Professor: Dean Carlos M.

Ortega

Transcribers:
Marc Roby de Chavez (MARX)

Mon Cristhoper Pasia (MON)

Jennielyn Reyes (JEN)
Angela dela Cruz (ANGELA)

This is the updated version of

2007 TAPSI NOTES
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
CRIMES AND PENALTIES
Under Book 2 of the Code, you have specific felonies. You will
have to contend with these provisions if the question would
ask you what crime is committed.
Now you know that under the Rules on Criminal Procedure
you have to give the designation of the crime given under the
law. You are only allowed to state the provision number, the
Article and the subsection if the crime does not have a name
or designation under the law.
Now in the RPC, all felonies arc given their designation. So
you are supposed to make use of such designation. Because if
there is no definite designation of the crime committed, you
do not know what provision to apply.
Now your problem here is how to differentiate felonies which
shape into similarities. So you give attention to these felonies
where I invite your attention to correlate with corresponding
felonies. Because these are the usual areas of problems in
Criminal Law, where the acts or the circumstances of the
crime are similar. So you will have to think what crime is
committed.
The RPC in Book 2 is divided into Titles. There are 15 titles all
in all. But the 15th Title only contains transitory provisions.
The felonies arc under the 14 Titles.
Now in each of these Titles, you have an average of no less
than 10 felonies. So Just on the coverage, to cover 14 titles.
you will have to go over 140 felonies. And you cannot
possibly put this all in mind. Because there are also crimes
under special laws that you have to consider.
So here you have to be very selective on the crimes which are
current. Provisions of the Code have been so antiquated that
there are provisions there which you need not bother about
anymore either because the acts involved arc those where
society has become tolerant, or simply not worth litigating
anymore. And that is why no Jurisprudence has been
Developed on such Articles.
We will go by these felonies. Title by Title. So that your
remembering them would be systematic. You cannot afford
Just to be reading, and reading this without assimilating what
you should remember.
TITLE ONE - CRIMES AGAINST NATIONAL SECURITY AND THE
LAW OF NATIONS
Now under Title I of Book 2, you have two classifications of
felonies there; one against the Law of Nations; one against
National Security.
Page | 1
The crimes against the law of nations under Title 1 are only
piracy and mutiny. Therewith, you have, qualified piracy,
qualified mutiny. And relative to this provision on piracy, you
have PD 532.
Now the crimes against national security for the most part
can only be committed in times of war. So now there a no
World War, these crimes are dormant. There are only 3
crimes here which maybe incurred even in times of peace,
and these are espionage, violation of neutrality, and giving
motives for reprisals.
Crimes against national security, generally, cannot be
committed when there is no world war taking place, where
the Philippines is a participant in that war.
General Rule: in times of peace crimes against national
security cannot be committed
Treason vs Rebellion
If offenders confederated to overthrow the Philippine
Government, what would be the liability of the offenders if
they were be apprehended?
Absent a state of war taking place, any such
conspiracy to overthrow the government is a
conspiracy to commit rebellion.
But in times of war where the Philippines is
involved, any such conspiracy to overthrow the
government is treason.
MISPRSION OF TREASON
Art. 116. Misprision of treason. — Every person owing allegiance to (the
United States) the Government of the Philippine Islands, without being a
foreigner, and having knowledge of any conspiracy against them, conceals or
does not disclose and make known the same, as soon as possible to the
governor or fiscal of the province, or the mayor or fiscal of the city in which
he resides, as the case may be, shall be punished as an accessory to the
crime of treason.
Elements;
1. Offender owes allegiance to the government, and
not a foreigner;
2. He has knowledge of conspiracy to commit treason
against the government;
3. He conceals or does not disclose and make known
the same as soon as possible to the governor or
fiscal of the province in which he resides, or the
mayor or fiscal of the city in which he resides.
Of these crimes under this class of crimes against national
security, first the crime of misprision of treason. The essence
of the crime is the failure of a person to make known to the
Government any conspiracy to overthrow the Government as
soon as possible.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
The persons mentioned in Article 116 are not limited to
mayor, fiscal or governor. Any person in authority having
equivalent jurisdiction, like a provincial commander, will
already negate criminal liability.
Whether the conspirators arc parents or children, and the
ones who learn the conspiracy is a parent or child, they are
required to report the same. The reason is that although
blood is thicker than water so to speak when it comes to
security of the state, blood relationship is always subservient
to national security. Article 20 does not apply here because
the persons found liable for this crime are not considered
accessories; they are created as principals.
Now since the crime cannot be committed except in times of
war, any conspiracy to overthrow the Government in times of
peace is rebellion. Misprision of rebellion is not punishable
under the Code.
So it is the element of war going that characterizes the
criminal liability for the crime. Without war, this crime cannot
be committed.
Problem was given on this before. So any conspiracy to
overthrow the Government hatched when there is no war
going on would be conspiracy to commit rebellion. And under
the Code, the failure to report or bring to the attention of the
Government any such conspiracy is not punishable. It is only
in times of war that it is punishable.
In the 1994 bar examination, a problem was given with
respect to misprision of treason. The text of the provision
simply refers to A conspiracy to overthrow the government.
The examiner failed to note that this crime can only be
committed in times of war. The conspiracy adverted to must
be treasonous in character. In the problem given, it was
rebellion. A conspiracy to overthrow the government is a
crime of rebellion because there is no war. Under the Revised
Penal Code, there is no crime of misprision of rebellion.
Crimes that can be committed in times of peace: There are
only 3 felonies classified under Title 1 Book 2 of the Code
as a crime against national security and yet may be
committed even in time of peace. These are the crimes that
you should guard against because they are the exceptions
to the rule, that even if there is no war a crime against
national security can be committed.
• Espionage
• Inciting to war and giving motives for reprisal
• Violation of neutrality
Page | 2
INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS
Art. 118. Inciting to war or giving motives for reprisals. — The penalty of
reclusion temporal shall be imposed upon any public officer or employee,
and that of prision mayor upon any private individual, who, by unlawful or
unauthorized acts provokes or gives occasion for a war involving or liable to
involve the Philippine Islands or exposes Filipino citizens to reprisals on their
persons or property.
Elements:
1. Offender performs unlawful or unauthorized acts;
2. The acts provoke or give occasion for—
a. a war involving or liable to involve the
Philippines; or
b. exposure of Filipino citizens to reprisals on their
persons or property
Of the 3 crimes that may be committed even in times of
peace, it is the crime of inciting to war or giving motives for
reprisals due you should give attention to. Find this in Art
118.
,
Example:
The situation where this domestic helper, Flor
Contemplacion, was put to death. She claims that the
employer, her master, was killed by her because he tried to
abuse and subject her to a crime against her honor. She
was sentenced to death and was actually put to death. At
that that she was convicted despite her protestation that
she was acting in defense of her honor, there were
protests, street demonstrations, indignations raised. There
were even groups, who tried to invade Singaporean
Embassy in Makati, but there were Makati policemen and
soldiers went there to prevent them.
If they were to intrude in a in the embassy of a foreign
country in the Philippines, they are in law invading the
territory or sovereignty of that foreign country because the
embassy grounds and premises of foreign country in
another country is an extension of their territory. If you
invade that, it is tantamount to invade the Singaporean
country itself and that will invite war.
But it invited reprisals. There were domestic helpers in
Singapore who were simply dismissed. There were wages
they have earned were not paid to them. Even their
passports were not returned to them, kept by their
employers so they could not leave Singapore. They were
subject to arrest and detention. So they went on refuge to
the Philippine Embassy. They stayed there for months and
the Philippine government cannot provide them food during
their stay.
Singaporean authorities cannot get them from the
Philippine Embassy there. Otherwise, that would definitely
bring about a state of war. An act of aggression in a foreign
embassy is an act of war. So they stayed there but they
cannot board any aircraft because they have no passport.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
They have no travel documents. Philippine government had
to do it for themselves, but it required processing. They may
be illegal entrant, but because the domestic helpers went
there under the authority of the POEA, Philippine
government did not prosecute those who allowed them to
go there because they went there.
On a legal manner. They have passports. The only reason
that they could not return is because their passports were
not given to them by their employers when they were
dismissed. That is an act of reprisal that would have fallen
under this felony if there is a private interest involved. But
because they were brought there with the blessing of the
DOLE, Philippine government cannot prosecute anybody.
This crime may be committed as against those who in any
manner committed unauthorized acts that have the
tendency to invite war or invite reprisals.
This case of PIATCO against a German Entity that is ____. If
it was not undertaken by the government, this may have
invited reprisals from Germany, because there is apparent
bad faith. The Philippine government entered into a
contract. The German entity spent so much money. Now,
they do not want to pay this entity. But because it is the
Philippine government who transacted this, this provision of
the Code cannot be implemented because the act is
authorized even though it is in bad faith.
So this is the article under crimes against national security
that you may give attention to. In the present global
interaction between countries. It is the crime that becomes
relevant.
CRIMES AGAINST THE LAW OF NATIONS
Regarding the crimes against the law of nations, piracy and
mutiny and therewith, qualified piracy and qualified mutiny.
PIRACY
Art. 122. Piracy in general and mutiny on the high seas or in Philippine
waters. — The penalty of reclusion perpetua shall be inflicted upon any
person who, on the high seas, or in Philippine waters shall attack or seize a
vessel or, not being a member of its complement nor a passenger, shall seize
the whole or part of the cargo of said vessel, its equipment, or personal
belongings of its complement or passengers.
The same penalty shall be inflicted in case of mutiny on the high seas or in
Philippine waters.
Acts punished as piracy:
1. Attacking or seizing a vessel on the high seas or in
Philippine waters;
2. Seizing in the vessel while on the high seas or in
Philippine waters the whole or part of its cargo, its
equipment or personal belongings of its complement
or passengers.
Page | 3
Elements of Piracy:
1. The vessel is on the high seas or Philippine waters
2. Offenders are neither members of its complement
nor passengers of the vessel
3. Offenders either:
a. Attack or seize a vessel on the high seas or
Philippine waters
b. seize in the vessel while on the high seas or
in Philippine waters the whole or part of its
cargo, its equipment or personal belongings
of its complement or passengers
c. There is intent to gain
The current aspect that you have to note here: piracy under
the Code now includes such crimes committed in Philippines
territorial waters. Before, the Code only covers piracy in the
high seas or outside the Philippine territorial waters.
Crimes against law of nations under the title are:
• Piracy and
• Mutiny
These are crimes which know no boundaries, because
these are crimes against humanity.
Illustration:
If the piracy is committed in the Sea of Japan and the
pirates, after committing the crime, went to the Philippines,
entered Philippine territory, Philippine courts can acquire
jurisdiction over them. The crime of piracy can be filed in
Philippine courts. That means the pirates can be arrested
here even though the piracy was committed in Japan. That
is because it is a crime against the family of nations. It is a
crime against humanity in general. The offenders may be
prosecuted and punished anywhere, where the offenders
sought refuge in any country belonging to the family of
nations under the UN.
With these two crimes you have qualified piracy, qualified
mutiny.
1. know the difference between piracy and mutiny.
2. what circumstances may qualify, the crime of
piracy to be bring about qualified piracy; and what
circumstances may bring about qualified mutiny
and render the offender liable for this crime
The epigram of Art 123 is qualified piracy, but a reading of
the provision will tell you that these circumstances apply
not only to the crime of piracy but also to the crimes
referred to in the preceding article, and the preceding
article refers both to piracy and mutiny.
Laws governing piracy: There are 2 laws governing piracy in
the Philippine territorial waters.
• Piracy under Art 122 of the RPC as amended
• PD 532
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Where piracy is committed
PD 522 governs only piracy in Philippine territorial waters.
The RPC formerly governs only piracy in the international
waters or in the high seas, but the lawmakers amended
this to include piracy in the Philippine waters not knowing
that there is already a law governing piracy in the Philippine
waters which is PD 532.
Does the amendment of Art 122 of the Code repeal PD
532?
No, even with the amendment PD 532 still
governs.
When will it be the RPC that shall govern piracy in the
Philippine waters? When will it be PD 532?
Offender
PD 532 punishes piracy committed in the Philippine waters
whether the offender is a stranger to the vessel or a
passenger of member of the complement of the vessel.
Whereas reading the article of the code, Art 122, only those
who are strangers to the vessel, not as passenger nor a
complement of the vessel, can commit the crime of piracy.
So the change made by the law makers, including
Philippine waters, did not affect any change because the
intended change is only on the venue where the crime is
committed.
As to who the offender is has not been expanded, because
under the Code, there must be a principal offender one who
is an outsider to the vessel, as stranger to the vessel – not
a passenger nor a member of the complement of the
vessel.
But in Philippine waters, common act of piracy is committed
by members of the complement of the vessel, taking
advantage of the passenger who board the watercrafts
navigated in the Philippine waters. Unlike in the high seas
where the offender is really an outsider to the vessel. That
is an international water, you cannot expect bancas to be
sailing there. But within our Philippine waters, within our
rivers you can expect bancas, any watercraft and these are
the ones used. So the amended is meaningless. It did not
change who the offender is.
In short if the offender committing piracy in Philippine
waters is member of the complement of that vessel or as a
passenger of that vessel, the RPC as amended will not
apply. It will still be PD 532 that will apply. The amendment
in the RPC did not entirely repeal PD 532.
Other crimes punished under PD 532
PD 532 punishes not only piracy but also Highway
Robbery or Brigandage.
So this decree is important insofar as the crimes
under the RPC are thereby modified or expanded.
Page | 4
The amended in Art 122 is the one that provides a conflict
for purposes of bar exams. This is where you have to pay
attention to.
If the offender is a member of the vessel or a passenger of
that vessel which is flying Philippine waters the RPC will not
apply.
The RPC applies only when the offender committing the
piracy, whether in the high seas or in Philippine waters is a
stranger to the vessel or an outsider to the vessel, not a
member of the complement or passenger to the vessel.
Otherwise the Code will not apply.
Beyond this, if the piracy in Philippine waters is governed by
the amendment in the RPC because the offender is not a
passenger or member of the complement of the vessel but
an outsider of the vessel, then the participant may be
principal, accomplice or accessory. This classification
obtains when the crime is governed by the RPC.
Receiving or accepting loot from the pirates
If the crime is governed by PD 532, there is no accomplice,
no accessories. The offenders are punished in the same
manner unless the law provide otherwise. So whatever
exceptions there are under the Code which applies to
accessories do not apply to the violation of PD 532. Hence,
acts of an accessory under Art 19 of the Code do not apply
to those who are similarly involved in piracy under PD 532.
Instead take note of Sec 4 of PD 532.
One who would benefit from the loot of the pirates if the
piracy is governed by the Code is accessories to the piracy
(par 1 Art 19).
Under PD 532 one who would participate in the loot of the
pirates are not accessories, but offenders violating Sec 4 of
the Decree. They incur the crime of aiding in or abetting
piracy. Under this section the liability will be that of an
accomplice. So one who receive or accept any part of the
loot of the pirates, if the piracy is governed by PD 532, will
incur the crime of aiding in or abetting piracy (Sec 4).
Essence of piracy
Under PD 532, piracy in Philippine waters may be
committed by anyone, whether a stranger to the vessel or a
passenger of the vessel or a member of the complement of
the vessel.
The essence of piracy under decree is one of robbery
characterized by intent to gain except that the object of the
depredation is:
• a vessel in the sea or territorial waters, or
• the cargoes of the vessels or the belongings of the
passengers, or
• the belongings of the members of the complement
of the vessel
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Under the RPC, piracy whether in the high seas or
international waters or in Philippine waters when the
principal offender is a stranger to the vessel, not a
passenger of the vessel nor a member of the complement
of the vessel. Otherwise, piracy cannot be committed by
such offender.
No robbery in the high seas
Commentaries tells you that if the offender in a piracy
under the Code is not a stranger to the vessel but a
member of the complement or a passenger thereof the
crime is robbery in the high seas. Under the RPC there is no
such crime.
The high seas is regarded as an uninhabited place. You
have under the RPC robbery in an uninhabited place not
piracy. So that it is the crime if the offender involved does
not qualify to be committing piracy because he is a
passenger or a member of the complement of the vessel,
not entirely an outsider to vessel.
Now, even if the water craft involved is only moored or tied
or anchored, if robbery is committed by outsiders against that
vessel of the cargo thereof or the personal belongings of the
passengers or members of the complement of the vessel,
such robbery is known as piracy.
The taking, characterized by violence against or intimidation
of, persons or force upon things, the object may be the vessel
itself or the cargo of the vessel or any part thereof, or the
personal belongings of the passengers or members of the
complement of the vessel, this is piracy.
MUTINY
Mutiny is the unlawful resistance to a superior officer, or the
raising of commotions and disturbances aboard a ship against
the authority of its commander.
Elements of mutiny:
1. The vessel is on the High seas or Philippine waters;
2. Offenders are either members of its complement or
passengers of the vessel
3. Offenders either:
a. Attack or seize the vessel; or
b. Seize the whole or part of the cargo, its
equipment, or personal belongings of the
crew or passengers
Now mutiny differs from piracy in that the essence of mutiny
is that of defying or going against the lawful command of the
captain of the vessel. Intent to gain is not the criminal intent
here. Whatever benefit the mutineers would, derive Is simply
secondary or incidental here.
Page | 5
It is a piracy where the criminal intent of the offender is to
gain because, as I said, piracy is simply robbery committed in
the seas or body of water or any tributaries within the
Philippine Archipelago.
In mutiny, the offenders are passengers or members of the
complement of the vessel.
This differs from piracy under PD 532, in that, in piracy, the
offenders acted with intent to gain, the so-called animus
lucrandi, whereas in mutiny, the offenders rise in
commotions, disturbances during the voyage of the vessel by
way of defying, disobeying or going against the lawful
command of the captain of the vessel.
Distinction between mutiny and piracy:
(1) As to offenders,
• Mutiny is committed by members of the
complement or the passengers of the vessel.
