in the basket, immediately
went towards the husband and stabbed him. The woman fled. The husband died. Of what crime would you

Page 98

CRIMINAL LAW 2
prosecute the said wife? The wife is liable for parricide under Article 246 for having killed her husband. If you are
the counsel of the said wife, what defense would you put up in order to free your client from criminal liability?
A: Article 247 or Death under exceptional circumstances. The Supreme Court said that Article 247 is
not a felony. Article 247 is a privilege, in fact is it a defense. If Article 247 is invoked, the accused is free
from criminal liability. It is an absolutory cause, an exempting circumstance. The Supreme Court said that
the penalty stated therein, destierro, is not really a penalty on the legally married spouse who killed the
other spouse. It is not a penalty but it is more of a guard, a privilege for him so that he may be free from any
retaliation of any of the family of the victim. So destierro here is not really a penalty. Again, Article 247 is not
a felony. It is a defense, a privilege; it is an exempting circumstance or an absolutory cause.
PEOPLE v. ABARCA
In this case, there was this student reviewing for the bar. There were already rumors that his wife was having
an affair. So one time, he went home unannounced. Upon his arrival, he saw his wife in sexual intercourse with
another man. The man jumped out the window. The husband wanted to kill the man but he had no weapon at the
time. The man went away. It took the husband an hour before he was able to find a weapon and upon finding a
weapon, he went directly to the whereabouts of the man, the lover of the wife and killed the man. It took him one
hour. The killing took place an hour, not in the actual sexual intercourse, but is it immediately thereafter? Despite
the fact that one hour had lapsed, would it be within the meaning of immediately thereafter?
The Supreme Court, in this special case, said yes. According to Supreme Court, when the law uses the phrase
immediately thereafter; that the killing or the infliction of serious physical injuries must take place immediately
thereafter, the law did not say that the killing must be done instantly. According to the Supreme Court, it suffices that
the proximate cause for the said killing is the said pain and the look on the said husband upon chancing his wife in
the basest act of infidelity. This is an exceptional case.
Why an exceptional case?

Because henceforth, after People v Abarca, the Supreme Court has already interpreted immediately
thereafter, as there must be no lapse of time between the surprising and the killing. The surprising and
the killing must be continuous.
Legal luminaries say that this is an exceptional case because the husband was reviewing for the bar
which is why he was given this special _. Because in all other cases after this, the Supreme Court is
strict in implementing immediately thereafter. The Supreme Court is strict because this is not a felony,
it is a privilege therefore it must be strictly interpreted and not liberally interpreted in favor of the
accused.
Look that if the injury inflicted by the legally married spouse on the lover or the other spouse, is less
serious physical injuries or slight physical injuries, he is totally free from criminal liability. Liability will
only come in if the other spouse is killed or inflicted with serious physical injuries.
With regards to the liability of the accused to the injuries sustained by other people, liable to physical
injuries through negligence, as the case maybe. There is no intent to kill the other victims.
Note that the SC ruled that inflicting death under exceptional circumstances is NOT murder.

ART 248 MURDER

ELEMENTS:
1. That a person was killed
2. That the accused killed him
3. That the killing was attended by any of the qualifying circumstances mentioned in Article 248
4. That the killing is not parricide or infanticide

Murder is committed by any person who shall kill another person which will not amount to parricide or
infanticide and the killing is attended by the following qualifying circumstances:
1 Treachery, taking advantage of superior strength, with the aid of armed men, or employing means to
weaken the defense, or of means or persons to insure or afford mutiny.
2 In consideration of price, reward or promise
3 By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault
upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means
involving great waste and ruin.

Page 99

CRIMINAL LAW 2
4
5
6

On occasion of any calamities enumerated in the preceding paragraph, or of an earthquake, eruption

of a volcano, destructive cyclone, epidemic, or any other public calamities.
With evident premeditation.
With cruelty, by deliberately and inhumanly augmenting the suffering of the victim or outraging or
scoffing at his person or corpse (RA 7659)

These are the qualifying circumstances for murder (See Article 14-aggravating circumstances, Book I)
Know the elements in Article 14.
All of these are aggravating circumstance under Article 14. Note, in order to qualify a killing to murder, only
one is necessary.

If in the information, A killed B and it was attended by treachery, in consideration of a price, reward or promise,
by means of a motor vehicle, so there are three qualifying circumstances. Only one will suffice to qualify the
murder to killing, all the other aggravating circumstances will be considered not as qualifying circumstances but
as mere generic aggravating circumstances.

ART 249 HOMICIDE

ELEMENTS:
1. That a person was killed
2. That the accused killed him without any justifying circumstance
3. That the accused had the intention to kill, which is presumed
4. That the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or
infanticide.
When a person kills another person, and it is not attended by any qualifying circumstance under Article 248, the
killing is considered as Homicide under Article 249.
ART 250 PENALTY FOR FRUSTRATED OR ATTEMPTED PARRICIDE, MURDER OR HOMICIDE
ART 251 DEATH CAUSED IN A TUMULTOUS AFFRAY
What is a tumultuous affray?
A tumultuous affray is a commotion, wherein people fight in a tumultuous or confused manner such that it
cannot be ascertained or determined who has killed the victim or who has inflicted physical injuries on the
victim.
ELEMENTS:
1. That there be several persons
2. That they did not compose groups organized for the common purpose of assaulting and attacking each other
reciprocally
3. That these several persons quarreled and assaulted one another in a confused and tumultuous manner
4. That someone was killed in the course of the affray
5. That it cannot be ascertained who actually killed the deceased
6. That the person or persons who inflicted serious physical injuries or who used violence can be identified.

Article 251, death in a tumultuous affray, is committed when there are several persons who do not compose
groups which have been organized to assault and quarrel with one another reciprocally, assaulted and attacked
each other reciprocally and in the course of the affray, someone is killed. And it cannot be ascertained or
identified or determined who killed the victim, then the person who inflicted serious physical injuries or those
who used violence against the said victim can be identified.

Someone is killed. Note that he can be any person; he can be someone from the affray, he can be a mere
passerby, he can be just someone watching the affray, so long as he is killed in the affray and it cannot be
ascertained who killed him, then the person who inflicted serious physical injuries on him is liable if he can be
identified. If this person cannot be identified, then the person who used any kind of violence against him shall
be criminally liable.

Page 100

CRIMINAL LAW 2

ART 252 PHYSICAL INJURIES INFLICTED IN TUMULTUOUS AFFRAY

ELEMENTS:
1. That there is a tumultuous affray
2. That a participant or some participants thereof suffer serious physical injuries or physical injuries of a less
serious nature only.
3. That the person responsible thereof cannot be identified
4. That all those who appear to have used violence upon the person of the offended party are known.

Note that the victim here must be a participant. The law is specific. The participants must be the one injured
with serious physical injuries or less serious physical injuries. Not slight physical injuries.

Article 252, we have physical injuries inflicted in tumultuous affray, is committed when in a tumultuous affray, a
participant has suffered serious physical injuries or less serious physical injuries and it cannot be ascertained
who inflicted these injuries but the person who used violence on the victim can be identified or determined.
If the injury caused to the victim is only slight physical injuries, then no one is liable because if a person
engaged in a tumultuous affray or participated therein, the law presumes that it is __ therefore no one is liable if
the injuries sustained is only slight physical injury and it cannot be determined who inflicted the said slight
physical injury on the victim.

Q: There was this tumultuous affray, several people were attacking and fighting each other. Suddenly, here comes
a balot vendor. He saw the affray. He was just there, watching, suddenly he fell on the ground. He died because of
a stab wound. Now, it cannot be ascertained who stabbed him, so no one saw who stabbed him. Who will be held
criminally liable?
A: Any person who inflicted serious physical injuries on him. No one has seen also who had inflicted
serious physical injuries against him. The any person who inflicted any violence against him shall be
criminally liable.
Q: There was this tumultuous affray, several people were attacking and fighting each other. Suddenly, here comes
a balot vendor who saw the affray and he was just there, watching. While he was watching the affray, one of the
participants of the affray, X, saw him and went directly to the balot vendor and stabbed him twice. The balot vendor
died. What crime is committed? Is it under Article 251, Death in tumultuous affray?
A: No. It is murder or homicide as the case may be. This is because the perpetrator of the crime is
identified, ascertained or determined. Death in a tumultuous affray under Article 251 can only be charged if
the actual perpetrator of the crime who killed the victim cannot be ascertained or identified.
ART 253 GIVING ASSISTANCE TO SUICIDE
TWO ACTS PUNISHABLE:
I By assisting another to commit suicide, whether the suicide is consummated or not; or
II By lending assistance to another to commit suicide to the extent of doing the killing himself.

Giving assistance to suicide binigyanmong rope; binigyanmong poison.

A friend wanted to commit suicide, he doesnt know the way, the means and you agreed with him, you assisted
and gave the best poison in the world. So you assisted the said friend in committing suicide. Note that if a
person assisted in committing suicide by giving him poison, the initiative must come from him. The desire to kill
himself must come from the victim. He wanted to commit suicide and you merely provide assistance in the
commission of suicide.
B wanted to commit suicide, here comes A, A gave assistance to B but B survived. B did not die. Only A is
criminally liable because suicide or attempt to commit suicide is not a felony within Philippine jurisdiction. It is
only the one who assisted to commit suicide is criminally liable but not the person who attempted to commit
suicide.

Q: What if a terminally sick person with cancer, he was lying in bed, almost lifeless and it was only a machine that
was giving life to his body. Now, the mother of the patient and she took pity of her son because the son was
agonizing and was only breathing through the said machine. The mother wanted to finish the suffering of the son

Page 101

CRIMINAL LAW 2
and at the time she visited the hospital, she turned off the machine and the son died. He killed her son out of mercy.
So it is mercy-killing or euthanasia. Is the mother liable for giving assistance to suicide?
A: No because the initiative to kill did not come from the sai person who was ill. The crime committed by
the mother is parricide for killing her son. If it were other person, it was murder. Evidently, it was murder
because there was evident premeditation; there was thinking before doing the act of mercy-killing.
ART 254 DISCHARGE OF FIREARMS/ ILLEGAL DISCHARGE OF FIREARMS
ELEMENTS:
1. That the offender discharges a firearm against or at another person
2. That the offender has no intention to kill that person
Q: What if there was this park. The park was full of people and then suddenly, here comes X, X went to the park,
put out his firearm, and he fired shots in the air. What crime is committed?
A: X committed Alarms and Scandals under Article 155. When he fired shots in the air, his intention was
to cause disturbance of public peace and tranquility. The firearm was not aimed towards any person.
Q: What if X went to a public place full of people. X saw his enemy, Y, and so to threaten Y, X pulled out his firearm,
aimed the firearm at Y in order to threaten him. X discharges the firearm, however, with no intention to kill Y. His
only intention is to threaten Y and Y was not killed. What crime is committed?
A: The crime committed is Article 254, Illegal Discharge of Firearms. Illegal discharge of firearms is
committed by any person who aims and discharges the firearm to any other person absent the intent to kill
the said person. The purpose is merely to threaten the said person.
Q: What if in the same public place, X went there and pulled out his firearm because he saw his enemy, Y. He
aimed the gun at Y with intent to kill, because he wanted to kill his enemy. However, Y saw it and was able to avoid.
What crime is committed?
A: X committed attempted homicide or murder, as the case may be. Although Y was not hit, the fact
that the said firearm was discharged with intent to kill, it is already attempted homicide or murder, as the
case may be.
Q: What if in the said merry-making, there were so many people. X went there. He saw his enemy Y and went
directly to Y, took out his gun and he poked the gun without discharging. What crime is committed?
A: The crime committed is other light threats. So here, threatening another with a gun, without
discharging, only poking. It is other light threats. It is not grave threats, it is not light threats. It is only other
light threats, arrestomenor.

So kapag discharge, pinutok it could either be alarms and scandals, illegal discharge of firearms or attempted
or frustrated murder or homicide, as the case may be.
If no discharging, only poking, or threatening with a firearm, it is only other light threats

ARTICLE 255 INFANTICIDE

Infanticide is the killing of a child less than three (3) days old or less than seventy-two (72) hours. So in the
case of infanticide, it is the age of the victim that is controlling. The victim, the child, the infant, must be less than
three (3) days old. He must be less than seventy-two hours. If it is only three (3) days old or above it is any other
crime but not infanticide.
Who is the offender in Infanticide?
The offender can be the parents, the mother, the father, the grandparents or it can be any other person so
long as the child is less than three (3) days old, it is infanticide. It is the age that is controlling, not the relationship.
ILLUSTRATION:
Q: So what if there was this woman and this woman gave birth to a child. After giving birth to the child while the
child was only a day old, she already wanted to kill the child in order to conceal her dishonor. However, she could
not kill the child by herself and so she asked a favor from a friend. And so the friend arrived and both the mother
and the said friend killed the child, a day old, by suffocating the said child with a big pillow. The child less than
three days old, died. What crime/s is/are committed?

Page 102

CRIMINAL LAW 2
A: The mother is liable for infanticide. The said stranger friend is also liable for infanticide. There
was conspiracy on them. This time conspiracy on life, both of them are liable for infanticide under only one
information. Isang information langsa court and that is infanticide. Both the mother and the friend are
conspirators of infanticide.
Now let us say that the mother is convicted. If the mother is convicted, the penalty imposed by the law as
provided in Article 255 is equivalent to parricide which is reclusion perpetua to death. On the other hand, if the
stranger is convicted under Article 255, the penalty to be imposed is equivalent to murder therefore, also reclusion
perpetua to death. But note the charge is that he is guilty of infanticide.
The fact that the said mother killed the child, less than three days old, in order to conceal dishonorwill
mitigate the criminal liability of the mother. NOTE:The penalty will be lowered not by one, but by two degrees, from
reclusion perpetua to death, the penalty of the mother will only now become prision mayor.
Q: What if let us say that the killer of the less than three day old child is the maternal grandparents. The
grandparents conspired in the killing in order to conceal the dishonor of their daughter. What is the effect of the
concealment of the dishonor?
A: The concealment of the dishonor will also mitigate the criminal liability of the maternal
grandparents that is one degree lower. So sa mother, two degrees lower, from reclusion perpetua to
death magigingprision mayor. Sa maternal grandparents one degree lower lang, from reclusion perpetua to
death it will now become reclusion temporal. Whatever it is, concealment of dishonor is akin to a privilege
mitigating circumstance because the lowering of the penalty is not merely by periods but by degrees. So it
is akin to a privilege mitigating circumstance.
Q: So what if in the same problem I gave, the woman gave birth to the child and wanted to kill the child but this time
the infant is already three days old and the child was killed by the said mother and the friend. What are the crimes
committed?
A: The mother is liable for parricidewhile the stranger/friend is liable for murder. And this
time no amount of concealment of dishonor will mitigate the criminal liability of the mother. So there lies a
difference between parricide and infanticide if the offender is the parent or the mother of the child.
JUST REMEMBER: If the child is less than three days old or less than 72 hours, IT IS INFANTICIDE. It is the age
that controls. If the child is three days old and above, PARRICIDE OR MURDER, as the case may be. It is obvious
murder because a three day old child or infant is totally defenseless.
ARTICLE 256, 257, 258 AND 259 ARE ALL ABOUT ABORTION
ARTICLE 256 INTENTIONAL ABORTION
ARTICLE 257 UNINTENTIONAL ABORTION
ARTICLE 258 ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS
ARTICLE 259 - ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES
Note that there are four (4) articles on abortion but there are only two (2) type of abortion:
1 INTENTIONAL ABORTION
2 UNINTENTIONAL ABORTION
Because the abortion practiced by the woman herself or the mother and the abortion practiced by a physician or
midwife are all intentional abortion. So in effect, we only have to kinds of abortion. We have intentional abortion
and unintentional abortion.
ABORTION is the willful killing of a fetus from the mothers womb or the violent expulsion of a fetus from the
maternal womb which results in the death of the fetus.
INTENTION ABORTION is committed in three (3) ways:
1 By using violence upon the person of the pregnant woman resulting to abortion.
2 Without violence, by acting without violence, without the consent of the woman by administering aborting
drugs or beverages without the consent of the pregnant woman.
3 By acting without violence, with the consent of the pregnant woman that is by administering aborting drugs
or beverages to a pregnant woman this time with her consent.

Page 103

CRIMINAL LAW 2
UNINTENTIONAL ABORTION can only be committed in one (1) way and that is by exerting physical violence on a
pregnant woman. And in result thereof, an unintentional abortion was suffered.
In unintentional abortion the force employed was physically exerted on a pregnant woman. The intention of
the offender is not against the baby or the fetus but against the mother. His intention is against the mother but in so
doing, since the mother is pregnant, the baby/fetus was also aborted. So abortion was unintentionally caused.
ILLUSTRATION:
Q: So what if there were two college students, a boyfriend and girlfriend. The girlfriend became pregnant and the
boyfriend said, I am not yet ready. We are still so young so I cannot marry you. And so by reason thereof the
girlfriend said, how about my situation? I am already pregnant. And so by reason thereof, they both decided in
order to conceal the dishonor of the said female student, they both decided to abort the fetus. So what the boyfriend
did was he went to the sidewalks of Quiapo and bought there aborting beverages and he administered the same to
the said woman. And the female student drank the aborting beverage and the fetus died. What crime/s is/are
committed?
A: In so far as the boyfriend is concerned, the crime committed is intentional abortion under Article 256. In
so far as the said female student is concerned, the crime committed is also intentional abortion but it is
under Article 258 Abortion practiced by the woman herself or by her parents. So, both of them are liable
for intentional abortion.
Q: But what if despite the fact that the female student had already taken or drank the abortive beverage still the
fetus survived? Malakasangkapitngbatasa maternal womb. What crime is committed if any by the boyfriend and the
girlfriend? Is there a crime such as frustrated intentional abortion?
A: YES. There is a crime such asfrustrated intentional abortion. Here, the said woman has already
taken the said abortive beverage. He has already performed all the acts necessary to consume the crime of
abortion however, abortion did not result because of causes independent of their will.
Malakasangkapitngbatasa maternal womb and so the baby survived. And so, they are both liable for
frustrated intentional abortion.
IS THERE A CRIME SUCH AS FRUSTRATED UNINTENTIONAL ABORTION?
NO. This time there is no crime such as frustrated unintentional abortion. Because in unintentional
abortion, the intention is against the woman and abortion only happens unintentional.
ILLUSTRATION:
Q: So lets say a man exerted physical violence against the woman who happens to be his enemy. The said woman
was severely hurt however, the baby was not hurt. The fetus inside the tummy did not die. What is the crime
committed by the said man?
A: Only serious physical Injuries against the woman. No crimes against the fetus because there was no
intent in so far as the fetus is concerned.
Q: But what if in the said problem, the man inflicted violence on the pregnant woman who happens to be his enemy.
Lets say he kicked and moved the said woman severely and by reason thereof the pregnant woman was 1:44:17.
What crime/s is/are committed?
A: The crime committed against the woman is serious physical injuries. As against the fetus, the
crime committed is unintentional abortion. Now, it resulted from one single act therefore it will result to
a complex crime of SERIOUS PHYSICAL INJURIES WITH UNINTENTIONAL ABORTION under ARTICLE
48 OF BOOK 1. It is a complex crime. It is a single act resulting to two less grave felonies.
Q: What if a husband arrived home at 5 oclock in the morning. He saw his wife looking at the children and is
making breakfast. Suddenly the cellphone of the wife rang, the pregnant wife answered the cellphone and she
began giggling. When she began giggling, the husband took the cellphone from the said wife and listened to the
cellphone. He heard a voice of a man on the other line of the cellphone. Since he heard the voice of the man and
he just arrived from work, he became jealous and with the use of a knife he stabbed the wife. The wife died and the
fetus died. What crime/s is/are committed?
A: In so far as the wife is concerned, the crime committed is parricide. In so far as the baby is
concerned, the crime committed is unintentional abortion. Again, it resulted from one single act of
stabbing the wife therefore it will give rise to a COMPLEX CRIME OF PARRICIDE WITH UNINTENTIONAL

Page 104

CRIMINAL LAW 2
ABORTION. There is a crime against the wife which is parricide and against the fetus which is
unintentional abortion resulting from a single act therefore, it is parricide with unintentional abortion.
ARTICLE 259 - ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES
UNDER ARTICLE 259, there is another act punished and that is dispensing of abortives. Dispensing of abortives
is committed by a pharmacist who shall dispense an abortive without a prescription from a physician. The mere act
of dispensing the said abortives without prescription from a physician will hold the said pharmacist criminally liable.
ARTICLE 260 - DUEL
ARTICLE 261 CHALLENGING TO A DUEL
What is a duel?
A duel is a combat with deadly weapons concerted between two or more persons who have decided or
agreed to fight.
ELEMENTS OF A DUEL:
1 It is necessary that the offenders that there was an agreement to engage in combat or in a fight.
2 There must be two or more seconds for each combatant.
3 The firearms or the arms to be used as well as the other terms of the combat must be agreed upon by the
said seconds.
Under Article 260 - Duel, there are three acts punished in a duel:
1 By killing ones adversary in a duel.
2 By inflicting physical injuries upon ones adversary.
3 By making a combat by merely entering into a duel.
So under Article 260, the persons who are liable are the combatants and adversaries, those who engage in a duel
and yungkanilangalalay, yung seconds.
Under Article 261- Challenging to a duel, there are also three acts punished:
1 By challenging another to a duel.
2 By inciting another to give or accept a challenge to a duel.
3 By scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel.
Under Article 261, the persons criminally liable are both the challenger and the instigator.
NOTE that if it is not a duel or there is no agreement to combat or to fight, lets say there was no agreement
between A and B to fight and yet they fought and B died, the crime committed is HOMICIDE because Article 260
and 261 only applies if there is an agreement to fight, to a duel or a combat.
CRIMES OF PHYSICAL INJURIES:
ARTICLE 262 MUTILATION
Mutilation is the clipping off or chopping off of a particular part of a body which is not susceptible to grow
again.
Two kinds of mutilation:
1 By intentionally depriving another of a part of his body which is an essential part for reproduction.
2 By intentionally committing other mutilation that is, by depriving him of any other part of his body with intent
to deprive him of such part of his body.
Under the first kind, that is mutilating an organ essential for reproduction, is otherwise known as CASTRATION.
You will know that the penalty is even higher than homicide. Killing a person is only punishable by reclusion
perpetua while castrating a person is punishable by reclusion temporal to reclusion perpetua. Because if you are
castrated it is as if you are already killed. Thats why it has a higher penalty.
Mutilation is a felony which cannot be committed out of imprudence or negligence. Because the law
requires that there must be the deliberate intent to mutilate, the deliberate intent to clip off, to severe a
particular part of the body of a person. Absent that deliberate intent, any person who loses a part of his

Page 105

CRIMINAL LAW 2
body, it can only be serious physical injuries but not mutilation. So in mutilation it is always committed with
deliberate intent or dolo to mutilate. Absent that, it is serious physical injury.
ILLUSTRATION
Q: Lets say A and B were engaged in a fight, they were both fighting and A was losing and so he took out his bolo.
His intention was to cut the body of B in order to defeat him however, B tried to prevent him and placed his hand
and by reason thereof, the right hand of B was severed from his body. Is the crime committed mutilation?
A: NO. It is not mutilation because there was no deliberate intent to clip off or to severe the right hand
of B. His intention was to attack or to stab B and in so doing, it resulted to the loss of an arm therefore, the
CRIME COMMITTED IS SERIOUS PHYSICAL INJURIES. Physical injuries can either be serious physical
injuries, less serious physical injuries or slight physical injuries.
PHYSICAL INJURIES is the act of wounding, beating or assaulting another with no intent to kill. It also involves the
act of knowingly administering injurious beverages or substances absent intent to kill. So always there is no intent
to kill in order to amount to physical injuries because even if the injury is only slight or no injury at all but if there is
intent to kill, it is already in the stage of homicide. So there must be no intent to kill.
It also includes the act of knowing administering injurious substances absent intent to kill.
So always, there is no intent to kill in order to amount to physical injuries.
Because even if the injury is only SLIGHT or no injury at all, but there is intent7 to kill, it is already in the attempted
stage of Homicide. So there must be no intent to kill.
ARTICLE 263 SERIOUS PHYSICAL INJURIES
Under Art. 263, the serious physical injuries punished are:
1

When the injured person becomes insane, imbecile, impotent, or blind in consequence of the physical
injuries inflicted.
2 When the injured person:
a Loses the use of speech or the power to heal or to smell, or looses an eye, a hand, a foot, an
arm or a leg; or
b Loses the use of any such member, or
c Becomes incapacitated for the work in which he was therefore habitually engaged in the
consequence of the physical injuries inflicted
3 When the injured:
a Becomes deformed
b Loses any other member of his body; or
c Becomes ill or incapacitated for the performance of the work in which he was habitually
engaged for more than 90 days, in consequence of the physical injuries inflicted
4 When the injured person becomes ill or incapacitated for labor for more that 30 days (but must not be more
than 90 days), as a result of the physical injuries inflicted.
Note: All of this, all of the enumeration mentioned in Art. 263 are already considered serious physical injury. If a
person becomes ill or incapacitated for more than 30 days, it is already serious physical injuries. It is already
divided into categories for purposes of penalty. Because they differ in penalty. But the moment the said person, by
reason of the said injury becomes ill or incapacitated for labor for more than 30 days, it is already, serious physical
injury.
So the FIRST CATEGORYis, that the injured person becomes INSANE.
INSANITY refers to a mental disease by reason thereof a person can no longer appreciate the consequences of his
act.
IMBECILITY is when a person is already advanced in age, yet he has only the mind of a 2-7 year old child.
IMPOTENCY includes the inability to copulate or sterility.

Page 106

CRIMINAL LAW 2
BLINDNESS requires loss of vision of both eyes by reason of the injury inflicted. Mere weakness in vision is not
contemplated.
Under the SECOND CATEGORY:
The offender loses the use of speech or the power to heal or to smell, or looses an eye, a hand, a foot, an arm or a
leg.
- So if it is only an eye which has been lost, it is serious physical injury but under the Second Category
already. The penalty is lesser than that of the First Category.
Under the THIRD CIRCUMSTANCE/CATEGORY:
When the offender becomes DEFORMED.
So what is this so-called DEFORMITY which will result in serious physical injury?
Q: A hacked B with the use of a bolo on his stomach. So there was a big mark on his stomach despite the fact that
it was already healed, there was a big scar on the said stomach. The doctor said that the said injury requires
medical treatment for 2 weeks. What crime is committed? Is it serious physical injury or is it less serious physical
injury?
A: The crime committed is only LESS SERIOUS PHYSICAL INJURY. There was no deformity. Although
there was a big scar on the stomach, it would not amount to deformity. An injury in order to amount to
deformity which would bring about serious physical injury must result to a physical ugliness on a person.
There are 3 requisites befor deformity may be considered as a serious physical injury:
1
2
3

There must be physical ugliness produced on a body of a person

The said deformity should be permanent and definite abnormality and it would not heal through the
natural healing process
The said deformity must be located in a conspicuous and visible place

EXAMPLE OF The said deformity should be permanent and definite abnormality and it would not heal through the
natural healing process:
A boxed B. He lost his 2 front teeth permanently. What crime was committed?
A: The crime committed was SERIOUS PHYSICAL INJURY. Because it is a deformity even if the doctor
says that he can still replace it, the fact still remains that it cannot be healed through a natural healing
process.
A boxed B, A lost another tooth.
A: The crime committed will LESS SERIOUS OR SLIGHT PHYSICAL INJURIES depending on the medical
attendance. Because it cannot be seen. It is not located in a visible or conspicuous place.
A poured muriatic acid on the face of another person whom he hates and so because of that, the face of that
person becomes deformed, it became ugly. Later, she went on a plastic surgeon. When he got out of the plastic
surgery clinic, she now looks like Vilma Santos. Is the accused person liable for serious physical injuries?
A: Yes. Even if she became prettier than before, it is still a fact that by reason of the said injury it cannot be
healed through the natural healing process. It will require the attendance of medical surgeon. Therefore, it
is considered as a deformity.
If the said physical ugliness is not located on a visible or conspicuous place, it would be depending on the
deployment of medical attendance.

Page 107

CRIMINAL LAW 2
Q: When is serious physical injuries qualified?
A: Serious physical injuries is qualified:
1 If it is committed against any of the persons enumerated in Parricide. That is when serious physical
injuries is committed against the father, mother, child, whether legitimate or illegitimate; legitimate other
ascendant or other descendant and legitimate spouse of the accused.
2 If in the infliction of serious physical injuries, it is attended by any of the qualifying circumstances for
murder. That is, if it is done with treachery, evident premeditation, the crime committed is qualified
serious physical injuries.
ARTICLE 264 ADMINISTERING INJURIOUS SUBSTANCE OR BEVERAGES
ELEMENTS:
1 The offender inflicted serious physical injuries upon another
2 It was done by knowingly administering to him any injurious substances or beverages or by taking
advantage of his weakness of mind or cruelty
3 He had no intent to kill
ARTICLE 265 LESS SERIOUS PHYSICAL INJURIES
LESS SERIOUS PHYSICAL INJURIES is committed if by reason of the injury inflicted, the offended party
requires medical attendance or he cannot perform the work with which he is habitually engaged for a period of 1030 days. So the requirement of medical attendance or his incapacity to do his work for a period of 10-30 days, it will
bring about less serious physical injury.
Q: What circumstances will QUALIFY LESS SERIOUS PHYSICAL INJURIES?
1
2
3
4

When there is manifest intent to insult or offend the injured person

When there are circumstances adding ignominy to the offense
When the victim is the offenders parents, ascendants, guardians, curators, or teachers
When the victim is a person of rank or person in authority, provided the crime is not direct assault

So the crime committed here, with the attendance of these circumstances qualify less serious physical injuries.
ARTICLE 266 SLIGHT PHYSICAL INJURIES AND MALTREATMENT
3 KINDS OF SERIOUS PHYSICAL INJURIES AND MALTREATMENT:
1 Physical injuries which incapacitated the offended party for labor from 1 to 9 days, or required medical
attendance during the same period
2 Physical injuries which did not prevent the offended party from engaging in his habitual work or which did
not require medical attendance
3 Ill-treatment of another by deed without causing any injury
Maltreatment of another by deed without causing any injury is the act of INFLICTING PAIN ON ANOTHER
PERSON WITHOUT CAUSING ANY WOUND OR INJURY.
CASE: PEOPLE VS MAPALO (in Book I)
Let us say that A was walking. Here comes B. B used a lead pipe, he went to A and hit the head of A with a
lead pipe. Thereafter, he ran away. The medical certificate showed that the head of A did not sustain any injury. He
was charged with wttempted homicide. Supreme Court said, the crime committed is ILL-TREATMENT OF
ANOTHER BY DEED, a form of slight physical injury under Art. 266.

Page 108

CRIMINAL LAW 2
According to the Supreme Court, there was pain inflicted on A, but there was no injury and there was no
intent to kill because the said offender immediately ran away after hitting him a single time. So the crime committed
is MALTREATMENT OF ANOTHER PARTY.
ARTICLE 266-A RAPE
RAPE is now a crime against person; it is no longer a crime against chastity. Because of the amendment
brought about by RA 8353 THE ANTI-RAPE LAW.
2 TYPES OF RAPE/HOW RAPE IS COMMITTED:
1 By a man who shall have carnal knowledge of a woman
2 Sexual Assault
There is RAPE BY CARNAL KNOWLEDGE when a man has carnal knowledge of a woman against her will.
ELEMENTS OF A RAPE BY A MAN WHO SHALL HAVE CARNAL KNOWLEDGE OF A WOMAN :
1 Offender is a man
2 Offender had carnal knowledge of the woman against her will
3 Such act is accomplished under any of the following circumstance:
a Through force, threat, or intimidation
b When the offended party is deprived of reason or is otherwise unconscious
c By means of fraudulent machination or grave abuse of authority
d When the offended party is under 12 years of age or is demented, even though the circumstances
mentioned above be present
FIRST - OFFENDER IS A MAN
So in rape by carnal knowledge, who is the offender? A MAN.
Who is the offendeaprty? A WOMAN.
The law is SPECIFIC.
SECOND - OFFENDER HAD CARNAL KNOWLEDGE OF THE WOMAN AGAINST HER WILL"
The offender has carnal knowledge of a woman against her will and it is committed by using force, threat, or
intimidation. When the offended party is deprived of reason or otherwise unconscious.
Q: What if the woman was sleeping when a man had a carnal knowledge of the said woman. Is it rape by carnal
knowledge?
A: Yes. The Supreme Court said that the woman who is sleeping is unconscious.
Q: What if the woman is half asleep when the carnal knowledge was done by the said man? Is it still rape?
A: Yes, said by the Supreme Court. The woman was unconscious.
THIRD:
A is 11 years old. He is cohabiting with a man who is 20 years old. They are luvingtgether as if they are husband
and wife. Of course, they had carnal knowledge. The man is liable for STATUTORY RAPE. The number of times
that he had carnal knowledge of the said woman, that is the number of the counts of rape. So if he had carnal
knowledge of the woman 5 times during the time that they were together 5 counts of statutory rape. That is
because the child, the victim, is below 12 years of age. Insofar as criminal law is concerned, she does not have a
mind of her own, she cannot give a valid consent.
Q: What if, so the law requires that the said act of carnal knowledge must be with the use of force, threat, or
intimidation, a father raped his daughter. The daughter did not put up a fight, the father did not use force, threat, or
intimidation in the said carnal knowledge of a daughter. Is the crime committed rape?

Page 109

CRIMINAL LAW 2
A: Yes. The crime committed is rape. It is INCESTUOUS RAPE. In case of incestuous rape, it is the
overpowering and overbearing moral influence or moral ascendency of an ascendant over a descendant
which takes place of force, threat, or intimidation. That is why in case of inceuous rape, force, threat, or
intimidation is not indispensable; it is not necessary. Because it is the overpowering and overbearing moral
influence or moral ascendency which a father has over his daughter which takes place of force, threat or
intimidation.
Q: What if A and B are lovers and then suddenly B filed a case against A because according to B, he was raped by
her boyfriend. In the course of the trial of the case, the defense of the man was the so-called, sweetheart defense
theory. According to him, We are sweet lovers. Therefore according to him, it is impossible for him to have raped
her because we are sweet lovers. Will said sweetheart defense theory lie in his favor?
A: Supreme Court said, in case of sweetheart defense theory, for it to lie, mere oral testimonty will not
suffice. There must be documentary evidence, memorabilia, picture, love letters, etc. which would show
that indeed they are sweethearts boyfriend & girlfriend or lovers. But mind you, even the Supreme Court
said this, there was not a case wherein the sweetheart defense theory has acquitted a man.
Therefore, under any all circumstances which involves the sweetheart defense theory will not lie in favor of a man.
Because it does not mean that when you are the sweetheart, you can no longer rape the other person.
In Book I, there is no such thing as FRUSTRATED RAPE. Rape admits only 2 stages: ATTEMPTED RAPE and
CONSUMMATED RAPE.
The reason is that a mere touch of an erected penis on the labia or lips of a womans genitalia will already
consummate rape.
It is not necessary that there be deep or complete penetration. It is not necessary that the vagina did lacerated.
Mere touch of the lips or the labia of a womans genitalia already consummates rape.
Q: What if, what the erectile penis has touched was the outer portion of genitalia, that portion which became hairy
during puberty, you have to distinguish whether it is acts of lasciviousness or attempted rape.
A:
CASE: PEOPLE VS JALOSJOS
If when an erectile penis has touched the outer portion of a womans genitalia which becomes hairy during
puberty, if the intention of the said offender is to lie, to have carnal knowledge against the said woman, it is
attempted rape. But if in doing so, the said man has no intention to lie or to have carnal knowledge, that is
only ACTS OF LASCIVIOUSNESS.
What about the other form of Rape RAPE BY SEXUAL ASSAULT
ELEMENTS:
1 Offender commits an act of sexual assault
2 The act of sexual assault is committed by any of the following means
a By inserting his penis into another persons mouth or anal orifice, or
b By inserting any instrument or object into the genital or anal orifice of another person
3 The act of sexual assault is accomplished under any of the following circumstances:
a By using force or intimidation
b When the woman is deprived of reason or otherwise unconscious, or
c By means of fraudulent machination or grave abused of authority
d When the woman is under 12 years of age or demented

Page 110

CRIMINAL LAW 2
*So what if what has been inserted is the penis inside the mouth or the anal orifice, before that would only amount
to acts of lasciviousness - before the passage of RA 8353.
*The law says that it must be an instrument or object which was inserted in the genitalia or in the anal orifice of
another person.
Q: What if it was the finger which was inserted in the genitalia of a person? Is it acts of lasciviousness or rape by
sexual assault?
A: Supreme Court said it is RAPE BY SEXUAL ASSAULT. According to the Supreme Court, it would be so
weird if what has been inserted is an instrument or object, it would be rape by sexual assault, but if it was
finger, it would be rape by acts of lasciviousness. The finger is within the mean of an instrument or object
insofar as rape by sexual assault is concerned.
Q: In case of RAPE, what are the circumstances which will qualify the penalty?
A: In case of RAPE BY SEXUAL ASSAULT, the penalty is only PRISION MAYOR. It is a bailable offense.
If it is a RAPE BY CARNAL KNOWLEDGE, note that the penalty is RECLUSION PERPETUA. It is a nonbailable offense
Q: In case of a RAPE BY CARNAL KNOWLEDGE, when is a penalty qualified?
A: Reclusion Perpetua to Death:
1 When rape is committed with the use of a deadly weapon
2 When rape is committed by two or more persons
3 When by reason or on occasion of rape, the victim becomes insane
4 When rape is attempted and homicide is committed
Q: What are the instances wherein the penalty to be imposed is the capital punishment of death, so the extreme
penalty of death?
1
2

When by reason or on the occasion of rape, homicide is committed

When the victim is under 18 years of age and the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the 3rd civil degree, or the common law spouse of the victim
3 When the victim is under the custody of the police or military authorities or any penal institution
4 When the rape is committed in full view of the spouse, the parent, any of the children of the relative by
consanguinity within the 3rd civil degree
5 When the victim is a religious and gauged in legitimate religious calling or vocation and he known to be
such by the offender before or during the commission of the rape
6 When the victim of the rape is below 7 years of age
7 When the said offender knows that he has been afflicted with HIV virus or AIDS or any other sexually
transmissible disease and the virus of the disease is transmitted to the victim
8 When the said offender is a member of the AFP or parliamentary units, the PNP or any other member of the
law enforcement agency who took advantage of his position in order to facilitate the commission of the
crime
9 By reason or on the occasion of rape, the said victim suffered permanent physical mutilation or disability
10 When the offender knew that the offended party or victim is pregnant at the time of the commission of rape
11 When the offender knew of the mental disability, emotional disorder and/or physical handicap of the
offended party at the time of the commission of the crime
The presence of any of these circumstances will bring about the imposition of the maximum penalty of death.
However, death is lifted because of RA 9346 which prohibits the imposition of death penalty.
In case of rape, PARDON will not extinguish the criminal liability of the offender. According to Art. 266, pardon will
not extinguish the criminal liability of the offender. It is only through:

Page 111

CRIMINAL LAW 2
1
2

The offended woman may pardon the offender through a subsequent valid marriage, the effect of which
would be the extinction of the offenders liability
The legal husband maybe pardoned by forgiveness of the wife provided that the marriage is not void ab
initio

EXCEPTION: In case of MARITAL RAPE. If the legal wife has forgiven or pardoned the legal husband.
Q: When is there PRESUMPTION OF RESISTANCE?
A: If in the course of the commission of rape, the said offended party has performed any acts in any degree
amounting to resistance of rape or when the said offended party cannot give a valid consent.
VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT (VAWC) R.A. 9262
Violence against women and their children
- refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or
against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common
child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such
acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.
Acts consisting violence against women and children:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes,
but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making
demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body,
forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do
indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or
sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force,
physical or other harm or threat of physical or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of
the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the
physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to
custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes,
but is not limited to the following:
1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession,
occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious
and moral grounds as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the
conjugal, community or property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely controlling the conjugal money or properties.
Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is
committed through any of the following acts:
(a) Causing physical harm to the woman or her child;

Page 112

CRIMINAL LAW 2
(b) Threatening to cause the woman or her child physical harm;
(c) Attempting to cause the woman or her child physical harm;
(d) Placing the woman or her child in fear of imminent physical harm;
(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or
her child has the right to desist from or desist from conduct which the woman or her child has the right to
engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or
conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation
directed against the woman or child. This shall include, but not limited to, the following acts committed with
the purpose or effect of controlling or restricting the woman's or her child's movement or conduct:
(1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family;
(2) Depriving or threatening to deprive the woman or her children of financial support legally due
her or her family, or deliberately providing the woman's children insufficient financial support;
(3) Depriving or threatening to deprive the woman or her child of a legal right;
(4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity
or controlling the victim's own mon4ey or properties, or solely controlling the conjugal or common
money, or properties;
(f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or
decisions;
(g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not
constitute rape, by force or threat of force, physical harm, or through intimidation directed against the
woman or her child or her/his immediate family;
(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or
causes substantial emotional or psychological distress to the woman or her child. This shall include, but not
be limited to, the following acts:
(1) Stalking or following the woman or her child in public or private places;
(2) Peering in the window or lingering outside the residence of the woman or her child;
(3) Entering or remaining in the dwelling or on the property of the woman or her child against
her/his will;
(4) Destroying the property and personal belongings or inflicting harm to animals or pets of the
woman or her child; and
(5) Engaging in any form of harassment or violence;

Page 113

CRIMINAL LAW 2
(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including,
but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor
children of access to the woman's child/children.

DATING RELATIONSHIP- refers to a situation wherein the parties live as husband and wife without the benefit of
marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A
casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating
relationship.
Q: The neighbor was aware of the beatings that the husband has been doing to his wife so the neighbor who was a
witness to all these beatings filed a case against the husband. Will the case prosper?
A: Yes because under sec. 25, Violation Against Women and Children (VAWC) is a public offense.
Q: When does the crime prescribe?
A: If it involves physical abuse; it shall prescribe after 20 years. If it involves psychological, sexual, and
economical abuse; it shall prescribe in 10 years.
Q: Lets say the wife filed a case against the husband for violation of RA 9262; during the presentation of evidence
by the defense, the husband testified that he was always drunk. He was alcoholic. Thats why he lost temper and
beats the wife. Will such defense mitigate the criminally guilty husband? Can he use such defense?
A: Under Sec. 27 it cannot be used because under Sec. 27; the fact that the husband is under the influence
of alcohol, any illicit drug, or any other mind-alteringsubstance cannot be used as defense in VAWC
therefore; alcoholism and drug addiction cannot be a defense in VAWC.
Battered Women Syndrome (Sec. 26)
- Scientifically defined pattern of psychological and behavioral symptoms found in the battering
relationship as a result of cumulative abuse.

Under Sec. 26, it is provided that victim survivors founded to be suffering from this battered women
syndrome shall be exempted from both criminal and civil liability notwithstanding the absence of any of the
elements of self-defense.

The court however shall be held by a testimony of a psychologist or psychiatrist if the woman is indeed
suffering from the so called battered women syndrome.

ANTI-HAZING LAW R.A. 8049

Q: What is hazing?
A: Hazing is an initiation rite or practice which is used as an admission into membership in any fraternity or
any other organization wherein the said recruit/neophyte/applicant is placed under the an embarrassing or
humiliating situations such as forcing him to do menial, silly, and foolish tasks or services or subjecting him
into psychological or physical injury or crime.
Q: Is hazing totally prohibited in the Philippines?
A: No. Hazing is not totally prohibited in the Philippines. Hazing is allowed provided that the following
requisites are present:
1

There must be a prior written notice sent to the head of the school authorities or the head of the
organization 7 days before the said initiation rites and this prior written notice shall contain the
following:
a It shall indicate the date of the said initiation rites which shall not be more than 3 days.
b It shall indicate/state the names of the neophytes or applicants who will undergo the said hazing
or initiation rites.

Page 114

CRIMINAL LAW 2
c
2

It shall contain an undertaking which states that there shall be no physical violence employed in
any form on these neophyte recruits or applicants.

Upon the receipt of such prior written notice; the head of the school or organization shall assign atleast
2 representatives from their school or organization who must be present during the time of the said
initiation rite or hazing and these 2 representatives shall see to it that no amount of physical violence
shall be employed on any person or any neophyte or recruit or applicant during the said hazing or
initiation rite.

Q: What if in the course of the said hazing or initiation rite someone died or suffered physical injuries; who shall be
held criminally liable?
A: If in the course of hazing or initiation rite, someone died or some suffered any physical injuries; all of the
officers and members of the said fraternity or organization who are present and who participated in the
said initiation rite shall be liable as principal.
Q: What if the said initiation rite was conducted or held in a house of an Aling Nene? Is Aling Nene criminally liable?
A: Aling Nene is liable as an accomplice if she has knowledge of the conduct of the said initiation
rites and she did not do any act in order to prevent its occurrence.
If the said initiation rite took place in the house of a member or an officer of the said fraternity or
sorority; the parents of the said members or officers shall be held liable not as an accomplice but as a
principal if they have such knowledge of the said conduct of the initiation rites and they did not perform
any act inorder to prevent its occurrence.
Q: When is there a prima facie evidence of participation?
A: Any person who is present in the said hazing or initiation rite shall constitute a prima facie evidence
that there is a participation and shall be held liable as principal.

Q: What if in the said hazing an officer beat an applicant and he hit the neck thereby causing the death of the said
neophyte/recruit/applicant and so when prosecuted he said: I have no intention to commit so grave a wrong as that
committed. Can such defense be used so as to mitigate his criminal liability?
A: No such defense is prohibited defense. Under RA 8049; the defense that such person has no intention
to commit so grave a wrong as that committed cannot be used by an accused under RA 8049.

Whenever a person hits an applicant/neophyte, he is already performing a felonious act therefore he

shall be held criminally liable for all the consequences of his actions. (Art 4 book 1)
In the case of Lenny Villa Hazing; Serenoet. al. considered Art. 4 wherein they ruled Reckless
Imprudence resulting to homicide.
o (I disagree) In Reckless imprudence, the said person must be performing an act which is not
felonious but by reason of negligence or imprudence, a felony resulted. Therefore, in the case of
Lenny Villa, the ruling shall be homicide, it shall not be reckless imprudence.

ANTI- CHILD ABUSE ACT R.A. 7610

In so far as RA 7610 is concerned; Children are those:

Below 18 years of age

Above 18 years of age who does not have the capacity to fully protect themselves against any abuse,
cruelty or maltreatment because of their physical or mental disability.

Q: What if two children, A and B were fighting over a gun toy. The mother of A saw B beating A so As mother held B
and gave him a tender slap. However, because B is still a child, his face became reddish. Based in the medical
certificate, it showed that the said act of slapping was the cause of the injury sustained by B that made his face
reddish. What crime was committed by the mother of A? Is the mother liable for Child abuse or is the mother liable
for slight physical injuries?
A: The mother of A is liable for slight physical injuries only and not for violation of RA 7610.
Q: What do you mean by Child Abuse?

Page 115

CRIMINAL LAW 2
A: Child abuse refers to the maltreatment, whether habitual or not, of the child which includes any of the
following:

Physical or psychological abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
Any act by deeds or words which debases, degrades or demean the intrinsic worth and dignity of a
child as a human being.
Unreasonable deprivation of his basic needs for survival, such as food and shelter; or
Failure to immediately give medical treatment to an injured child resulting in serious impairment of his
growth and development or in his permanent incapacity or death.

Not all acts committed against a child will result to child abuse. It is necessary that in the said act, there
was this intention to debase, degrade or demean the intrinsic worth of a child as a human being.

Child Prostitution and Other Sexual Abuse

What is child prostitution?
Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse.

Aggravating Circumstances:
(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited
to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements
or other similar means;
(3) Taking advantage of influence or relationship to procure a child as prostitute;
(4) Threatening or using violence towards a child to engage him as a prostitute; or
(5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage
such child in prostitution.
(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in
prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of
age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided,
That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; and

Page 116

CRIMINAL LAW 2

(c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment
where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or
establishment serving as a cover or which engages in prostitution in addition to the activity for which the
license has been issued to said establishment.

When is there attempt to commit child prostitution?

1. when any person who, not being a relative of a child, is found alone with the said child inside the room or
cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel,
vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person
to believe that the child is about to be exploited in prostitution and other sexual abuse.
2. when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club
and other similar establishments.
What is Child Trafficking
Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and
selling of a child for money, or for any other consideration, or barter
Aggravating Circumstance: if the victim is under 12 years of age
Attempt to Commit Child Trafficking. There is an attempt to commit child trafficking under Section 7 of this Act:
(a) When a child travels alone to a foreign country without valid reason therefor and without clearance
issued by the Department of Social Welfare and Development or written permit or justification from the
child's parents or legal guardian;
(b) when the pregnant mother executes an affidavit of consent for adoption for consideration;
(c) When a person, agency, establishment or child-caring institution recruits women or couples to bear
children for the purpose of child trafficking; or
(d) When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other
person simulates birth for the purpose of child trafficking; or
(e) When a person engages in the act of finding children among low-income families, hospitals, clinics,
nurseries, day-care centers, or other child-during institutions who can be offered for the purpose of child
trafficking.
TITLE NINE
CRIMES AGAINST PERSONSAL LIBERTY AND SECURITY (ARTICLES 267 292)
ART 267 KIDNAPPING AND SERIOUS ILLEGAL DETENTION
It is committed when: a private individual kidnaps or detains another or in any other manner to deprive him of
his liberty when such detention is illegal and it is committed in any of the following circumstances:
1 If the kidnapping or detention should have lasted for more than 3 days.
2 If it is committed simulating a public authority.
3 If threats to kill had been made upon the person kidnapped or any serious physical injuries are inflicted
upon same.
4 If the person kidnapped or detained is a minor, female, or a public officer.
Any of the circumstances present, then we have serious illegal detention.
Q: Who is the offender in Art 267?
A: He must be a private individual because if he is a public officer who has been vested by law to
make arrest and he detains a person; it will be arbitrary detention under Art 124.

Page 117

CRIMINAL LAW 2
Q: Can a public officer commit kidnapping and serious illegal detention?
A: Yes if the said public officer has not been vested by law with the authority to effect arrest and to
detain a person then the said public officer is acting in his private capacity. Although a public officer;
since he is acting in his private capacity, the crime committed is kidnapping and serious illegal
detention under Art 267 and not arbitrary detention under Art 124.
The second element requires that the offender kidnaps or detains another or in any other manner depriving him
of his liberty.
Q: When is there detention?
A: There is detention if the offender restrains a person or the liberty of another person. He must be
detained, incarcerated. There must be showing that there is a restraint on his person or liberty;
otherwise, if there is no restraint on the person or liberty on the part of the offended party, it could be
any other crime but not kidnapping and serious illegal detention.
The law requires that the kidnapping and detention must be illegal therefore there must be no reasonable ground.
Circumstances which will make the crime serious:
1 The kidnapping or detention should have lasted for more than 3 days;
2 If it is committed by simulating public authority.
By pretending to be police officers, pretending to be NBI agents
3 If any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are
made.
4 If the person kidnapped or detained is a minor (unless the offender is his parents); a female, or a public
officer.
The presence of any of these circumstances will meet the crime of Serious Illegal Detention and the absence of
any of the circumstance will make the crime Slight Illegal Detention under Art 268.
Note that the penalty is reclusion perpetua to death.
Circumstances which will qualify the penalty:
1 If the purpose of the kidnapping is to extort ransom from the victim or from any other person.
Kidnapping and Serious Illegal Detention for Ransom.
Q: What is ransom?
A: A ransom is the money, price, or any other consideration given or demanded for the redemption
of the liberty of the person who has been detained or incarcerated.
PEOPLE VS. MAMANTAK
- While the mother and the daughter where in a food chain in tondo; the mother lost the said child.
- she had been looking for the said child for a year.
- A year and six months thereafter, the said mother received a call from a woman who sounded to be a
masculine man from Lanaodel Norte according to the said woman.
- The woman said that she has the child with her and the woman was demanding P 30,000 in exchange for
the child.
- The said woman, Mamantak and company asked the mother to go to a certain restaurant.
- The mother went to the said restaurant however the mother already informed the authorities.
- Upon the exchange of the child and the demand; Mamantak and co. were arrested by the said authorities.
- The crime charged was: Kidnapping and Serious Illegal Detention for Ransom.
- RTC ruled that it is only kidnapping and serious illegal detention for ransom but not for ransom because
according to the trial court; the amount given is measly a sum to be considered as ransom because
according to the RTC; it is only in payment for the board and logging of the child during the time that she
was in the captivity of the said woman.