• Piracy is committed by persons who are not
members of the complement or the passengers
of the vessel
(2) As to criminal intent:
• In mutiny, there is no criminal intent.
• In piracy, the criminal intent is for gain.
QUALIFIED PIRACY / QUALIFIED MUTINY
Art. 123. Qualified piracy. — The penalty of reclusion temporal to death shall
be imposed upon those who commit any of the crimes referred to in the
preceding article, under any of the following circumstances:
1. Whenever they have seized a vessel by boarding or firing upon
the same;
2. Whenever the pirates have abandoned their victims without
means of saving themselves; or
3. Whenever the crime is accompanied by murder, homicide,
physical injuries or rape.
In Art 123. you have there qualified piracy as the epigram of
the article. On reading the text of the provision, you will note,
even mutiny is included there. But among the circumstances
nd rd
that will qualify mutiny are only those in the 2 and 3
circumstances.
The 1st circumstance where the offenders boarded the vessel
firing upon the same contemplates of offenders outside the
vessel. Now that is not possible in mutiny because in mutiny,
the offenders are inside the vessel already. So it is only the
nd rd
2 and 3 circumstances in Art 123 that would qualify
mutiny.
More important among the circumstances are chose
mentioned in the 3rd enumeration, where the piracy or the
mutiny are attended by murder, homicide, physical injuries,
or rape.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Now you should take note of this. The murder, homicide,
physical injuries, or rape do not stand here as crimes. They
stand here only as circumstance that qualifies the piracy or
the mutiny. Hence, in a piracy where there was a killing you
do not call crime as piracy with homicide. It is simply qualified
piracy. So regardless of the number of persons killed in the
piracy, the crime is simply qualified piracy.
rd
In the same way, since rape is included in the 3
circumstance, regardless of the number of times the victim
was raped, there will only be one crime of qualified piracy or
Qualified mutiny.
You will not complex any of these crimes under the 3rd
circumstance because they do not stand here as crimes but
only as qualifying circumstances.
Now if the crime committed by reason or on the occasion of
the piracy or mutiny is not one of them, the crimes may be
complexed. So it does not mean qualified piracy or qualified
mutiny anymore.
For instance, the captain of the vessel during the voyage
thereof is a person in authority vested with jurisdiction over
the vessel. That is why you have learned that during the
voyage, the captain may solemnize validly a marriage in
articulo mortis. But not when the vessel is not on voyage.
Now being a person in authority during the voyage of the
vessel, if during the piracy or the mutiny the captain is
subjected to such force or violence, crime of direct assault
will arise. And under par 3 or Art 123, direct assault is not
included there. So if this crime attends the piracy or the
mutiny, you will have to complex. It will then be piracy with
direct assault or mutiny with direct assault. This is only,
however, insofar as the captain of the vessel is concerned.
REPUBLIC ACT No. 6235
AN ACT PROHIBITING CERTAIN ACTS INIMICAL TO CIVIL
AVIATION,
AVIATION, AND FOR OTHER PURPOSES
This term “piracy” in some other penal codes is also
applied to aircrafts. In some penal codes there is a crime of
aircraft piracy, which in our jurisdiction is commonly known
as “hijacking,” under RA 6235. But a reading of this law
tells you that the crime thereunder is not referred to as
hijacking because hijacking is commonly used in waylaying
of cargo trucks. We also use that here. Cargo trucks
transporting cargoes from Clark fields to some other points
in Luzon are waylaid along the highway. The offenders bring
the truck to an isolated place after dumping off the driver
and the helpers in the truck and they unload the cargoes of
the truck in unknown warehouse. That is why in other
countries hijacking is confined to this kind of robbery.
Page | 6
When it comes to the aircraft the reference under laws of
other countries is aircraft piracy. Here this is governed by
RA 6235. But even that law does not refer to this crime as
hijacking. The law simply refers to an Act Inimical to Civil
Aviation.
So if you encounter a problem of this, do not say hijacking
because that is a street name in the same manner as
shabu is not a legal term. The legal term for shabu is
methamphetamine hydrochloride. This is the term used in
the Dangerous Drugs Law.
If you encounter a problem which constitutes a violation of
RA 6235 the crime is Violation of RA 5235 commonly
known as Hijacking.
Acts punished under RA 5235
Under this law there are 4 acts which constitute as violation
thereof:
• Firstly, seizing or usurping control of an aircraft of
Philippine Registry or compelling a change in the
course or destination of the aircraft while it is in
flight
• usurping or seizing control over aircraft of foreign
registry to land in any part of Philippine territory or
usurp or seize control thereof while in Philippine
territory.
• carrying or transporting on board a “passenger”
aircraft any explosive, flammable, corrosive or
poisonous substance or material.
• loading or transporting or shipping on board a
cargo aircraft operating as a public utility in the
Philippines any of the said prohibited substances if
the same was done not in accordance with the
rules and regulations laid down by the Civil
Aeronautics Administration now know as the Air
Transportation Office (ATO).
Section
Section 1. It shall be unlawful for any person to compel a change in the
course or destination of an aircraft of Philippine registry, or to seize or
usurp the control thereof, while it is in flight. An aircraft is in flight from the
moment all its external doors are closed following embarkation until any of
such doors is opened for disembarkation. X x x x x
In flight
On this first violation the point that you should bear in mind
the law applies only when the aircraft is in flight.
The phrase “in flight” is defined in the law itself as when all
exterior doors of the aircraft had been closed following an
embarkation, that means that there are passengers that
boarded the aircraft, up to such time the same exterior
doors are again opened for disembarkation.
Note that, it is not required that the aircraft be airborne. It
is not required that the aircraft be flying. Even if the aircraft
is parked at the tarmac of the airport, if all exterior doors
there have all been closed because passengers have all
boarded that aircraft is already in flight. From that time, on
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
the law governing the violation inside the aircraft will be RA
6235. Before that it would be the RPC or some other penal
law.
The crime under RPC when this will be the one governing
will be grave threats, or grave coercion aside from a
possible killing or inflicting of serious physical injuries for
that purpose.
Note that under this violation in par. 1 of RA 6235 the
requirement that the aircraft be in flight before this law will
govern is true only to an aircraft of Philippine registry.
Section 1. x x x x x x
It shall likewise be unlawful for any person to compel an aircraft of foreign
registry to land in Philippine territory or to seize or usurp the control
thereof while it is within the said territory.
It is the 2nd violation which refers to aircrafts of foreign
registry. When it comes to aircraft of foreign registry it is not
required that the aircraft be in flight, because foreign
aircraft are regarded as in transit for as long they have
returned to their home base.
Under the second violation of RA 6235 the act is that of
usurping or seizing control over aircraft of foreign registry to
land in any part of Philippine territory or usurp or seize
control thereof while in Philippine territory.
If while it is unloading cargoes, unloading passengers, one
would take over control of the aircraft that is already
governed by RA 6235
Section 3. It shall be unlawful for any person, natural or juridical, to ship,
load or carry in any passenger aircraft operating as a public utility within
the Philippines, and explosive, flammable, corrosive or poisonous
substance or material.
The third violation of this law is that of carrying or
transporting on board a “passenger” aircraft.
Underscore the word “passenger.” This violation does not
apply to an aircraft which is not a passenger aircraft.
Passenger aircraft operating in the Philippines as a public
utility aircraft, that means not a private aircraft, any
substances which is flammable, corrosive, poisonous or
explosive.
The mere carrying on board, if it a passenger aircraft
operating as a public utility in the Philippines, is a violation
of RA 6235.
Illustration:
If you have been riding in these aircraft, even inter-islands
aircraft, you are bringing any liquid there which is vinegar,
they will not allow you because this is a corrosive
substance.
Page | 7
Lotion also is not allowed because this is corrosive to the
skin of those who want to be beautiful. It removes the stain.
It may be only checked in with the other baggage which is
hand carried.
Section 4. The shipping, loading or carrying of any substance or material
mentioned in the preceding section in any cargo aircraft operating as a
public utility within the Philippines shall be in accordance with regulations
issued by the Civil Aeronautics Administration.
Last violation under this law is that of loading or
transporting or shipping on board a cargo aircraft operating
as a public utility in the Philippines any of the said
prohibited substances if the same was done not in
accordance with the rules and regulations laid down by the
Civil Aeronautics Administration now know as the Air
Transportation Office (ATO).
Not when it comes to a cargo aircraft, the prohibition is not
absolute. The shipmen are allowed provided it is done in
accordance with the rules and regulations prescribed by
the ATO. This office, the packing or packaging of this
substances, the quantity that may be allowed a single
shipment. Only where the rules and regulations prescribed
are violated will the same amount to a violation of the RA
6235.
Any other culpable act provided for in this law is only a
circumstance affecting the penalty prescribe for this law –
like exploding the aircraft or trying to destroy the aircraft,
the penalty is mandatory death. It is not itself an act
punished as violation of this law. It is only a circumstance
of the acts punished under anyone of the four. The
circumstance under which it was committed determines
the penalty.
The violation of the prohibition under the 3rd and 4th
situations referring to the carrying of prohibited substances
will bring about additional prosecution for any injury to
person or damage to property which is punished under the
RPC. So as far as those prohibited substances are
concerned the violation will not only be RA 6235 but also
physical injuries or death if this would be consequence of
such violation. There will be separate prosecution for this
under the RPC.
TITLE 2 – CRIMES AGAINST THE FUNDAMENTAL LAW OF
THE STATE
The fundamental law of the state is the Constitution. The
Constitution is primarily crafted to protect the rights of the
citizen against abuses by those who are in the government
administering the law to govern the country.
It is required that the principal offender must be a public
officer, and not just any public officer, he must be a public
officer acting under the color of his authority.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
The important crimes here are Arbitrary Detention and
Violation of Domicile
Arbitrary Detention has a counterpart crime of Illegal
detention under Title 9, Book 2 of the Code (crime against
personal liberty and security) – know the distinction
between the two, the manner of committing the crime and
who the offenders may be.
The crime of Violation of Domicile has a counterpart crime
under Art. 280 of Title 9, Book 2, the crime of Qualified
trespass to dwelling (also a crime against personal liberty
and security). In the crime of Violation of domicile, the
principal offender must be a public officer which official
duties confer on him the authority to make searches and
seizure inside a citizen’s dwelling. (Note: when it should be
a violation of domicile and when it should be qualified
trespass to dwelling). Not any public officer can incur this
crime.
ARBITRARY DETENTION (Articles 124, 125 and 126)
Art. 124 – where from the very beginning the detention is
regarded as arbitrary
Art. 125 – where the detention becomes arbitrary only
after the lapse of the period of time allowed the arresting or
detaining officer to hold the arrested person without any
charge yet being filed in court. Here the detention becomes
arbitrary only when the period specified under Art 125 has
already expired and still no criminal complaint has been
filed against the arrested person whereas the arrested
person continued to be held under detention
Art. 126 – where the offended party is legally held under
detention but his release/discharge had been ordered by
higher authorities. A public officer who is holding such
detained person shall incur arbitrary detention if he would
delay the release of such detained person even after such
release had been ordered by higher authorities.
All these 3 felonious acts may be designated as Arbitrary
Detention, although Article 125 and Article 126 specifies a
different epigram for the violation involved. Generically,
they are known as Arbitrary Detention.
ARBITRARY DETENTION
Art. 124. Arbitrary detention. — Any public officer or employee who, without
legal grounds, detains a person, shall suffer;
1. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period, if the detention has not
exceeded three days;
2. The penalty of prision correccional in its medium and maximum
periods, if the detention has continued more than three but not
more than fifteen days;
3. The penalty of prision mayor, if the detention has continued for
more than fifteen days but not more than six months; and
4. That of reclusion temporal, if the detention shall have exceeded
six months.
Page | 8
The commission of a crime, or violent insanity or any other ailment requiring
the compulsory confinement of the patient in a hospital, shall be considered
legal grounds for the detention of any person.
Elements:
1. Offenders is a public officer or employee
2. He detains a person
3. The detention is without legal grounds
Meaning of absence of legal grounds
1. No crime was committed by the detained
2. There is no violent insanity of the detained person;
and
3. The person detained has no ailment which requires
compulsory confinement in a hospital
The crime of arbitrary detention assumes several forms;
(1) Detaining a person without legal grounds under Art.
124
(2) Having arrested the offended party for legal
grounds but without warrant of arrest, and the
public officer does not deliver the arrested person
to the proper judicial authority within the period of
12, 18, or 36 hours, as the case may be (Art. 125); or
(3) Delaying release by competent authority with the
same period mentioned in number 2 (Art.126)
In Article 124, from the very beginning the detention is
already arbitrary, hence felonious. The detention is without
any legal cause/ground
The principal offender in this crime must be a public officer
whose official duties confer the authority to make arrest
and detain persons. Although the offender is a public
officer, if his official duties do not authorize him to make
arrest and detain persons, any such detention done by him
would be committed in a private capacity. The crime
therefore is not arbitrary detention but illegal detention. So
not any public officer who detains an offended party will
incur the crime of arbitrary detention. The offender must be
acting under the color of his authority, meaning to say
purportedly exercising the legal limits of his authority. But if
he has no authority at all, the crime will be committed in a
private capacity. The crime is not arbitrary detention but
illegal detention.
In Administrative law, there is a basic proposition that a
public officer is regarded as a public officer only when he
acts within the parameters of his public authority. The
moment he would transgress the limits of that authority he
is no better than an ordinary citizen. He cannot receive the
protection given by the law because he is acting unlawfully
already.
Although the principal offender in these felonies need be a
public officer, if a civilian would cooperate with such public
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
officer as an accomplice or accessory or would conspire
with such public officer, the civilian will also incur the crime
of arbitrary detention/violation of domicile, as the case may
be. In short, you should not split the crime. As far as this
public officer is concerned the crime is arbitrary detention
and as far as the participating civilian is concerned the
crime is illegal detention – that is wrong. You do not split
the crime committed on one occasion.
So even a public officer will be committing not arbitrary
detention but illegal detention if he is acting in a private
capacity not in his capacity as a public officer with the
authority to make arrest and detain the arrested person.
Example : A janitor in the city hall is a public officer.
Because a visitor in the city hall entered the men’s room
and started to urinate carelessly, that instead of urinating
in the urinal bowl he is urinating in the floor that the janitor
is moping, the janitor disappointed with this fellow, locked
the men’s room outside so the fellow cannot go out when
he wanted to go out already. The janitor did not unlocked
the room so it is already past 5 o’ clock. What is the crime
committed?
Do not say arbitrary detention because the janitor
has no right to make arrests and detain persons,
he doing so in a private capacity and therefore he
is no better than a civilian. Crime committed is
illegal detention.
Problem along this thrusts have been given in the past bar
exams to emphasize the difference between the crime of
illegal detention and arbitrary detention. The distinction lies
on who the offender is. And it is not merely the offender is a
public officer or not. It is also a question of what kind of
public officer he is.
Arbitrary Detention under Art 124 in relation to Unlawful
arrest under Art 269
Art. 269. Unlawful arrest. — The penalty of arresto mayor and a
fine not exceeding 500 pesos shall be imposed upon any person
who, in any case other than those authorized by law, or without
reasonable ground therefor, shall arrest or detain another for the
purpose of delivering him to the proper authorities.
Relative to the crime of arbitrary detention under Art. 124
you should correlate this with Art. 269 (UNLAWFUL
ARREST). You should have already learned that Unlawful
Arrest carries with it the act of the arresting public officer or
civilian in detaining the arrested person purposely to
prepare a criminal complaint against him, to deliver him to
the proper authorities. In other words, you should readily
see that the arrest is covered by Art. 269, where the
offender made the arrest to deliver the arrested person to
the proper authorities. Meaning to say, to file a case
against him in court.
So the detention of the arrested person would be incidental
to the crime of unlawful arrest. Since the detention is done
Page | 9
purposely to file a criminal complaint against the arrested
person and charge him in court, although the arrest is
unlawful, the detention being merely incidental to the
unlawful arrest, will not necessarily amount to an arbitrary
detention when the person who made the unlawful arrest is
a public officer.
The crime of unlawful arrest under Art. 269 is committed
not because the person has not committed a crime and yet
he was arrested and detained. Even though the person
arrested and detained had committed a crime, the crime of
unlawful arrest is still committed if the arrest was without a
warrant of arrest and the situation where the warrantless
arrest was done is not any of the situation provided under
sec. 5 Rule 113 of the Rules of Criminal Procedure, where
warrantless arrest is authorized by law. The arrest is not an
unlawful arrest because the person arrested has not
committed a crime. Even if the person arrested has
committed a crime, if the arrest done is without a warrant
or the warrantless arrest is not one of those covered by sec.
5 Rule 113, the arrest is unlawful. So the question is only
whether the detention of the person unlawfully arrested will
bring about further the crime of Arbitrary Detention, since
the arrest is not lawful.
It is not necessarily arbitrary detention because Art. 269
authorizes the detention of the person arrested purposely
to file a criminal complaint against him. You do not arrest a
person only to release him, precisely he is being arrested to
file a case against him.
If, however, the officer who arrested the offended party did
not take steps to file a criminal case against the arrested
person, it would appear that the arrest was done not for
the purpose of delivering him to the proper authorities for
the wrong that he has done, rather it would appear that the
person arrested was only so arrested to detain him and
deprive him of his liberty. If this would be the situation the
offender, a public officer, will be incurring not just the crime
of unlawful arrest but also the crime of arbitrary detention.
So the crime committed by such public officer would be a
complex crime – Arbitrary detention through unlawful
arrest. This was the subject of a bar problem in the mid
70’s.
The detention becomes arbitrary if the officer who made
the unlawful arrest would not take steps to file a criminal
complaint against the arrested person. So it would appear
that the arrest was done only to detain him and deprive him
of his liberty. But if the unlawful arrest brought about the
detention of this person arrested, the officer prepared the
papers to file a case against him in court, the incidental
detention of the person arrested is part of the unlawful
arrest because under Art. 269 person unlawfully arrested
may be detained for the purpose of delivering him to the
proper authorities. Read carefully Art. 269.