Page 118

CRIMINAL LAW 2
-

SC ruled that the crime committed is kidnapping and serious illegal detention for ransom. Even if it is only 5
centavos; if it was given in exchange for the liberty of a person who has been detained, by whose liberty
has been restricted; it is already considered as ransom.
There is no such thing as small amount in so far as ransom is concerned.

Q: Lets say A is indebted to B; B was asking payment from A, A however said that he has no money until B got
fed up so what B did is he kidnapped and detained the minor child of A. He then called A telling the same: I will
only release your minor child the moment you give your indebtedness in the amount of a million pesos. Is the
crime committed kidnapping and serious illegal detention for ransom?
A: Yes it is already kidnapping and serious illegal detention for ransom even if the amount being
asked by the kidnapper is the indebtedness of the father of the said child. Any amount demanded
in exchange for the liberty of the person detained; that is already considered as ransom.
2

When the victim is killed or dies as a consequence of the kidnapping or detention.

Kidnapping and Serious Illegal Detention with Homicide.
This is a special complex crime. Therefore, since it is a special complex crime; regardless
of the number of victims killed; it is still kidnapping and serious illegal detention with
homicide.

PEOPLE VS. LARANAGA

- There were two kidnap victims and these two sisters were both killed and raped yet the SC held that the
crime committed was kidnapping and serious illegal detention with homicide and rape.
- Despite the fact that there were 2 victims who were killed and raped because regardless of the numbers of
the victims killed, since it is a special complex crime; in the eyes of the law there is only one crime
committed so it is only: Kidnapping and Serious illegal detention with homicide.

Note however that it is required that the victim himself is the one who has been killed. If it is another person; it
will result to a separate and distinct crime because the law is particular that the person detained/ kidnapped
must be the one who is killed or died as a consequence thereof.
Q: What if A kidnapped the child of B who is his enemy. The said child is 10 years old and he was placed in a
hideout. The child tried to escape but A saw him so A fired a shot towards the child which resulted to the death
of the child. What crime is committed?
A: The crime committed is kidnapping with serious illegal detention with homicide.
Q: What if in the same problem; the father learned about the said kidnapping so the father informed the NBI
agents. The NBI agents were able to track down the place where the said child was being hidden so the NBI
agents together with the said father went to the hideout. There was an exchange of gun fires between A (the
kidnapper) and the NBI agents. While there was an exchange of gun fires, the father saw his child so the father
rushed towards the son, carry the son and they were able to leave the said hideout. While they were leaving, A
the kidnapper saw them and A the kidnapper shot the father. What crime/s is/are committed?
A: In so far as the minor is concerned; the crime committed is Kidnapping and serious illegal
detention even if it did not last for a period of more than 3 days, the fact that the offended party is
a minor, it is already kidnapping and serious illegal detention.
In so far as the father who has been killed; since he is not the victim of serious illegal detention, it
will constitute a separate and distinct crime of: homicide.
Therefore, there are 2 crimes committed by the said kidnapper. Kidnapping and serious illegal
detention in so far as the child is concerned and homicide in so far as the father who has been
killed is concerned.
3

When the victim is raped.

Kidnapping and Serious Illegal Detention with Rape.

It is necessary that the victim is the one who has been raped.

Page 119

CRIMINAL LAW 2

Again; since this is a special complex crime; regardless of the times that the victim has been raped.
The crime committed is only kidnapping and serious illegal detention with rape. There is no kidnapping
and serious illegal detention with multiple rape.

When the victim is subjected to torture or any dehumanizing acts.

The presence of any of these circumstances will bring about the imposition of maximum penalty of death.
Q: A, a 6 yr old child is playing at a playground at about 5 oclock in the afternoon while the mother is hanging
clothes. A man (X) gave the child a candy and the child was so happy. Later, the man again approached the
child and gave the child money and then the said man invited the child to go with him. Since the child was so
happy because the man was so good to her; the child went with the said man. At 6 oclock; the mother came
looking for the child but the child was no longer in the playground. Meanwhile, the man brought the child to his
place. That evening, the mother kept on looking for the child however they could not locate the child. In the
house of the man, the child was molested and raped twice. The following morning, when the mother opened
the door of the house, she saw her child at the door with torn clothes and blood. So the man was charged with
serious illegal detention with rape. Is the charge correct?
A: The charge is wrong because the obvious intention of the man is to rape the child and not to
detain the child therefore the SC said: the crime committed would be 2 counts of statutory rape
not only a single indivisible offense of kidnapping and serious illegal detention with rape but 2
counts of statutory rape because the said child is under 12 years of age and she was raped and
molested twice. Therefore, unless and until there was an intent to detain on the part of the offender;
it could be any other crime but not kidnapping and serious illegal detention.
Q: A saw his enemy walking. He abducted his enemy and placed him inside the van. The following morning, the
said enemy was found in a vacant lot with 10 gunshot wounds. What crime is committed?
A: The crime committed is Murder. Obviously, there was no intent to detain the offended party. The
intent was to kill him. Therefore the crime committed is murder and not kidnapping and serious
illegal detention with homicide or murder as the case may be.

Inorder for kidnapping and serious illegal detention to amount to with rape, murder, with homicide with physical
injuries; it is necessary that there is an intent to detain and in the course of the said detention, the victim dies,
raped, subjected to torture or other dehumanizing acts.
Again, as mentioned earlier; the absence of any of the circumstances which will make illegal detention serious
will make the crime Slight Illegal Detention under Art 268.

ART 268 SLIGHT ILLEGAL DETENTION

Slight illegal detention is committed by: any person who shall kidnap or detains another or in any other
manner deprive him of his liberty when the said detention is illegal absent of any of the circumstances
under Art 267; it will only be slight illegal detention.

Q: What if A was so envious of his neighbor. To teach the neighbor a lesson, he kidnapped and detained the
said neighbor and placed the said neighbor in a secluded place in a vacant area one morning. However, later
on, A felt sorry for his neighbor and he released his neighbor that night. What is the effect in the criminal liability
of the offender A?
A: Under Art 268 (Slight Illegal Detention); if the offended party has been released. Such release
will be considered as a privileged mitigating circumstance because from the penalty of reclusion
temporal, the penalty would be lowered by one degree that is prision mayor.
Note however that this voluntary release of the victim may only be considered as a privileged mitigating
circumstance the ff requisites must concur:
1 It is necessary the release has been made within 3 days from the commencement of the said
kidnapping.
2 It must have been made without the offender having attained or accomplished his purpose.
3 It must have been made before the institution of the criminal proceedings against the said
offender.

Page 120

CRIMINAL LAW 2

If all of these 3 are present then such voluntary release of the offender will mitigate the criminal
liability of the said offender.

Q: What if the person kidnapped by A is a public officer? He is mad with the said public officer and so he
kidnapped the same and detained him in the morning. In the evening, he immediately released the public
officer because he told himself that perhaps the NBI would look after him so he immediately released the
public officer. Will such release mitigate his criminal liability?
A: No. the fact that the person kidnapped is a public officer; the crime would immediately be
kidnapping and serious illegal detention under 267. And if the crime is committed under Art 267, no
amount of voluntary release will mitigate the criminal liability of the offender.
So if the victim is a minor, a female, or a public officer; automatically, it will be kidnapping and serious illegal
detention and no amount of voluntary release will mitigate the offenders criminal liability.
ART 269 UNLAWFUL ARREST
Unlawful arrest is committed by: any person who shall arrest or detain another without authority by law or
without reasonable ground therefore and his main purpose is to deliver him to the proper authorities.
The purpose is: to deliver him to the proper authorities.
Q: A was walking when suddenly he was arrested by B, a police officer. The police officer said that a case has
to be filed against him. The arrest was made without warrant of arrest. A was not caught committing a crime
inflagrante delicto and not also an escapee but he was incarcerated. Thereafter a case has been filed against
him however since there was no complainant, the fiscal dismissed the case for lack of probable cause. What
crime is committed by the police officer?
A: The crime committed is unlawful arrest.
Q: What about the fact that he has been detained arbitrarily?
A: It is already absorbed because the intention of the said police officer is to file a case against him
that is; to deliver him to the proper authorities. Therefore the arbitrary detention is merely incidental
in the said act of unlawful arrest.
ART 270 KIDNAPPING AND FAILURE TO RETURN A MINOR
Kidnapping and failure to return a minor is committed by: any person who had been entrusted with the
custody of a minor who shall deliberately fail to restore the said minor to his parents or guardians.
Q: Who is the offender?
A: The offender is the person entrusted with the custody of a minor.
Q: When will the crime arise?
A: The crime will arise if the offender shall deliberately fail to restore the said minor to his parents
or guardians.
Q: What if A and B has a child and they entrusted the child to X as they will be going for a vacation for a week.
They told X to deliver the child to them after 7 days. A week after, the husband and wife arrived home but X
failed to deliver the said child. The reason of X was he was so busy with his work that he forgot that it was
already the 7th day from the time that he has been entrusted with the child. Can he be held liable under Art 270?
A: No because he did not deliberately fail to restore the said minor to his parents or guardians. The
law requires deliberate failure. Here, he only failed because of negligence or just because he was
so busy.
ART 271 INDUCING A MINOR TO ABANDON HIS HOME
It is committed by: any person who induces a minor to leave the home of his parents, guardians, or person
entrusted with the custody of the said minor.
The crime will arise even if the child hasnt left the house of the parents or guardians. Mere inducement
with intent to cause damage will suffice.

Page 121

CRIMINAL LAW 2
Q: A and B husband and wifes marriage has been declared a nullity by the court and the custody of their 5 yr
old child has been given definitely to the mother. However the father has been given visiting rights. One
Sunday, the father visited the 5 yr old son and the son was brought out by the father. Usually, whenever the
father takes his son out; he will return the child by night time. However this time, the father did not bring back
the child to the house of the mother and so the mother demanded the return of her son but the father still failed
to return their child therefore the mother filed a case of Kidnapping and failure to return a minor under Art 270
against the father. Will the case prosper?
A: Yes the case will prosper. Under Art 271 it is provided that Art 270 and 271 can also be
committed not only by strangers but also by the father or the mother. The only difference is that
under Art 270; if the offender is any other person the penalty is reclusion perpetua. But if the
offender is the father or the mother, note that the penalty is so low; only arresto mayor or a fine of
not more than P300 or both fine and penalty depending upon the discretion of the court therefore,
even the father or the mother can be held liable under Articles 270 and 271. The only difference is
their respective penalties.
ART 272 SLAVERY
ELEMENTS:
1 The offender purchases, sells, kidnaps or detains a human being.
2 The purpose of the offender is to enslave such human being.
It is committed by: Any person who shall buy, sells, kidnaps or detains a person for the purpose of
enslaving the said person.
If the purpose is to engage in immoral traffic; then the penalty will be qualified.
ART 273 EXPLOITATION OF CHILD LABOR
ELEMENTS:
1 Offender retains a minor in his service.
2 It is against the will of the minor.
3 It is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or
person entrusted with the custody of such minor.
It is committed by: Any person who shall detain a child in his service against the will of the child under the
pretext of reimbursing a debt incurred by the parents, ascendants, guardian or any person entrusted with
the custody of the child.
ART 274 SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT
ELEMENTS:
1 Offender compels a debtor to work for him, either as household servant or farm laborer.
2 It is against the debtors will.
3 The purpose is to require or enforce the payment of a debt.
It is committed by: a creditor to shall compel a debtor to work for him as a household servant or a farm
laborer against the will of the said debtor inorder to require or enforce the payment of a debt.
ART 275 ABANDONMENT OF PERSONS IN DANGER AND ABANDONMENT OF ONES OWN VICTIM
ACTS PUNISHED:
1 Failing to render assistance to any person whom the offender found in an uninhabited place
wounded or in danger of dying when he can render such assistance without detriment to
himself, unless such omission shall constitute a more serious offense.
2

Failing to render help or assistance to another whom the offender has accidentally wounded or
injured.

Page 122

CRIMINAL LAW 2
3

Failing to deliver a child under 7 years of age whom the offender has found abandoned, to the
authorities or to his family, or failing to take him to a safe place.

Q: A saw B at Luneta Park. He was wounded and bitten by a dog and he was crying for help. However, A,
instead of helping B left. Is A liable under Art 275?
A: No because the place is not an uninhabited place. Luneta Park is a public place. People come
and go there. Therefore, A is not liable under Art 275 despite the fact that B is wounded and dying.
Uninhabited place
- One wherein theres a remote possibility for the victim to receive some help.
Q: What if in the same problem, A found B in a forest? So A went hunting in a forest when he suddenly saw
B in the middle of the forest. There was this big trunk of tree on the neck of B and he cannot move. He was
begging for the help of A. A however left. Later, B was rescued. Can he file a case in violation of Art 275
against A?
A: Yes because B was found by A in an uninhabited place and he was wounded and in danger of
dying because theres a big trunk of tree on his neck and theres no detriment on the part of A to
render assistance but he failed to render assistance therefore A may be held liable for violation of
Art 275.
Q: But what if when A found B and he was bitten by a snake and the snake was still there. B was asking for
help however A did not give help because theres a snake. Hes afraid that he might get bitten by the snake
too. Can A be held liable under Art 275?
A: No because helping B will be detrimental on his part.
Q: What if A was driving his vehicle when suddenly his car tripped on a stone so the stone flew and hit an
eye of a bystander. The left eye bled. Is A liable?
A: No because it is purely accidental; it is an exempting circumstance. He was performing an act
with due care and accident happened without fault or negligence on his part
Q: What if when the left eye of the bystander bled; A saw him and he knows that the bystander is his victim.
However, instead of bringing the bystander to the hospital; he increased his speed and left. Is A criminally
liable this time?
A: Yes.

For the first act he is not liable because it is purely accidental but when he failed to render help or
assistance to his own victim. This time, he is criminally liable under Art 275.

ART 276 ABANDONING A MINOR

ELEMENTS:
1 Offender has the custody of the child.
2 Child is under 7 years of age.
3 He abandons such child.
4 He has no intent to kill the child when the latter is abandoned.
Abandoning a minor is committed by any person who has been entrusted with the custody of a child under
7 years of age and he abandons the said child permanently, deliberately, and consciously with no intent to
kill the said child.
The penalty will be qualified if DEATH resulted from the said abandonment or WHEN THE SAFETY OF
THE CHILD HAS BEEN PLACED IN DANGER.
Q: A woman; an OFW worker who left her newly born child inside a garbage bin of an aircraft/airplane and
later she has been arrested. What crime is committed by the said mother?
A: The crime committed is Abandoning a Minor under Art. 276. The mother is in custody of the
child and she deliberately or and consciously abandoned her child without the intent to kill.
Obviously there was no intent to kill because she could have killed the said child instead she

Page 123

CRIMINAL LAW 2
placed her child inside a garbage can in the restroom of an aircraft so there was no intent to kill
therefore the crime committed is Abandoning a Minor under Art. 276.
ART 277 ABANDONMENT OF MINOR BY A PERSON ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE
OF PARENTS
ACTS PUNISHED:
1 Abandonment of a child by a person entrusted with his custody.
It is committed by: any person who, having entrusted with the living and education of a
minor shall deliver a minor to a public institution or other persons without the consent of the
person who entrusted such minor to the care of the offender or, in his absence, without the
consent of the proper authorities.
2

Indifference of parents
It is committed by: any parent who neglects any of his children by not giving them the
education which their station in life requires and financial capability permits.

ART 278 EXPLOITATION OF A CHILD

ACTS PUNISHED:
1 Causing any boy or girl under 16 to engage in any dangerous feat of balancing, physical strength or
contortion, the offender being any person.
2 Employing children under 16 years of age who are not the children or descendants of the offender in
exhibitions of acrobat, gymnast, rope walker, diver, or wild animal tamer, the offender being an
acrobat, etc., or circus manager or person engaged in any of said callings.
3 Employing any descendants under 12 years of age in dangerous exhibitions enumerated on the
next preceding paragraph, the offender being engaged in any of the said callings.
4 Delivering a child under 16 years of age gratuitously to any person if any of the callings enumerated
in paragraph 2, or to any habitual vagrant or beggar, the offender being an ascendant, guardian,
teacher, or a person entrusted in any capacity with the care if such child.
5 Including any child under 16 years of age to abandon the home of its ascendants, guardians,
curators or teachers to follow any person entrusted in any of the callings mentioned in paragraph 2
or to accompany any habitual vagrant or beggar, the offender being any person.

These acts are considered as exploitation of minors because these acts endanger the life and safety, the
growth and development of the minors. (usually these involves circus)

Note: If the delivery of the said child is on the basis of a consideration, compensation or money, the penalty will be
QUALIFIED.

Mere act of delivering the child gratuitously under 16 years of age; the crime is already committed.
The fact that it is with consideration; the penalty will be qualified.

ART 280 QUALIFIED TRESSPASS TO DWELLING

It is committed by: a private individual who shall enter the dwelling of another against the will of the latter.
ELEMENTS:
1 Offender is a private individual
It is committed by a private individual because if it is a public officer; then the crime is under Art 128
which is: Violation of Domicile.
2 He enters the dwelling of another
3 Such entrance is against the will of the latter.
As discussed under Art. 128; when the law says against the will, there must be a prohibition or
opposition from entering whether express or implied.

Mere entry without consent will not bring about QUALIFIED TRESSPASS TO DWELLING.

Page 124

CRIMINAL LAW 2

If the door is opened therefore it means that anyone could enter even without the consent of the owner and the
moment he enters he is not liable for qualified trespass to dwelling because there is no prohibition or opposition
from entering.
It is necessary that there is an opposition or prohibition from entering. It can be expressed prohibition (e.g. A
note which states: Do Not Enter or the door was closed and a person knocked so the owner got up and
opened the door but upon seeing the person he immediately closed the door) or implied prohibition (e.g. Door
is closed even if it is not locked).

ART 281 OTHER FORMS OF TRESSPASS TO DWELLING

(TRESSPASS TO PROPERTY)
ELEMENTS
1 Offender enters the closed premises or the fenced estate of another.
2 Entrance is made while wither of them is uninhabited.
3 Prohibition to enter is manifest.
4 Trespasser has not secured the permission of the owner or the caretaker thereof.
Trespass to property is committed by: any person who enters a closed premises or fenced estate which at
that time is uninhabited and the prohibition to enter is manifest and the offender enters the said
uninhabited place without securing the permission of the owner or the care taker thereof.
TRESSPASS TO DWELLING

TRESSPASS TO PROPERTY

Place entered into is a dwelling and uninhabited.

Place entered into is a closed premises or a fenced estate

which is uninhabited.

Prohibition to enter can either be expressed or

implied.

Prohibition to enter must be manifest.

Entry was made against the will of the owner or

the possessor of the said dwelling.

Entry was made without securing the permission from the

owner or the care taker of the said property.

Q: Lets say there are these town houses. In one of the town houses, town house A; theres no person
living at the moment and there was this sign: FOR RENT/ FOR LEASE. X entered the said town house.
What crime is committed by X? Is it qualified trespass to dwelling or is it trespass to property?
A: It is trespass to property because it is a closed premises which is uninhabited at the time of
the entering and he entered without first securing the permission of the owner/care taker.
Q: What if there is this house which is occupied by husband A and B. Husband A and B went for a vacation
for a month. So for a month, there is no person in the said place. X learned that there is no person in the
said place. He entered the said place. What crime is committed? Is it qualified trespass to dwelling or
trespass to property?
A: The crime committed is Qualified Trespass to Dwelling. The said place is a residential place
and there is someone who is occupying it even if at the moment it is not people because the said
husband A and B are on vacations, it is still considered as an inhabited place. Therefore, the
moment anyone enters, the crime committed is trespass to dwelling and not trespass to property.
THREE KINDS OF THREATS:
1 Grave threats
2 Light threats
3 Other light threats
ARTICLE 282 GRAVE THREATS
PUNISHABLE ACTS:

Page 125

CRIMINAL LAW 2
1
2

Threatening another with the infliction upon his person, honor or property or that of his family of any wrong
amounting to a crime and demanding money or imposing any other condition even though not unlawful,
and the offender attained his purpose.
By making such threat with the infliction upon his person, honor or property or that of his family of any
wrong amounting to a crime and demanding money or imposing any other condition even though not
unlawful and without the offender attaining his purpose. (Elements for this act are the same with the first
except that the purpose is not attained.)
By threatening another with the infliction upon his person, honor or infliction upon his person, honor or
property or that of his family of any wrong amounting to a crime, the threat not being subject to any demand
of money or imposition of any condition.

ARTICLE 283 LIGHT THREATS

Light threats is committed if a person threatens another with the commission of any wrong which does not amount
to a crime. But it always subject to a demanded money or the imposition of any other condition even though not
unlawful.
Art. 284 BOND FOR GOOD BEHAVIOR
In all cases falling within the two next preceding articles, the person making the threats may also be
required to give bail not to molest the person threatened, or if he shall fail to give such bail, he shall be sentenced to
destierro.
ARTICLE 285 OTHER LIGHT THREATS
There are 3 instances or punishable acts under light threats:
1 Threatening another with a weapon or by drawing such weapon in a quarrel, unless it be in lawful selfdefense. Here, the weapon must not be discharged.
2 Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in
the idea involved in his threat.
3 Any threat made in a jest or in the heat of anger constitutes light threat only.
4 Orally threatening to do another any harm not constituting a felony.
So whether it be grave threats, light threats or other light threats, the essence of threats is INTIMIDATION. It is a
promise of a future wrong, a promise of a future harm. Not now, but in the future.
So, since it is a promise of a future wrong, threats may be committed either personally or orally or it can also be
committed in writing or through an internet chat. If threats are committed through writing or through an internet chat,
the penalty is qualified.
Q: What is the difference between grave threats, light threats or other light threats?
A: In GRAVE THREATS, the threat will always amount or constitute a crime. It may or may not be subject
to a demand money or condition. The offender may or may not attain his purpose. But, in grave threats, the
threats will always amount or will always constitute to a crime. On the other hand, in case of LIGHT
THREATS, the threat will not constitute to a crime but it is always and always subject to a demand of
money or the imposition of any other condition.
So in LIGHT THREATS, the threat threatened to be committed will not amount to a crime, will not constitute
to a crime, however it is always subject to a demand of money or the imposition of any other condition,
even though not unlawful.
Lastly, in case of OTHER LIGHT THREATS, other light threats can be done by threatening another with a
weapon or by drawing such weapon in a quarrel, unless it be in lawful self-defense or it can be done by
orally threatening another with a harm amounting to a crime in the heat of anger. So it is necessary that the
offender is in the heat of anger or he threatens another with a harm amounting to a crime. But he did not
pursue with the idea involved in his threat. And the last one is by orally threatening another which does not
constitute a crime.

Page 126

CRIMINAL LAW 2
Q: So what if A went to the store and then from the said store he learned that had been spreading negative rumors
against him. And so A was so mad, he was so angry that he went to the house of B and he called on B: B get out of
the house! I will kill you! I will kill you! Get out of the house B! But B did not get out of the house. Instead, it was the
son of B who came out of the house and said: What do you want with my father? A angrily said that, You let your
father come out or I will kill him because he has been spreading negative rumors about me. The son went inside
the house and did not come back. The father also did not come out of the house. And so later, A just left the house.
What crime is committed by A? Is it grave threats, light threats or is it other light threats?
A: The crime committed is under Article 285 OTHER LIGHT THREATS. Orally, in the heat of anger, he
threatened another with a harm constituting a crime, but he did not pursue with the idea in his threat. It is
only other light threats.
Q: What if, let us say, A saw that B has a new car. It was a luxury car. He knew that it was smuggled and so he told
B: B, if you will not give me P500,000, I will call the Bureau of Customs, I will tell ComissionerBiazon right now that
your car is smuggled. What crime if any is committed by A against B?
A: It is LIGHT THREATS. He threatened to commit a wrong which does not constitute a crime. It is not a
crime to inform the Bureau of Customs that the car was smuggled and it is subject to a demand of money
and the imposition of any other condition even though not unlawful.
Q: What if A, who is the creditor of B, was inside the house of B. He was asking B to pay his indebtedness. B said:
Get out of my house. If I still see you in the afternoon when I get back inside my house and if you are still here, I
will kill you. What crime is committed?
A: In this instance where B told A : Get out of my house. If I still see you in the afternoon when I get back
inside my house and if you are still here, I will kill you. The crime committed is GRAVE THREATS. There is
a promise of a future wrong to be committed in the afternoon if A is still there in the house.
Q: What if in the same problem, A was asking B to pay his indebtedness. B said: Get out of my house! Otherwise, I
will kill you. What crime is committed?
A: The crime committed is GRAVE COERCION. The threat is present, direct, personal, immediate and
imminent. Not in the future, but now direct, personal and immediate.
Note that in case of threats made while committing physical injuries, threats are absorbed.
ARTICLE 286 GRAVE COERCIONS
2 way of committing grave coercion:
1 Preventive Coercion
2 Compulsive Coercion
PREVENTIVE COERCION if a person prevents another, by means of violence, threat or intimidation, from doing
something not prohibited by law.
COMPULSIVE COERCION if a person compels another, by means of violence, threat or intimidation, to do
something against his will, whether it be right or wrong, whether it be prohibited or not by law.
So, to amount to preventive coercion, the offender by means of violence prevents someone form doing something
which is not prohibited by law.
Q: Therefore, what if, the offender prevents someone form doing something which is prohibited by law? So let us
say A, wanted to enter the house of B, against the will of B. X saw A wanting to enter the house of B against the will
of B. X prevented A. A in his act of wanting to enter the house of B, is an act prohibited by law, so X prevented A
from doing so. However, A still pursued with the act of entering and so what X did in order to prevent him is that X
boxed A resulting in his injury of slight physical injuries. What crime is committed by X?
A: It is not grave coercion. Because X is preventing A by means of violence and intimidation, not from doing
something which is prohibited by law but from doing something which is prohibited by law. Therefore, it is
not grave coercion.
So what crime is committed?
The crime committed is SLIGHT PHYSICAL INJURIES.

Page 127

CRIMINAL LAW 2
Q: What if in case of grave coercion, it is necessary that the offender compels another to do something against his
will, regardless of whether
it be right or wrong, regardless of whether it is allowed or prohibited by law. The
fact is a person cannot put the law in his hands and prevent someone from doing something so long as it is against
his will.
A: So in case of grave coercion, if the essence of threats is intimidation or a promise of a future wrong, a
promise of a future injury, the injury or threat is present, direct, personal, immediate and imminent. It is
NOW. That is why, grave coercion cannot be committed in writing or through an internet chatting because it
is always personal. Hence, it is about to take place imminent and immediate.
Q: So how would you distinguish threat vs. coercion?
THREAT
The wrong threatened to be committed is in the
future
May be committed in writing or through an internet
chatting
The essence of threat is intimidation

COERCION
The wrong threatened to be committed is direct,
personal, immediate and imminent
Cannot be committed in writing or through internet
chatting because it is always personal and
immediate
It is violence or intimidation amounting serious
enough to amount to violence

ARTICLE 287 LIGHT COERCION

It is committed by a creditor who shall seize anything belonging to his debtor by means of violence or intimidation in
order to apply the same to the indebtedness.
There is one form of light coercion under Article 287, that is UNJUST VEXATION. It is a form of light coercion.
UNJUST VEXATION refers to any human conduct, which although not capable of producing any material harm or
injury, annoys, vexes or irritates an innocent person.
Example in Book I: a person walking and hit with a lead pipe on the head.
CASE OF BALEROS, JR.:
There was a UST medical student. There was a cloth soaked with chemical pressed on her face. So there
was this man, she was awakened with a man on top of her placing a cloth soaked with chemical pressed
on her face. The charge was attempted rape. Supreme Court said it was just UNJUST VEXATION nangiinislangdawyunglalakingyun. So, Supreme Court said it is a human conduct which annoys or vexes the
said female medical student.
Art. 288 OTHER SIMILAR COERCIONS; (COMPULSORY PURCHASE OF MERCHANDISE AND PAYMENT
OF WAGES BY MEANS OF TOKENS)
Other light coercion is committed by forcing or compelling directly or indirectly or knowingly permitting the forcing
or compelling any employee or laborer to buy merchandise or commodities from the said employer. And lastly, by
paying the wages due to the laborer or employees by any tokens or object other than the legal tender currency of
the Philippines unless to be requested by the said employee or laborer.
So it is more on LABOR other light coercion.
Q: What if a person, A threatened to kill B. and so B filed a case of grave threats against A. The case was filed
before the court. Upon the filing of the court, what bail, if any, should the court impose on A in order to insure that A
will not make good the said threat?
A: Under Article 284, we have BOND FOR GOOD BEHAVIOR. Bond for good behavior is a bail which is
required by the court to be posted by any accused only in the crimes of grave threats and other light
threats. In the crimes of grave threats or other light threats, the court would allow or would require an
accused to file or to post a bond for good behavior in order to ensure that he will not make good the said
threat. If the said accused failed to pay or post the said bond for good behavior, then the penalty hat would
be imposed is destierro in order to ensure that he will not make good the said threat.
REVELATION OF SECRETS:

Page 128

CRIMINAL LAW 2
ARTICLE 290 DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE
We have seizure of correspondence in order to discover the secrets of another.
This is committed by any person who shall seize any correspondence of another in order to discover the secret of
any person.
NOTE: In case of seizure of correspondence in order to discover the secrets of another, DAMAGE is not element.
Likewise, REVELATION is not an element.
The mere act of seizing the correspondence of another with the intention to discover the secrets, the crime
is already consummated. It is not necessary that the secret be revealed, it is not necessary that there be damage
on the part of the offended party.
ARTICLE 291 REVEALING SECRETS WITH THE ABUSE OF OFFICE
This is committed by a manager or by an employee or by a servant who reveals the secrets of his principal or
master learned by him in such capacity.
It is the REVELATION OF SECRETS which will consummate the crime, not merely discovery but revelation of the
said secrets. Again, damage is not an element. It is not necessary that the offended party be prejudiced or
damaged.
ARTICLE 292 REVELATION OF INDUSTRIAL SECRETS
This is committed by any person in charge, employee or workman of a manufacturing or industrial establishment
who shall learn and discover the secrets of the industry and shall reveal the same to the prejudice of the owner
thereof.
In case of revelation of industrial secrets, mere revelation of those secrets will not suffice. There must be
DAMAGE OR PREJUDICE CAUSED TO THE OFFENDED PARTY.
The law requires to the prejudice of the owner thereof.
RA 92400 - ANTI-WARTAPPING LAW
The following acts are punishable:
1 It shall be unlawful for any person, without securing the consent of all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement
to secretly overhear, intercept or record such private communication or spoken word by using a device
commonly known as a Dictaphone or dictagraph, walkie talkie, tape recorder, or other similar devices.
2 Knowingly possessing any tape record, wire record, disc record, or any other such record, or copies
thereof, of these private communication or spoken word.
3 Replaying these any tape record, wire record, disc record to another person.
4 Communicating the contents of the said tape record, wire record or disc record, in writing or verbally to
another person.
5 Furnishing transcriptions of these tape record, wire record or disc record whether totally or partially to
any other person.
What is foremost prohibited is the act of tapping, recording or intercepting any private communication or spoken
word without the consent of all the parties. Without being authorized by all the parties to the said private
communication or spoken word.
Q: So what if A told B to come inside his room and when B entered the room, A started scolding B. In scolding B, A
said scandalous remarks against B. Unknown to A, B was tape recording the private conversation between them.
Can B later use the said tape recording in order to file a case of defamation or slander against A?
A: NO. Because the said act of tape recording without being authorized by all the parties to a private
communication or spoken word is inadmissible in any judicial, quasi-judicial, legislative or administrative
proceedings or investigation.
The ONLY EXCEPTION is when a police officer or peace officer is authorized by written order of the court to listen
to, intercept or record any communication in crimes involving treason, espionage, inciting to war or giving motives
for reprisals, piracy, mutiny, rebellion, conspiracy and proposal to commit rebellion, sedition, conspiracy to commit

Page 129

CRIMINAL LAW 2
sedition and kidnapping. Only in these instances and provided that the said peace officer is authorized by a written
order coming from the court may he be allowed to intercept, listen to or record the private communication or spoken
word.
TITLE TEN
CRIMES AGAINST PROPERTY
Art. 293 Who are guilty of robbery?
Robbery is committed by any person, who with intent to gain shall take any personal property belonging to
another by means of violence against, or intimidation of any person, or using force upon anything.
Elements of Robbery:
1 That the offender unlawfully takes a personal property
2 That the said personal property belongs to another person
3 There must be intent to gain in the taking of the said property
4 That the said taking is either by means of violence against, or intimidation of any person, or using force
upon anything
5
Unlawful taking is the deprivation of the offended party of his personal property with an element of permanency.
So, it is necessary that in taking the personal property from another person, there is an element of permanency.
The law requires that the property must be personal property, not real property because real property is under
Article 312 Occupation of real property.
The personal property must belong to another person because if it do not belong to another person it cannot be
said that there is intent to gain on the part of the offender. The law requires that there must be intent to gain.
Intent to gain is an internal state of mind. So how can you prove intent to gain? The law presumes there is intent to
gain the moment there is taking of the personal property of another person. Intent to gain is presumed by law.
Two ways of committing robbery:
1 Robbery with violence against or intimidation (Art.294)
2 Robbery with the use of force upon things (Art.299)
The value of the property taken in robbery with violence against or intimidation against people is immaterial
because the penalty is dependent on the violence used by the offender against the offended party. However, in
Robbery with the use of force upon things (Art.299), the value of the property taken is material because the penalty
is dependent on the value of the property taken.
Art.294 - Robbery with violence against or intimidation of persons
The following acts constitute robbery with violence against or intimidation of persons:
1 When by reason or on occasion of the robbery, the crime of homicide is committed.
2 When robbery is accompanied by rape or intentional mutilation or arson.
3 When by reason or on occasion of such robbery, any of the physical injuries resulting in insanity, imbecility,
impotency or blindness is inflicted.
4 When by reason or on occasion of robbery, any of the physical injuries resulting in the loss of the use of
speech or the power to hear or to smell, or the loss of an eye, a hand, foot, an arm, or a leg or the loss of
the use of any such member or incapacity to go to work in which the injured person is thereto habitually
engaged is inflicted.
5 If violence or intimidation employed in the commission of the robbery is carried to a degree clearly
unnecessary for the commission of the crime
6 When in the course of its execution, the offender shall have inflicted upon any person not responsible for
the commission of the robbery any of the physical injuries in consequence of which the person injured
becomes deformed or loses any other member of his body or loses the use thereof or becomes ill or
incapacitated for the performance of the work in which he is habitually engaged for more than 90 days or
the person injured becomes ill or incapacitated for labor for more than 30 days
7 If violence employed by the offender does not cause any of the serious physical injuries defined in Article
263, or if the offender employs intimidation only.

Page 130

CRIMINAL LAW 2
In other words, we have robbery with homicide, robbery with rape, robbery with intentional mutilation, robbery with
arson, robbery with serious physical injuries, robbery with unnecessary violence and lastly, simple robbery.
Robbery with Homicide
Robbery with homicide is a special complex crime or a composite crime or a single indivisible offense. In reality
two or more crimes have been committed, the robbery and the homicide yet, in the eyes of the law only one crime,
a single indivisible offense of robbery with homicide.
Q: When should the killing or the homicide take place?
A: In case of robbery with homicide, for as long as the original intent of the offender, for as long original
criminal design is to commit robbery or to rob, the killing may take place before, during or after the said robbery
provided, that the original intent/ original criminal design is to commit robbery or to rob.
Since it is a special complex crime, regardless of the number of the persons killed there is only a single
indivisible offense of robbery with homicide. Even if the killing is an unintentional killing or accidental killing still, it is
a single indivisible offense of robbery with homicide. Even if the victim of the said robbery is different from the victim
of the killing, it is still robbery with homicide. There lies the difference between Article 294 and Article 267. In
kidnapping and serious illegal detention with homicide, the victim of the kidnapping and serious illegal detention
must be the victim in the said killing to amount to kidnapping and serious illegal detention. But in case of robbery
with homicide, regardless of who the offended party may be, whether the offended party in robbery is different from
the offended party in the killing it is still robbery with homicide.
Q: So let us say, A entered the house of B in order to commit robbery. He took the valuables therein and after taking
the jewelries suddenly the box of jewelries fell so X was awaken. When A saw that X was awaken, A shot X. X
died. What crime is committed?
A: Robbery with homicide. Because by reason or on occasion of robbery, homicide was committed.
Q: What if in the same problem, when X was awaken, the robber, A, shot X. The wife was also awaken and so the
wife started shouting so A also shot the wife.
The wife also died. What crime/s is committed?
A: Two persons are killed still, the crime committed is still a single indivisible offense of robbery with
homicide. All the killings are merged into a composite intergraded whole that is a single indivisible offense
of robbery with homicide.
Q: What if let us say, in the same problem, so A went to the house of X and took the jewelries. He was on his way
out when he bumped the door and so the owner of the house was awaken. So A went down and saw the back of
the robber. And so he chased the robber. In the garden, A tried to shoot the owner of the house and so A jumped on
him and they struggled for the possession of the gun. In the course of struggle for the possession of the gun, the
gun fired hitting a ballot vendor passing by. The ballot vendor died. What crime/s is committed?
A: The crime committed is still the single indivisible offense of robber with homicide. Since it is a special
complex crime, even if the victim of the robbery is different from the victim of the homicide, it is still robbery
with homicide. Even if it is only accidental killing it is still robbery with homicide so long as the killing is by
reason or on occasion of the said robbery.
Q: So what if, A, B, and C entered the house of X in order to commit robbery. They have already taken the
valuables when the owner of the house was awaken. It was only A who saw the owner of the house was awaken
and so A shot X and killed him. Are they all liable for robbery with homicide or only A who shot X?
A: All of them are criminally liable for the crime of robbery with homicide. Under Article 8, that in case of an
express or direct conspiracy, the conspirators are liable only for the crime agreed upon. The crime agreed is to
commit robbery but how come all of them are liable for homicide? Because it falls under the exception that when
the resulting felony is a special complex crime because you cannot separate or divide a special complex crime.
Therefore, even if it was only A who killed the victim, even if their agreement is only to commit robbery, because
homicide or the killing was committed by reason or on occasion of the said robbery, all of them are criminally liable
for the crime of robbery with homicide.
The only exception to the exception is when B and C performed acts in order to prevent A from committing
the homicide.

Page 131

CRIMINAL LAW 2
CASE OF PEOPLE vs CABBAB
Let us say, A and B versus X, Y and Z. A and B committed robbery and upon leaving the said place, X and
Y saw A and B and shot them and made gun fires. Z, a police officer dove into the canal in order to prevent himself
from being killed. A and B went directly to X and Y and killed them both. And thereafter, A and B took the winnings.
Based on the circumstances or facts the fiscal filed the following cases before the RTC, robbery, double murder,
and attempted murder, robbery because of the taking of the winnings, double murder for the death of X and Y and
attempted murder as to the police officer who dove into the canal. What is the ruling of the RTC? It said wrong ka
fiscal! The crime is robbery with double homicide and attempted murder. Then it went to appeal on the Court of
Appeals, sabiniya wrong fiscal! Wrong ka din RTC! The crime committed is robbery with homicide and attempted
murder. Then it went up to the Supreme Court. Sc said, malika fiscal! Mali ka RTC! Mali kadn CA! Mali kayo lahat!
The only crime committed is the single indivisible crime of robbery with homicide. Because all the acts are
considered absorbed in the crime of robbery with homicide despite the fact that two persons were killed, despite the
fact that one person was greatly injured, all these circumstances are merged into a composite integrated whole that
is single indivisible offense of robbery with homicide.
Robbery with rape
Just like robbery with homicide, is also a special complex crime or a single indivisible offense. So, for as
long as the intention of the offender is to commit robbery, rape may be committed before, during or after the
commission of robbery. Since it is a special complex crime, regardless of the number of times the victim was raped,
the crime committed is only robbery with rape. There is no such crime as robbery with multiple rapes. There is only
robbery with rape.
Q: So a woman was walking on her way home and because it was pay day here comes X. X dragged the woman in
a dark place and took the bag and took the money inside it. And then he found the woman attractive so he raped
the woman not once but twice. What crime/s is committed?
A: X committed the crime of robbery with rape regardless of the times the woman was raped.
CASE OF PEOPLE vs SUYU
Two persons, boyfriend and girlfriend, they were having snack and saw the shadow of 3 men. And these 3
men were pushing the truck trying to open the door. They took their valuables and the boyfriend hurriedly left the
girlfriend allegedly to ask help to the police. And so the girlfriend was alone with the three men and they dragged
her into a nipa hut and there she was raped by the mastermind, Suyu. Not only she was raped by Suyu but also
Cainglet while, the other two was outside serving as lookouts. So the said woman, Clarissa, was raped by two
persons and she was raped three times. Suyu and Cainglet raped her by carnal knowledge. Not only that, Cainglet
also inserted two fingers to her genitals therefore, he also committed rape by sexual assault. What crimes are
committed by the 4 persons? What crime/s they should be criminally liable of?
Supreme Court said, they are all liable for the single indivisible offense of Robbery with Rape. Regardless
of the fact that two persons raped the victim, regardless of the fact that the victim was raped 3 times, regardless of
the fact that there is two nature of rape committed against the victim (rape by carnal knowledge and rape by sexual
assault), still the crime committed is the single indivisible offense of robbery with rape.
There are four conspirators but not all of them raped the victim. Yet they are all liable for robbery with rape
because the two lookouts did not perform acts in order to prevent the consummation of the said rape. So since it is
a special complex crime and a single indivisible offense all the other rapes are merged into a composite integrated
whole that is robbery with rape.
The same theory applies in case of robbery with intentional mutilation and robbery with arson.
Robbery with intentional mutilation, arson and serious physical injuries
For as long as the intent or the criminal design of the offender is to commit robbery, the intentional
mutilation, arson or serious physical injuries may be committed before, during or after the commission of the said
robbery.
Q: So let say A and B saw X walking. It was pay day and so A and B announced a holdup. They were both armed
with guns and so what X did since they were both armed with guns, he gave the bag. By reason thereof, A and B
already left the place. While A and B was waiting for a ride in a waiting shed, A and B divided the things they took

Page 132

CRIMINAL LAW 2
from X. So A told B, this is your share. B said, why is my share smaller than your share?! And so B got and he shot
A. A died. What is the crime committed?
A: The crime committed is robbery with homicide because even if it was also an offender who was killed,
the killing took place by reason of the said robbery.
Q: So what if in the same problem, so A and B were already dividing the things they took and B said, wait why is my
share so small? B got mad shot A but A did not die. A suffered serious physical injuries. What crime is committed?
A: The crime committed is robbery with serious physical injuries.
Q: What if in the same problem, A were dividing the things and B said, why is my share so small compared to your
share? B got mad and what he did was took an ice pick from his pocket and stab A in his face and placed the ice
pick in As face. A suffered serious physical injuries and deformity in his face. It caused physical ugliness to A
therefore there is deformity. What crime/s is committed?
A: This time the crime committed by B is not the single indivisible crime of robbery with serious physical
injuries but two crimes, Robbery and Serious physical injuries under paragraph 3 of Article 263 because of
the deformity. Why? Because under paragraph 4 of Article 294, when the serious physical injury that
resulted is a deformity or the loss of any of the member of his body, the law requires that the said physical
injury or deformity must be inflicted because of the execution of a robbery and to a person not responsible
to the commission of the crime of robbery. Here, the deformity was inflicted after the robbery, not before.
Not only that. The deformity was inflicted on A, the person responsible for the commission of the robbery.
If the serious physical injuries inflicted resulted to a deformity or to a loss of any of the member of his body or loss
of the use of any such member or incapacity to go to work in which the injured person is thereto habitually engaged
for more than 90 days, under paragraph 3 of Article 263, it is required that in order to amount to a single indivisible
offense the said deformity or serious physical injury must be inflicted in the course of the execution of the robbery
and to a person not responsible to the commission of the robbery. Otherwise, it will bring about a separate and
distinct crime.
Title Nine
CRIMES AGAINST PERSONAL LIBERTY AND SECURITY
Chapter One
CRIMES AGAINST LIBERTY
Section One Illegal Detention
Art. 267. Kidnapping and serious illegal detention.
It is committed when any private individual who kidnaps or detains another, or in any other manner deprive
him of his liberty. When such detention is illegal or committed in any of the following circumstances:
a. If the kidnapping or detention shall have lasted more than three days;
b. If it shall have been committed simulating public authority;
c. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or
if threats to kill him shall have been made;
d. If the person kidnapped or detained shall be a minor, female or a public officer.
- The crime committed is serious illegal detention.
1st Element
Who is the offender?
- He must be a private individual because if he is a public officer vested with the power to effect arrest
and detain a person, he will be liable for arbitrary detention under Article 124.

Can a public officer also commit kidnapping and serious illegal detention?
- Yes. If said public officer has not been vested by law with the authority to effect arrest and detain a
person, then said person is acting in his private capacity. Since he is acting in his private capacity then
he is liable for kidnapping and serious illegal detention and not under Article 124 which is arbitrary
detention.

Page 133

CRIMINAL LAW 2
2nd Element
When is there detention?
- There is detention if the offender detains the person or liberty of another person. He must be detained
or incarcerated, there must be showing that there was restraint in his person or liberty. Otherwise, if
there is no restraint in his person or liberty, it could be any other crime but not kidnapping and serious
illegal detention.
- The law requires that detention must be illegal. Therefore, there should be no reasonable ground
thereof.

Circumstances that will make the crime serious illegal detention:

a. The kidnapping or detention shall have lasted more than three days;
b. It shall have been committed simulating public authority;
- By pretending to be a public officer, pretending to be NBI agent.
c. Any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if
threats to kill him shall have been made;
d. The person kidnapped or detained shall be a minor, female or public officer.

The presence of any of these circumstances will make the crime serious illegal detention and the absence
of any of these circumstances will make the crime slight illegal detention under Article 268.

Note that the penalty is reclusion perpetua to death. What then are the circumstances that will qualify the
penalty that will make the institution of the maximum penalty of death?
-

The circumstances are the following:

a. If the purpose of the kidnapping or detention was to extort ransom from the victim or any other
person. Therefore, we have kidnapping and serious illegal detention with ransom.
b. If the person kidnapped or detained died or is killed as a consequence of kidnapping and serious
illegal detention, we have kidnapping and serious illegal detention with homicide.
c. If the person kidnapped or detained is raped, we have kidnapping and serious illegal detention
with rape.
d. If person kidnapped or detained is subjected to torture or other dehumanizing acts.

Kidnapping and Serious Illegal Detention with Ransom

- Ransom
- Any money, price or consideration given or demanded as a redemption for the liberty of the person
detained. Any money, price or consideration which is given in exchange for the liberty of the person
detained or incarcerated is considered ransom.
-

People vs. Mamantak

While the mother and her daughter were in a food chain in Tondo, the mother lost her daughter. She
searched for her daughter over a year. A year and 6 months thereafter, she received a phone call from
a Muslim woman claiming that she has her daughter and she was demanding P30,000 in exchange of
her child. The woman instructed the mother to go to a restaurant, where the exchange will take place.
However, the mother already reported the call to the police. When they were in the restaurant and while
the exchange was taking place, the police apprehended Mamantak. The crime charged was kidnapping
and serious illegal detention with ransom. The RTC convicted the accused, however for kidnapping and
serious illegal detention but not for ransom. According to the RTC, the amount given, 30 thousand
pesos, is such a small amount to be considered ransom. According to the RTC it is merely a payment
for the board and lodging of the child during the child was held by Mamantak.
SC: The crime committed is kidnapping and serious illegal detention with ransom. Kahit 5 pesos pa yan
if it was given or demanded as a redemption for the liberty of the person detained it is already
considered as ransom. There is no such thing as small amount in so far as ransom is concerned.

Example
A was indebted to B. B was asking for the payment, however A failed to pay. B got fed up therefore he

Page 134

CRIMINAL LAW 2
kidnapped the minor child of A. B called A telling him that he would only release his child if he pays his
indebtedness of half a million. Is the crime of kidnapping and serious illegal detention with ransom
committed?
- Yes, it is already kidnapping and serious illegal detention with ransom even if the amount being asked
by the kidnapper is the indebtedness of the father of the kidnapped child. So any amount given or
demanded for the release of the person detained, that is already considered ransom.

Kidnapping and Serious Illegal Detention with Homicide

- It is a special complex crime. Therefore, since it is a special complex crime, regardless of the number
of the victims, it is still kidnapping and serious illegal detention with murder or homicide.
-

People vs. Laranaga

- There were 2 kidnapped victims. They were sisters kidnapped and raped, thereafter killed. SC held
that even though there were 2 victims the crime committed is kidnapping and serious illegal detention
with homicide.

NOTE: It is the victim himself or herself who died. If it is another person, it is another separate and
distinct crime because the law is particular that the victim himself is the one that is killed or dies as
consequence thereof.

Example:
A kidnapped the child of B who is his enemy. Child is 10 years old. While being held, the child tried to
escape. A caught the child trying to escape. He shot the child. What was the crime committed?
- The crime committed was kidnapping and serious illegal detention with homicide

But what if in the same problem, the father told the NBI agents about the kidnapping. The agents were ale
to track down than place where the child was being kept. They went over the hide out and exchange of
gunfire took place. The father saw that his child and took him away. While they were escaping the
kidnapper saw them and shot the father. What crime or crimes was or were committed?
- In so far as the minor is concerned, the crime committed is kidnapping and serious illegal detention.
Even if it has not lasted for a period of more than three day, the fact that the victim is a minor, the crime
committed is kidnapping and serious illegal detention.
- In so far as the father is concerned, since he is not the victim of the crime of kidnapping, a separate
crime of homicide should be filed.
- Therefore, there are 2 crimes committed by said kidnapper: kidnapping and serious illegal detention, in
so far as the minor is concerned and homicide in so far as the father is concerned.

NOTE: The same is true for kidnapping and serious illegal detention with rape. It is necessary that the
victim is the one raped and since it is again a special complex crime regardless of the number of times that
the victim was raped the crime committed is only kidnapping and serious illegal detention with rape. There
is no such crime as kidnapping and serious illegal detention with multiple rapes. Only kidnapping and
serious illegal detention with rape and so with kidnapping and serious illegal detention with physical injuries
which is also a special complex crime.

Example:
A, is a 6 year old child, while playing in the playground was approached by X and gave her candy.
Meanwhile, the mother was busy hanging their clothes. After a while, X came back and this time gave the
child money. The child was so happy and easily persuaded to go with X. The mother searched for her
daughter but she was nowhere to be found. X brought the child in his house and molested her twice. The
following day, the mother found her child in their house with torn and blooded clothes. The crime charged
was kidnapping and serious illegal detention with rape. Is the crime charged proper?
- No, the charge is wrong because the obvious intention is to rape the child and not to detain her. SC
held that the man is guilty of 2 counts of statutory rape because the child is below 12 years of age and
she was molested twice. Therefore, unless and until there was an intention to detain the child on the
part of the offender, it could be any other crime but not kidnapping and serious illegal detention.

Page 135

CRIMINAL LAW 2

A saw his enemy walking. He abducted his enemy and placed him in a vacant lot. The following morning,
his enemy was found in a vacant lot dead with 10 gun shot wounds. The crime committed is murder.
Obviously there was no intent to detain the said offended party. The intent was to kill him. Therefore, the
proper charge is murder and not kidnapping and serious illegal detention with murder or homicide as the
case maybe. In order to amount to kidnapping and serious illegal detention with homicide or murder or
physical injuries, it is necessary that there must be intent to detain and in the course of such detention the
victim is killed or raped or subjected to torture or other dehumanizing acts.