But if that was not done, the detention would therefore not
an incident of the arrest. The detention is done as a
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
consequence of the arrest. The arrest was done purposely
to deprive him of his liberty. That is why the crime
committed is a complex one, Arbitrary detention through
unlawful arrest.
Distinction between arbitrary detention and illegal
detention
In arbitrary detention:
• The principal offender must be a public
officer. civilians can not commit the crime
of arbitrary detention except when they
conspire with a public officer committing
this crime, or become an accomplice or
accessory to the crime committed by the
public officer; and
• The offender who is a public office has a
duty which carries with it the authority to
detain a person.
In illegal detention:
• The principal offender is a private person.
But a public officer can commit the crime of
illegal detention when he is acting in a
private capacity or beyond the scope of his
official duty, or when he becomes an
accomplice or accessory co the crime
committed by a private person.
• The offender, even if he is a public officer,
does not include as his function the power
to arrest and detain a person, unless he
conspires with a public officer committing
arbitrary detention.
Arbitrary Detention vs Illegal Detention
One who unlawfully detains or deprives another of
his liberty or freedom of movement may incur a
crime of arbitrary detention or illegal detention.
Arbitrary detention is categorized as a Crime
against the Fundamental Law of the State, Title 2
Book 2 of the Code.
On the other hand, Crime of Illegal Detention is
categorized as a Crime Against Personal Security
and Liberty under Title 9 Book 2 of the Code.
The gravamen of the crime is the same yet in a
certain situation where this is committed the crime
is arbitrary detention, while in another situation
where the same crime is committed, the crime is
illegal detention. This is the nature of the problem
you will encounter in respect of each specific
felonies.
Page | 10
Art. 125. Delay in the delivery of detained persons to the proper judicial
authorities. — The penalties provided in the next preceding article shall be
imposed upon the public officer or employee who shall detain any person for
some legal ground and shall fail to deliver such person to the proper judicial
authorities within the period of; twelve (12) hours, for crimes or offenses
punishable by light penalties, or their equivalent; eighteen (18) hours, for
crimes or offenses punishable by correctional penalties, or their equivalent
and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or
capital penalties, or their equivalent.
In every case, the person detained shall be informed of the cause of his
detention and shall be allowed upon his request, to communicate and confer
at any time with his attorney or counsel.
Elements:
1. Offender is a public officer or employee
2. He detains a person for some legal ground
3. He fails to deliver such person to the proper judicial
authorities within:
a. 12 hour for light penalties
b. 18 hours for correctional penalties; and
c. 36 hours for afflictive or capital penalties.
The requirements that would bring about the application of
this article:
(1) that the arrested person has indeed committed a
crime;
(2) that the arrest was without warrant of arrest but
made under the circumstances provided under
sec. 5 Rule 113 of the Rules of Criminal
Procedure;
(3) that the arrested person is held under detention
purposely to file a criminal complaint against him
as a mode of delivering him to the proper judicial
authorities;
(4) that the arrested person has been held without any
criminal complaint having been filed in court
whereas the period of:
• 12 hours from the commencement of
detention had already lapsed if the crime
involved carries a light penalty or its
equivalent;
• 18 hours from the time of detention had
already lapsed if the crime imputed to him
carries a penalty which is only correctional
or its equivalent;
• 36 hours where the crime imputed carries
afflictive penalty or its equivalent or the
death penalty.
So the period when the arresting or detaining person is
allowed to hold the arrested person without a criminal case
being filed yet depends on the gravity of the crime for which
such person was arrested. The period of 12, 18, 36 hours
is the period the arresting officer is allowed to hold the
arrested person without a criminal complaint yet filed in
court against him. When any of these periods, as the case
may be, had already lapsed and there is yet no criminal
complaint filed in court against the arrested person, the
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
arresting officer or detaining officer will incur the crime of
arbitrary detention under Art. 125.
These periods do not apply to Arbitrary Detention under
Article 124 because, in this case, the detention of the
offended party is arbitrary from the very beginning.
Article 125 of the Code is not applicable when the arrest
made there under is by virtue of a valid warrant of arrest.
You only apply these when the arrest is without a warrant.
these periods of 12, 18 and 36 hours do not run when the
courts are close to receive the filing of cases. So the
arresting or detaining person cannot be faulted for not filing
a criminal complaint against the arrested person if after all
the court is closed to receive the filing of such case. The
periods of 12, 18 and 36 hours will run only when the court
is open to receive the filing of cases. So during the period
that the courts are closed, these periods are suspended. So
during holidays, weekends, night time, the running of these
periods is suspended. At night time these periods will run
only if there was a night court and the night court is still
open to receive the filing of the cases. So these periods
continue to run. But the moment the night court closes,
these periods are suspended.
You will recall under Rule 112 of the Rules in Criminal
Procedure, you have the so called preliminary investigation
in criminal cases. If an offender was arrested without a
warrant of arrest because he was arrested in flagrante or
about to commit, or while committing or had just committed
a crime. If the crime committed calls for a preliminary
investigation, Section 6 of Rule 112, the offender who
decides the benefit of preliminary investigation is required
to execute a waiver of Article 125 of the Code so that the
arresting officer may not be liable for Arbitrary detention.
The said Rule of Criminal Procedure requires that the
waiver must be in writing and made with the assistance
and presence of a counsel. So if that waiver cannot be
done as required the arrested person may be immediately
charged in court to save the neck of the arresting or
detaining officer from incurring the crime of arbitrary
detention. So the correlation of this provision of Sec 6 of
Rule 112 and Art 125 of the Code is your duty.
Also relevant at this stage when an offender is arrested in
flagrante, without a warrant of arrest is RA 7438 which
requires the arresting officer to inform the person arrested
of his constitutional rights at the moment he is being taken
into custody. This law also provide that the officer making
the arrest should comply with what is known as MIRANDA
WARNING in criminal procedure (a landmark legal process
laid down in the case of Miranda v. State of Arizona). Any
arresting officer upon the taking the offender into custody
must inform him of
(1) his right to remain silent,
(2) that any statement he may give or make may be
used against him in evidence in any courts of law,
(3) he must be informed that he has a right to be
Page | 11
assisted by a counsel preferably of his own choice
and
(3) if he cannot afford to engage a counsel of his
choice, the government will provide one for him.
All these are required of the arresting officer to inform the
arrested person at that instance of the arrest when the
arrested person is being taken into custody. And under this
RA 7438 if the public officer making the arrest did not
comply with this, the penalty prescribed under this law is
equal to prision mayor in the medium period. Imprisonment
from 8-10 years. You should correspondingly read this law
because there are other provisions there on the right of the
arrested person to be visited by his family, by people who is
close to him including his boyfriend or girlfriend at any time
of day or night. The right of the person to refuse invitation
by law enforcers without the benefit of the warrant is also
mentioned in this special law.
Section 2. Rights of Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers. –
(a) Any person arrested detained or under custodial investigation shall at
all times be assisted by counsel.
(b) Any public officer or employee, or anyone acting under his order or his
place, who arrests, detains or investigates any person for the commission
of an offense shall inform the latter, in a language known to and
understood by him, of his rights to remain silent and to have competent
and independent counsel, preferably of his own choice, who shall at all
times be allowed to confer privately with the person arrested, detained or
under custodial investigation. If such person cannot afford the services of
his own counsel, he must be provided with a competent and independent
counsel by the investigating officer.lawphi1Ÿ
(c) The custodial investigation report shall be reduced to writing by the
investigating officer, provided that before such report is signed, or
thumbmarked if the person arrested or detained does not know how to
read and write, it shall be read and adequately explained to him by his
counsel or by the assisting counsel provided by the investigating officer in
the language or dialect known to such arrested or detained person,
otherwise, such investigation report shall be null and void and of no effect
whatsoever.
(d) Any extrajudicial confession made by a person arrested, detained or
under custodial investigation shall be in writing and signed by such person
in the presence of his counsel or in the latter's absence, upon a valid
waiver, and in the presence of any of the parents, elder brothers and
sisters, his spouse, the municipal mayor, the municipal judge, district
school supervisor, or priest or minister of the gospel as chosen by him;
otherwise, such extrajudicial confession shall be inadmissible as evidence
in any proceeding.
(e) Any waiver by a person arrested or detained under the provisions of
Article 125 of the Revised Penal Code, or under custodial investigation,
shall be in writing and signed by such person in the presence of his
counsel; otherwise the waiver shall be null and void and of no effect.
(f) Any person arrested or detained or under custodial investigation shall
be allowed visits by or conferences with any member of his immediate
family, or any medical doctor or priest or religious minister chosen by him
or by any member of his immediate family or by his counsel, or by any
national non-governmental organization duly accredited by the
Commission on Human Rights of by any international non-governmental
organization duly accredited by the Office of the President. The person's
"immediate family" shall include his or her spouse, fiancé or fiancée,
parent or child, brother or sister, grandparent or grandchild, uncle or aunt,
nephew or niece, and guardian or ward.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
As used in this Act, "custodial investigation" shall include the practice of
issuing an "invitation" to a person who is investigated in connection with
an offense he is suspected to have committed, without prejudice to the
liability of the "inviting" officer for any violation of law. (RA 7438)
RA 7348
Whether the arrest is by virtue of a warrant or without a
warrant, the arresting officer is required to inform the
arrested person of his constitutional rights. That is required
if a supposed offender is to be taken into custody so that
anything the arrested person may state when already under
custody will be considered as covered by his right to remain
silent. He must be informed thereof. This rights of the
arrested person to be informed of his constitutional rights
upon being placed under arrest for custodial interrogation
is laid down in the case of Miranda vs Arizona and so the
same has been known as Miranda warnings to apprise the
arrested person of his constitutional rights in the event that
he is not aware thereof.
The statement whether incriminatory or not will not be
admissible in evidence during the trial of any case that may
be filed against the arrested person. Beyond that the
arresting person is subject to penal sanction under RA
7348. Penalty is stiff because it is within the range of
prision mayor medium 8 - 10 years imprisonment.
In other words, upon arrest of a person to be taken under
custody the implication is that the person to be arrested
has committed a crime. So eventually proceedings in court
will follow. Whatever may be obtained from him after he is
taken into custody is not admissible him unless he is
forewarned of his constitutional right.
A waiver of his right requires the assistance of a counsel
and in the presence of a counsel. This found in Sec 6 of
Rule 112 of the Rules on Criminal Procedure.
It may happen that the crime for which the offender was
placed under arrest calls for preliminary investigation.
Whereas under Art 125, the arresting officer is allowed only
a period of 12, 18, or 36 hours as the case may be to hold
the arrested person without a case being filed in court yet.
After that, any further detention of the arrested person
would be regarded as arbitrary and therefore the penal
sanction under Art 125 will therefore apply against the
arresting officer. So the arresting officer will be compelled
to file the case in court, forgo the preliminary investigation
in order to save his neck from possible liability for arbitrary
detention.
If the arrested person would want to avail of his right to a
preliminary investigation, he should waive the period fixed
under Art 125 of the RPC. That waiver is not valid if not
done with the assistance of a counsel and in the presence
of a counsel.
Page | 12
The corollary provision on this is found under the Rules of
Criminal Procedure, Rule 112. You should correlate this
with this matter.
Art. 126. Delaying release. — The penalties provided for in Article 124 shall
be imposed upon any public officer or employee who delays for the period of
time specified therein the performance of any judicial or executive order for
the release of a prisoner or detention prisoner, or unduly delays the service
of the notice of such order to said prisoner or the proceedings upon any
petition for the liberation of such person.
Acts punished:
• Delaying the performance of a judicial or executive
order for the release of a prisoner
• Unduly delaying the service of the notice of such
order to said prisoner
• Unduly delaying the proceedings upon any petition
for the liberation of such person.
Elements:
1. Offender is a public officer or employee;
2. There is a judicial or executive order for the release
of a prisoner or detention prisoner, or that there is
a proceeding upon a petition for the liberation of
such person;
3. Offender without good reason delays:
a. the service of the notice of such order to
the prisoner;
b. the performance of such Judicial or
executive order for the release of the
prisoner; or
c. the proceedings upon a petition for the
release of such person.
The 3rd form or arbitrary detention involves one already
being held under detention but whose release has been
ordered by higher authorities. So the public officer
detaining the subject is bound to obey the order to
discharge the person held.
Where higher authorities already ordered the discharge or
release of the person being detained, the detaining officer
will have to follow. If he unnecessarily delay the release of
the detained person to the extent the release is delayed,
crime of arbitrary detention is incurred by the public officer
who should obey the order of release but did not
reasonably obeyed the same. So this 3rd form of arbitrary
detention arises not out of arresting the offended party but
out of not releasing the offended party within the time that
he should be released from detention.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
VIOLATION OF DOMICILE
Art. 128. Violation of domicile. — The penalty of prision correccional in its
minimum period shall be imposed upon any public officer or employee who,
not being authorized by judicial order, shall enter any dwelling against the
will of the owner thereof, search papers or other effects found therein
without the previous consent of such owner, or having surreptitiously
entered said dwelling, and being required to leave the premises, shall refuse
to do so.
If the offense be committed in the night-time, or if any papers or effects not
constituting evidence of a crime be not returned immediately after the
search made by the offender, the penalty shall be prision correccional in its
medium and maximum periods.
Acts punished:
1. Entering any dwelling against the will of the owner
thereof;
2. Searching papers or other found therein without the
previous consent of such owner; or
3. Refusing to leave the premises, after having
surreptitiously entered said dwelling and after
having been required to leave the same.
Common elements:
1. Offender is a public officer or employee;
2. He is not authorized by judicial order to enter the
dwelling or to make, a search therein for papers or
other effects.
Circumstances qualifying the offense
1. If committed at nighttime; or
2. If any papers or effects not constituting evidence of
a crime are not returned immediately after the
search made by offender.
Now the crime of Violation of Domicile. This crime has a
counterpart crime also under Title 9, Book 2 of the Code.
Counterpart crime is Qualified Trespass to Dwelling.
Art. 280. Qualified trespass to dwelling. — Any private person who shall
enter the dwelling of another against the latter's will shall be punished by
arresto mayor and a fine not exceeding 1,000 pesos.
If the offense be committed by means of violence or intimidation, the
penalty shall be prision correccional in its medium and maximum periods and
a fine not exceeding 1,000 pesos.
The provisions of this article shall not be applicable to any person who shall
enter another's dwelling for the purpose of preventing some serious harm to
himself, the occupants of the dwelling or a third person, nor shall it be
applicable to any person who shall enter a dwelling for the purpose of
rendering some service to humanity or justice, nor to anyone who shall enter
cafes, taverns, inn and other public houses, while the same are open.
The other important crime under Title 2, Book 2 of the Code
is Violation of Domicile.
The essence of this is one of qualified trespass to dwelling.
Page | 13
This crime of violation of domicile has a counterpart crime
under Art 280 of Title 9 Book 2 of the Code (Qualified
trespass to dwelling)
For this crime of violation of domicile, again the offender
must be a public officer acting the supposed authority that
he has but in fact acting unlawfully. So the public officer
who may incur this are those whose official duties confer
on them the authority make searches and seizures. They
are the public officers who implement search warrants.
The offender may be a public officer, but if his official
duties do not give him any authority to make searches and
seizures any unlawful intrusion into the dwelling of another
to make a search will not amount to violation of domicile
but rather to a crime of qualified trespass to dwelling. Any
public officer in a public capacity will be liable not as a
public officer but as a private citizen. He is only acting as a
public officer if he is acting within his authority conferred by
law.
Do not think that just because public officer whose official
duties carry with it the authority to make searches and
seizures would not incur the crime just because he is acting
on the strength of a search warrant.
Search warrant is nothing but an authority issued by the
court to conduct a search for some contraband. Any act
outside the parameters of making the search is not
included within the authority given. The right of the citizen
to enjoy the privacy and sanctity of his dwelling is of
paramount significance.
What is important to bear in mind are the instances where
although the public officer who may conduct a search and
possibly a seizure would nevertheless incur the violation of
domicile even though he is acting on the strength of a
search warrant.
The instances are:
• When the search warrant was irregularly obtained
by such public officer
• When the public officer implementing the warrant
exceeded the scope of his authority in doing so
• Where such the public officer despite the search
warrant employ unnecessary severity and
destruction in the domicile being searched
• Public officer made the search in the absence of
the person whose papers and effects would be
searched nor any member of his family being
present during the search
When the search warrant was irregularly
irregularly obtained by such
public officer, meaning to say it was obtained without
probable cause.
For a warrant to be obtained without probable cause the
implication is that the officer who applied for it had misled
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
the court in to believing that there is probable cause to
issue the warrant. Both the fundamental law and Rules of
Court requires that before the court should issue any
warrant, whether warrant of arrest or search warrant, the
court should examine the applicant thereof and his witness
through searching questions under oath or affirmation.
That means any falsity given by the applicant would be
done in violation of the oath or the affirmation. Hence in Art
129 you will see there that aside from the violation of
domicile, public officer who applied for search warrant
which has probable cause may be held liable for some
other crime. The other crime is perjury or falsification as the
case may be.
So in a case where the search warrant is null and void for
lack of probable cause to possible criminal liabilities shall
be incurred.
Art. 129. Search warrants maliciously obtained and abuse in the
service of those legally obtained. — In addition to the liability
attaching to the offender for the commission of any other
offense, the penalty of arresto mayor in its maximum period to
prision correccional in its minimum period and a fine not
exceeding P1,000 pesos shall be imposed upon any public officer
or employee who shall procure a search warrant without just
cause, or, having legally procured the same, shall exceed his
authority or use unnecessary severity in executing the same.
When the public officer implementing the warrant exceeded
the scope of his authority in doing so
If he started searching premises which are not included in
the description of the premises to be searched to the
extent that he included premises not covered by the
warrant, the search made would amount to violation of
domicile.