If any of the circumstances is absent it will only be slight illegal detention under article 268.

Art. 268. Slight illegal detention.

Elements:
1. Offender is a private individual
2. He kidnaps or detains another, or in any other manner deprive him of his liberty
3. The act of kidnapping or detention is illegal
4. Committed absent any of the circumstances under Art. 267
Example
A, was envious of his neighbor. He kidnapped said neighbor in the morning and placed him in a secluded
place. A realized that he might be imprisoned, so he decided to release his neighbor in the evening. What is
the effect if such release to the criminal liability of A?
- Under Article 268, slight illegal detention, it is provided that if the victim is released, such release shall
be considered as a privilege mitigating circumstance because from the penalty of reclusion temporal,
the penalty will be lowered by one degree which is prision mayor. However, in order that this voluntary
release maybe considered a privilege mitigating circumstance these are the requisites:
a.The release must be within three days from the commencement of the detention;
b.It must be made without having attained the purpose intended;
c. It must be made before the institution of criminal proceedings against him.
-

If all these are present, then such voluntary release of the offender will mitigate the criminal liability of
said offender.

A kidnapped a public officer in the morning. In the evening he released the said public officer. Will such
release mitigate the criminal liability of A?
- No. Because the fact that the person kidnapped is a public officer the crime committed is already
kidnapping and serious illegal detention under Article 267. If the crime committed is Article 267, no
amount of voluntary release will mitigate the criminal liability of the offender.

NOTE: If the victim is a minor, female, public officer automatically the crime committed is a kidnapping and
serious illegal detention under Article 267 and no amount of voluntary release will mitigate the criminal
liability of the offender.

Art. 269. Unlawful arrest.

Elements:
1. Offender arrests or detains another person
2. The purpose of the offender is to deliver him to the proper authorities
3. The arrest or detention is not authorized by law or there is no reasonable ground therefor.
Example:
A was walking when he was arrested by B a police officer. The arrest was without warrant but the same
was not executed under any of the circumstances for a valid warrantless arrest. Because there were no
complainants and evidence presented, the fiscal dismissed the case. What is the proper crime to be
charged?
- The public officer is guilty of unlawful arrest. The fact that he has been detained is already absorbed
because the intention of the said public officer is to file a case against him, that is, to deliver him to the
proper authorities. Therefore the arbitrary detention is absorbed in unlawful arrest.

Page 136

CRIMINAL LAW 2
Section Two Kidnapping of minors
Art. 270. Kidnapping and failure to return a minor
Elements:
1. Offender is any person entrusted with the custody of a minor
2. He deliberately fails to restore the minor to his parents or guardians or any person charged with the
custody of the minor
Example
A and B has a child who was entrusted to X because they were going on vacation for a week. They
instructed X to return the child after 7 days. When they came back home X failed to return the child. X was
so busy and she forgot to return the child. Can X be charged with kidnapping under Article 270?
- No because he did not deliberately fail to restore the child to his parents or guardian. The law requires
deliberately. Here he failed to return the child because of his negligence. He was so busy.
Art. 271. Inducing a minor to abandon his home
Elements:
1. That a minor is living in the home of his parents or guardian or the person entrusted with his custody
2. The offender induces said minor to abandon such home

It is committed by any person who shall induce a minor to abandon the home of his parent or guardians or
the persons entrusted with his custody.

The crime will arise even if the child has not left the house of his parents or guardian. Mere inducement
with intent to cause damage will suffice.
Example
A and B, husband and wife, whose marriage has been declared a nullity by the court. The custody of their
child who is 5 years of age is given to the mother as provided by law. The father was granted visitation
rights. One Sunday the father visited the 5 years old son and he brought him out. Usually, he would return
the child by nighttime. However, the father did not bring back the child to his mothers house. The mother
demanded the return of the child but the father still failed to return the child. Therefore the mother filed a
case of kidnapping under article 270 against the father. Will the case prosper?
- Yes the case will prosper. Under article 271 it is provided that the father or the mother of the minor may
commit any of the crimes covered by the two preceding articles. The only difference is that in case
kidnapping and failure to return a minor under Art. 270, the penalty of reclusion perpetua shall be imposed
upon any other person but if it shall be the father or the mother of the minor, the penalty shall be arresto
mayor
or a fine or both under the discretion of the court. Therefore, even the mother or the father can be criminally
liable under articles 270 and 271. The only difference is in the penalty
Section Three Slavery and Servitude
Art. 272. Slavery
Elements:
1. Offender is any person who shall purchase, sell, kidnap or detain a human being
2. The purpose is to enslave the human being

If the purpose is to engage in some immoral traffic, the penalty shall be qualified.

Art. 273. Exploitation of child labor

Elements:
1. Offender is any person who retains a minor in his service
2. It is against the will of the minor
3. It is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person
entrusted with the custody of a minor
Art. 274. Services rendered under compulsion in payment of debt

Page 137

CRIMINAL LAW 2
Elements:
1. Offender is a creditor who compels a debtor to work for him, either as household or farm laborer
2. It is against the debtors will
3. The purpose is to require or enforce the payment of a debt
Chapter Two
CRIMES AGAINST SECURITY
Section One Abandonment of helpless persons and Exploitation of minors
Art. 275. Abandonment of person in danger and abandonment of one's own victim
3 acts punished:
1) Any one who shall fail to render assistance to any person whom he shall find in an uninhabited place
wounded or in danger of dying, when he can render such assistance without detriment to himself,
unless such omission shall constitute a more serious offense;
Elements:
1. The place is not inhabited
2. The accused found there is a person wounded or in danger of dying
3. The accused can render assistance w/out detriment to himself
4. The accused fails to render assistance
2) Anyone who shall fail to help or render assistance to another whom he has accidentally wounded or
injured;
3) Anyone who, having found an abandoned child under seven years of age, shall fail to deliver said child
to the authorities or to his family, or shall fail to take him to a safe place.
Example
A saw B at Luneta Park. He was wounded, he was bitten by a dog. He was crying for help, instead of
helping B, A took off. Is he liable under Article 275?
- No because Luneta park is not an uninhabited place. Uninhabited place is one where there is remote
possibility for the victim to receive some help. Luneta Park is a public place. Therefore, A cannot be
held liable under Article 275.
1st Act
Example
A was hunting in the forest. He found B in the middle of the forest. There was a big trunk of a tree in his
neck; thus, B cannot move. He was begging for help. A however just left. B thereafter was rescued. Can A
be held liable under Article 275?
- Yes because A found B in an uninhabited place, the forest. He was wounded, he was in danger of dying
because there was a big trunk in his neck. There was no detriment on the part of A if he renders
assistance but he failed to render the same. Therefore he is liable under Article 275.

But what if A found B. B was bitten by a snake and it was still there. B was asking for help but A did not help
him because he was afraid that the snake too might bite him. Can A be held liable under Article 275?
- No, because helping B would be detrimental on his part.

2nd Act
Example
A was driving his car when suddenly it tripped over a stone. The stone flew, hitting the left eye of a
bystander. Is A liable?
- No because it was purely accidental. It is an exempting circumstance. he was performing a lawful act
with due care. An incident happened without fault or accident on his part.

Page 138

CRIMINAL LAW 2

However, when the left eye of the bystander bled, he saw it, instead of bringing the person to the hospital,
he sped up. Is A criminally liable?
- Yes, A is criminally liable. When he failed to render assistance to his victim, he is criminally liable under
Article 275.

Art. 276. Abandoning a minor

Elements:
1. Offender is any person who has custody of a child
2. The child is under 7 years of age
3. That he permanently, deliberately and consciously abandons such child
4. That he has no intent to kill the child when the latter is abandoned

Penalty will be qualifiedif

a. death of the minor shall result by reason of such abandonment or
b. the safety of the child has been placed in danger.

Art. 277. Abandonment of minor by person entrusted with his custody; indifference of parents
2 acts punished:
1)

Abandonment of a child by a person entrusted with the custody

Elements:
1. The offender is any person who has charge of the rearing or education of a minor
2. The he deliver said minor to a public institution or other persons
3. That it is without the consent of the one who entrusted such child to his care or in the absence
of the latter, without the consent of the proper authorities

2)

Indifference of Parents
Elements:
1. The offender is a parent
2. The he neglects his children by not giving them the education
3. That his station in life requires such education and financial conditions permits it

Art. 278. Exploitation of minors.

The following are the acts punished:
1) Any person who shall cause any boy or girl under sixteen years of age to perform any dangerous
feat of balancing, physical strength, or contortion;
2) Any person who, being an acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus
manager or engaged in a similar calling, shall employ in exhibitions of these kinds children under
sixteen years of age who are not his children or descendants;
3) Any person engaged in any of the callings enumerated in the next paragraph preceding who shall
employ any descendant of his under twelve years of age in such dangerous exhibitions;
4) Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child
under sixteen years of age, who shall deliver such child gratuitously to any person following any of
the callings enumerated in paragraph 2 hereof, or to any habitual vagrant or beggar.
In either case, the guardian or curator convicted shall also be removed from office as guardian or
curator; and in the case of the parents of the child, they may be deprived, temporarily or
perpetually, in the discretion of the court, of their parental authority;
5) Any person who shall induce any child under sixteen years of age to abandon the home of its
ascendants, guardians, curators, or teachers to follow any person engaged in any of the callings
mentioned in paragraph 2 hereof, or to accompany any habitual vagrant or beggar.

Page 139

CRIMINAL LAW 2

These acts are considered exploitation of minors because these acts endanger the life and safety, the
growth and development of said minors. This usually involves circus.

Art. 279. Additional penalties for other offenses. The

imposition of the penalties prescribed in the preceding articles, shall
not prevent the imposition upon the same person of the penalty
provided for any other felonies defined and punished by this Code.
Section Two Trespass to dwelling
Art. 280. Qualified trespass to dwelling
Elements:
1. Offender is a private person
2. He enters the dwelling of another
3. That such entrance is against the latters will

Trespass to Dwelling or Qualified Trespass to Dwelling is committed by any private person who shall
enter the dwelling of another against the latter's will

It is committed by a private person because if it is public officer the crime committed is under Art. 128 which
is Violation of Domicile. Under Art. 128, when the law says against the will, it means that there is some
prohibition, there is opposition of entering whether express or implied. Mere entry without the consent of the
owner will not bring about qualified trespass to dwelling. If the door is open it means that anybody can enter
even without the consent of the owner. The moment he enters he cannot be held liable with qualified
trespass because there is no prohibition or opposition to enter. It is necessary that there must be prohibition
or opposition from entering.
- It can be express an express prohibition such as, when there is a note stating DO NOT ENTER
or when the door is closed after a person knocks when the owner sees the person knocking.
- It is implied if the door is closed even if it is not locked.

Art. 281. Other forms of trespass. The penalty of arresto

menor or a fine not exceeding 200 pesos, or both, shall be
imposed upon any person who shall enter the closed premises
or the fenced estate of another, while either or them are
uninhabited, if the prohibition to enter be manifest and the
trespasser has not secured the permission of the owner or the
caretaker thereof.

Trespass to Property
Elements:
1. Offender is any person who shall enter the closed premises or the fenced estate of another person
2. The entrance is made while either of them is uninhabited
3. That the prohibition to enter be manifest
4. That the trespasser has not secured the permission of the owner or the caretaker thereof

Trespass to Dwelling vs. Trespass to Property

Trespass to Dwelling
Place is a dwelling and
inhabited
Prohibition to enter can either
be express or implied
Entry was made against the

Trespass to Property
Place is a closed premise or
the fenced estate of another
which is unihabited
Prohibition to enter must be
manifest
Entry was made without

Page 140

CRIMINAL LAW 2
will of the owner/possessor of
property

seeking the permission of

the owner/caretaker thereof

Example
Townhouse A was currently uninhabited. There was a notice posted that it was for rent. X entered the said
townhouse. What crime was committed by A?
- Trespass to Property because at that time the premises was closed and uninhabited and he enters without
securing the permission of the owner or the caretaker.
A and B, husband and wife, went on vacation for a month. Their house was therefore uninhabited. X learned that
there was no one inside the house. he entered the house. what crime was committed? Is it Trespass to Property
or Qualified Trespass to Dwelling?
- Qualified Trespass to Dwelling. It is a residential place and someone is occupying it even if at the moment it
is uninhabited because the owners went on vacation. It is considered an inhabited place therefore the
moment someone enters, it is considered trespass to dwelling and not trespass to property.
Section Three Threats and coercion
3 kinds of threats:
1. Grave threats
2. Light threats
3. Other light threats
Art. 282. Grave threats
Acts punished:
1) Threaten another with the infliction upon the person, honor or property of the latter or of his family of any
wrong amounting to a crime coupled with a demand of money or imposition of any other condition, even
though not unlawful, and said offender attained his purpose
2) Threaten another with the infliction upon the person, honor or property of the latter or of his family of any
wrong amounting to a crime coupled with the demand of money of money or imposition any other
condition, even though not unlawful, and said offender did not attain his purpose
3) Threaten another with the infliction upon the person, honor or property of the latter or of his family of any
wrong amounting to a crime without the demand of money or imposition of any other condition
Art. 283. Light threats
Light threats:
- Any threat to commit a wrong not constituting a crime, but it is always subject to a demand of money or
imposition of any other condition, even though not unlawful
Art. 284. Bond for good behavior
Example:
A threatened to kill B. B filed a case of grave threats against A. Upon filing of the case, what bail if any should the
court impose upon A?
ANS: BOND FOR GOOD BEHAVIOR - is a bail required by the court to be posted by any accused only in
the crimes of grave threats and other light threats. This is to ensure that the offender will not make good the
threat imposed by him. Failure to post the bond, the offender shall be sentenced to destierro.
Art. 285. Other light threats
Acts punished:

1) Threatening another with a weapon or draw such weapon in a quarrel, unless it be in lawful self-defense

Page 141

CRIMINAL LAW 2
2) Orally threatening, in the heat of anger, another with some harm not constituting a crime, and who by
subsequent acts show that he did not persist in the idea involved in his threat
3) Orally threatening to do another any harm not constituting a felony
Whether it be grave, light or other light threats, the essence of the threats is intimidation- the promise of a future
wrong or harm.
Threats can be committed personally, orally, in writing or through an intermediary. If committed in writing or through
an intermediary, the penalty is qualified.

GRAVE THREATS
The
threat
is
always & always
amounting to and
constituting
a
crime. It may or
may not be subject
to
demand
of
money
or
imposition of other
conditions.
The
offender may or
may not attain his
purpose.

DISTINCTION: GRAVE, LIGHT, OTHER LIGHT THREATS

OTHER LIGHT
LIGHT THREATS
THREATS
The threat does not Committed
by
amount to a crime. threatening another with
It is always and a weapon or draw such
always subject to a
weapon in a quarrel,
demand of money
or the imposition of unless it be in lawful selfor
orally
any other condition, defense;
even though not threatening, in the heat
unlawful.
of anger, another with
some
harm
not
constituting a crime, and
who by subsequent acts
show that he did not
persist in the idea
involved in his threat; or
orally threatening to do
any
harm
not
constituting a felony.

Example:
A learned that B was spreading negative rumors against him. A was so mad so he went to the house of B and
shouted, B get out of your house. I will kill you! I will kill you! But B did not go out of the house. Instead, it was
the son of B who went out. A told the son to let his father go out because A would kill him. Upon hearing this, the
son went inside the house and did not go back. B as well did not go out. Later, A left Bs house.
CRIME: A committed other light threats. A, in the heat of anger, orally threatened B with a wrong
constituting a crime but he did not pursue the idea.
A saw that B has a new Lexus. A knew that the car was smuggled. A told B. If you will not give me 500,000php, I
will tell the Bureau of Customs that your car is smuggled.
CRIME: Light threats. A threatened to commit a wrong not constituting a crime. It is not a crime to tell
Customs that the car was smuggled. The threat is subject to a demand of money or the imposition of any
other condition, even though not unlawful.

Page 142

CRIMINAL LAW 2
A, creditor of B, was inside the house of the latter seeking for payment of debt. B said, get out of my house. If I still
see you later afternoon in my house when I come back, I will kill you!
CRIME: B committed Grave threats because there is a promise of a future wrong of killing to be committed
in the afternoon.
A, creditor of B, was inside the house of the latter seeking for payment of debt. B said, get out of my house right
now or else I will kill you!
CRIME: B committed Grave coercion. The threat is present, direct, personal, immediate and imminent. It is
not in the future.

Art. 286. Grave coercions

2 ways to commit grave coercion:
1. PREVENTIVE COERCION
- if a person prevents another by means of violence or intimidation from doing something not
prohibited by law.
Example:
A wanted to enter the house of B against the latters will. X saw A, so he prevented A. Nevertheless, A continued to
enter. Because of this, X boxed A resulting to slight physical injuries.
CRIME: Slight physical injuries because X prevents a person from doing something prohibited by law. In
grave coercion, the offender prevents someone to do something not prohibited by law.
2. COMPULSORY COERCION
- if a person compels another by means of violence and intimidation from doing something against
his will, whether it be right or wrong, prohibited or not.
-

Unlike in threats where the essence of the threats is the promise to do a future wrong or injury; in
coercion, the threat is present, direct, personal and imminent. Hence, grave coercion cannot be
committed through an intermediary or in writing because the threat is always personal, present and
imminent. The threatened act is about to be committed.

THREAT
the wrong threatened to be
committed is in the future
threats may be committed in
writing
or
through
an
intermediary
threat means intimidation

DISTINCTION: THREAT AND COERCION

COERCION
the wrong threatened to be
committed is direct, personal,
present and imminent
threats cannot be committed in
writing
or
through
an
intermediary
because
they
should always be personal and
direct
it is violence; or intimidation
sufficient enough to amount to
violence

Art. 287. Light coercions

LIGHT COERCION - committed by a creditor who shall seize anything belonging to his debtor by means of violence
or intimidation for the purpose of applying the same to the indebtedness

Page 143

CRIMINAL LAW 2
-

related to light coercion is UNJUST VEXATION which refers to any human conduct, although not
capable of producing any harm or material injury, annoys or vexes an innocent person.

Art. 288. Other similar coercions

OTHER LIGHT COERCION - more on labor
Acts punished:
1) Committed by forcing or compelling directly, indirectly, knowingly permitting or forcing an employee or
laborer to buy merchandise or commodities from the employer
2) By paying the wages due to the employees or laborers by objects other than the legal tender of the
Philippines, unless it is requested by the employee or laborer
Chapter Three
DISCOVERY AND REVELATION OF SECRETS
Art. 290. Discovering secrets through seizure of correspondence
SEIZURE OF CORRESPONDENCE to discover the secrets of another
- committed by any person who shall seize any correspondence of another to discover the secrets of the
latter. DAMAGE is not a requirement. The mere act of seizing the correspondence to discover the latters
secrets will consummate the crime. It is also NOT necessary that the secret be REVEALED.
Art. 291. Revealing secrets with abuse of office
REVEALING SECRETS BY ABUSING OFFICE
- committed by a manager, employee or servant who reveals the secrets of his master learned by him in
such capacity. It is the revelation of secrets which will consummate the crime, not mere discovery.
DAMAGE is also not an element.
Art. 292. Revelation of industrial secrets
REVELATION OF INUSTRIAL SECRETS
- committed by any person in charge or an employee in an industrial of manufacturing establishment who
shall learn and discover the secrets of the industry and shall reveal the same to the prejudice of the owner
thereof. DAMAGE must be caused to the offended party. Mere revelation of secrets will not suffice.
In relation to
RA 4200 (ANTI-WIRE TAPPING LAW)
ACTS:
1) It shall be unlawful for any person, not obtaining the consent of all the parties to any private communication
or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device like dictaphone or dictagraph or
dictaphone or walkie-talkie or tape recorder, or other similar means
Exapmle:
A told B to go inside his room. When inside the room, A started scolding B saying slanderous remarks against
him. Unknown to A, B was recording the private communication between them. Can B use the record in filing a
case for slander against A?
ANS: No, because the act of tape recording without being authorized by all the parties in a private
communication is inadmissible in evidence in any judicial, quasi-judicial, legislative or administrative
proceeding or investigation.
The only exception is when a police officer is authorized by a written orderofthe court to listen to,
intercept or record any communication in crimes involving treason, espionage, provoking war and disloyalty
in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion,
inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition and kidnapping.

Page 144

CRIMINAL LAW 2
2) Knowingly possessing any tape record, wire record, disc record, or any other such record, or copies
thereof, of any private communication or spoken word
3) By replaying the wire record, tape record, disc record for any other person or persons; or communicating
the contents thereof, either verbally or in writing, to another person
4) Furnishing transcriptions of the wire record, disc record or tape record, whether totally or partially, to any
other person
Title Ten
CRIMES AGAINST PROPERTY
Chapter One
ROBBERY IN GENERAL
Art. 293. Who are guilty of robbery
ROBBERY- committed by any person who, with intent to gain, shall take any personal property belonging to
another, by means of violence or intimidation of any person, or using force upon anything
Elements:
1. Offender unlawfully takes the personal property of another
UNLAWFUL TAKING - deprivation of the offended party of his personal property.
2. The personal property belongs to another person
- If the property does not belong to another person, it cannot be said that there is intent to gain on
the part of the offender
3. Intent to gain in taking the property
- Intent to gain is an internal state of mind. The law presumes that there is intent to gain the
moment that there is taking of personal property of another
4. Taking is with violence and intimidation or force upon things
Section One Robbery with violence against or intimidation of persons
Art. 294. Robbery with violence against or intimidation of persons
2 Types of Robbery:
1. WITH VIOLENCE AND INTIMIDATION
- In this kind of robbery, the value of the property taken is immaterial because the penalty is dependent
on the violence employed by the offender.
2. WITH FORCE UPON THINGS
- The value of the property taken is material because the penalty is dependent upon the value of the
property.
ROBBERY WITH VIOLENCE AND INTIMIDATION
ACTS:
1) When by reason or on the occasion of robbery, homicide is committed
2) When robbery is accompanied by rape, intentional mutilation, or arson
3) When by reason or on the occasion of robbery, any of the serious physical injuries resulting to insanity,
imbecility, impotency or blindness was committed
4) When by reason or on the occasion or robbery, any of the of the serious physical injuries resulting to
the loss of the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot,
an arm, or a leg or shall have lost the use of any such member, or shall have become incapacitated for
the work in which he was therefor habitually engaged
5) When the commission of the robbery is carried to a degree clearly unnecessary for the commission of
the crime
6) In the execution of the robbery, and in consequence of the physical injuries inflicted, the person injured
shall have become deformed, or shall have lost any other part of his body, or shall have lost the use

Page 145

CRIMINAL LAW 2
thereof, or shall have been ill or incapacitated for the performance of the work in which he as habitually
engaged for a period of more than ninety days
7) If the violence employed in the commission or robbery does not constitute the physical injuries covered
by sub-divisions 3 and 4 of said Article 263 or that only intimidation is employed.
Based on the foregoing, there exists crimes such as robbery with homicide, robbery with rape, robbery with serious
physical injuries and robbery with unnecessary violence and simple robbery.
ROBBERY WITH HOMICIDE
- is a special complex crime because in reality there are two crimes committed but in the eyes of the law,
there is only one crime. For as long as the original intent or original criminal design of the offender is to
rob, the killing may take place before, during or after the robbery
-

regardless of the number of persons killed, there is only one crime committed. Also, even if the killing is
unintentional or accidental, there is still one crime committed.

even if the victim of the killing is different from the victim of the robbery, still it is robbery with homicide.
This constitutes the difference between kidnapping with serious illegal detention because in this crime,
the victim of the kidnapping must also be the victim of the killing

Example:
A went to the house of B and took the valuables therein. During the taking, one jewelry box suddenly fell on the
floor. This awakened the owner of the house, X. When A saw this, he immediately shot X
CRIME: Robbery with homicide because by reason or on the occasion of robbery, homicide was
committed.

In same problem, wife of X was also awakened and she started to shout. Because of this, A also shot the wife
CRIME: Robbery with homicide even if two persons were killed since the crime is a special complex crime.
All the offenses are merged into a single indivisible crime of robbery with homicide.

A was about to go out bringing with him the valuables he robbed. However, he bumped the door. This
awakened the owner, X, who tried to chase A. They reached the garden part of the house. While therein, A
positioned himself to shoot X, so X jumped on A to struggle possession of the gun. In the course of the struggle,
the gun fired and hit a balot vendor who passed by the house of X.
CRIME: Robbery with homicide. Since it is a special complex crime, even if the victim of robbery is different
from the victim of homicide or even if the killing is accidental, there is only a single indivisible crime
committed. So long as the killing is by reason or on the occasion of the robbery.

A, B and C entered the house of X to commit robbery. After taking the valuables and as they were about to
leave, X was awakened. Among the three, it was only A who shot and killed X.
CRIME: All are criminally liable even if it is only A who shot X. While there is a rule that in an express or
direct conspiracy the conspirators are liable only for the crime agreed upon by them, the situation however
falls under the exception. EXCEPTION: That is, when the conspiracy results to a special complex crime.
The crimes cannot be separated from each other. Thus, even if its only A who shot X or even if the
agreement is only to commit robbery, since homicide was committed by reason or on the occasion of
robbery, all are criminally liable for the crime of robbery with homicide.
EXCEPTION TO THE EXCEPTION: is when B and C performed acts to prevent A from killing X.

People vs Cabbab
In a game played by A, B, X, Y and Z, it was A who won the game. After the game, while A, B and Z were about to
leave, X and Y were furiously looking at them. Suddenly, X and Y fired several shots against A, B and Z. Z, who
was a police officer, dove into the canal in order to prevent himself from being killed. Z was injured. Unfortunately, A
and B were killed and thereafter, the winnings of A were taken by X and Y.
Fiscal filed the cases of - 1. Robbery because of the taking of the winnings, 2. Double murder because of the death
of A and B, and 3. Attempted murder insofar as Z is concerned.
RTC ruled that the charges were wrong because the crime committed is robbery with double homicide and
attempted murder

Page 146

CRIMINAL LAW 2
Upon appeal, CA ruled that the ruling of RTC is incorrect because the crime committed is robbery with homicide
and attempted murder
SC: The Fiscal, RTC and CA were all wrong. The crime committed is only the single indivisible offense of
robbery with homicide. All the acts are considered absorbed by robbery with homicide despite the fact that
2 persons were killed and 1 person was injured. All these circumstances are merged into an integrated
whole; that is, the single indivisible offense of robbery with homicide
ROBBERY WITH RAPE
- is also a special complex crime. So long as the intention of the offender is to commit robbery, the rape
can be committed before, during and after the robbery. Regardless of the number of rapes, there is only
a single indivisible crime. There is no such crime as robbery with multiple rapes.
Example:
A woman was walking on her way home. It was payday and her salary was inside her bag. X, the robber, took the
bag of the woman and got the money therein. X found the woman attractive so he raped her twice.
CRIME: Robbery with rape, regardless of the number of times the woman was raped.

People vs Suyu
A couple was having snack inside the car. While eating, they saw shadows of four men trying to push the car. One
of them was Suyu. The couple was forced to open the door and get out of the car. The men took the valuables of
the couple. While the men were taking the valuables, the boyfriend ran and left the girlfriend. After taking the
valuables, the men dragged the abandoned girlfriend to a nearby nipa hut. Inside the nipa hut, the girlfriend was
raped by Suyu, the mastermind. After Suyu, the girlfriend was again raped by the other companion. The girlfriend
was raped three times. Rape with carnal knowledge and rape with sexual assault were committed against her. The
other two men remained outside the nipa hut to serve as lookouts.
CRIME: Robbery with rape. Regardless of the fact that two persons raped the victim, regardless of the fact
that the victim was raped three times, and regardless of the fact that two natures of rape (carnal knowledge
and sexual assault) were committed against the victim, there is only one indivisible crime.
Even if not all of the offenders raped the victim, still all of them are criminally liable for the crime of robbery
with rape because the two lookouts did not perform acts to prevent the rape.
ROBBERY WITH INTENTIONAL MUTILATION, ROBBERY WITH SERIOUS PHYSICAL INJURIES AND
ROBBERY WITH ARSON
- For as long as the original intent is to commit robbery, the intentional mutilation, serious physical injury
or arson may be committed before, during or after the robbery.
Example:
It was payday. A and B saw X with a bag. A and B signaled X to give them his bag. X gave the bag and left. A and B
went to a nearby waiting shed bringing with them the bag of X. In the waiting shed, A and B divided the money of
X. In the course of the partition, A gave B only a small share of the money. B got mad. B shot A.
CRIME: Robbery with Homicide, even if it was an offender killed. This is because the killing took place by
reason of the robbery, while A and B were dividing the loot.
In the same problem, while A and B were dividing the loot, B got a small share. Because of this, B without intent to
kill shot A who suffered serious physical injuries.
CRIME: Robbery with serious physical injuries
In the same problem, while A and B were dividing the loot, B got a small share. Because of this, B took his ice pick
from his pocket and used it to put an X mark on the face of A. This serious physical injury resulted to deformity.
CRIME: Robbery and Serious Physical injury. Under Art. 294 par 4, when the serious physical injury that
resulted is a deformity, or the loss of any other member of his body, the law requires that the said serious
physical injury or deformity is inflicted in the course of the execution of the robbery upon a person not
responsible for the robbery. Otherwise, it will bring about a separate and distinct crime.

Page 147

CRIMINAL LAW 2
Here, the deformity was inflicted after the robbery and upon a person responsible for the commission of the
robbery. Thus, there are two crimes committed: Robbery and Serious Physical Injury.
What if A went to the house of B, instead of X which was his original plan. A, while taking the valuables, made some
noise and awakened the owner of the house, and so A shot the owner of the house. The owner of the house died.
Thereafter A hurriedly went downstairs. Downstairs he saw the wife, found the wife attractive, and he raped the
wife. After raping the wife, he also saw the maid and found the maid attractive, so he raped the maid. The
moment he got out of the door of the house, the gardener saw him and tried to prevent A from leaving the house.
And so A shot the gardener, and in shooting the gardener, A shot the arms several times, resulting in the
severance of the arm, so intentional mutilation. Not only that, when he was going out of the gate, here comes the
driver, preventing A from leaving the house. So what A did was that he boxed the driver several times which
resulted to serious physical injuries. What are the crimes committed?
So we have one death, two rapes, intentional mutilation and serious physical injuries.
A only committed the single indivisible offense of robbery with homicide. All the rape, intentional mutilation
and serious physical injuries are merged into the composite integrated offense and that is, the single
indivisible offense of robbery with homicide.

You have to observe the sequence because the highest is robbery with homicide.

If rape took place after A committed robbery, A after taking the valuables of the house, raped the wife and while he
was raping the wife, the husband saw A, so A killed the husband, and then later the driver put up a fight and
resulted to serious physical injuries. What are the crimes committed?
The crime committed is robbery with homicide.

The first is homicide, rape, intentional mutilation, arson, serious physical injuries, unnecessary violence
and simple robbery. All the others are merged, and that is robbery with homicide. The other offenses
will not be considered as aggravating circumstances because there is nothing in Art. 14 that will
consider the other offenses as aggravating circumstances. That is why you have to observe the
sequence. So if there was only rape, intentional mutilation, serious physical injuries, it will be robbery
with rape. It will only be a single indivisible offense. It will be a special complex crime.

Art. 295. Robbery with physical injuries, committed in an

uninhabited place and by a band, or with the use of firearm on a
street, road or alley.
Art. 296. Definition of a band and penalty incurred by the
members thereof.
Art. 297. Attempted and frustrated robbery committed under
certain circumstances.
Art. 298. Execution of deeds by means of violence or
intimidation.
Section Two Robbery by the use of force upon things
ROBBERY WITH USE OF FORCE UPON THINGS
Art. 299. Robbery in an inhabited house or public building or edifice devoted to worship

Another form of robbery is robbery with the use of force upon things in Art 299.

Page 148

CRIMINAL LAW 2

In case of violence against persons, the value of the property is not important because the penalty is the basis
of the violence.

In Art. 299, the basis of the penalty is the value of the property taken.

3 ways of committing robbery with use of force upon things:

1) When a person enters the dwelling, house, public building or edifice devoted to worship where personal
property is taken through:
a. An opening not intended for entrance or egress
b. By breaking any wall, roof, or floor or breaking any door or window.
c. By using false keys, picklocks or similar tools
d. By using any fictitious name or pretending the exercise of public authority
NOTE:
Under the first act, the essence of the crime is in the unlawful entry; it is the act of trespassing and also the
taking of the property of another.

It is necessary that the entire body must have enter, otherwise, even if there is breaking, it would only
amount to theft and that breaking would amount only to aggravating circumstance. The Supreme Court
ruled that when the law used the word enter, it means that the entire body must have entered said place
to take the property of another.

Example
A, in order to rob the house made an opening in the roof, sufficient for him to enter. So he used a rope in going
down and thereafter he took the valuables and then left. What crime is committed?
Robbery by use of force upon things. A made an opening and he was able to enter fully.
What if he made an entry, let down a rope with a hook and used it in taking the valuable.
The crime committed only is theft with aggravating circumstance of the breaking of the roof. His body did
not enter the premises.
2) When the offender manages to enter said inhabited place, dwelling, public place or place dedicated to
religious worship without any unlawful entry, or is an insider, and once inside, he used force in opening in
order to:
a. Break doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle
NOTE:
The second act is when the offender was able to enter without unlawful entry or was an insider and once
inside, breaks the doors, wardrobes, chest, receptacles, and thereafter took the personal properties inside
the house.
Example
A and B are brothers, living in the same house and in the same room but have different cabinets where each of the
cabinets have locks. One time brother A was in need of money and wanted to borrow money from brother B, but
brother B was out of the house. So what brother A did was that he forcibly opened the cabinet of brother B and
took the expensive jewelries of brother B and appropriated the jewelry? What are the crimes committed? Is
Brother A only liable civilly?
A is guilty of robbery with use of force upon things. He is an insider, and he used force to break open the
cabinet of B. He did not commit theft. Since the crime committed is robbery, brother A is criminally liable
and civilly liable. Because under Article 332, it is only on cases of theft, swindling, estafa, and malicious
mischief, wherein theres no criminal liability but only civil liability in case of relatives living together.
In the same problem, what if A was in need of money, he saw the expensive watch of B on top of the table and sold
the watch. What crime was committed?
A committed the crime of theft since there is no breaking or forcibly opening the receptacle. Under Art 332,
he is only liable for civil liability. They are free from criminal liability.

Page 149

CRIMINAL LAW 2
Art. 332. Persons exempt from criminal liability. No criminal, but only civil liability, shall result
from the commission of the crime of theft, swindling or malicious mischief committed or caused
mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by affinity in the same line.
2. The widowed spouse with respect to the property which belonged to the deceased spouse
before the same shall have passed into the possession of another; and
3.Brothers and sisters and brothers-in-law and sisters-in-law, if living together.
The exemption established by this article shall not be applicable to strangers participating in the
commission of the crime.
Since it refers to simple crimes, if the crime committed is estafa through falsification of public document, there will
be criminal liability. This exemption from criminal liability will only lie in the cases mentioned in Art. 332.
3) When the offender manages to enter said inhabited place, dwelling, public place, or place dedicated to
religious worship without any unlawful entry, once inside he took the sealed receptacle outside to be
opened or forced open.

The offender was able to enter and once inside, he did not use force to open the close cabinet or
receptacle. Instead, he took the cabinet and receptacle outside to open it.

Circumstances that will qualify robbery with use of force upon things:
Art. 300. Robbery in an uninhabited place and by a band.
Under Article 300, if robbery is committed with in an uninhabited place and by a band the law used
the conjunction AND, both must concur in order to amount a qualifying circumstance, to increase the
penalty. So it should be in an uninhabited place and by a band, therefore both must be present.
Art. 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use
of firearm on a street, road or alley.
In case of robbery with serious physical injuries, unnecessary violence or simple violence, how will the crime be
qualified?
The answer is under Art. 295, where if the said robbery is:
1. Committed in an uninhabited place OR by a band
2. By attacking any moving train, street car, motor vehicle or airship
3. By entering the passengers compartments in a train; or
4. Taking the passengers by surprise in their respective conveyances
5. On a street, road, highway, or alley and the Intimidation is made use of a firearm
NOTE:
That in case of robbery with violence or intimidation on persons, the qualifying circumstances are present,
only one of these is sufficient to qualify the penalty. The law here uses the conjunction OR not AND.
Example:
A went to the house of B. A told B this is a hold up and bring out the valuables. Instead of bringing the valuables to
A, B panicked and shouted. A therefore shot B. B died. A also panicked and left the place without bringing his
loot. What is/are the crime/s committed?
The crime committed by A is attempted robbery with homicide. This is also a special complex crime. Here
robbery was attempted because he was unable to take any of the property. The fact that A was able to
announce hold-up and bring the valuables to him means that the original design is to commit robbery. It
was attempted because he was unable to take the property, and in the course of thereof, he killed the
owner.

In order to amount to special complex crime, it is necessary that both the robbery and homicide must be
consummated.

What if in the course of robbery, the said owner was shot but was able to survive. What crime is committed?

Page 150

CRIMINAL LAW 2
The crime committed is robbery with physical injuries depending on the injuries sustained by the victim. In
order to amount to robbery with homicide, it is necessary that both crimes must be present and there is no
such thing as robbery with frustrated homicide or attempted homicide, for it is the law which provides
for the crime which must be complexed, and the law does not provide that frustrated homicide or attempted
homicide must be complexed with robbery.
In the instant case, since the killing took place at the spur of the moment, then it is robbery with homicide.
Chapter Two
BRIGANDAGE
What if robbery was committed by 4 armed men?
Art. 296. Definition of a band and penalty incurred by the members thereof.
A was walking, suddenly there are 4 men with knives and took As bag which is full of money. A put up a fight. And
so these armed men killed A. What crime is committed? Is the crime committed robbery in band with homicide?
There is no such crime as robbery by a band with homicide. The said use of band is only an aggravating
circumstance. The proper designation of the crime is robbery with homicide. The fact that it is committed by
4 armed men is only an aggravating circumstance. Under Art. 296, if a band committed robbery, it is only an
aggravating circumstance.
Art. 306. Brigandage.
Under Article 306, it is committed by at least 4 armed men for the purposes of 1. committing robbery in the highway;
2. kidnapping persons for the purpose of extortion or ransom
3. for any other purpose to be attained by means of force and violence.
Art. 296
Art. 306
Both require at least 4 armed persons
It is required that the 4 armed The
crime
is
already
men must actually take part in consummated by the mere fact
the commission of the robbery
that 4 armed men formed a band
of robbers.
It is not required that they
actually commit the enumerated
purposes.
PD 532 (THE ANTI-HIGHWAY ROBBERY LAW OF 1974)
In PD 532, brigandage is defined as the seizure of any person for ransom, extortion, or other unlawful purposes, or
the taking away of property of another by means of violence against or intimidation of persons of force upon things
or other unlawful means, committed by any person on any Philippine highway.
Art 306 vs. PD 532, or the Anti-Highway Robbery Law of 1974
Art. 306
Requires that there must be at
least 4 armed men
The mere formation of the band
of robbers for any of the
purposes mentioned will bring
about the crime
There is a predetermined or
preconceived victim

PD 532
No requisite as to the # of
perpetrators of the crime
Even a single person can commit
the crime of brigandage
There must be an actual
commission of the crime or no
crime will arise
There is no preconceived victim.
It is committed indiscriminately

Page 151

CRIMINAL LAW 2
on any person passing on the
highway as long as it is
committed in a Philippine
highway.
Chapter Three
THEFT
Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without
violence against or intimidation of persons nor force upon things, shall take personal property of another
without the latter's consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or
to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make
use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.
The definition is almost the same as robbery. The difference lies in the case of robbery where there is violence or
intimidation of persons and use of force upon things, while in theft, there is no violence, intimidation against persons
or force upon things.
Example:
1. A person who found a lost personal property of another but did not give it to the police, there is theft.
2. A damaged the property of B, he make use of that damage.
3. There is a vacant lot guarded by X. A person entered the vacant lot and took the fruits.
Valenzuela v. People
There is no frustrated theft. In this case, the offender took boxes of tide from SM North Edsa and placed it in the
taxi. Before they were able to left the premises of SM, they were apprehended. The offenders were charged of
consummated theft. They did not deny that they committed theft but their defense is that they committed frustrated
theft.
The SC En Banc in 2007 ruled that there is no crime as frustrated theft. In case of theft, unlawful taking is deemed
complete the moment the offender gain possession of the property of another, theft is consummated.
Art. 309. Penalties
When is theft qualified?
Art. 310. Qualified Theft
Theft is qualified in the following instances:
1. If theft is committed by a domestic servant
2. If committed with grave abuse of confidence
3. If the property stolen is a (a) motor vehicle, (b) mail matter, or (c) large cattle
4. If the property stolen consists of coconuts taken from the premises of the plantation
5. If the property stolen is taken from a fishpond or fishery
6. If property taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity,
vehicular accident or civil disturbance.
Example:
A is a domestic servant. When his master was out of the house, A went to the masters bedroom and took the
jewelries. In the information cited that he was a domestic servant but the information did not state that A took the
jewelries with grave abuse of confidence. Is A liable for qualified theft?

Page 152

CRIMINAL LAW 2
Yes, according to the Supreme Court, the law uses the conjunction OR. The fact that the accused is a
domestic servant, it will suffice. The law does not require that abuse of confidence to be established. It will
suffice that the accused is a domestic servant.
A was a security guard. The owner of the house left his key to the security guard. However, the security guard used
the key to open the house of the owner and took the valuables. What crime is committed?
The Security Guard is liable for qualified theft because of grave abuse of confidence.
RA 6539 (ANTI-CARNAPPING ACT)
Carnapping- is the taking with intent to gain, of motor vehicle belonging to another without the consent of the latter,
or by means of violence against or intimidation of persons, or by use of force upon things.
Elements:
1. Actual taking of motor vehicle
2. The vehicle belongs to another
3. There is intent to gain in the taking of the vehicle of another
4. Said taking is taking without the consent of the owner or by means of violence or intimidation or by means
of force upon things.
Example:
A was driving his car and suddenly felt the need to answer the call of nature so he parked his vehicle. Suddenly,
there was X and saw A was out of the car, and the door of the car was open and the key was left inside the car. X
drove away with the car. What is the crime committed?
The crime committed is carnapping. Even if there is no violence or intimidation against person or force
upon things, so long as said taking is without the consent of the owner, it will amount to carnapping.
Under Sec. 14, the penalty if there no violence or intimidation against persons or use of force on things, the
penalty is 14 years and 8 months to 17 years and 4 months.
In the given situation, what if A saw X and there was a fight that ensued between them. X shot A, and X was able to
take the vehicle. A however survived due to immediate medical treatment. What is/are the crimes committed by
X?
The crime committed by X is only carnapping. The fact that X shot A, where there is frustrated homicide, it
falls under violence or intimidation which was used by the offender in committing the crime. Since there is
violence, the penalty is 17 years and 4 months to 30 years.
If again, in the same problem, A tried to stop X and X shot A. A died. What is the crime committed?
The fact that the owner is killed or raped as a consequence, the penalty is reclusion perpetua to death. It
will bring about a higher penalty, but not as a special complex crime because it is a Special Penal
Law. Though it is akin to a special complex crime, the killing is absorbed. The crime is carnapping. It is also
not a bailable offense.
PD 533 (ANTI-CATTLE RUSTLING LAW)
Cattle Rustling - defined as the taking away by any means, method or scheme, without the consent of the
owner/raiser, of any large cattle whether or not for profit or for gain, or whether committed with or without violence
against or intimidation of persons or force upon things. It includes the killing of a large cattle or taking it as a meat or
hide without the consent of the owner/raiser.
Large Cattle- shall include cow, carabao, horse, mule, ass, or other domesticated member of the bovine family.
Goats are not large cattle. (sabi nung isang justice sa SC na prof naming dati, si Lawyer daw pag kinidnap cattle
rustling daw tawag dun. Ang evil nya!)
Example:

Page 153

CRIMINAL LAW 2
As carabao was tied on the mango tree. X saw the carabao alone. So what X did was he untied the carabao and
took the carabao away. A saw X with his carabao so A tried to catch up with X. As A was able to catch up with X, a
fight ensued. X took his bolo and hacked A to death. What is the crime committed by X?
The crime committed by X is only cattle rustling. The fact that the owner was killed is within the meaning of
violence or intimidation against persons. It will not bring about a separate and distinct crime of murder. The
Anti-Cattle Rustling Law, although a special law, is not malum prohibitum but a malum in se. Under Sec. 10
of the law, it is expressly provided that this law amends Art. 309 and 310 of the RPC. Since it is an
amendment, the SC it is a malum in se and not a malum prohibitum.
Art. 311. Theft of the property of the National Library and National Museum.
The value of the property is immaterial because the law prescribed the penalty of arresto mayor or fine or
both.
Chapter Four
USURPATION
Art. 312. Occupation of real property or usurpation of real rights in property.
2 acts punished under Art 312:
1) Occupation of real property which is committed by any person who by means of violence against or
intimidation shall occupy the real property of another
2) Usurpation of real rights in property committed by any person who by means of violence against or
intimidation shall usurp any real rights in property of another person
Example:
There was a vacant lot. Here comes A and B and his family. The said land or property was being guarded by X. A
and B went inside the vacant lot and tried to build a nipa house because they do not have any house. And so the
guard told them that A and B has no right to build a nipa house because the lot is owned by Y. However, A and B
told the guard that they do not have any house. In the course of the argument, A and B killed the guard. What
is/are the crimes committed?
The crime committed is only occupation of real property. The killing is only a means to occupy the real
property. It falls under violence against or intimidation of persons in occupying the real property.
In the same problem A and B put up their house in the vacant property. The owner learned this and went to A and
Bs house. However, A and B killed the owner.
In this case, two crimes are committed. The killing took place after occupying the place. This time, the
crimes committed are occupation and homicide or murder as the case maybe.
Art. 313. Altering boundaries or landmarks. Any person who
shall alter the boundary marks or monuments of towns, provinces, or
estates, or any other marks intended to designate the boundaries of
the same, shall be punished by arresto menor or a fine not
exceeding 100 pesos, or both.
Chapter Five
CULPABLE INSOLVENCY
Art. 314. Fraudulent insolvency. Any person who shall abscond
with his property to the prejudice of his creditors, shall suffer the
penalty of prision mayor, if he be a merchant and the penalty of
prision correccional in its maximum period to prision mayor in its
medium period, if he be not a merchant.
Chapter Six
SWINDLING AND OTHER DECEITS

Page 154

CRIMINAL LAW 2
Art. 315. Swindling (estafa). Any person who shall defraud
another by any of the means mentioned here in below shall be
punished by:
1st. The penalty of prision correccional in its maximum period to
prision mayor in its minimum period, if the amount of the fraud is
over 12,000 pesos but does not exceed 22,000 pesos, and if
such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one
year for each additional 10,000 pesos; but the total penalty
which may be imposed shall not exceed twenty years. In such
cases, and in connection with the accessory penalties which
may be imposed under the provisions of this Code, the penalty
shall be termed prision mayor or reclusion temporal, as the case
may be.
2nd. The penalty of prision correccional in its minimum and
medium periods, if the amount of the fraud is over 6,000 pesos
but does not exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period to
prision correccional in its minimum period if such amount is over
200 pesos but does not exceed 6,000 pesos; and
4th. By arresto mayor in its maximum period, if such amount
does not exceed 200 pesos, provided that in the four cases
mentioned, the fraud be committed by any of the following
means:
1. With unfaithfulness or abuse of confidence, namely:
(a) By altering the substance, quantity, or quality or
anything of value which the offender shall deliver by
virtue of an obligation to do so, even though such
obligation be based on an immoral or illegal
consideration.
(b) By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal
property received by the offender in trust or on
commission, or for administration, or under any other
obligation involving the duty to make delivery of or to
return the same, even though such obligation be
totally or partially guaranteed by a bond; or by
denying having received such money, goods, or other
property.
(c) By taking undue advantage of the signature of the
offended party in blank, and by writing any document
above such signature in blank, to the prejudice of the
offended party or of any third person.
2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously
with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to
possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions, or

Page 155

CRIMINAL LAW 2
by means of other similar deceits.
(b) By altering the quality, fineness or weight of anything
pertaining to his art or business.
(c) By pretending to have bribed any Government
employee, without prejudice to the action for calumny
which the offended party may deem proper to bring
against the offender. In this case, the offender shall
be punished by the maximum period of the penalty.
(d) [By post-dating a check, or issuing a check in
payment of an obligation when the offender therein
were not sufficient to cover the amount of the check.
The failure of the drawer of the check to deposit the
amount necessary to cover his check within three (3)
days from receipt of notice from the bank and/or the
payee or holder that said check has been dishonored
for lack of insufficiency of funds shall be prima facie
evidence of deceit constituting false pretense or
fraudulent act. (As amended by R.A. 4885, approved
June 17, 1967.)]
(e) By obtaining any food, refreshment or
accommodation at a hotel, inn, restaurant, boarding
house, lodging house, or apartment house and the
like without paying therefor, with intent to defraud the
proprietor or manager thereof, or by obtaining credit
at hotel, inn, restaurant, boarding house, lodging
house, or apartment house by the use of any false
pretense, or by abandoning or surreptitiously
removing any part of his baggage from a hotel, inn,
restaurant, boarding house, lodging house or
apartment house after obtaining credit, food,
refreshment or accommodation therein without
paying for his food, refreshment or accommodation.
3. Through any of the following fraudulent means:
(a) By inducing another, by means of deceit, to sign any
document.
(b) By resorting to some fraudulent practice to insure
success in a gambling game.
(c) By removing, concealing or destroying, in whole or in
part, any court record, office files, document or any
other papers.
3 ways of committing estafa or swindling:
1) Estafa with unfaithfulness or abuse of confidence Art 315 (1)
2) By means of false pretense or by fraudulent acts executed prior to or simultaneous to the commission of
the offense Art 315 (2)
3) Through fraudulent means Art 315 (3)
Whatever be the crime of estafa, there are always 2 general elements:
1. That the accused defrauded another by means of abuse of confidence, or by means of deceit; and
2. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third persons.
ESTAFA WITH UNFAITHFULNESS or ABUSE OF CONFIDENCE (1st form)

Page 156

CRIMINAL LAW 2
Committed through:
(a) By altering the substance, quantity, or quality or anything of value which the offender shall deliver by
virtue of an obligation to do so, even though such obligation be based on an immoral or illegal
consideration.

NOTE: The law says that even if it based on an immoral or illegal consideration.

Example:
A is bound to deliver boxes of marijuana to B. At the bottom of the box were inferior qualities of marijuana while on
top are high grade marijuana. Is A liable of estafa?
A is liable for estafa. B can file a case of estafa against A. (for purposes of example only because B may be
held liable for dangerous drugs act)
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal
property received by the offender in trust or on commission, or for administration, or under any other
obligation involving the duty to make delivery of or to return the same, even though such obligation be
totally or partially guaranteed by a bond; or by denying having received such money, goods, or other
property.

The moment that the offended party entrusted the money or goods or any other personal property to the
offender, it is necessary that there must be a transfer of juridical possession. Juridical possession is a legal
right over the property; possession in the concept of the owner. During the time that the possessor has
legal possession of the property, even the owner cannot file estafa to the possessor because it is the
rightful possessor at that moment.

If what has been transferred is material or physical possession, and the offender misappropriates the same,
he is only liable for qualified theft.