The law requires that the warrant shall issue only for one
offense precisely to avoid a general authority to any public
officer to conduct a blanket search.
Where such the public officer despite the search warrant
employ unnecessary severity and destruction in the
domicile being searched
The warrant is only an authority to make a search. It is not
an authority to destroy or violate the privacy of the offended
party’s abode.
Public officer made the search in the absence of the person
whose papers and effects would be searched nor any
member of his family being present during the search
In case where the owner of the place to be searched and
any member of his family were absent the law requires that
the officer making the search must avail of 2 witnesses
that will be present during the search and such witnesses
must be residing in the same locality.
Page | 14
The public officer to conduct the search should not bring
the witness with him or the witnesses should not be from
other place.
The law requires that the witnesses be from the locality so
that they shall be more sympathetic to the owner of the
place being search than the public officer conducting the
search.
Art. 130. Searching domicile without witnesses. — The penalty of
arresto mayor in its medium and maximum periods shall be
imposed upon a public officer or employee who, in cases where a
search is proper, shall search the domicile, papers or other
belongings of any person, in the absence of the latter, any
member of his family, or in their default, without the presence of
two witnesses residing in the same locality.
In all these 4 instances the fact that the public officer
involved is acting under a search warrant does not absolve
him from liability for violation of domicile. With more reason
if a public officer would intrude into the dwelling of another
even for purposes of making a search of contraband
cannot be legalized or sanctioned unless there is a search
warrant duly issued by a court of law.
Art 128 gives 3 instances where any such act of entering
the dwelling of the offended party would bring about the
crime of violation of domicile.
Under the 3 instances mention in the said article, the
purpose of the public officer must be to search. Otherwise,
the violation of the public officer will not be violation of
domicile but for some other crime.
The implication of the crime of violation of domicile is a
warrantless search in the dwelling of the offended party.
The search, however, must not be a justified warrantless
search.
The 3 instances where the crime of violation of domicile is
committed because he public officer doing this is not
authorized by any search warrant are as follows:
1. Entering the dwelling of the offended party against
the will of the latter
2. Where the public officer entered the dwelling of
another not against the will of the occupant but
upon entering he acted to make a search without
any previous consent from the occupant of the
dwelling
3. Where public officer succeeded in entering the
dwelling of another such that the occupants of the
dwelling found him already inside his dwelling. If in
that situation the occupant of the dwelling ordered
or directed the public officer involved to leave the
premises, the failure or refusal of such public
officer to leave the premises would render him
liable for violation of domicile provided that he
gained entry into the dwelling of the offended party
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
surreptitiously, that means without the consent of
the occupant of the dwelling.
Entering the dwelling of the offended party against the will
of the latter
Note that the entering is not merely without the consent of
the occupant of the dwelling. The entering must be against
the will of such occupant.
It is not required, however, that the occupant of the
dwelling during the commission of the crime. The SC
already clarified that the entry against the will of the owner
or occupant of the dwelling if there was a prohibition
against entering and the offender did enter in violation of
such prohibition. The prohibition may be expressed or
implied.
So mere entering the dwelling of another without the
consent of the occupant thereof will not be trespass to
dwelling nor violation of domicile as the case may be.
Note that under Art 280 of the Code that even in the crime
of qualified trespass to dwelling the gravamen of the crime
is that of entering the dwelling of another against the will of
the occupant thereof.
Mere entering without any prohibition against this is only
unjust vexation, unless it is an act that would be
preparatory to the commission of some other crime.
Where the public officer entered the dwelling of another not
against the will of the occupant but upon entering he acted
to make a search without any previous consent from the
occupant of the dwelling
The occupant of the dwelling may have received the public
officer inside his dwelling. That does not carry with it any
authority or consent for the public officer to conduct a
search. So the SC ruled that mere permission to enter is
not a permission to make a search.
Even where the occupant of the dwelling received the
public officer, if the public officer upon making known to
the occupant of the dwelling that he would be looking
inside the dwelling but the owner or occupant objected and
he could not do any search. Otherwise, he would be
incurring the crime of violation of domicile. The act would
therefore be derogatory to the privacy and sanctity of the
occupants abode
Plain view doctrine does not operate when the public officer
involved was acting purposely to make a search.
Page | 15
Where public officer succeeded in entering the dwelling of
another such that the occupants of the dwelling found him
already inside his dwelling. If in that situation the occupant
of the dwelling ordered or directed the public officer
involved to leave the premises, the failure or refusal of
such public officer to leave the premises would render him
liable for violation of domicile provided
provided that he gained entry
into the dwelling of the offended party surreptitiously, that
means without the consent of the occupant of the dwelling.
In this situation, the crime of violation of domicile arises not
in the act of entering but in the act of refusing to leave the
dwelling after his presence inside the same is already
known and refused by the occupant of the dwelling.
If the entering is not surreptitious this predicate of the
crime will not accrue or will not arise.
Other crimes under this title:
• Crimes against popular representation, you have
better learned this in Constitutional law.
• Right of the citizens to peaceably assemble; to
address their grievances against the government.
This is also a matter that is better learn under
Constitutional Law.
You must have learned 2 criteria for this whether the act
may be considered legitimate or derogatory to the guaranty
of Constitution.
• The so called dangerous tendency rule; and
• The so called clear and present danger rules
The ramifications and incidents of these rules must be
learned by you in constitutional law, not in criminal law.
The crimes against Title 2 requires as principal offender a
public officer acting under color of his authority, except the
last felony under Art 133. You notice the offender may be
any person - Crime offending religious feelings. That is so
because the criminal consequence of the act would be the
same whether the violation is committed by a public officer
or a private citizen.
Relative to the crimes discussed consider the equivalent
crimes under Title 9 that of illegal detention, that of
qualified trespass to dwelling so that you would no know
exactly the distinctions when these crimes may arise.
When the principal offender is public officer under the color
of his authority, a private citizen who cooperates or
conspires in the commission of the act would also incur the
same liability as the one incurred by the public officer being
liable under Title 2 Book 2 of the Code.
In short, do not split the nature of the crime where a public
officer of a civilian acted in conspiracy in detaining the
offended party that you would consider the public officer
liable for arbitrary detention and the civilian would be liable
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

for illegal detention. That is wrong. As long as the principal

offender is a public officer acting within the suppose It is only valid to the point that it is regulatory. The moment
authority conferred on him by law, the civilian who the permit appears to be a denial of the constitutional right
unlawfully participated therein will be liable for the same of peaceably assembles, that permit would amount to a
crime. violation of Art. 131.
So the crime committed in a private capacity would be
incurred if Title 2 Book 2 of the could does not apply. The court in resolving this used the standards of Clear and
Present Danger Rule and that Dangerous Tendency Rule.
Dangerous tendency rule — applicable in times of national
The other crimes under this title are no longer significant.
unrest such as to prevent coup d’ etat
Society had become tolerant. A crime of Prohibition,
interruption, dissolution of peaceful assemblies, almost every
Clear and present danger rule — applied in times of peace.
week you are privy to this people who are demonstrating
Stricter rule.
even without any valid cause at all. That place there at
Mendiola Bridge has been so much abused. That no week will
The authority to grant a permit in denying or giving the
pass without any group of people there obstructing traffic
permit may he determined on these criteria, whether the
claiming to be airing their grievance against the Government.
gathering will poise a clear and present danger or will poise a
dangerous tendency. In which case, the same may be
Although the gathering may be peaceful, if this was held
prohibited or dissolved.
without a permit from the Local Government, the same may
be prohibited, interrupted and dissolved.
Distinctions between prohibition, interruption or dissolution
of peaceful meetings under Article 131 and tumults and
Our SC has already upheld the validity of requiring a permit
other disturbances, under Article 153
before a group of persons may lawfully assemble to air their
grievances against the Government.
(1) As to the participation of the public officer.
But in order that the permit may not be utilized to abridge
In Article 131, the public officer is not a participant.
the freedom of speech or the freedom of the citizens to
As far as the gathering is concerned, the public
peaceably assemble, that permit is valid only if it was for
officer is a third party.
regulatory purpose. In other words, the permit to assemble
would be valid if it would determine the time when the
If the public officer is a participant of the assembly
assembling would be held, the date, and the place where
and he prohibits, interrupts, or dissolves the same,
they will assemble. The permit may regulate these to protect
Article 153 is violated if the same is conducted in a
the rights of the other citizens to use that same place where
public place.
the assembling would be held.
(2) As to the essence of the crime
If the requirement of the permit would be one where a local
government would prohibit or grant the holding of the
In Article 131, the offender must be a public officer
gathering, that is no longer legal. This will amount to a
and, without any legal ground, he prohibits,
violation of Art. 131. Because that will be tantamount to
interrupts, or dissolves a peaceful meeting or
abridging the right of the citizens to peaceably assemble.
assembly to prevent the offended party from
exercising his freedom of speech and that of the
The permit is only to regulate the day, the time, and the place
assembly to petition a grievance against the
when it will be held. so that the required preparations to
government.
protect the persons and properties within the area may be
maintained.
In Article 153, the offender need not be a public
officer. The essence of the crime is that of creating a
But if the permit, for instance, grants the people wanting to
serious disturbance of any sort in a public office,
assemble to gather in a place where no one will be listening
public building or even a private place where a
to them, like for instance, they required to hold their
public function is being held.
gathering at the back of the Jones Bridge. Only the fish and
the birds will be there. That is not regulatory anymore. That
So these are the aspects of the felonies under Title Two that
permit is a violation of this provision because it practically
you should focus your attention to.
amounts to a prohibition against the holding of the peaceful
assembly.
Page | 16
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
TITLE THREE
CRIMES AGAINST PUBLIC ORDER
Under Title Three. Crimes against Public Order. Now you must
know the distinctions between Rebellion and Coup d'Etat
REBELLION
Art. 134. Rebellion or insurrection; How committed. — The crime of
rebellion or insurrection is committed by rising publicly and taking
arms against the Government for the purpose of removing from the
allegiance to said Government or its laws, the territory of the
Philippine Islands or any part thereof, of any body of land, naval or
other armed forces, depriving the Chief Executive or the Legislature,
wholly or partially, of any of their powers or prerogatives.
Elements:
1. There is a public uprising and taking arms against the
government;
2. The purpose of the uprising or movement is:
a. to remove from the allegiance to the
government or its laws. Philippine territory
or any part thereof or any body of land,
naval, or other armed forces; or
b. to deprive the Chief Executive or Congress,
wholly or partially, of any of their powers or
prerogatives.
In the crime of rebellion as defined in Art 134 of this title,
the mere public uprising with arms by the participants
therein already constitutes the crime of rebellion if the
same was done to overthrow the existing government or
otherwise remove allegiance therefrom.
Under that definition the crime of rebellion, there is no
mention of any killing, any encounter between the rebels
and the forces of the government, no destruction of
property. Do not make this part of the definition.
The mere public uprising with arms, if the purpose is to
overthrow or otherwise remove allegiance therefrom would
already consummate the crime of rebellion.
Can the crime of rebellion be committed in the frustrated
stage?
No, the mere public arising with arms if the
purpose is to overthrow the government rebellion
is already committed.
The nature of the crime calls for Error! Bookmark
not defined. without waiting for any adverse result
of the apprising. Without a single shot being fired
rebellion can be consummated.
Page | 17
The crime cannot be committed without arms and the arms
taken by the offender must have been deliberately adopted
to meet the forces of government.
In a rebellion, the offenders are aware that they will be
meeting resistance from the forces of government. So it is
illusory to think that the rebels could simply pick up
whatever weapon they can simply gather from the streets.
That is not rebellion. That is only a mob.
In rebellion, the offenders must have purposely chosen a
particular weapon to equal the weapons of the forces of the
government who will resist the rebellion.
If the supposed rebellion made up of people who merely
gathered stones and picked up wooden clubs along the
way, removed iron fences to be use as a club, that is not a
rebellion.
In a rebellion, from the very beginning, the purpose of the
rebels is to overthrow or replace the existing government.
Do not think any mass movement would amount to a
rebellion.
It may amount to a sedition,
sedition because sedition is nothing
but a public uprising brought about by a commotion or
disturbances. The idea is merely to defy the government,
but not the overthrow the government. That is the why the
use of arms is not a requisite to the crime of sedition.
The penalty for the crime of rebellion is found in Art 135.
This is significant.
In other articles of the penal code defining a felony, the
penalty is found in the article.
But, in this Art 134 no penalty is no found there for the
crime of rebellion. Penalty is found in Art 135.
In the original provision of Art 135 a higher penalty is
prescribed if the rebellion is coupled with common crimes –
killing, destructions of property, misappropriation of public
funds. That is why you have the ruling that rebellion cannot
be complexed with common crimes because common
crimes committed in furtherance of a rebellion is treated as
part and parcel of the rebellion.
The ruling of the SC in the case of Ramos vs Judge ____
that when common crimes are committed in furtherance of
a rebellion they lose their complexion as common crimes
and acquire the political complexion of a rebellion. So the
common crime becomes a rebellion. So that is why there is
no complex crime of rebellion with common crime because
common crime constitutes part of the rebellion.
The ruling that rebellion cannot be complexed with
common crimes is no longer true now,
now because Art 135 has
been amended by the Coup d’état law, RA 6968 and those
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
provisions referring to common crimes in punishing the
crime of rebellion have been deleted in Art 135.
The amendment of the article was made as a rider to the
Coup d’état Law. The common crimes that were deleted
from Art 135. So there is no more basis that when common
crimes are committed in furtherance of a rebellion they lose
their complexion as common crimes and become part and
parcel of the rebellion.
The amendment demonstrates the legislative intention to
make a common crime committed even in furtherance or
on the occasion of the rebellion as separate crime. That is
the reason they were removed from Art 135.
the ruling in People vs Hernandez, People vs Geronimo, and
the more recent application of the rule to Enrile vs Judge
Jaime Salazar, all these were handed down before the
amendment to Art 135 was made by the lawmakers.
Precisely the lawmakers got hold of the ruling of the SC in
the case of Enrile vs Judge Salazar so that they would know
whether the SC would still uphold older resolutions in
People vs Hernandez and People vs Geronimo, but the SC
upheld the same in Enrile vs Judge Salazar but the SC
explained why the rebellion cannot be complexed with
common crimes.
In the case of Enrile vs Judge Salazar SC made an
admission in its resolution that it does not subscribe in the
making of rebellion as an umbrella for common crimes but
there is nothing the court can do because the court cannot
question the wisdom of the law. That is for the lawmakers
determine. What the court can only do is to apply the law at
any given time.
The amendment of the law should come from the law
makers themselves.
So for as long as the lawmakers have not removed from
the penalty of the rebellion, the common crimes which are
punished thereunder, there can be no complex crime of
rebellion with common crimes because common crimes are
part of the rebellion. Art 48 cannot operate because the
common crimes committed during the rebellion are
punished as part of the rebellion. How can you complex the
crimes? It is in the nature of a single and indivisible
offense. The lawmakers obviously noted this and that is
why they amended Art 135 and the amendment was made
as rider to the Bill on Coup d etat.
The amendment shows that the lawmakers do not want the
common crimes to be punished as part and parcel of the
rebellion. It should be punished under the article where
they are penalized respectively.
However the SC, in one of their relatively later cases, called
the attention that the fact the offender is a rebel being a
member of the liquidation unit of the NPA and he shot a
policeman. Inside a public market purposely because the
Page | 18
policeman was corrupt taking money from the vendors
does not justify a charge for rebellion.
Any common crime committed as such should punished as
a common crime unless there is proof that the same was
committed to further the objectives of the rebellion. In other
words, you are not supposed to complex this with rebellion
just because the offender is a rebel. You only complex this
when it is clear the common crime was a necessary means
to commit the rebellion. That is where the crime is
complexed under Art 48.
So even the SC took cognizance of the amendment. It does
not mean that just because Art 135 is amended, that a
rebel commits a common crime his liability will be
complexed. He shall be charged like any ordinary offender
unless there is proof, not just evidence, that the common
crime was committed to foster or promote the objective of
the rebellion. Then it will appear that the common crime
was necessary means to commit the rebellion. That is
covered by the second form of complex crime under Art 48.
Distinctions between rebellion and sedition:
1. As to nature
• In rebellion, there must be taking up of arms
against the government.
• In sedition, it is sufficient that the public uprising
be tumultuous.
2. As to purpose
• In rebellion, the purpose is always political.
• In sedition, the purpose may be political or
social.
Example: the uprising of squatters against
Forbes park residents. The purpose in sedition is
to go against established government, not to
overthrow it.
Between Rebellion and coup d etat, the brief distinctions
are as follows:
Firstly, as to the crime of rebellion
The nature of this crime is public uprising with
arms against the existing government
The criminal intent is to overthrow the existing
government and replace the same or otherwise
remove allegiance thereto.
This crime requires a multitude of people without
the necessary participation of military men,
members of the Philippine National Police, or
incumbent public officers and
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
This crime is carried out by violence and force
On the other hand, As regards the crime of Coup d etat
the nature of this crime is a swift attack against
government facilities and utilities, military camps,
any installation, communication networks and
other facilities and utilities essential to the
continued position and exercise of governmental
powers
The criminal objective is simply to paralyze or
destabilize the existing government through a
diminution of its governmental powers
This crime may be committed singly or
simultaneously but requires as principal offenders
members of the military or Philippine National
Police or incumbent public officers with or without
civilian support
This crime may be carried out not only true force
and violence but also through strategy and stealth
The principal distinction here is as to who the principal
offenders are. With this you could easily characterize
whether the movement would be a case of rebellion or a
case is of coup d etat.
As to the crime of Sedition
this crime is in the nature of a public uprising also
but does not require the use of arms since the
purpose is simply to bring about public
disturbances not the overthrow of the government
the criminal objective is to go against government
plan or actions by way of disobeying government
actions by way of decent or disagreement with
what the government have resolved
the criminal purpose of this crime is not limited to
political end but may refer to social demands or
change
the public uprising may be an expression of hate
against a social or political group or class
So here again you can readily see that in a sedition
although it involves also public disturbance by way of
uprising the objective is not really violent because it is only
to disobey or defy what the government had resolved not
really to bring about a changer in the government.
Take note of the objective of a sedition which may be
political or social because these acts if carried out by a
group of persons short of a public uprising, but against a
social class or a political resolve of the government will
bring about the first form of direct assault.
So relate this to the first form of direct assault in Art 148.
Page | 19
The resort to violence or force to attain any of the
objectives of rebellion or sedition but without a public
uprising because the offenders are not really numerous
enough to constitute a public uprising the which would be
rebellion or sedition would amount only to a crime of direct
assault of the first form.
Take note of this manner of committing the crime of direct
assault. An expression hate or revenge against a social
class.
Illustration:
If a group of person who have been suffering from the
miseries of life in the depressed areas would enter a
subdivision started stoning the mansions there, started
stoning the expensive cars inside the subdivision. Such any
reason for them to be grudged the people residing there,
the indication is that there acts are done out of hate or
revenges against a social class. The crime is direct assault.
3 armed men who deplored the fact that the families in that
community could hardly have 3 meals a day and yet the
government warehouse of the NGA is stocked with stock of
rice up to the rafters. So these 3 men destroyed the lock to
the warehouse called on the family within the vicinity to
help themselves with the supply of this staple commodity.
They started carrying out their needs for rice. After they
have already satisfied their needs this 3 men left. The
problem says they did not even take a grain of rice for
themselves. They just left after the families have already
satisfied their needs for the supply of rice. What crime did
they commit?
Not robbery. The fundamental element of robbery
must be intent to gain. But the problems say these
3 men did not even take a grain of rice for
themselves. This statement is precisely to lay down
the fact that they did not act with intent to gain. It
cannot be theft or robbery.
The destruction the property of the government,
the NGA warehouse is an act of despoiling property
belonging to the government and that is one of the
objectives of sedition par. 5 of Art 139. Hence
applying force or violence to despoil property of
any private party or of the government is an
objective of sedition. Carried out without a public
uprising the crime is direct assault.
The common thinking is that a direct assault is an attack to
person in authority or agent of a person in authority. That is
only the second form of direct assault.
The crime of direct assault is in the nature of rebellion or
sedition, except that participant cannot constitute a public
uprising.
Crime of direct assault cannot be committed when there is
a public uprising taking place. So during a rebellion or
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
sedition crime of direct assault cannot be committed. The
offenders involved in the public uprising will be liable for
rebellion or sedition, not direct assault.
Minus the public uprising the crime is direct assault.
Take note of the enumerated purposes of sedition because
these purposes having to do with the social expression of
hatred are capable of becoming the basis for direct,
because rarely will the offenders resort to rebellion if they
are not numerous enough to confront the forces of the
government. Rarely will it be direct assault by way of
expressing hate or revenge against the government.
COUP D'ETAT
Article 134-A. Coup d'etat; How committed. — The crime of coup d'etat is a
swift attack accompanied by violence, intimidation, threat, strategy or
stealth, directed against duly constituted authorities of the Republic of the
Philippines, or any military camp or installation, communications network,
public utilities or other facilities needed for the exercise and continued
possession of power, singly or simultaneously carried out anywhere in the
Philippines by any person or persons, belonging to the military or police or
holding any public office of employment with or without civilian support or
participation for the purpose of seizing or diminishing state power.
Elements
1. Offender is a person or persons belonging to the
military or police or holding any public office or
employment;
2. It is committed by means of a swift attack
accompanied by violence, intimidation, threat,
strategy or stealth;
3. The attack is directed against the 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. The purpose of the attack is to seize or diminish
state power.
In the same title, the crime of coup d'etat is penalized.
So you also have proposal and conspiracy to commit coup
d'etat. But, although you have the crime of inciting to
rebellion, note that there is no crime of inciting to coup
d'etat.
So if, some civilians had conversed with ranking military
officers to arouse them to carry out a coup d'etat, the act
may amount to inciting to coup d’etat. There is no Art.
punishing this.
The lawmakers obviously had overlooked that there is such
crime as inciting to rebellion, but they forgot to include there
inciting also to coup d'etat.
Page | 20
So what may be penalized is a proposal already or a
conspiracy. But not inciting to such crime.
The essence of the crime of coup d’etat is a swift attack upon
the facilities of the Philippine government, military camps
and installations, communication networks, public utilities
and facilities essential to the continued possession of
governmental powers. It may be commuted singly or
collectively and does not require a multitude of people. The
objective may not be to overthrow the government but only
to destabilize or paralyze the government through the seizure
of Facilities and utilities essential to the continued possession
and exercise of governmental powers. It requires as
principal offender a member of the AFP or of the PNP
organization or a public officer with or without civilian
support. Finally, it may be carried out not only by force or
violence but also through stealth, threat or strategy.
SEDITION
Art. 139. Sedition; How committed. — The crime of sedition is committed by
persons who rise publicly and tumultuously in order to attain by force,
intimidation, or by other means outside of legal methods, any of the
following objects:
1. To prevent the promulgation or execution of any law or the
holding of any popular election;
2. To prevent the National Government, or any provincial or
municipal government or any public officer thereof from freely
exercising its or his functions, or prevent the execution of any
administrative order;
3. To inflict any act of hate or revenge upon the person or property
of any public officer or employee;
4. To commit, for any political or social end, any act of hate or
revenge against private persons or any social class; and
5. To despoil, for any political or social end, any person, municipality
or province, or the National Government (or the Government of
the United States), of all its property or any part thereof.
Elements:
1. Offenders rise publicly and tumultuously;
2. Offenders employ force, intimidation, or other
means outside of legal methods;
3. Purpose is to attain any of the following objects:
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 from exercising its or his
functions or prevent the execution of an
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 classes;
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
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.
As to the crime of sedition, you should familiarize yourself
with the purpose of sedition under Art. 139.
This is the important aspect for sedition. Because when any
of these acts is committed but there is no public uprising, the
crime of direct assault of the first form is committed.
You go over Art. 148. and you will notice there, when force
and violence is employed minus a public uprising for the
attainment of any of the objectives of rebellion or sedition,
the crime is direct assault.
Now as far as rebellion is concerned, this is very rare, because
the purpose of rebellion is always political.
It is in respect of sedition where the purpose is political or
social, that commonly the crime is direct assault, not sedition.
And that is because of the absence of a public uprising.
Direct assault cannot be committed during a public uprising.
So this crime is incompatible with rebellion or sedition.
It is in the affirmative, that if it is not rebellion or sedition
because there is no public uprising, it will be a case of direct
assault in the first form.
Now you note, in connection with rebellion, coup d'etat, and
sedition, the use of an unlicensed firearm is not subject to a
separate prosecution.
The use of an unlicensed firearm or explosive is absorbed by
the crime of rebellion, coup d'etat, or sedition. Hence, the
offender when prosecuted for rebellion, coup d’etat, or
sedition cannot be prosecuted any further for illegal
possession of the firearm used in any of these crimes.
Neither is the use of the unlicensed firearm or explosive an
aggravating circumstance. It is not aggravating.
When we say it is absorbed, it is simply considered as already
part of the crime.
So it has not to be alleged in the information. It is simply
disregarded, because it is deemed to be part and parcel of
the rebellion, the coup d'etat, or the sedition.
Under the RPC, the use of arms is not an ingredient of
sedition. So in the earlier case of People vs. Judge Asuncion.
Page | 21
SC called the attention of the judge who dismissed an
information before him for sedition. where the unlicensed
firearm was used.
SC said, the dismissal is wrong. Because the crime of illegal
possession of firearm can co-exist with sedition, not being an
ingredient of the crime of sedition. This ruling is already
abrogated by the express provision of the New Firearms Law.
RA 8294.
Now, the use of such unlicensed firearm is absorbed by the
crimes of Rebellion, Coup d'etat, and Sedition.
ILLEGAL ASSEMBLIES AND ILLEGAL ASSOCIATIONS
Art. 146. Illegal assemblies. — The penalty of prision correccional in its
maximum period to prision mayor in its medium period shall be imposed
upon the organizers or leaders of any meeting attended by armed persons
for the purpose of committing any of the crimes punishable under this Code,
or of any meeting in which the audience is incited to the commission of the
crime of treason, rebellion or insurrection, sedition or assault upon a person
in authority or his agents. Persons merely present at such meeting shall
suffer the penalty of arresto mayor, unless they are armed, in which case the
penalty shall be prision correccional.
If any person present at the meeting carries an unlicensed firearm, it shall be
presumed that the purpose of said meeting, insofar as he is concerned, is to
commit acts punishable under this Code, and he shall be considered a leader
or organizer of the meeting within the purview of the preceding paragraph.
As used in this article, the word "meeting" shall be understood to include a
gathering or group, whether in a fixed place or moving.
Acts punished
1. Any meeting attended by armed persons for the
purpose of committing any of the crimes punishable
under the Code:
Elements:
a. There is a meeting or gathering of group of
persons, whether in fixed place or moving;
b. The meeting is attended by armed persons;
c. The purpose, of the meeting is to commit
any of the crimes punishable under the
Code.
2. Any meeting in which the audience, whether armed
or not, is indeed to the commission of the crime of
treason, rebellion or insurrection, sedition, or
assault upon person in authority or his agents.
Elements
a. There is a meeting, a gathering or group of
persons, whether in a fixed place or
moving;
b. The audience, whether armed or not, is
incited to the commission of the crime of
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
treason, rebellion or insurrection, sedition
or direct assault.
Persons liable for illegal assembly
1. The organizer or leaders of the meeting;
2. Persons merely present at the meeting, who must
have a common intent to commit the felony of illegal
assembly.
If any person present at the meeting carries an unlicensed
firearm, it is presumed that the purpose of the meeting
insofar as he is concerned is to commit acts punishable under
the Revised Penal Code, and he is considered a leader or
organizer of the meeting.
The gravamen of the offense is mere assembly of or gathering
of people for illegal purpose punishable by the Revised Penal
Code. Without gathering, there is no illegal assembly. If
unlawful purpose is a crime under a special law, there is no
illegal assembly. For example, the gathering of drug pushers
to facilitate drug trafficking is not illegal assembly because
the purpose is not violative of the Revised Penal Code but of
The Dangerous Drugs Act of 1972, as amended, which is a
special law.
Two forms of illegal assembly:
(1) No attendance of aimed men, but persons in the
meeting are incited to commit treason, rebellion or
insurrection, sedition or assault upon a person in
authority. When the illegal purpose of the gathering
is to incite people to commit the crimes mentioned
above, the presence of armed men is unnecessary.
The mere gathering for the purpose is sufficient to
bring about the crime already.
(2) Armed men attending the gathering — If the illegal
purpose is other than those mentioned above, the
presence of armed men during the gathering brings
about the crime of illegal assembly.
Example: Persons conspiring to rob a bank were
arrested. Some were with firearms. Liable for illegal
assembly, not for conspiracy, but for gathering with
armed men.
Art. 147. Illegal associations. — The penalty of prision correccional in its
minimum and medium periods and a fine not exceeding 1,000 pesos shall be
imposed upon the founders, directors, and presidents of associations totally
or partially organized for the purpose of committing any of the crimes
punishable under this Code or for some purpose contrary to public morals.
Mere members of said associations shall suffer the penalty of arresto mayor.
Acts punished:
(1) Associations totally or partially organized for the
purpose of committing any of the crimes punishable
under the Code;
Page | 22
(2) Associations totally or partially organized for some
purpose contrary to public morals.
Persons liable for illegal associations:
1. Founders, directors and president of the association;
2. Mere members of the association.
You should know the distinctions between Illegal Assembly
and Illegal Association. These distinctions have been asked
several times in past Bar Examinations.
What is punishable in the crime of illegal assembly is the
gathering of people whose purpose is to commit a crime
punishable under the RPC.
So it is the mere gathering for that purpose which constitutes
the violation.
The crime, however, may be committed in two ways. One of
which requires the participation of armed persons. The other
one, would bring about the crime of illegal assembly even
though there is no armed person involved.
Now where In the gathering, the people gathered are incited
to commit treason, rebellion, insurrection, sedition, or assault
on a person in authority or his agent, even without the
attendance or participation of armed men, the gathering
alone will being about criminal liability
A problem on this was given before, where students
assembled at the campus of this Polytechnic University, and
formed a supposed court. And there, some government
officials were supposedly tried and found guilty. And there
effigies were set on fire, because the court sentenced them
to death.
Now these students became very unruly. And so attracted the
attention of law enforcers. They were all apprehended and
brought to the police headquarters at the UN Avenue.
They were charged for this crime, illegal assembly, because
the purpose there was to inspire sedition, since the act done
demonstrates hatred against public officers. But because, at
that time, it was nearing elections, the students were simply
warned and released.
Now there, although none of the students was found to be
armed, criminal liability for illegal assembly is incurred.
On the other hand, if the gathering was for the purpose of
committing some other crime under the RPC, not to incite
treason, rebellion, or insurrection, sedition, or assault upon a
person in authority or agent, presence of armed men is
necessary to bring about the crime of illegal assembly.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Now here with respect to this second way of incurring the
crime, if people gathered, and that gathering was called to
plot a bank robbery, although the conspiracy to rob a bank is
not a crime, unless the actual robbery of the bank is carried
out, now that gathering of people is participated in by armed
men, like policemen or soldiers, would already constitute a
crime, although they are conspiring to commit a crime under
the RPC it is the participation of armed men, in that
gathering, studying how the crime will be committed, that
would make the assembly a crime already. You keep this in
mind, because given a problem here, if you would view the
situation as a conspiracy to commit robbery, that is not
punishable under the code. So you may end up saying no
criminal liability.
Bear in mind, however, this crime of illegal assembly punishes
the mere gathering of people for the purpose of committing
any crime under the RPC. So although it appears to be a mere
conspiracy, if there are more than two already, it may
amount to the crime of illegal assembly. And if attended by
armed men, criminal liability will arise. Otherwise, if it is not
clear that their purpose is to commit a crime under the code,
if one among those gathered is found to be possessing
unlicensed firearm, in so far as he is concerned, he would be
prosecuted for illegal assembly. So you give this a thought.
In illegal assembly, the gathering must be for a crime under
the RPC. So if the gathering is to bring about the violation of
the Dangerous Drugs Law, that gathering cannot be an illegal
assembly because illegal assembly is limited only to a
gathering whose criminal purpose is to pursue a crime under
the RPC.
So if drug users gathered, discussing about their use of
prohibited, drugs or dangerous drugs, that gathering will not
amount to an illegal assembly.
Simple reason, their purpose is not a crime under the RPC.
On the other hand, in the crime of illegal association,
gathering of persons is not necessary. The mere forming of an
association or a group, if they formed that association,
corporation, or entity to engage in criminal Activities,
whether the crime is under the RPC or under a special law, if
it would be prejudicial to public interest or public welfare,
that association or organization will be constituting the crime
of illegal association. So the members thereof will be made
criminally liable
In illegal association, the crime being pursued need not be a
crime under the RPC. It may include crimes under special laws
involving public welfare or public interest.
Page | 23
The provision referring to crimes against public morals had
been clarified to mean crimes prejudicial to public interest or
public welfare, not necessarily a law where the crime
involved offends decency.
So the word there any law against, involving a crime against
public morals should not be interpreted by you to refer to a
crime which offends decency or morality.
RECAP:
Distinction between illegal association and illegal assembly:
1. In illegal association, it is not necessary that there be
an actual meeting.
In illegal assembly, it is necessary that there is an
actual meeting or assembly or armed persons for the
purpose of committing any of the crimes punishable
under the Code, or of individuals who, although not
armed, are incited to the commission of treason,
rebellion, sedition, or assault upon a person in
authority or his agent.
2. In illegal association, it is the act of forming or
organizing and membership in the association that
are punished.
In illegal assembly, it is the meeting and attendance
at such meeting that are punished.
3. In illegal association, the persons liable are:
a. the founders, directors and president; and
b. the members.
In illegal assembly, the persons liable are:
a. the organizers or leaders of the meeting
and
b. the persons present ac meeting.
DIRECT ASSAULT
Art. 148. Direct assaults. — Any person or persons who, without a public
uprising, shall employ force or intimidation for the attainment of any of the
purpose enumerated in defining the crimes of rebellion and sedition, or shall
attack, employ force, or seriously intimidate or resist any person in authority
or any of his agents, while engaged in the performance of official duties, or
on occasion of such performance, shall suffer the penalty of prision
correccional in its medium and maximum periods and a fine not exceeding
P1,000 pesos, when the assault is committed with a weapon or when the
offender is a public officer or employee, or when the offender lays hands
upon a person in authority. If none of these circumstances be present, the
penalty of prision correccional in its minimum period and a fine not
exceeding P500 pesos shall be imposed.
Acts punished:
1. Without public uprising, by employing force or
intimidation for the attainment of any of the
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
purposes enumerated in defining the crimes of
rebellion and sedition
Elements:
a. Offender employs force or Intimidation;
b. The 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;
c. There is no public uprising
2. Without, public uprising by stacking, by employing
force or by seriously intimidating or by seriously
resisting any person in authority or any of his agents,
while engaged in the performance of official duties
or on occasion of such performance.
Elements:
a. Offender makes an attack, employs force,
makes a serious intimidation, or makes a
serious resistance;
b. The person assaulted is a person in
Authority or his agent;
c. At the time of the assault the person in
authority or his agent is engaged the actual
performance of official duties, or that he is
assaulted by reason of the past
performance of official duties;
d. Offender knows that the one he is
assaulting is a person in authority or his
agent in the, exercise of his duties
e. There is no public uprising.