Example:
A rented a bicycle from B for Php500 for 2 hours. A was in possession of the said bicycle. 2 hours had lapsed, A
was not able to return the bicycle to B. B demanded that A return the bicycle, but A did not. What is the crime
committed by A?
The crime committed by A is estafa because it there is a lease agreement. What has been transferred to A
is juridical possession of the property by virtue of the lease agreement.
A gave B a watch. A told B This is my watch, use it as a collateral for my debt. B however, instead of using it as
collateral for the loan of A, sold the watch and appropriated the proceeds of the watch. What is the crime
committed?
The crime committed by B is qualified theft and not estafa. There is no transfer of juridical possession. A
remains to be the owner of the watch, and said watch is only used as a collateral.
A went to the bank and then A told the teller, Here is 100k, kindly deposit this to my account. Here is my passbook
and here is the money. Deposit it because I am in a hurry and I will drop by later in the afternoon. However, A
was not able to drop by in the afternoon. So A went the following day. When A asked for the passbook, he
realized that the 100k was not deposited by the teller to his account. The teller misappropriated the 100k. What is
the crime committed?
The crime committed is Qualified Theft. The SC ruled that when the depositor leaves to the bank his money
for deposit, what has been transferred is only the material or physical possession. The juridical possession
of the money remains with the owner of the money. Hence, when it is misappropriated by the teller of the
bank, it is only qualified theft and not estafa.
A works in the field and makes cash advance to his company. One time he went to a certain place and there is a
cash advance. When A returned, A failed to liquidate the expenses in the cash advance despite demands. What
is the crime committed by A?

Page 157

CRIMINAL LAW 2
According to the SC, a cash advance is in the nature of a loan. When an employee makes a cash advance
to the company, it is in effect obtaining a loan from the company. Therefore ownership is transferred to the
employee because there is no obligation to return the very same money. Hence there can be no estafa.
Since ownership was transferred and that the employee cannot pay, we have the relationship of creditor
and debtor, not that entrustor- entrustee. There will be no criminal case but only civil liability. Hence, we
have a civil case of collection for sum of money.
(c) By taking undue advantage of the signature of the offended party in blank, and by writing any
document above such signature in blank, to the prejudice of the offended party or of any third person.
Example:
The owner of the company has blank documents with his signature and gave it to his secretary. The said
documents will be used in case of emergency. One time the secretary wrote a document above the blank
signature stating that the said owner will be assuming the indebtedness of the secretary.
The crime committed by the secretary is estafa because there is abuse of confidence. The owner entrusted
the blank document to the secretary.
What if the secretary placed the blank document it on the table. Here comes a visitor, and upon seeing the blank
document, he took one and then he went to his house and wrote a document stating that the said owner shall
assume his liability.
The crime committed is not estafa but falsification of a private document because he made it appear that
the owner participated in procuring the document when in fact, the owner did not.
ESTAFA BY MEANS OF FALSE PRETENSE or BY FRAUDULENT ACTS PRIOR TO OR SIMULTANEOUS TO
THE COMMISSION OF THE OFFENSE (2ND form)
(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions, or by means of other similar deceits.
Example:
A, Band C are newly graduates. They just passed the nursing board exam. X learned that A, B, and C passed the
board so he went to the house of A, B and C and told them that X has a placement agency that will help them find
work abroad. AB and C believed X, and X demanded that they give X 100k for processing fees. A, B, and C never
saw X again. Later X was arrested. What are the crimes committed by X?
X may be liable of estafa by falsely pretending to possess power or agency, where in fact, he is not
licensed by the POEA of Department of Labor.
Can he also be held liable for illegal recruitment?
He can also be liable for illegal recruitment under the labor code.
Under PD 2018, which amended Article 38 and 39 of the Labor Code, where if illegal recruitment is
committed by a syndicate (3 or more persons) or in large scale (where the victims are 3 or more persons
individually or as a group), the crime committed is economic sabotage.
By reason thereof, the offender is liable for 2 crimes, and that is estafa and illegal recruitment.
Can the offender be prosecuted at the same time?
Yes, because estafa requires illegal deceit or false pretense, while in illegal recruitment does not require
deceit or false pretense. The mere fact of recruiting where he does not have any license makes him liable
for illegal recruitment.
(d) By post-dating a check, or issuing a check in payment of an obligation when the offender therein
were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit
the amount necessary to cover his check within three (3) days from receipt of notice from the bank
and/or the payee or holder that said check has been dishonored for lack of insufficiency of funds

Page 158

CRIMINAL LAW 2
shall be prima facie evidence of deceit constituting false pretense or fraudulent act. (As amended by
R.A. 4885, approved June 17, 1967.)
BP 22 (BOUNCING CHECKS LAW)
2 acts punished in BP 22:
1) Making or drawing and issuing a check knowing at the time of issue that he does not have sufficient funds.
The offender knows that he does not have sufficient funds in his account at the time of the issuance of the
check.
2) Failing to keep sufficient funds to cover the full amount of the check.
The funder knows that he has sufficient amount at the time of the issuance of the check but failed to keep
sufficient funds to cover the amount after the issuance of the check. The crime will arise for his failure to
keep sufficient funds or maintain his credit to cover the full amount for a period of 90 days from the date
appearing on the check.
Example:
A is building a house, so he went to B, who is the owner of the hardware store. A told B that he doesnt have any
money at the moment but he will be issuing a check guaranteeing that it will be funded on the 15 th, which is the
maturity date. B believed As representation that the check will be funded so B placed the construction materials
to A. On the 15th day of the month, the check bounced. B sent a notice of dishonor to A, but despite such notice of
dishonor, months had passed and yet A still failed to pay. What crimes may be filed against A?
B may file a case of estafa because the said check was issued in concomitance with the said fraud. Where
it not for the said check, B would not give the construction materials to A.
Aside from that, can A also be held liable for violation of BP22?
A may also be held liable for violation of BP 22. It will apply in any cases the moment the check bounce.
The essence of BP22 is the issuance of the worthless check.
However, said offense will not automatically amount to estafa. In order to amount estafa, it is necessary
that the issuance of the check is the reason of the defraudation. That is, where it not for the said check,
where it not for the promise of the said check, the offended party would not have parted with his property or
money.
In order to amount estafa by postdating a check, the issuance of the check must not be in payment of a
pre-existing obligation. It is necessary that the obligation is in concomitance with the issuance of the check.
In case of BP 22, even if in payment of pre-existing obligation, the moment the check bounced, BP 22 will
apply.
In case of estafa, the offender must make good of the check within a period of 3 days. In BP 22, the
offender must make good of the check within 5 banking days.

o
o
o

When is there prima facie evidence of knowledge of insufficiency of funds in BP 22?

Section 2 of BP 22, there arises the prima facie knowledge of insufficiency of funds when the offender makes or
draws and issues a check which bounced when deposited within the period of 90 days from the moment of its
issue.
Elements of prima facie knowledge:
1. The check must be deposited within 90 days from date appearing on the check;
2. There must be notice of dishonor received by the drawer of the check;
3. The drawer of the check failed to make good of the check within 5 banking days from receipt of the notice
of dishonor.

If the drawer was able to make good of the check within 5 banking days, the prima facie presumption of
knowledge of insufficiency of funds will not arise.

Example:

Page 159

CRIMINAL LAW 2
If the holder deposited the check on the 100 th day. Can the drawer of the check be still held liable for violation of BP
22?
Yes, the drawer is liable for violation of BP 22. What is erased only is the prima facie knowledge of
insufficiency of funds. But so long as the check is not a stale check (check beyond 6 months or 120 days).
If said check is dishonored, violation of BP 22 can still arise, because the prima facie knowledge of
insufficiency of funds can be proven by other evidence.
Penalty for violation of BP22:
Imprisonment of not less than 30 days but not more than 1 year or a fine of not less than but not more than
double the amount of the check which fine shall in no case exceed PHP200,000, or both such fine and
imprisonment at the discretion of the court.
NOTE:
In consonance with this penalty, the SC in the cases of Rosalie v. CA and VACA v. CA, SC issued AC 102000. In this Supreme Court AC, because of its decision in the said cases, in lieu of penalty, in lieu of
imprisonment, the proper penalty to be imposed would be fine, if the offender acted in good faith or clear
mistake of fact without any taint of negligence.

The SC again issued AC 13-2001 to clarify the first circular. AC 13-2001 states that the tenor and intent of
AC 10-2000 does not erase imprisonment as an alternative penalty. What 10-2000 establishes is a rule of
preference, and that is, if the offender acted in good faith, and there is clear mistake of fact without any taint
of negligence, fine should be the appropriate penalty. Nevertheless, still whether to impose penalty of
imprisonment of fine is within the sound discretion of the court.

In case the penalty imposed is only fine, there is no hindrance in the court to impose subsidiary
imprisonment in case of failure to pay fine.

Art. 316. Other forms of swindling. The penalty of arresto

mayor in its minimum and medium period and a fine of not less than
the value of the damage caused and not more than three times such
value, shall be imposed upon:
1. Any person who, pretending to be owner of any real property,
shall convey, sell, encumber or mortgage the same.
2. Any person, who, knowing that real property is encumbered,
shall dispose of the same, although such encumbrance be not
recorded.
3. The owner of any personal property who shall wrongfully take
it from its lawful possessor, to the prejudice of the latter or any
third person.
4. Any person who, to the prejudice of another, shall execute any
fictitious contract.
5. Any person who shall accept any compensation given him
under the belief that it was in payment of services rendered or
labor performed by him, when in fact he did not actually
perform such services or labor.
6. Any person who, while being a surety in a bond given in a
criminal or civil action, without express authority from the court
or before the cancellation of his bond or before being relieved
from the obligation contracted by him, shall sell, mortgage, or,
in any other manner, encumber the real property or properties
with which he guaranteed the fulfillment of such obligation.
Art. 317. Swindling a minor. Any person who taking advantage
of the inexperience or emotions or feelings of a minor, to his
detriment, shall induce him to assume any obligation or to give any
release or execute a transfer of any property right in consideration of

Page 160

CRIMINAL LAW 2
some loan of money, credit or other personal property,whether the
loan clearly appears in the document or is shown in any other form,
shall suffer the penalty of arresto mayor and a fine of a sum ranging
from 10 to 50 per cent of the value of the obligation contracted by the
minor.
Art. 318. Other deceits. The penalty of arresto mayor and a fine
of not less than the amount of the damage caused and not more
than twice such amount shall be imposed upon any person who shall
defraud or damage another by any other deceit not mentioned in the
preceding articles of this chapter.
Any person who, for profit or gain, shall interpret dreams, make
forecasts, tell fortunes, or take advantage of the credulity of the
public in any other similar manner, shall suffer the penalty of arresto
mayor or a fine not exceeding 200 pesos.
Chapter Seven
CHATTEL MORTGAGE
Art. 319. Removal, sale or pledge of mortgaged property. The
penalty or arresto mayor or a fine amounting to twice the value of the
property shall be imposed upon:
1. Any person who shall knowingly remove any personal
property mortgaged under the Chattel Mortgage Law to any
province or city other than the one in which it was located at
the time of the execution of the mortgage, without the written
consent of the mortgagee, or his executors, administrators or
assigns.
2. Any mortgagor who shall sell or pledge personal property
already pledged, or any part thereof, under the terms of the
Chattel Mortgage Law, without the consent of the mortgagee
written on the back of the mortgage and noted on the record
hereof in the office of the Register of Deeds of the province
where such property is located.
Chapter Eight
ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS
Chapter Eight
ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS
Art. 320. Destructive arson. The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who shall burn:
1. Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordinance, storehouse,
archives or general museum of the Government.
2. Any passenger train or motor vehicle in motion or vessel out of port.
3. In an inhabited place, any storehouse or factory of inflammable or explosive materials.
Art. 321. Other forms of arson. When the arson consists in the burning of other property and under the
circumstances given hereunder, the offender shall be punishable:
1. By reclusion temporal or reclusion perpetua:
(a) if the offender shall set fire to any building, farmhouse, warehouse, hut, shelter, or vessel in port,
knowing it to be occupied at the time by one or more persons;
(b) If the building burned is a public building and value of the damage caused exceeds 6,000 pesos;

Page 161

CRIMINAL LAW 2
(c) If the building burned is a public building and the purpose is to destroy evidence kept therein to be used
in instituting prosecution for the punishment of violators of the law, irrespective of the amount of the
damage;
(d) If the building burned is a public building and the purpose is to destroy evidence kept therein to be
used in legislative, judicial or administrative proceedings, irrespective of the amount of the damage;
Provided, however, That if the evidence destroyed is to be used against the defendant for the prosecution
of any crime punishable under existing laws, the penalty shall be reclusion perpetua;
(e) If the arson shall have been committed with the intention of collecting under an insurance policy against
loss or damage by fire.
2. By reclusion temporal:
(a) If an inhabited house or any other building in which people are accustomed to meet is set on fire, and
the culprit did not know that such house or building was occupied at the time, or if he shall set fire to a
moving freight train or motor vehicle, and the value of the damage caused exceeds 6,000 pesos;
(b) If the value of the damage caused in paragraph (b) of the preceding subdivision does not exceed 6,000
pesos;
(c) If a farm, sugar mill, cane mill, mill central, bamboo groves or any similar plantation is set on fire and
the damage caused exceeds 6,000 pesos; and
(d) If grain fields, pasture lands, or forests, or plantings are set on fire, and the damage caused exceeds
6,000 pesos.
3. By prision mayor:
(a) If the value of the damage caused in the case mentioned in paragraphs (a), (c), and (d) in the next
preceding subdivision does not exceed 6,000 pesos;
(b) If a building not used as a dwelling or place of assembly, located in a populated place, is set on fire, and
the damage caused exceeds 6,000 pesos;
4. By prision correccional in its maximum period to prision mayor in its medium period:
(a) If a building used as dwelling located in an uninhabited place is set on fire and the damage caused
exceeds 1,000 pesos;
(b) If the value or the damage caused in the case mentioned in paragraphs (c) and (d) of subdivision 2 of
this article does not exceed 200 pesos.
5. By prision correccional in its medium period to prision mayor in its minimum period, when the damage
caused is over 200 pesos but does not exceed 1,000 pesos, and the property referred to in paragraph (a) of
the preceding subdivision is set on fire; but when the value of such property does not exceed 200 pesos,
the penalty next lower in degree than that prescribed in this subdivision shall be imposed.
6. The penalty of prision correccional in its medium and maximum periods, if the damage caused in the
case mentioned in paragraph (b) of subdivision 3 of this article does not exceed 6,000 pesos but is over
200 pesos.
7. The penalty of prision correccional in its minimum and medium periods, if the damage caused in the
case mentioned paragraph (b) subdivision 3 of this article does not exceed 200 pesos.
8. The penalty of arresto mayor and a fine ranging from fifty to one hundred per centum if the damage
caused shall be imposed, when the property burned consists of grain fields, pasture lands, forests, or
plantations when the value of such property does not exceed 200 pesos. (As amended by R.A. 5467,
approved May 12, 1969).
Art. 322. Cases of arson not included in the preceding articles. Cases of arson not included in the next
preceding articles shall be punished:
1. By arresto mayor in its medium and maximum periods, when the damage caused does not exceed 50
pesos;
2. By arresto mayor in its maximum period to prision correccional in its minimum period, when the damage
caused is over 50 pesos but does not exceed 200 pesos;

Page 162

CRIMINAL LAW 2
3. By prision correccional in its minimum and medium periods, if the damage caused is over 200 pesos but
does not exceed 1,000 pesos; and
4. By prision correccional in its medium and maximum periods, if it is over 1,000 pesos.
Art. 323. Arson of property of small value. The arson of any uninhabited hut, storehouse, barn, shed, or
any other property the value of which does not exceed 25 pesos, committed at a time or under
circumstances which clearly exclude all danger of the fire spreading, shall not be punished by the penalties
respectively prescribed in
this chapter, but in accordance with the damage caused and under the provisions of the following chapter.
Art. 324. Crimes involving destruction. Any person who shall cause destruction by means of explosion,
discharge of electric current, inundation, sinking or stranding of a vessel, intentional damaging of the
engine of said vessel, taking up the rails from a railway track, maliciously changing railway signals for the
safety of moving trains, destroying telegraph wires and telegraph posts, or those of any other system, and,
in general, by using any other agency or means of destruction as effective as those above enumerated,
shall be punished by reclusion temporal if the commission has endangered the safety of any person,
otherwise, the penalty of prision mayor shall be imposed.
Art. 325. Burning one's own property as means to commit arson. Any person guilty of arson or causing
great destruction of the property belonging to another shall suffer the penalties prescribed in this chapter,
even though he shall have set fire to or destroyed his own property for the purposes of committing the
crime.
Art. 326. Setting fire to property exclusively owned by the offender. If the property burned shall be the
exclusive property of the offender, he shall be punished by arresto mayor in its maximum period to prision
correccional in its minimum period, if the arson shall have been committed for the purpose of defrauding
or causing damage to another, or prejudice shall actually have been caused, or if the thing burned shall
have
been a building in an inhabited place.
Art. 326-A. In cases where death resulted as a consequence of arson. If death resulted as a consequence
of arson committed on any of the properties and under any of the circumstances mentioned in the
preceding articles, the court shall impose the death penalty.
Art. 326-B. Prima facie evidence of arson. Any of the following circumstances shall constitute prima
facie evidence of arson:
1. If after the fire, are found materials or substances soaked in gasoline, kerosene, petroleum, or other
inflammables, or any mechanical, electrical chemical or traces or any of the foregoing.
2. That substantial amount of inflammable substance or materials were stored within the building not
necessary in the course of the defendant's business; and
3. That the fire started simultaneously in more than one part of the building or locale under circumstances
that cannot normally be due to accidental or unintentional causes: Provided, however, That at least one of
the following is present in any of the three above-mentioned circumstances:
(a) That the total insurance carried on the building and/or goods is more than 80 per cent of the value of
such building and/or goods at the time of the fire;
(b) That the defendant after the fire has presented a fraudulent claim for loss.
The penalty of prision correccional shall be imposed on one who plants the articles above-mentioned, in
order to secure a conviction, or as a means of extortion or coercion. (As amended by R.A. 5467, approved
May 12, 1969).
ARSON- is the malicious destruction of property set by fire. It can be either destructive or simple arson. Destructive
or simple arson is not dependent on the value of the property but rather on the
SAMPLE PROBLEM:

Page 163

CRIMINAL LAW 2
1. A is a maid and it was Christmas time. A wanted to go to the province so she asked the master of the house
if she can go to the province. The master of the house said no. The maid got mad, so while the master of
the house and his family are sleeping, A burned the house and left. The house of the master was not the
only one burned, but also the neighbors houses. The master and his children were killed. What is/are the
crimes committed by A? Is A liable for destructive arson or simple arson only?
Destructive Arson is found under Art 320 of the RPC while Simple Arson and other arson is repealed by PD 1613
repealing Article 320 to 326 B of the RPC. Even though there are five deaths, the deaths will be absorbed in the
crime of arson and will only qualify the penalty to death. The maid is only liable for simple arson, because what has
been burned is an inhabited dwelling. For as long as the thing burned is an inhabited house or dwelling, the crime
committed is simple arson. If in the course of burning the dwelling, homicide results, the crime committed is still
arson.
If the intention is to kill the offended party, and the means employed is through burning the house, the crime
committed is MURDER. If however, the intention of the offender is to destroy the property of the offended party by
fire, and the offender did not know that someone is inside and death results, the crime is still simple arson. It will
only qualify the penalty to RP to death.
2. A killed B while sleeping. The crime committed is murder. In order to conceal the crime, A burned the
house. This time, the crime committed is 2. Murder for killing B and Arson, order to hide the crime
committed. The arson committed is destructive arson, as it is defined by the law.
How is destructive arson committed?
1. One or more buildings or edifices, consequent to one single act of burning, or as a result of simultaneous
burnings or committed on several or different occasions;
2. Any building of public or private ownership, devoted to public in general, or where people usually gather or
congregate for a definite purpose such as but not limited to official government function or business, private
transaction, commerce, trade workshop, meetings, conferences, or merely incidental to or for a definite
purpose such as but not limited to motels, transient dwellings, public conveyances or stops, or terminals,
regardless of whether the offender had knowledge that there are persons in said building or edifice at the
time set on fire and regardless also of whether the building is actually inhabited or not.
3. Any train, locomotive, ship or vessel, airship or airplane, devoted to transportation or conveyance, or for
public use, entertainment and leisure;
4. Any building, factory, warehouse installation and any other appurtenances thereto, which are devoted to the
service of public utilities;
5. Any building the burning of which is for the purpose of concealing or destroying the evidence of another
violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from
insurance.
There is also destructive arson in the following instances:
1. When the arson is committed by 2 or more persons, regardless of whether their purpose is merely to burn
or destroy the building or the burning merely constitutes an overt act in the commission of another violation
of the law;
2. When any person shall burn:
a. Any arsenal, shipyard, storehouse or military power or fireworks factory, ordinance, storehouse,
archives or general museum of the Government; or
b. In an inhabited place, any storehouse or factory of inflammable or explosive materials.
When is there simple arson otherwise known as other cases of arson in PD 1613?
Burning of:
1. Any building used as offices of the government or any of its agencies;
2. Any inhabited house or dwelling;
3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel;
4. Any plantation, farm, pasture land, growing crop, grain field, orchard, bamboo grove or forest;
5. Any rice mill, sugarmill, cane mill, or mill central;
6. Any railway or bus station, airport, wharf, or warehouse.

Page 164

CRIMINAL LAW 2
Penalty for destructive arson: Reclusion Perpetua to Death
If as a result of the commission of any acts of destructive arson, death results, the penalty should be death.
In case of simple arson, reclusion temporal to reclusion perpetua
Under Sec 5 of PD 1613, if by reason or on the occasion of simple arson, death results, the penalty is
reclusion perpetua to death. Therefore, whatever may be the crime may be, if by reason of said arson,
death results, it will aggravate the crime of arson and the homicide will be absorbed in the arson.
MALICIOUS MISCHIEF
Art. 327. Who are liable for malicious mischief. Any person who shall deliberately cause the property of
another any damage not falling within the terms of the next preceding chapter shall be guilty of malicious
mischief.
Art. 328. Special cases of malicious mischief. Any person who shall cause damage to obstruct the
performance of public functions, or using any poisonous or corrosive substance; or spreading any
infection or contagion among cattle; or who cause damage to the property of the National Museum or
National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in
common by the public, shall be punished:
1. By prision correccional in its minimum and medium periods, if the value of the damage caused exceeds
1,000 pesos;
2. By arresto mayor, if such value does not exceed the abovementioned amount but it is over 200 pesos;
and
3. By arresto menor, in such value does not exceed 200 pesos.
Art. 329. Other mischiefs. The mischiefs not included in the next preceding article shall be punished:
1. By arresto mayor in its medium and maximum periods, if the value of the damage caused exceeds 1,000
pesos;
2. By arresto mayor in its minimum and medium periods, if such value is over 200 pesos but does not
exceed 1,000 pesos; and
3. By arresto menor or fine of not less than the value of the damage caused and not more than 200 pesos, if
the amount involved does not exceed 200 pesos or cannot be estimated.
Malicious Mischief- is the willful damaging of anothers property for the sake of causing damage due to hate,
revenge or other evil motive.
If the intention of the offender is to cause damage in the property of another, by any means outside arson, is
malicious mischief.
It is a crime which can only be committed by means of intent. There must be deliberate intent to cause damage to
the property of another, because if there is no intent to cause damage in the property, the liability will be damages
only; civil liability and not criminal liability.
Sample problem:
A and B were fighting, and in the course of their fight, A fell on the floor and the floor was damaged. The liability will
only be a civil action for damages.
Special cases of Malicious Mischief:
1. Causing damage to obstruct the performance of public functions;
2. Using poisonous or corrosive substances
3. Spreading any infection or contagion among cattle
4. Causing damage to the property of the National Library or to any archive or registry, waterworks, road,
promenade, or any other thing used in common by public

Page 165

CRIMINAL LAW 2
Art. 330. Damage and obstruction to means of communication. The penalty of prision correccional in its
medium and maximum periods shall be imposed upon any person who shall damage any railway, telegraph
or telephone lines.
If the damage shall result in any derailment of cars, collision or other accident, the penalty of prision mayor
shall be imposed, without prejudice to the criminal liability of the offender for the other consequences of
his criminal act.
For the purpose of the provisions of the article, the electric wires, traction cables, signal system and other
things pertaining to railways, shall be deemed to constitute an integral part of a railway system.
Art. 331. Destroying or damaging statues, public monuments or paintings. Any person who shall destroy
or damage statues or any other useful or ornamental public monument shall suffer the penalty of arresto
mayor in its medium period to prision correccional in its minimum period.
Any person who shall destroy or damage any useful or ornamental painting of a public nature shall suffer
the penalty of arresto menor or a fine not exceeding 200 pesos, or both such fine and imprisonment, in the
discretion of the court.
Chapter Ten
EXEMPTION FROM CRIMINAL LIABILITY
IN CRIMES AGAINST PROPERTY
Art. 332. Persons exempt from criminal liability. No criminal, but only civil liability, shall result from the
commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the
following persons:
1. Spouses, ascendants and descendants, or relatives by affinity in the same line.
2. The widowed spouse with respect to the property which belonged to the deceased spouse before the
same shall have passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.
The exemption established by this article shall not be applicable to strangers participating in the
commission of the crime.
1st Act
Q:In the Case of Carungcong vs People, the son in law a Japanese National , by means of deceit made his mother
in law sign a SPA, said SPA was used to sell the property of Tagaytay. The mother died without receiving the
proceeds of the sale. The daughter of the mother wanted to file a case against the son-in law. Note that the wife of
the Japanese national is already deceased. Does article apply in this case where the crime committed is estafa
even if the wife of the Japanese National is already dead?
A:The relationship by affinity is still existing. The purpose is to ensure harmony within the family. Article 332 will still
apply. The Son in law may be prosecuted. The crime is estafa through falsification of public document. The crime
committed is the complex crime of estafa through falsification of public document. Article 332 will not apply though
there is a relationship because the crime is already complexed.
Article 332, paramours, mistresses, are within the meaning of wives. Step fathers- ascendants, step childrendescendants.
Title Eleven
CRIMES AGAINST CHASTITY
Chapter One
ADULTERY AND CONCUBINAGE
Art. 333. Who are guilty of adultery. Adultery is committed by any married woman who shall have sexual
intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to
be married, even if the marriage be subsequently declared void.
Adultery shall be punished by prision correccional in its medium and maximum periods.
If the person guilty of adultery committed this offense while being abandoned withoutjustification by the
offended spouse, the penalty next lower in degree than thatprovided in the next preceding paragraph shall
be imposed.
Offender: legally married woman