Now direct assault this is most important crime under Title
Three
Whenever you encounter a problem in the Bar Exam, where
there is a public officer who is an offended party, you figure
out whether he is a person in authority or an agent of a
person in authority.
Unwittingly, if he was exercising his functions at the time he
was subjected to the crime that would bring about the crime
of direct assault aside from the crime actually brought about
as a material consequence of the act
Direct assault punishes the spirit of lawlessness, the
contempt of authority, the hatred for the rule of law shown
by the commission of the crime by the offender.
This is not the crime which is the material result of the
felonious act. This is the crime punishing the spirit of
lawlessness behind the act.
Page | 24
There are Two forms of direct assault, one I called your
attention, is where offenders not constituting a public
uprising would resort to force and violence for the
attainment of any of the objectives of rebellion or sedition.
Now here, it is not necessary that there be a person in
authority or an agent of a person in authority as offended
party.
In the second form of direct assault, the offended party must
be a person in authority or an agent of a person in authority
within the definition of these terms in Art.152
So you must be conversant with the terms as defined in
Art.152.
In this second way of incurring the direct assault, the person
in authority or agent of a person in authority is attacked or
seriously resisted or seriously intimidated while exercising his
official functions or by the reason of the exercise of such
functions.
The direct assault is defiance to the authority being
possessed and exercised by the offended party.
So for as long as the attack has something to do with the
exercise of the functions, even though the exercise of the
function had already passed, the crime of direct assault is
committed if the offended party was still a person in
authority or an agent of a person in authority.
In the first form of direct assault, the mere fact that the
offenders are trying to carry out the purpose of rebellion or
sedition is itself demonstrative of lawlessness. It is in itself
defiance to the prevailing authority of the Government. That
is why here, even if there is no offended party involved who
is a person in authority or an agent, criminal liability for direct
assault will arise.
Crime of direct assault being the spirit behind the act, is
always complexed with the material consequence of the
crime.
Its is not the material consequence itself that amounts to the
direct assault. That material consequence will constitute any
ordinary felony.
It is the spirit, behind the way it is committed that brings
about the crime of direct assault.
So it is always complexed with the consequence of the act
committed
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
For instance, if a litigant would kill a judge because the judge
had decided a case adverse to him, the direct assault is not
the killing of the Judge. That killing may be murder or
homicide.
The direct assault is the reason behind the killing which is the
past performance of the function of the Judge which would
show the lawlessness of the offender, that just because that
Judge had performed his official duties and rendered a
Judgment against him, he took the life of the Judge.
Now that is lawlessness. For that reason, there will be direct
assault. So, direct assault with murder.
But if the killing of the Judge has nothing to do with the
exercise of his functions as a Judge, there will be no crime of
direct assault. Crime will only be homicide or murder for the
killing of the Judge.
It is a complex crime generally, unless the resulting crime
out of the direct assault is only a light felony. Since you
cannot complex a light felony, the crime will be the more
serious crime which is the direct assault.
Illusration:
If the litigant was scolded by the judge while he was
testifying and he was so embarrassed before the public in
the court. So after the recess the judge was already out of
the court room this litigant followed the judge and boxed
the judge on the head. The resulting crime is slight physical
injuries only.
There is no crime of direct assault with slight physical
injuries because you can only complex the resulting crimes
out of a single act if the resulting felony was grave or less
grave (Art 48).
But if the resulting felony was grave and light felony or less
grave and light felony the light felony cannot be complexed
with a grave or less grave felony. The offender should be
prosecuted only for the grave or less grave felony as the
case may be. It is wrong to prosecute the offender
separately for the light felony and for the grave and less
grave felony.
So if the direct assault resulted to slight physical injuries
only it is erroneous to accuse the offender for direct assault
separately in one information and another information for
slight physical injuries. The two arose from a single act, you
cannot do that. The rule against double jeopardy will bar
any further prosecution.
So in a case like this where the direct assault brought
about slight physical injuries, prosecutor filed one
information for direct assault one information for the slight
physical injuries because article 48 cannot apply, one of
the resulting crimes is only a light felony. The accused
Page | 25
cleverly pleaded guilty to the information of the slight
physical injuries.
When he was to be arraigned for the direct assault he filed
a motion to quash on ground of double jeopardy. He
contend that he cannot be prosecuted anymore because he
was already convicted for the slight physical injuries which
arose out of the same act.
This issue went as far as the SC. The SC ruled that there
will be double jeopardy because the direct assault punishes
the spirit behind the act that brought about the slight
physical injuries. You cannot split this. Constitutional
prohibition against double jeopardy will be violated.
So if the direct assault brought about only slight physical
injuries, the offender should be prosecuted only for direct
assault. The slight physical injuries shall be absorbed by
the direct assault because this is the more serious crime.
Where a person in authority or an agent of a person in
authority is attacked while performing his official functions,
whatever be the reason for the attack, even though it has
something to do with the private affair between the offender
and the offended person in authority or agent, there will be
the crime of direct assault.
This is so because, the law wants that any person, who has a
score to settle with a person in authority or an agent of a
person in authority, should not carry out his ire against the
latter, while the latter is performing official functions. He
should wait.
To bring about the direct assault of the second form, the
assault or attack must be by reason of the exercise of the
official duties by the offended party or while the offended
party was exercising official duties.
If the assault was not by reason of the exercise of official
duties generally the attack will not bring about direct
assault.
Illustration:
A young woman stabbed the offended party at the back,
who happened to be a policeman but at that time he
already was off-duty. Woman stabbed him because he had
given birth to child with this woman and simply abandoned
her.
So the reason for the assault has nothing to do with the
exercise of the official duty of the policeman who is an
agent of a person in authority. There will be no direct
assault.
But if the policeman was conducting traffic of otherwise
performing his official duty at the time he was stabbed.
There will be direct assault.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
In other words, you will only look into the reason of the
assault or attack when the person in authority or the agent
of the person in authority was not performing official duties
when he was attacked.
For as long as the offended party, a person in authority or
an agent of a person in authority was performing official
duties whatever may be the reason for the attack crime of
direct assault will arise if the attack was done while the
person in authority or the agent was performing official
duties.
So if a judge had required his secretary to stay late at night
because they are going to finish a decision. The secretary
stayed behind. So only the judge and the secretary were in
the officer of the judge. All have already gone home. The
judge lost control of himself started making advances,
embracing the secretary. So that evening the secretary
went home crying.
The father came to know what the judge did. So early in the
morning when the judge was already promulgating the
judgment which was prepared the night before the father of
the secretary appeared there shot judge.
Although the reason for the killing was a private matter not
connected with the duties of a judge yet because the father
of the secretary shot the judge while the judge was already
promulgating the decision there will be direct assault
because the judge was already performing his official
duties.
In other words, where the attack was brought about by a
private reason or affair in order to avoid liability of the
direct assault the offender should not carry out the attack
while the offender party performing official duties. He must
wait until the person in authority or the agent has finished
performing official duties before the attack him. If he were
to attack while he is performing official duties there will be
an added crime of direct as the long as the offended party
is person in authority or an agent of a person in authority.
But if here were to attack when he already finished
performing his official duties, he was resting already, there
will be no direct assault anymore.
Similarly if the reason for the attack was the exercise of a
past duty of the person in authority or the agent, but the
attack was carried out when the offended party is already
resigned or retired from his position as public officer the
protection of law treating him as person in authority or an
agent of a person in authority will likewise cease already.
There in no direct assault anymore.
Although the attack was by reason of the decision rendered
by the judge while he was a judge, the attack was carried
out when the judge was automatically retired for having
reached the age of 70 already. There will be no direct
assault anymore because his position which was the basis
of the protection for the direct assault has already ended.
Page | 26
Study very well the crime of indirect assault Art 149.
Relative to the crime of indirect assault correlate the
amendment to Art 152 that if the offender party in a direct
assault is a person in authority any civilian who will rush to
his assistance at that at moment the civilian is regarded in
the eyes of the law as an agent of a person in authority.
Underscore this amendment to Art 152 only if the victim in
the direct assault is a person in authority.
In the crime of indirect assault should not himself be a
person in authority or an agent of a person in authority.
Otherwise it will be another count of direct assault.
Illustration:
If judge is being mauled because of judgment rendered by
him a fellow judge in another sala and the other judge was
also mauled. The crime is not indirect assault. The crime is
also direct assault because that judge is also a person in
authority vested with jurisdiction.
Art 149 has not been amended with amendment of Art
152. So if you would just read Art 149 you will get an
impression that even when the victim of the direct assault
is person in authority you can have an agent of a person in
authority or one who is coming to the help of the person in
authority if attacked would bring about indirect assault.
That was before, because a civilian who comes to the aid of
a person in authority before does not become an agent. He
remains a civilian.
With the amendment a civilian who comes to the aid of
person in authority at that moment is considered in the
eyes of the law as a person in authority.
Considering that the offended party in indirect assault is
not a person in authority or an agent of person in authority
but is a civilian, with that the whole picture of the situation
is changed. And this is not reflected in Art 149.
The lawmakers amended Art 152 without correspondingly
amending the provision on indirect assault which reflects
the importance of the amendment.
The attack on the civilian is not indirect assault because
the civilian having come to the aid of the person in
authority, under the amendment, he is not a civilian
anymore. He is an agent of a person in authority by coming
to the aid of a person in authority. So when he is attacked
the attack is not upon a civilian. The attack is upon one
whom the law regards as person in authority. Hence it
cannot be indirect assault. It is also a direct assault or a
form of resistance under Art 151.
However, it is not necessary that the offender should know
who under Art. 152 of the RPC are considered persons in
authority and who are considered agents or persons in
authority. This is so, because this is a matter of law. And
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
ignorance of the law is never excused. It is enough that when
the offender attacked the offended party, the latter was
exercising an authority.
Now if the offended party by the exercise of that authority
happened to be a person in authority or an agent of a person
in authority, too bad for the offender. Because there will be
the crime of direct assault complexed with the material
consequence, of the act.
If it turned out that the person attacked although exercising
an authority at the time, was not a person in authority or an
agent of a person in authority, then the offender is fortunate,
because there will be no liability for direct assault of the
second kind.
The information for direct assault must allege that the
offended party is a person in authority or an agent of a
person in authority, and known to the offender as such,
although the SC has already ruled that it is not necessary in
this crime that the accused should be aware of Art. 152 on
who are persons in authority or who are agents of persons in
authority.
So, in a case where a teacher punished a pupil for coming to
class late and said pupil run home. His father saw the boy
crying, father became furious. So after the father learned that
the teacher whipped the boy, the father ran to the school
house. And even while the teacher was conducting classes,
the father barged in and slapped the teacher.
Teacher however, did not retaliate. So a ended there.
The father of the boy was charged for direct assault.
His defense was he should only be liable for slight physical
injuries, because he is not aware that a teacher under the
code is a person in authority. So not being aware thereof his
liability should only be for slight physical injuries
This issue reached the SC And the SC ruled, it is not necessary
that the Accused should know who are persons in authority,
who are agents of persons in authority under Art. 152 of the
RPC because this is a matter of law and ignorance of the law
are never excused. It is enough that the accused was aware at
the time he attacked the offended party that the latter was
exercising an authority. He should respect that authority.
Now if it turned out that the offended party is not a person in
authority or an agent, then he is fortunate, But if it turned
out that the offended party is a person in authority or an
agent, then he will bear all the consequences of his felonious
act, even though it may be different from what he intended.
Page | 27
In the latter part of Art. 148. there are three circumstances
there which you will note, bring about a higher penalty than
in ordinary case of direct assault.
The three circumstances mentioned there are:
• Where the offender is himself a public officer;
• Where the offender is armed in committing a crime;
and
• Where an offender laid hand upon the person in
authority by way of defying the authority of the
offended party.
Problems given in the Bar arc predicated on this third
circumstance that qualifies the direct assault to a higher
penalty.
Because of the effect of the circumstances, the direct assault
qualified by this is loosely referred to as Qualified Direct
Assault.
So if you are asked: What is qualified direct assault?
It is a direct assault committed with any of these
circumstances attending the same. So you have
three.
Now in the third circumstance qualifying the direct assault,
the laying of the hand is limited only to the person in
authority.
The agent of a person in authority is not included.
This is significant,, when the offender laid hand on a person in
authority, and that; was done in defiance of the authority
being exercised by the offended party, it would always result
to the crime of direct assault.
On the Other hand, if the laying of hand is done to an agent
of a person in authority, it will only bring about the crime of
resistance and disobedience, unless the contempt or hatred
for the authority possessed or exercised by the agent.
To illustrate this: Let us say that during a town fiesta, there
was a public dance held at night. The mayor was invited to
grace the occasion. So the mayor attended the same with a
police body guard. While the mayor was there, enjoying the
couples who are dancing he noticed that the couples who
were dancing were being irritated by one who is so
intoxicated dancing also in the middle of the floor.
So the mayor approached this fellow. Accosted him, and told
him to go home, let his intoxication wear off. And if he would
already be sober he can return.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
But this fellow, asked the mayor, “who are you?” The mayor
replied, “I am just the mayor of this place.”
And this intoxicated fellow pushed the mayor. I don't care, I
am not doing anything wrong. The mayor fell on his ass,
although the mayor did not suffer any injury. By that act of
laying hand on the mayor, a person in authority, in defiance
of the authority exercised, crime of direct assault is
committed.
The law regards as serious one who defies the authority of a
person in authority to the extent of laying hand because due
ordinarily is a challenge. So that is a display of defiance to the
authority of the mayor.
On the other hand, if let us say, instead of the mayor
accosting this intoxicated fellow, the mayor requested his
police body guard to cake the fellow one of the dance floor,
so it was the policeman in uniform who went to this fellow,
accosted him, and requested him to leave the dance floor.
But this fellow pushed the policeman, and told him, I am not
doing anything wrong. Policeman fell on his ass.
The crime will not be direct assault. The crime would only be
resistance and disobedience under Art 151. This is so,
because the laying of hand on an agent of a person in
authority is not considered always as serious.
SC explained, the nature of the functions of an agent of a
person in authority, which is to maintain peace and order,
provide protection to persons and property, always
occasionally invite resistance. And if any such resistance
would constitute direct assault, there will be more direct
assault where the offended party is only an agent of a person
in authority than the person in authority himself
Since the provision of Art. 148 limits the laying of hands only
to a person in authority, this will show that same seriousness
of the crime is not accorded when the victim is an agent of a
person in authority only.
This was indirectly asked in the Bar Exams, where a barangay
chairman tried to break-off a quarrel between the teacher
and the parents of a school boy.
The facts given in one of these relatively recent Bar Exams,
approximates the facts that was decided by the High-court
earlier as I am telling you.
The pupil was sent home, pupil went home, reported to the
parents. The parents rushed to the school house. Barangay
chairman was following the parents along the road, and
Page | 28
sensed that there will be trouble, because the parents were
so furious.
So the Barangay chairman followed them, and the parents
barged into the room, and the father slapped the teacher.
The Barangay chairman immediately held the father by the
waistline, so that he could not inflict further injury to the
teacher. The son boxed the Barangay chairman in order to
free his hold on his father.
Now that boxing of the Barangay chairman amounting to
laying of hand to a person in authority to defy the exercise of
chat authority would already bring about criminal liability for
direct assault.
In that Bar problem, there was a follow-up question asked:
Would your answer be the same if instead of a Barangay
chairman it was a Barangay tanod who was boxed?
Although direct assault may be committed against a person in
authority or an agent of a person in authority, the particular
issue here refers to the laying of hand.
You will notice here, the boy boxed the Barangay chairman
not by way of defying his authority but in order simply to
release his father from the holds of the chairman, but
because he laid hand on the Barangay chairman who is a
person in authority that will amount automatically to direct
assault.
Now if it were a Barangay Tanod, the answer would be
different, because laying of hand under this Art. Is limited
only to a person in authority. And a Barangay Tanod is not a
person in authority, but only an agent of a person in
authority.
So you give attention to these circumstances.
When two public officers who are persons in authority or
who are agents of a person in authority quarreled because of
a disagreement on who should exercise authority or who
should exercise jurisdiction that quarrel, even though
attended violence, will not bring about the crime of direct
assault. This is because, the quarrel is precisely brought about
by an earnest claim of authority, the Quarrel is precisely to
assume jurisdiction.
So if two policemen quarreled because one claimed that he
has the jurisdiction over the crime, the other said no this is
my jurisdiction. So they quarreled on the issue of jurisdiction,
even if that quarrel resulted to violence, there will be no
direct assault.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
The violence will only bring about the crime of physical
injuries.
But, if let us say, a policeman caught a snatcher, collared him
and brought him to the police precinct. Another policeman,
who is the protector of the snatcher, approached the
apprehending policeman, and requested that the snatcher be
released to him.
This policeman, who is the protector of the snatcher, asked
the apprehending policeman “Ibalato mo na sakin yan.” But
the apprehending policeman would not yield. So this fellow
quarreled, with the apprehending policeman.
Now since the quarrel does not really involve the exercise of
jurisdiction, but more of a request to release the offender
from the exercise of jurisdiction, the policeman who wanted
to forego with the exercise of the function of the other will be
incurring the crime of direct assault.
Now these are cases that actually happened in a trial, the
lawyer was so much irked because every time he stood up to
object or to raise a point, the judge always denies or
overrules what he wanted to say. And he is so embarrassed
before his client who was there also in the gallery. So this
lawyer murmured to the judge "ang yabang mo. Mabuti
lumabas nalang tayo." So the judge said that "Sige”. So the
judge went out with the lawyer. They boxed each other. The
judge was beaten.
Is the lawyer liable for direct assault?
The answer is yes, because he initiated or provoked
the assault. The Judge did not strip himself of the
protection of the law as a person in authority,
because he was provoked. And it is natural instinct
for a person who is being provoked to do something
to ward off the provocation.
But in a parallel case, where it was so sharp in Procedural law
that when the judge makes a ruling the lawyer would
embarrass him because the lawyer cities the provision that
unmask the ignorance of the judge. So the judge was the one
who uttered, “ang yabang mo, gusto mo suntukan na lang
tayo sa labas?" And the lawyer said, “Sige” So they went out.
The Lawyer mauled the Judge.
Is the lawyer liable for direct assault?
The decision says no, because when the judge went
down to the level of an aggressor and made the
challenge, he strips himself of the protection of the
law as a person in authority. He steps down to the
level of an ordinary citizen.
Page | 29
So if he was beaten out of that challenge, he cannot
complain and avail of the protection of the law,
because it was he who provoked the quarrel.
So the situation would differ, depending on who
made the challenge.
INDIRECT ASSAULT
Art. 149. Indirect assaults. — The penalty of prision correccional in its
minimum and medium periods and a fine not exceeding P500 pesos shall be
imposed upon any person who shall make use of force or intimidation upon
any person coming to the aid of the authorities or their agents on occasion of
the commission of any of the crimes defined in the next preceding article.
Elements:
1. A person in authority or his agent is the victim of any
of the forms of direct assault defined in Art. 148.
2. A person comes to the aid of such person in
authority or his agent;
3. Offender makes use of force or intimidation upon
such person coming to the aid of the person in
authority or his agent
The act which is the basis of the crime of indirect assault is
that of employing force and violence upon one who is coming
to the aid or assistance of a victim of direct assault. However,
even if this is the situation, indirect assault may not always
accrue.
In the crime of indirect assault, the offended party should not
himself be a person in authority or an agent of a person in
authority. Otherwise, if the person coming to the aid of the
victim of a direct assault is himself a person in authority or an
agent of a person in authority, the attack on him may bring
about another count of direct assault if it was so serious as to
demonstrate lawlessness, contempt of the authority
possessed by the person in authority of the agent, or if not so
serious, it will only amount to resistance and disobedience
under Art. 151, but not the crime of indirect assault.
For this reason, it becomes decisive for you to know, that
under Art. 152, in the definition of who are agents of a
person in authority, the provision has been amended a long
time ago to consider any person coming to the aid of a
person in authority as an agent of a person in authority at
that particular moment.
So if the victim of the direct assault was a person in authority,
a civilian saw this, civilian tried to give assistance, and the
civilian himself was attacked or mauled, that mauling of the
civilian coming to the aid of the person in authority who is
the victim of the direct assault, will not be indirect assault
anymore, because by coming to the aid of a person in
authority, that civilian is now considered in the eyes of the
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
law, as an agent of a person in authority at that moment.
Hence, the attack on him is an attack upon an agent of a
person in authority.
This is precisely designed to bring about a more serious crime
than, ordinarily, indirect assault only.
So if the attack on the civilian is so serious, crime will be
direct assault with the physical injuries inflicted on him.
Direct assault is always complexed with the material
consequence of the crime, unless the resulting crime was a
light felony only, in which case, the crime will only be direct
assault, because the light felony will be absorbed.
The light felony is never made subject of a separate
accusation from the direct assault. Because the direct assault
is thee spirit behind the commission of the felony.
Now, because of this amendment, in order that there may be
an indirect assault, the victim of the direct assault taking
place should not be a person in authority, but only an agent
of a person in authority. So that if the victim of the direct
assault was only an agent of a person in authority, a civilian
who will come to his aid, will not become another agent
anymore. That amendment to Art. 152 will not apply to him,
because he is coming to the assistance not of a person in
authority but an agent only.
The confusion here is brought about by the fact that the
definition of who are persons in authority has been amended
to include any person coming to the aid of a person in
authority. Whereas, Art. 149 has not been corresponding
amended to limit the direct assault to an agent of a person in
authority only so that a civilian coming to the aid of the victim
of the direct assault will not be an agent of a person in
authority anymore, And so that attack upon the civilian will
be indirect assault. You consider this premise, because this
has been subject of repeated Bar problems to test your
observation on the result of the amendment. The
amendment to Art. 152 making a civilian or a person who is
coming to the aid of a person in authority, an agent of a
person in authority at that moment. So any attack on him is
not just an attack upon a civilian, any attack on him because
of that assistance he is giving will be an attack upon an agent
of a person in authority.
DELIVERING PRISONERS FROM JAIL
Another important crime under Title Three is found in Art.
156, crime of delivering prisoners from jail.
Art. 156. Delivery of prisoners from jails. — The penalty of arresto mayor in
its maximum period of prision correccional in its minimum period shall be
imposed upon any person who shall remove from any jail or penal
establishment any person confined therein or shall help the escape of such
Page | 30
person, by means of violence, intimidation, or bribery. If other means are
used, the penalty of arresto mayor shall be imposed.
If the escape of the prisoner shall take place outside of said establishments
by taking the guards by surprise, the same penalties shall be imposed in their
minimum period.
Elements:
1. There is a person confined in a jail or penal
establishment;
2. Offender removes therefrom such person, or helps
the escape of such person.
Penalty of arresto mayor in its maximum period to prision
correcional in its minimum period is imposed if violence,
intimidation or bribery is used.
Penally of arresto mayor if other means are used.
Penalty decreased to the minimum period if the escape of the
prisoner shall take place outside of said establishments by caking the
guards by surprise.
You correlate this with the crime of infidelity in the custody of
prisoners under Art. 223, 224, 225.
The gravamen of this crime is that of helping a prisoner to
escape from the place of confinement.
Now on the part of the custodian, if the custodian connives to
enable a prisoner to escape, or if the custodian was negligent,
and that negligence brought about the escape of the
prisoner, the custodian will incur the crime of infidelity in the
custody of prisoners.
When the custodian allows the prisoner to violate the
conditions of his sentence, such as allowing the prisoner to go
home at night, sleep at his house because the jail is so
congested, that there is no more place there for the prisoner
to sleep, even though the prisoner is only a detention
prisoner, that permission for the prisoner to leave that place
of confinement, allow him to be at liberty to stay in his house
is a case of infidelity in the custody of prisoners.
This was subject of a Bar problem before.
So even if the prisoner would return in the early morning,
there is infidelity because there is a violation of the sentence
or of the rules and regulations governing the prisoner.
In this crime of delivering prisoners from jail, just like in the
crime of infidelity in the custody of the prisoner, the prisoner
involved may be a detention prisoner only or he may be a
convicted prisoner serving his sentence by final judgment. for
as long as the act is that of enabling a prisoner to escape or
otherwise evade service of sentence if he was already a
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
convict. The crime of delivering prisoner from jail will be
incurred if the offender is not the custodian of the prisoner,
otherwise, the crime will be infidelity in the custody of
prisoners if the offender is the custodian.
So it may happen that a non-custodian would conspire with
the custodian, for the latter to relax the handling of the
prisoner purposely to help the prisoner escape, although
there was a conspiracy, and in conspiracy, the act of one is
the act of all, since their crimes are penalized differently,
given different designations under the RPC, that conspiracy
will not bring about only one crime. It will bring about a
common criminal liability, but the crimes committed are
different
On the part of the non-custodian, the crime is delivering
prisoner from jail. Art. 156 is violated.
On the part of the custodian, the crime is infidelity in the
custody of prisoners.
If it was done deliberately, then Art. 223 is violated.
If it was done simply by relaxing; so it is negligence, Art. 224 is
violated.
You will notice, in Art. 225, that in the crime of infidelity in
the custody of prisoner, the offender may be a civilian.
In Art. 225, a civilian to whom the custody of the prisoner is
entitled, and who, by the same acts of conniving or through
negligence would allow the prisoner to escape, the crime of
the civilian is not delivering prisoner from jail, but infidelity in
the custody of prisoners, because the custody of the prisoner
is entrusted to him.
This situation has been subject of so many Bar Problems. And
this is because, where the prisoner involved is a convict
serving sentence by final judgment, by escaping, that prisoner
incurs the crime of evasion of service of sentence.
So given a problem on this fact, your answer must be three
crimes:
a. Delivering prisoner from jail, on the part; of the non-
custodian who worked it out to bring about the
escape of the prisoner:
b. Infidelity in the custody of prisoners, on the part of
the custodian who connived, or otherwise, relaxed
the handling of the prisoner, enabling the latter to
escape; and
c. The crime of evasion of service of sentence, on the
part of the prisoner who escaped if he was already
serving sentence by final Judgment.
Page | 31
If the prisoner who was made to escape was only a detention
prisoner, there is no sentence to evade; generally, he is not
criminally liable for escaping. The law accepts that it is human
instinct to escape from any form of confinement. So the mere
escaping from confinement by the detention prisoner does
not bring about criminal liability, unless in so escaping, he
committed some destruction on the premises where he is
being held as a detention prisoner, then, he will be incurring
the crime of damage to property.
But if the detention prisoner learned of a plan to make him
escape, or he knew of the plan to make him escape, and he
escaped pursuant to that plan, he will be incurring liability for
the crime of delivering prisoner from Jail, even though he is
the very prisoner who is enabled to escape from Jail. And that
is because, by so escaping pursuant to that plan, he becomes
a co-principal by indispensable cooperation. So that crime,
will be also delivering prisoner from Jail.
EVASION OF SERVICE OF SENTENCE
Art. 157. Evasion of service of sentence. — The penalty of prision correccional
in its medium and maximum periods shall be imposed upon any convict who
shall evade service of his sentence by escaping during the term of his
imprisonment by reason of final judgment. However, if such evasion or
escape shall have taken place by means of unlawful entry, by breaking doors,
windows, gates, walls, roofs, or floors, or by using picklocks, false keys,
deceit, violence or intimidation, or through connivance with other convicts or
employees of the penal institution, the penalty shall be prision correccional
in its maximum period.
Elements:
1. Offender is a convict by final Judgment;
2. He is serving sentence which consists in the
deprivation of liberty;
3. He evades service of his sentence by escaping during
the term of his imprisonment.
Qualifying circumstances is to penalty imposed
If such evasion or escape takes place
1. By means of unlawful entry (this should be “by
scaling” – Reyes)
2. By breaking doors, windows, gate, walls, roofs or
floors
3. By using picklock, false keys, disguise, deceit,
violence or intimidation; or
4. Through connivance with other convicts or
employees of the penal institution.
So, In the case of a convict who escapes, the crime of evasion
of service of sentence is committed.
Another Important crime under this title in the crime of
delivering prisoner from jail, art. 156. This crime must be
related by you to the crime of infidelity in the custody of the
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
prisoner under title 7 Book 2 of the code particularly art.
223-225.
The 2 crimes delivering prisoner from jail and that of
infidelity in the custody of prison are identical in character
and in manner of committing it. Both crimes involve the act
of enabling a prisoner under confinement escape from the
place of confinement. In both crimes the prisoner who was
made to escape maybe a detention prisoner only or a
convicted prisoner serving sentence.
The gravamen of the crime is that of helping the prisoner
through connivance or through negligence escape from the
place of confinement. They only differ on who the offender
was. If the offender was the custodian of the prisoner at the
time of escape the crime is infidelity in the custody of the
prisoner. The custodian occupies a fiduciary position in
respect of the prisoner. On the other hand, if the offender
who brought it out for the prisoner to escape was not the
custodian at the time of the escape of the prisoner, the
crime is delivering prisoner from jail under Art. 156.
If therefore the non custodian connive with the custodian,
they conspired to allow the prisoner to escape although
there was a conspiracy between the non custodian and the
custodian and you have learned that once there is
conspiracy the act of one is the act of all since the law
punishes the act of each participant with the certain ___ of
crime the 2 will not be prosecuted for the same crime. As
far as the custodian is infidelity while the non custodian
delivering prisoner from jail. So this notwithstanding there
was conspiracy because the act of 2 are punished under
separate articles of the code penalty for the non custodian
is lower than the penalty for the custodian because of the
breach of the fiduciary position occupied by custodian. Now
if the prisoner who was or made escape was a convict
serving sentence by final judgment the prisoner himself will
incur the crime evasion of service of sentence. So the
problem given on this it is common that there are 3 felonies
committed one by a non custodian, another by custodian,
and another by prisoner who escape. (Favorite BAR
Question)
As far as the evasion of service of sentence is concerned,
this is governed by Art. 157. The wording of the article
impresses an evasion of service of sentence by one who is
confined in jail but that is not true to the penalty of
destierro. If the convict is serving sentence of destierro he
is not in jail and if you would limit this crime only to those
escaped from jail then those who are serving destierro
cannot commit the crime of evasion of service of sentence
but that is wrong because even the sentence of destierro
can be evaded.
If the convict may have been sentenced to destierro, if he
would enter any of the places specified in the sentence
which he is prohibited from entering or he would come near
of those places at a distance of a less than 25km he
thereby commits the crime of evasion of service of
Page | 32
sentence. This is not already borne by jurisprudence. The
definition in the service of the felony destierro in Art. 87 ___
now this will be evaded. And the definition that has been
limit of 250km where the convict cannot be banished by
the court now if the convict goes beyond the 250km he is
not committing evasion of service of sentence that 250km
is a limitation on the authority of the court in banishing the
convict. The court cannot banished the convict further than
250km from the places specified by the court in the
judgment where the convict is prohibited to enter so if it
was the convict who wanted to go further that is better for
the sentence of destierro that would not be an evasion of
service of sentence rather that would be in furtherance of
the banishment which is the nature of the penalty for
destierro. So even the penalty of destierro maybe subject of
Art. 157.
Now how must it done you must be aware of. Where the
sentence evaded is destierro although art. 157 speaks of a
prison term this prison term will be translated to the
penalty of destierro also, it should not be that the sentence
evaded is destierro and yet the penalty is imprisonment. SC
pronounced the penalty for the evasion of service of the
sentence should not be more severe than the violation of
the sentence. So if the sentence was destierro the penalty
for the evasion should also by way of destierro also the
convict will therefore undergo extended destierro not
imprisonment. The essence of evasion of service of
sentence under art. 157 is that the convict will leave this
place of confinement without any authorization.
Art. 158. Evasion of service of sentence on the occasion of disorder,
conflagrations, earthquakes, or other calamities. — A convict who shall
evade the service of his sentence, by leaving the penal institution where he
shall have been confined, on the occasion of disorder resulting from a
conflagration, earthquake, explosion, or similar catastrophe, or during a
mutiny in which he has not participated, shall suffer an increase of one-fifth
of the time still remaining to be served under the original sentence, which in
no case shall exceed six months, if he shall fail to give himself up to the
authorities within forty-eight hours following the issuance of a proclamation
by the Chief Executive announcing the passing away of such calamity.
Convicts who, under the circumstances mentioned in the preceding
paragraph, shall give themselves up to the authorities within the above
mentioned period of 48 hours, shall be entitled to the deduction provided in
Article 98.
You have another form of evasion of service of sentence in
art. 158 where the evasion arises not from the act of
leaving the place of confinement but from the act of not
returning to the place of confinement of the convict.
As far as the convict leaving the place of confinement is
confirmed the law authorizes him to do so because of the
occasion of a calamity or a conflagration. The convict in a
place which was visited by a calamity or any civil
disturbance may leave the place of confinement to avoid
the same but he is required to return within 48 hrs. after
the proclamation that the calamity had already passed. If
he fails to return within that 48 hrs. Evasion of service of
sentence will arise. The evasion does not arise from the act
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
of leaving to the place of confinement. The evasion arises
from the act not returning therein within 48 hrs. after the
proclamation of calamity had already passed.
if those who left the place of confinement while the same is
visited by a calamity or a catastrophe return within the 48
hrs. after the proclamation of the calamity or catastrophe
had already passed the convict is rewarded with a discount
on the unserved portion of the sentence at the time he
escape. He is given discount of 1/5 of the remaining
unserved sentence. This is called allowance for loyalty
under art. 98 of the code because they return that place of
confinement but the irony of that those who did not leave
the place of confinement in spite of the calamity or
catastrophe that visited the same is not given that credit.
Between those who abandoned that place of confinement
and those who stick it out then come what may there can
be no discussion that the one who stick it out there are
more loyal than those who abandoned the place and yet
they are not rewarded only those who left and return are
rewarded. So this will tell you the reward is not really
because of loyalty those who stayed behind are not really
given the credit because they are stupid people. That will
only demonstrate to you that the law does not reward
stupidity. It is a form of reckless imprudence, a form of
simple negligence. If the calamity that visited the place of
confinement was at ___ intensity 8 the walls of the prison
establishment are already collapsing this convict still stay
there. These people do not have instinct of self
preservation, these are useless human beings they shall
not be rewarded so that next time this swill come they will
know their lesson.
This is because if something happened with this convict it
will be the headaches of the government, you must have
learned that convicted prisoners are chattel to the
government. So if in a jail capacity is 300 but the inmates
are 7000. If these inmates would suffer physical injuries
because of the problem of looking for a hospital where they
will be treated and if they all die then they have the
problem spending for the coffins where they will be buried.
And that is why the law encourages them to leave so that
the government will have no problem. If they still do not
leave no credit because they risk the government the
expenses which the government may not be able to cope
with.
It is hypocrisy to claim that the credit is for loyalty because
they are more loyal because they stay there they are like
military unit that has been besieged by the enemy those
who leave are not really loyal they are deserted those who
stand it out are the one who are loyal. But in this case the
equation is different those who abandoned are the one
rewarded but those who did not abandoned are not
rewarded because the law regard them as stupid people
they will not receive any reward. The law wanted them to
leave the place but they need to return.
Page | 33
Included in this crime for evasion of service of sentence
under art. 158 is the mutiny in the place of confinement.
The mutiny referred to here is not in the nature of mutiny
for which these military officers by reason of his ___ are
given amnesty the mutiny they are charged for are violation
for articles of war. The penalty there is not punitive but
administrative only dismissal from the service. The mutiny
refers to under art. 158 is a form of public uprising or
disobedience on the part of the subordinate in ____ of the
penal establishment or place of confinement against the
superiors if any of the convicted prisoners serving sentence
participate in that uprising he is not to be given any credit
because he should not took part in the mutiny which
expresses the satisfaction by the subordinate against the
superior. Prisoners have no right to participate in that kind
of movement.