Page 166

CRIMINAL LAW 2
Offended party: husband
To whom shall the case be filed: Wife and Lover
Who shall file: only by the offended husband.
Adultery is a private crime. It can only be prosecuted by the offended spouse. Without the complaint filed by the
offended spouse, no crime.
If the lover does not know that the woman is married, still the husband should file the case on both of them.
it is a matter of defense only on the lover. So, there are cases where only one is convicted and the other
one is acquitted. The wife is convicted and the lover is acquitted
If adultery is abandoned by her husband without justification, mitigated
Adultery is a crime of consequence, so there is no attempted or frustrated stage. It is always in the
consummated stage.
Adultery may be proven by circumstantial evidence.
o For example, the husband was working in Saudi for 10 years, and upon reaching home, he sees
his wife pregnant, there is adultery except if the wife is raped.
Art. 334. Concubinage. Any husband who shall keep a mistress in the conjugal dwelling, or shall have
sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit
with her in any other place, shall be punished by prision correccional in its minimum and medium
periods.The concubine shall suffer the penalty of destierro.
Elements of concubinage:
1. The man must be married
2. That he committed any of the following acts:
a. Keeping a mistress in the conjugal dwelling;
b. Having sexual intercourse under scandalous circumstances;
c. Cohabiting with her in any other place
3. The woman must know that the man must be married
1st Act: the conjugal dwelling is the house of the husband
2nd Act: the best witnesses are the neighbors of the husband. It must be in such a manner that the neighbors are
shocked.
Just like adultery, concubinage is a private crime. It cannot be prosecuted if the offended spouse will not file a
complaint against the offender spouse. The wife must also prosecute both the husband and the concubine. It is a
matter of defense on the concubine that she does not know the husband is married.
The penalty for the concubine is destierro.
RAPE IS ALREADY REPEALED
Art. 336. Acts of lasciviousness. Any person who shall commit any act of lasciviousness upon other
persons of either sex, under any of the circumstances mentioned in the preceding article, shall be
punished by prision correccional.
Acts of lasciviousness- acts committed with unchaste design and done under circumstances of rape.
As it is done under circumstances of rape, so the offender may be any person, for example a man touching
the private parts of another man.
Elements:
1. That the offender commits any act of lasciviousness or lewdness;
2. That the act of lasciviousness is committed against a person of either sex;
3. That it is done under any of the following circumstances:
a. Using force or intimidation
b. When the offended party is deprived of reason or otherwise unconscious
c. By means of fraudulent machination or grave abuse of authority

Page 167

CRIMINAL LAW 2
d. When the offended party is under 12 years of age or demented
Chapter Three
SEDUCTION, CORRUPTION OF MINORS
AND WHITE SLAVE TRADE
Art. 337. Qualified seduction. The seduction of a virgin over twelve years and under eighteen years of
age, committed by any person in public authority, priest, home-servant, domestic, guardian, teacher, or any
person who, in any capacity, shall be entrusted with the education or custody of the woman seduced, shall
be punishedby prision correccional in its minimum and medium periods.
The penalty next higher in degree shall be imposed upon any person who shall seduce his sister or
descendant, whether or not she be a virgin or over eighteen years of age.
Under the provisions of this Chapter, seduction is committed when the offender has carnal knowledge of
any of the persons and under the circumstances described herein.
Two kinds of qualified seduction:
1. Seduction of a virgin over 12 years of age and under 18 years of age by persons who abuse their authority
or confidence reposed in them
2. Seduction of a sister by her brother or descendant by her ascendant, regardless of her age and reputation.
In the 1st kind is the seduction of a virgin
1. Committed by a public officer, a domestic servant, a priest, teacher, guardian or any person who has
custody over the person
2. In this case, the elements are:
a) The offended party must be a virgin
b) She must be over 12 and under 18
c) The offender is a priest, domestic servant, teacher, guardian
d) The offender had sexual intercourse with her
e) There is abuse of authority, confidence or relationship on the part of the offender
Virginity does not refer to physical virginity. It would suffice that the woman is not married, she is single and living a
chaste life. The law presumes that she is a virgin.
The offender is any person, public authority, priest, guardian
Note: sexual intercourse is an element of any kind of seduction.
In the 2nd case:
Virginity does not matter, even if the said sister or descendant is a married woman. Likewise, age does not matter.
There can still be a seduction of a sister or descendant. There must be an element of sexual intercourse and
committed in abuse of authority.
Art. 338. Simple seduction. The seduction of a woman who is single or a widow of good reputation, over
twelve but under eighteen years of age, committed by means of deceit, shall be punished by arresto mayor.
In case of simple seduction, the offended party must be a WOMAN who is single or widow.
Deceit- the offended party gave herself to the man because of the latters promise.
Sample Problem:
In order to have sexual congress with the woman, the man promised to marry the man. Crime committed is
seduction.
In one case, the woman committed sexual congress with a married man because the man promised that he will
marry the woman. The SC said that there is no seduction. The fact that the woman knows that the man is married,
the man cannot marry her. There is no deceit.

Page 168

CRIMINAL LAW 2
Art. 339. Acts of lasciviousness with the consent of the offended party. The penalty of arresto mayor
shall be imposed to punish any other acts of lasciviousness committed by the same persons and the same
circumstances as those provided in Articles 337 and 338.
This is under circumstances of seduction.
Offender: Man
Offended Party: woman
Under this circumstance, the acts of lasciviousness are committed through:
a) Abuse of authority
b) Abuse of confidence
c) Abuse of relationship
d) Means of deceit
Art. 340. Corruption of minors. Any person who shall promote or facilitate the prostitution or corruption
of persons underage to satisfy the lust of another, shall be punished by prision mayor, and if the culprit is a
pubic officer or employee, including those in government-owned or controlled corporations, he shall also
suffer the penalty of temporary absolute disqualification. (As amended by Batas Pambansa Blg. 92).
Art. 341. White slave trade. The penalty of prision mayor in its medium and maximum period shall be
imposed upon any person who, in any manner, or under any pretext, shall engage in the business or shall
profit by prostitution or shall enlist the services of any other for the purpose of prostitution (As amended
by Batas Pambansa Blg. 186.)
Chapter Four
ABDUCTION
Art. 342. Forcible abduction. The abduction of any woman against her will and with lewd designs shall
be punished by reclusion temporal.
The same penalty shall be imposed in every case, if the female abducted be under twelve years of age.
Art. 343. Consented abduction. The abduction of a virgin over twelve years and under eighteen years of
age, carried out with her consent and with lewd designs, shall be punished by the penalty of prision
correccional in its minimum and medium periods.
Forcible abduction- taking away of a woman against her will with lewd design.
Woman can be any person. Age, virginity, civil status is not material. For as long as the taking away is done with
lewd design and against her will.
note that sexual intercourse is not an element. If by reason of the forcible abduction, the man had sexual
intercourse with the woman, it may result in a complex crime of rape with forcible abduction.
SAMPLE PROBLEM:
1. X is a turned down suitor of A. X forcibly took A, who was sitting in the door step of her house. X professed
his love to A. However, A did not accept him so X raped him 7 times within 7 days. How many crimes are
committed? What are the crimes committed?
The crimes committed by X are 7 crimes: 1 crime forcible abduction with rape and 6 crimes of rape. Separate and
distinct from each other.
Note that only 1 forcible abduction is necessary and only 1 rape is necessary to bring about complex crime
of forcible abduction with rape. The other rapes are separate and distinct from the crime of rape
2. In the same case, the woman was inside the house of the man. The man attempted to rape the woman but
the woman was able to run away.
There is no crime of forcible abduction with attempted rape. The attempt to rape the woman is the manifestation of
the lewd design which is an element of forcible abduction.
CONSENTED ABDUCTION:

Page 169

CRIMINAL LAW 2
Elements:
1. The woman must be a virgin
2. She must be over 12 years but under 18
3. The taking away must be with her consent, after solicitation or cajolery from the offender
4. The taking away must be with lewd designs.
This time, the offended party consented to the taking away. But take note of the age (12-18). This is what makes
the crime of abduction.
Sample Problem
The girl was 15 and the boyfriend was 25. The said boyfriend was able to take away the girl with her consent. The
parents of the girl filed a case. Per Maam, she was able to handle a similar case where the girl was 16 and the
man was above 18. The parents of the girl do not like the man so the lovers eloped and lived in the house of the
man. The mother filed a case of consented abduction. During the P.I., the said girl loved the man and even if the
mother will take her away from the man, she will always return to the man. Also, the woman has keys of the house
of the man. Per maam the man was not at fault because it was always the woman who would go to the mans
house. So she dismissed the case.
In qualified seduction and consented abduction, acts of lasciviousness in circumstances of seduction: INSTANCES
WHERE VIRGINITY IS AN ELEMENT
Note: In consented abduction, sexual intercourse is not an element, so if after the woman ran away with the man,
yet she does not want to have sexual intercourse but the man forced her and was able to succeed in having sexual
intercourse, the crime committed is consented abduction with rape.
Chapter Five
PROVISIONS RELATIVE TO THE PRECEDING
CHAPTERS OF TITLE ELEVEN
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of
lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both the guilty parties, if they
are both alive, nor, in any case, if he shall have consented or pardoned the offenders.
The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon
a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the
offender has been expressly pardoned by the above named persons, as the case may be.
In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the
offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The
provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories
after the fact of the above-mentioned crimes.
Art. 345. Civil liability of persons guilty of crimes against chastity. Person guiltyof rape, seduction or
abduction, shall also be sentenced:
1. To indemnify the offended woman.
2. To acknowledge the offspring, unless the law should prevent him from so doing.
3. In every case to support the offspring.
The adulterer and the concubine in the case provided for in Articles 333 and 334 may also be sentenced, in
the same proceeding or in a separate civil proceeding, to indemnify for damages caused to the offended
spouse.
Art. 346. Liability of ascendants, guardians, teachers, or other persons entrusted with the custody of the
offended party. The ascendants, guardians, curators, teachers and any person who, by abuse of
authority or confidential relationships, shall cooperate as accomplices in the perpetration of the crimes
embraced in chapters,
second, third and fourth, of this title, shall be punished as principals.

Page 170

CRIMINAL LAW 2
Teachers or other persons in any other capacity entrusted with the education and guidance of youth, shall
also suffer the penalty of temporary special disqualification in its maximum period to perpetual special
disqualification.
Any person falling within the terms of this article, and any other person guilty of corruption of minors for
the benefit of another, shall be punished by special disqualification from filling the office of guardian.
Title Twelve
CRIMES AGAINST THE CIVIL STATUS OF PERSONS
Chapter one
SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS
Art. 347. Simulation of births, substitution of one child for another and concealment or abandonment of a
legitimate child. The simulation of births and the substitution of one child for another shall be punished
by prision mayor and a fine of notexceeding 1,000 pesos.
The same penalties shall be imposed upon any person who shall conceal or abandonany legitimate child
with intent to cause such child to lose its civil status.
Any physician or surgeon or public officer who, in violation of the duties of hisprofession or office, shall
cooperate in the execution of any of the crimes mentioned in the two next preceding paragraphs, shall
suffer the penalties therein prescribed and also the penalty of temporary special disqualification.
Three acts punished under Art. 347:
1. Simulation of birth
2. Substitution of a child
3. Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status
Simulation of birth- takes place when the woman pretends to be pregnant when in fact she is not and on the day of
the delivery, takes the child of another as her own.
Sample problem:
1. A was a pregnant. She told the midwife that she does not want the baby. The midwife said that she knew a
couple who wanted a child. This couple took the baby and registered the child as their own. What are the
crimes committed and who are liable?
All of them are all liable for simulation of birth. The said couple pretended that the child is their own child. In that
case, said child lost its original status.
2. In substitution of a child, the classic example is MARA and CLARA.
3. In the 3rd act, it is necessary that the child is legitimate, not illegitimate. The offender conceals or abandons
the legitimate child and the intention of the offender is to lose the childs civil status.
Sample problem:
1. The offender abandons the child in the forest. The child is one month old. Later however the child was
rescued. The crime committed was attempted parricide, because it can be seen that there was intent to kill.
2. A couple gave birth to its 13 th child. They are very poor. So the couple placed the baby in the gate of a wellknown family. What crimes are committed?
-Crime committed abandonment of the legitimate child with the intent to lose its civil status. There is no
other intent of the parents but to lose its status as a poor child.
Art. 348. Usurpation of civil status. The penalty of prision mayor shall be imposed upon any person who
shall usurp the civil status of another, should he do so for the purpose of defrauding the offended part or
his heirs; otherwise, the penalty of prision correccional in its medium and maximum periods shall be
imposed.
Chapter Two

Page 171

CRIMINAL LAW 2
ILLEGAL MARRIAGES
Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall contract a
second or subsequent marriage before the former marriage has been legally dissolved, or before the
absent spouse has been declared presumptively dead by means of a judgment rendered in the proper
proceedings.
Sample problem:
A and B are married. B, the husband fell in love with another woman, and married the woman thereafter. It is now a
bigamous married. A bigamous marriage is an otherwise valid marriage, except for the fact that there is a subsisting
marriage.
Bigamous marriage through reckless imprudence- in the book, there is such crime because a woman contracted a
marriage because she believed the statements of the relatives of her former spouse that the latter is already dead.
However, such ruling was erroneous. There must be a declaration of presumptive death.
Art. 350. Marriage contracted against provisions of laws. The penalty of prisioncorreccional in its
medium and maximum periods shall be imposed upon any person who, without being included in the
provisions of the next proceeding article, shall have not been complied with or that the marriage is in
disregard of a legal impediment.
If either of the contracting parties shall obtain the consent of the other by means of violence, intimidation
or fraud, he shall be punished by the maximum period of the penalty provided in the next preceding
paragraph.
Illegal marriage- marriage contracted without the requisites of the law.
If a person contracted marriage if knowledge of the infirmities, liable under 350
The solemnizing officer is liable also criminally.
Art. 351. Premature marriages. Any widow who shall marry within three hundred and one day from the
date of the death of her husband, or before having delivered if she shall have been pregnant at the time of
his death, shall be punished by arresto mayor and a fine not exceeding 500 pesos.
The same penalties shall be imposed upon any woman whose marriage shall have been annulled or
dissolved, if she shall marry before her delivery or before the expiration of the period of three hundred and
one day after the legal separation.
Person liable:
1. A woman who married within 301 days from the death of her husband, or before delivery of her baby
2. A woman whose marriage having been annulled or dissolved, married before delivery or before expiration
of the period of 301 days after the date of legal separation.
The requirement that the marriage must be done within 301 days must only apply if the woman is not pregnant. If
the woman is pregnant, it is only at the time of the delivery of the baby. After the baby is delivered, she can already
marry.
Why is it that the law requires that the baby must be first delivered, or it must be 301 days? This is to ensure that
there is no doubt as to the paternity of the child, otherwise there would be confusion.
Art. 352. Performance of illegal marriage ceremony. Priests or ministers of any religious denomination or
sect, or civil authorities who shall perform or authorize any illegal marriage ceremony shall be punished in
accordance with the provisions of the Marriage Law.
Title Thirteen
CRIMES AGAINST HONOR
Chapter One
LIBEL
Section One. Definitions, forms, and punishment of this crime.

Page 172

CRIMINAL LAW 2
Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even if it
be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative
or other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.
Art. 355. Libel means by writings or similar means. A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or
any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.
Art. 356. Threatening to publish and offer to present such publication for a compensation. The penalty of
arresto mayor or a fine from 200 to 2,000 pesos, or both, shall be imposed upon any person who threatens
another to publish a libel concerning him or the parents, spouse, child, or other members of the family of
the latter or upon anyone who shall offer to prevent the publication of such libel for a compensation or
money consideration.
Art. 357. Prohibited publication of acts referred to in the course of official proceedings. The penalty of
arresto mayor or a fine of from 20 to 2,000 pesos, or both, shall be imposed upon any reporter, editor or
manager or a newspaper, daily or magazine, who shall publish facts connected with the private life of
another and offensive to the honor, virtue and reputation of said person, even though said publication be
made in connection with or under the pretext that it is necessary in the narration of any judicial or
administrative proceedings wherein such facts have been mentioned.
Art. 358. Slander. Oral defamation shall be punished by arresto mayor in its maximum period to prision
correccional in its minimum period if it is of a serious and insulting nature; otherwise the penalty shall be
arresto menor or a fine not exceeding 200 pesos.
Art. 359. Slander by deed. The penalty of arresto mayor in its maximum period to prision correccional in
its minimum period or a fine ranging from 200 to 1,000 pesos shall be imposed upon any person who shall
perform any act not included and punished in this title, which shall cast dishonor, discredit or contempt
upon another
person. If said act is not of a serious nature, the penalty shall be arresto menor or a fine not exceeding 200
pesos.
Forms of libel:
1. Written defamation
2. Oral defamation
3. Slander by deed
4. Defamatory acts
Elements of libel:
1. There must be an imputation or allegation of a crime, or a vice of defect, real or imaginary, or any act or
omission, condition, status or circumstance which tend to dishonor or discredit a natural or juridical person.
2. That there must be a publication of these imputation;
3. The identity of the person defamed must be established or identified;
4. The existence of malice.
Publication- satisfied the moment that a 3rd person has heard or read the libelous statement, even if the person
pertained has not read it. So the basis is that a 3 rd person has heard or read the libelous statement.

Page 173

CRIMINAL LAW 2
Identity of the person- must be identified, not necessary that the person must be named. It suffices that the person
is described and identifiable by a third person.
Malice- malice is presumed as a rule for every statements made. However in defamatory statements, if the offender
cannot state any good intention for stating defamatory statements, the law presumes malice.
Prosecution need not prove malice because the law presumes malice. This is MALICE IN LAW.
Instances:
Malice in fact- refers to privilege in communication, refers to private communication, reports, or any acts performed
by a public officer. In this case the law does not presumes malice. Malice must be proven by the prosecution
otherwise there would be acquittal
Libel can be committed through the following:
1. Writing
2. Printing
3. Lithography
4. Engraving
5. Radio
6. Phonograph
7. Painting
8. Theatrical exhibition
9. Cinematographic exhibition
10. Or any similar means

If libel is committed, the liability is prision correctional.

TV is within the phrase any similar means.
If amplifier or microphone was used for everyone to hear, the crime committed is slander or oral
defamation, but not libel.

Venue: RPC provides that even if the crime is prision correccional, it must be filed before the RTC where the article
was printed or first published, or RTC where any of the offended party is residing. Note that this is a substantive
law. It is not found in the Rules of Court
If the offended party is a public officer and is working in Manila, it must be filed before RTC of Manila or where the
article was first published. If the public officer is not working in Manila, it shall be filed in the RTC where he is
working at the time of the commission of the offense or where the libelous article was printed or was first published.
If private individual is the offended party, RTC of the place where the private individual resides at the time of the
actual commission of the offense or where the libelous material was published
ORAL DEFAMATION/SLANDER
1. Grave oral defamation- when serious and insulting and nature.
Factors to consider: not only the grammar and meaning, but also the:
a) Personal relations of the accused and the offended party
b) Facts and Circumstances surrounding the case
c) Social standing and position of the offended party.

PUTANG INA MO is not a slanderous remark; it is merely an expression of the Filipino People. (Pader vs
People)
2. Simple slander
SLANDER BY DEED
Slander by deed- refers to acts not words, with the intent to defame the person. It can also be (a)serious, grave
slander by deed, or (b) simple slander by deed.
A priest was slapped by a person, serious slander by deed
Section Two. General provisions

Page 174

CRIMINAL LAW 2
Art. 360. Persons responsible. Any person who shall publish, exhibit, or cause the publication or
exhibition of any defamation in writing or by similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper,
magazine or serial publication, shall be responsible for the defamations contained therein to the same
extent as if he were the author thereof.
The criminal and civil action for damages in cases of written defamations as provided for in this chapter,
shall be filed simultaneously or separately with the court of first instance of the province or city where the
libelous article is printed and first published or where any of the offended parties actually resides at the
time of the commission of
the offense: Provided, however, That where one of the offended parties is a public officer whose office is in
the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First
Instance of the City of Manila, or of the city or province where the libelous article is printed and first
published, and in case such public officer does not hold office in the City of Manila, the action shall be filed
in the Court of First Instance of the province or city where he held office at the time of the commission of
the offense or where the libelous article is printed and first published and in case one of the offended
parties is a private individual, the action shall be filed in the Court of First Instance of the province or city
where he actually resides at the time of the commission of the offense or where the libelous matter is
printed and first published: Provided, further, That the civil action shall be filed in the same court where the
criminal action is filed and vice versa: Provided, furthermore,
That the court where the criminal action or civil action for damages is first filed, shall acquire jurisdiction to
the exclusion of other courts: And, provided, finally, That this amendment shall not apply to cases of
written defamations, the civil and/or criminal actions which have been filed in court at the time of the
effectivity of this law.
Preliminary investigation of criminal action for written defamations as provided for in the chapter shall be
conducted by the provincial or city fiscal of the province or city, or by the municipal court of the city or
capital of the province where such action may be instituted in accordance with the provisions of this
article.
No criminal action for defamation which consists in the imputation of a crime which cannot be prosecuted
de oficio shall be brought except at the instance of and upon complaint expressly filed by the offended
party. (As amended by R.A. 1289, approved June 15, 1955, R.A. 4363, approved June 19, 1965).
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may be given in evidence to
the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published
with good motives and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted,
unless the imputation shall have been made against Government employees with respect to facts related to
the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
Art. 362. Libelous remarks. Libelous remarks or comments connected with the matter privileged under
the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or
managing editor of a newspaper from criminal liability.
Chapter Two
INCRIMINATORY MACHINATIONS
Art. 363. Incriminating innocent person. Any person who, by any act not constituting perjury, shall
directly incriminate or impute to an innocent person the commission of a crime, shall be punished by
arresto menor.
Act of directly incriminating or imputes to an innocent person the commission of the crime. It is necessary that it
must not be made on an affidavit, because if it is through an affidavit, it will be perjury. It will only arise if it will not
amount to (a) perjury or (b) sec 29 of RA 9165
Sample problem
As ballpen was lost. B took it and placed it in the bag of C so that C will be liable for theft. B committed
incriminating innocent person.

Page 175

CRIMINAL LAW 2

In the case of dangerous drugs, the law that will govern is sec 29 of RA 9165, or planting of evidence.
Person found guilty of planting evidence, regardless of quantity or purity of the dangerous drugs shall
suffer the penalty of death.

Art. 364. Intriguing against honor. The penalty of arresto menor or fine not exceeding 200 pesos shall be
imposed for any intrigue which has for its principal purpose to blemish the honor or reputation of a person.
Title Fourteen
QUASI-OFFENSES
Sole Chapter
CRIMINAL NEGLIGENCE
Art. 365. Imprudence and negligence. Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in
its maximum period to prision correccional in its medium period; if it would have constituted a less grave
felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have
constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it
would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be
imposed.
When the execution of the act covered by this article shall have only resulted in damage to the property of
another, the offender shall be punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple
imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a
light felony.
In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the
rules prescribed in Article sixty-four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or lower than those provided in the first two
paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that
which should be imposed in the period which they may deem proper to apply.
2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall
be caused, in which case the defendant shall be punished by prision correccional in its medium and
maximum periods.
Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from which
material damage results by reason of inexcusable lack of precaution on the part of the person performing
of failing to perform such act, taking into consideration his employment or occupation, degree of
intelligence, physical
condition and other circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest.
The penalty next higher in degree to those provided for in this article shall be imposed upon the offender
who fails to lend on the spot to the injured parties such help as may be in this hand to give. (As amended
by R.A. 1790, approved June 21, 1957).
Take note of the case of Ivler vs Modesto.
Reckless imprudence or negligence is the crime itself. Hence, once committed or acquitted of a specific act of
reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi
offense of criminal negligence under Art 365 of the RPC lies in the execution of an imprudent or negligent act that if
intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the
result thereof. The gravity of the consequence is only taken into account to determine the penalty; it does not
qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect

Page 176

CRIMINAL LAW 2
one person or several persons, the offense (criminal negligence) remains one and the same, and cannot be split
into different crimes and prosecutions.
1st case: reckless imprudence resulting to slight physical injuries
2nd case: reckless imprudence resulting to homicide and damage to property
One quasi-offense cannot give rise to another quasi-offense.
Note simple negligence is not a means to commit a crime. They are crimes by themselves.
R.A 9995 Anti-Voyeurism Law
Acts Punished:
a) Taking photo or video coverage of a person or a group of persons performing sexual act or any similar
activity or to capture an image of a private area of a person such as the naked or undergarment clad
genitals, public area, buttocks, or female breasts without the consent of the persons involved and under
circumstances in which the person/s has/have a reasonable expectation of privacy
b) To copy or reproduce, or to cause to be copied or reproduced such photo or video or recording of sexual
act or any similar activity with or without consideration
c) To sell or distribute or to cause to be sold or distributed , such photo or video or recording of sexual act,
whether the original copy or reproduction thereof;
d) To publish or broadcast, or to cause to be published or broadcast whether in print or broadcast media, or
show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through
VCD/DVDV, internet, cellular phones and other similar means or device.
Sample problem:
A and B are having sex. B proposed to video their sexual act to which A consented. There is no crime. However, if B
later on reproduced the video, B is still liable.
Penalty: imprisonment of not less than 3 years but not more than 7 years AND fine of not less than 100k but not
more than 500k, or both at the discretion of the court.
RA 7877 Anti-Sexual Harassment Act
Definition of Work, Education, or Training Related Sexual Harrassment
- Committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor,
coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or
training or education environment, demands, requests or otherwise requires any sexual favor from the other,
regardless of whether the demand, request or requirement for submission is accepted by the object of said Act.
(a) In a work-related or employment environment, sexual harassment is committed when:
(1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued
employment of said individual, or in granting said individual favorable compensation, terms of conditions,
promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or
classifying the employee which in any way would discriminate, deprive ordiminish employment
opportunities or otherwise adversely affect said employee;
(2) The above acts would impair the employee's rights or privileges under existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.
(b) In an education or training environment, sexual harassment is committed:
(1) Against one who is under the care, custody or supervision of the offender;
(2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender;
(3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors
and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or consideration; or
(4) When the sexual advances result in an intimidating, hostile or offensive environment for the student,
trainee or apprentice.
Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who
cooperates in the commission thereof by another without which it would not have been committed, shall also be
held liable under this Act.

Page 177