Art. 159. Other cases of evasion of service of sentence. — The penalty of
prision correccional in its minimum period shall be imposed upon the convict
who, having been granted conditional pardon by the Chief Executive, shall
violate any of the conditions of such pardon. However, if the penalty
remitted by the granting of such pardon be higher than six years, the convict
shall then suffer the unexpired portion of his original sentence.
The other evasion of service of sentence refers to a pardonee
who violated the conditions of the pardon.
If the remaining sentence that was remitted by the pardon is
not higher than six (6) years, for the violation of the condition
of the pardon, that convict will suffer a new penalty for
violating the condition of the pardon. You have penalty there
of prision correccional minimum.
But if the sentence that was remitted by the conditional
pardon is higher than six (6) years, the violation will not be
penalized anymore. The convict will only be required to
resume serving the original sentence.
So the violation does not bring about, criminal liability for a
new crime. Although you have here evasion of service of
sentence because he violated the condition, there will be no
penalty if the sentence that was remitted by the conditional
pardon is higher than six (6) years. Hence, this was asked in
the Bar.
Examinations: Is the violation of the conditional pardon a
substantive offense?
Now you have to observe two distinctions, if the
remaining sentence that was remitted by the
conditional pardon is not higher than six (6) years,
the violation of the condition is penalized. There is a
penalty there of prision correccional minimum. So
that means it is a substantive offense on that
situation. Otherwise, there would be no basis for
imposing the new penalty.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

But if the sentence that was remitted by the The penalty of arresto mayor shall be imposed upon any person who in any
meeting, association, or public place, shall make any outcry tending to incite
conditional pardon is higher than six (6) years, there
rebellion or sedition or in such place shall display placards or emblems which
is no more penalty for the violation. In this regard, it provoke a disturbance of the public order.
is not a substantive offense anymore. Because there
is no penalty for the violation of the condition of the The penalty of arresto menor and a fine not to exceed P200 pesos shall be
imposed upon these persons who in violation of the provisions contained in
pardon.
the last clause of Article 85, shall bury with pomp the body of a person who
has been legally executed.
The crime is evasion of service of sentence. But
the convict who was given conditional pardon is The disturbance contemplated here is a serious one, not just
out of the place of confinement. He is release that
a disturbance of the prevailing tranquility.
is why it called evasion of service of sentence. The
reason is because is when a convict is offered a
conditional pardon the convict must accept the Disturbance of public order under Art. 153 is a serious
conditions of a pardon. If he did not want to accept disturbance that would send people running to different
the conditions of pardon then he will not be directions.
discharged but if he accept the conditions of
pardon he is expected to comply with the This is exemplified by a situation m a crowded movie house.
conditions of pardon. Now if he accept the
conditions of pardon and he violated the same the A movie goer, in order to get a seat, he shouted "fire! Fire!
implication is that he only accepted the conditional Fire!” So the people inside starts scampering to Get out.
pardon to be able to evade serving his sentence
and this is shown subsequently by violating the Now should it turn out that really there is no fire, the one
conditions he accepted that is why the crime is who shouted will be incurring the crime of disturbance of
known as evasion of service of sentence under art.
public order.
159.
Where the disturbance was carried out by the persons
RECAP:
bearing arms, the crime becomes tumultuous disturbance of
Evasion of service of sentence has three forms:
public order. Penalty higher in degree will be imposed.
(1) By simply leaving or escaping from the penal
establishment under Article 157:
The SC, on this crime, ruled that even though the offenders
(2) Failure to return within 48 hours after having left the
carry only stones, if the stones are big enough to cause fatal
penal; establishment because of a calamity,
injuries, these are considered already as arms. And therefore,
conflagration or mutiny and such calamity,
the higher penalty for the disturbance of the public order is
conflagration or mutiny has been announced as
committed.
already passed under Article 158;
(3) Violating the condition of conditional pardon under
So during a rumble, where the parties involved armed,
Article 159
imposed. Otherwise it is only plain disturbance of public
order.
TUMULTS AND OTHER DSTURBANCES OF PUBLIC ORDER
So if in a rumble they only exchanged fist blows, it is only a
You have also under this Title the crime of disturbance of
disturbance of public order.
public order.

Art. 153. Tumults and other disturbance of public orders; Tumultuous

But if they are armed with iron pipes, dubs, knives, then it is
disturbance or interruption liable to cause disturbance. — The penalty of tumultuous.
arresto mayor in its medium period to prision correccional in its minimum
period and a fine not exceeding 1,000 pesos shall be imposed upon any When it is a tumultuous disturbance of public order, the idea
person who shall cause any serious disturbance in a public place, office, or
establishment, or shall interrupt or disturb public performances, functions or
of conspiracy is inconsistent.
gatherings, or peaceful meetings, if the act is not included in the provisions
of Articles 131 and 132. So given this crime, although several acted on the occasion
therefore, do not consider conspiracy among them. Because
The penalty next higher in degree shall be imposed upon persons causing any
disturbance or interruption of a tumultuous character.
in this idea, conspiracy cannot co–exist with the disturbance.
That is why it is regarded tumultuous.
The disturbance or interruption shall be deemed to be tumultuous if caused
by more than three persons who are armed or provided with means of
violence.

Page | 34
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
BURY WITH POMP
A convict put to death by death penalty is not allowed to be
buried with pomp; otherwise this crime is committed.
In this case of Echegaray, the family was to bury the body of
the executed convict, asked permission to conduct a vigil for
the deceased.
DOJ allowed this, but limited this only to three days.
The family was asking for five days, DOJ did not approve.
Now more than that the DOJ imposed as a condition, no
singing, no flowers. Because the purpose of the law in
prohibiting such burial with pomp is to avoid creating an
impression upon the minds of those who are close to the
executed convict that he was a martyr of Government, and
that may inspire hatred against the Government, and
eventually bring about a disturbance of the public order.
You apply this only to a convict who had been legally put to
death.
So if the one to be buried was found dead out of salvage,
even though the people attending his burial we so furious,
and they were then displaying their hatred in a pompous
burial, this crime is not committed
You also have under this Title, a case of disturbance of public
order where a person delivering a public speech would make
outcries chat would incite the audience to rise in rebellion or
insurrection.
You have to know when inciting to rebellion or inciting to
sedition is committed, and not just the crime of disturbance
of public order.
In other words, you have to correlate this with the crimes of
inciting to rebellion or inciting to sedition.
The distinction lies on this points.
If the speaker even before he delivered his speech, already
had the criminal intent to incite the listeners to rise to
sedition, the crime would be inciting to sedition. However, if
the offender had no such criminal intent, but in the course of
his speech, tempers went high and so the speaker started
inciting the audience to rise in sedition against the
government, the crime is disturbance of the public order.
Under this second situation, considering that the intent to
incite rebellion or sedition was absent from the speaker at
the beginning when he started delivering his public speech,
Page | 35
his crime will only be as a disturbance of the public order. It
will be under Art.153.
ALARMS AND SCANDALS
Art. 155. Alarms and scandals. — The penalty of arresto menor or a fine not
exceeding P200 pesos shall be imposed upon:
1. Any person who within any town or public place, shall discharge
any firearm, rocket, firecracker, or other explosives calculated to
cause alarm or danger;
2. Any person who shall instigate or take an active part in any
charivari or other disorderly meeting offensive to another or
prejudicial to public tranquility;
3. Any person who, while wandering about at night or while engaged
in any other nocturnal amusements, shall disturb the public
peace; or
4. Any person who, while intoxicated or otherwise, shall cause any
disturbance or scandal in public places, provided that the
circumstances of the case shall not make the provisions of Article
153 applicable.
Acts punished:
1. discharging any firearm, rocket, firecracker or other
explosive within any town or public place, calculated
to cause (which produces) alarm of danger;
2. Instigating or taking an active part in any charivari or
other disorderly meeting offensive to another or
prejudicial to public tranquility:
3. Disturbing the public peace while wandering about
at night or while engaged in any other nocturnal
amusement
4. Causing any disturbance or scandal in public places
while intoxicated or otherwise, provided Article 153
is not applicable.
This crime is worthwhile with respect to the discharge of
firearm.
Under par. (1) of Alarms and scandals, one of the ways of
incurring the crime is by discharging a firearm in a public
place.
The discharge of a firearm is also punished under Art. 254 of
the Code as Illegal Discharge of Firearms.
Under this Art.155; that discharge is punished as a crime of
Alarms and Scandals
And you know that the discharge of firearm may yet amount,
to a crime of attempted homicide or attempted murder when
intent to kill is shown
In other words, a discharge of the firearm may bring about
any of three felonies:
a. Alarms and Scandals;
b. Illegal discharge of firearms
c. Attempted Homicide or Murder
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
These arise when no one is injured by the discharge of the
firearms.
The moment there is somebody who is injured, alarms and
scandals is out of the picture already.
So these three crimes are involved if the discharge of the
firearms did not bring about any injury to anyone.
The crime will be alarms and scandals, if the firearm when
discharged was not directed to a particular person.
The firearm may be discharged upwards, downward,
sideward, or any direction as long as it is not directed to a
particular person.
If the firearm, when discharged, was directed to a particular
person, but the intent to kill is absent, because the person
fired at is beyond the range of the firearm or the firearm was
discharged without evident intent to kill, the liability of the
offender will only be illegal discharge of firearm.
Now if that discharge of the firearm directed to a person, is
shown to have been attended by intent to kill, then the crime
becomes attempted homicide or attempted murder, as the
case may be, depending upon the circumstances under which
the firearm was discharged.
So although the firearm was discharged towards persons, if
there were so numerous persons and it is not established
who in particular was fired upon, the crime is only alarms and
scandals.
So, in a case where a person was being chased by several
young fellows because he created trouble in the
neighborhood, the young males in the neighborhood all
pursued him, chased him. And he ran away with so many
young people running after him.
Now to dissuade them, to stop running after him, he pulled
out a paltik, fired a the several people pursuing him, but
nobody was wounded.
Now because the discharged was directed to persons, the
offender was prosecuted for illegal discharged of firearm
under Art. 254.
Atlhough the lower court convicted him for this crime, on
appeal, SC ruled, the crime is only alarms and scandals.
The reason: the fire arm was not directed to a particular
person.
Page | 36
So the word particular here becomes decisive. It must be a
particular person, because illegal discharge of firearm is a
prelude to the commission of attempted homicide or
attempted murder.
If really, you do not know who is the person fired upon, then,
it cannot be attempted homicide or attempted murder.
Because the only element that differentiates illegal discharge
from attempted homicide or murder is the intent to kill.
If that is proven, attempted homicide or murder. Not proven,
illegal discharged of firearm; provided, that the firearm is
directed to a particular person when it was discharged.
RECAP:
When a person discharges a firearm in public, the act may
constitute any of the possible crimes under the Revised Penal
Code:
1. Alarms and scandals if the firearm when discharged
Was not directed to any particular person;
2. Illegal discharge of firearm under Article 254 if the
firearm is directed or pointed to a particular person
when discharged but intent to kill is absent;
3. Attempted homicide, murder or parricide if the
firearm when discharged is directed against a person
and intent to kill is present.
In this connection understand that it is not necessary that the
offended party be wounded or hit. Mere discharge of firearm
towards another with intent to kill already amounts to
attempted homicide or attempted murder or attempted
parricide. It cannot be frustrated because the offended party
is not mortally wounded.
Then under the same article on alarms and scandals, you
have there the word charivari. A person who instigated or
take part in a charivari xxx incurs the crime of alarms and
scandals.
You take note of this word. At one time, this was number one
question in the Bar. What is charivari? What crime does it
constitute in the RPC?
Charivari is a mock serenade where person or persons
pretend to be serenading, but in fact disturbing the public
tranquility as shown by their use of broken cans, broken pots,
broken utensils, and not musical instruments
Now this is a crime when done at a time when there is
already prevailing public tranquility.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Now during the advent of New Year, this crime cannot be
committed. People, are trying to make as much noise as they
can make.
So this crime will only arise when there is already a prevailing
public tranquility. and this people are unmindful of that
tranquility.
Although they seem to be serenading only, but the fact that
they are not using musical instruments, would indicate that
they are maliciously disturbing the public tranquility.
Included here are those who are engaged in nocturnal
amusements, like playing basketball at night, playing hide and
seek when it is full moon, if they create so much noise,
already disturbing people who are already resting, criminal
liability will arise.
This crime is only a light felony. The equivalent of this, in local
ordinances, is breach of the peace.
If the offender is prosecuted under Title Three of the code for
Alarms and Scandals, you will note, under the Probation Law,
if the crime is against Public order, the offender who would
be found guilty is disqualified from availing of Probation. So
no probation for the crimes here.
In a case of direct assault, no probation. Because this is a
crime against public order.
Now about this nocturnal amusements and this act of
serenading, this nocturnal amusements at night xxx, create
noise, wandering at night, the act is in the nature of a malum
prohibitun. because they are not inherently wrong, bad or
evil
So should you encounter the question: Is there any act in the
nature of a malum prohibitum under the RPC?
The answer is, Yes. And you have this alarms and
scandals in the act of nocturnal amusement, playing
basketball, playing hide and seek.
You also point under the same article the ____ to one who
is commits his conduct while under intoxication. This
conduct refers to here is a disturbance of the prevailing
public peace not a scandal in the sense of moral decency.
So if a person who was being so intoxicated unmindful of
the people around waiting for a ride simply unzip his pants
starting urinating there because he was already so much
compelled to urinate, crime is not alarm and scandal a
crime is an offense against decency and that is indecent
exhibition. The common problem here was a fellow who
was so intoxicated cannot hold it anymore and while
walking the street while there are several people lining
waiting for a ride he simply unzipper his pants and started
Page | 37
urinating there. What is the crime committed? That is not
alarm and scandal although it may cause alarm that is an
offense against decency title 6 of book 2 and that is
covered by indecent exhibition.
All these acts as you will notice are not per se criminal or
wrongful like engaging in nocturnal amusements. Those
playing basketball while people in the vicinity are already
asleep so the stamping of the basketball irritates those
who are resting already the act may not per se evil or bad
so you may be thinking it is a form of malum prohibitum
that would be correct if in another art. 3 under RPC. Under
RPC to constitute a felony the act must be done with dolo
or culpa so either criminal intent or criminal negligence.
Without that civil liability only. The act will amount to quasi
delict or a tort not really a felony. So example a balot
vendor who enters a dark alley and shout at a top of his
voice “BALOT!” awakening people who are already asleep.
Question may he be charged of alarm and scandal? The act
may be wrong but not all wrong amounts to a crime
particularly a felony under the code do not overlook the
requirement that the act or omission must be characterized
by dolo or by culpa. Otherwise it is not a felony if that is not
a felony there is no criminal liability. It is only a civil wrong
only civil liability will arise.
Art. 202. Vagrants and prostitutes; penalty. — The following are vagrants:
1. Any person having no apparent means of subsistence, who has
the physical ability to work and who neglects to apply himself or
herself to some lawful calling;
2. Any person found loitering about public or semi-public buildings
or places or trampling or wandering about the country or the
streets without visible means of support;
3. Any idle or dissolute person who ledges in houses of ill fame;
ruffians or pimps and those who habitually associate with
prostitutes;
4. Any person who, not being included in the provisions of other
articles of this Code, shall be found loitering in any inhabited or
uninhabited place belonging to another without any lawful or
justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually
indulge in sexual intercourse or lascivious conduct, are deemed to be
prostitutes.
Any person found guilty of any of the offenses covered by this articles shall
be punished by arresto menor or a fine not exceeding 200 pesos, and in case
of recidivism, by arresto mayor in its medium period to prision correccional
in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in
the discretion of the court.
Now also in the crime of vagrancy, people who wander
around without any visible means of livelihood may be
arrested and charged for vagrancy. The act is not inherently
bad, evil, or wrong. But under the RPC, it is a malum in se,
because here, dolo or culpa is required to bring about
criminal liability, although the nature of the act is one of
malum prohibitum.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST
Under this Title, you should notice the nature of the violation
is one which defrauds the public at large.
The Characteristic of the acts here is a deceit on the Public.
So under this Title, you have counterfeiting which applies to
currency;
Mutilation Of Coins; Forgery of bank notes, and obligation
and securities issued by the Government;
Then, the most important crime here, falsification.
Now also false testimony: usurpation.
MUTILATION OF COINS
Art. 164. Mutilation of coins; Importation and utterance of mutilated coins.
— The penalty of prision correccional in its minimum period and a fine not to
exceed P2,000 pesos shall be imposed upon any person who shall mutilate
coins of the legal currency of the United States or of the Philippine Islands or
import or utter mutilated current coins, or in connivance with mutilators or
importers.
Acts punished:
1. Mutilating coins of the legal currency, with the
further requirements that there be intent to damage
or to defraud another;
2. Importing or uttering such mutilated coins, with the
further requirement that there must be connivances
with the mutilator or importer in case of uttering.
The first acts of falsification or falsity are —
(1) Counterfeiting – refers to money or currency;
(2) Forgery — refers to instruments of credit and
obligations and securities issued by the Philippine
government or any banking institution authorized
by the Philippine government to issue the same:
(3) Falsification — can only be committed in respect of
documents.
In so far as coins in circulation are concerned, there are two
crimes that may be committed:
1. counterfeiting coins
2. Mutilation of coins
counterfeiting coins — This is the crime of remaking or
manufacturing without any authority to do so.
Even though the currency counterfeited is no longer legal
tender, withdrawn from circulation already. A person who
tries his ingenuity in imitating that money incurs criminal
liability.
Page | 38
The law does not want any person to try his ingenuity in
imitating money. Even though at the start the offender tried
to test his ingenuity on money which is not of legal tender,
time will come when that person would become an expert
in imitating money designed by the government. By that
time that he acquired expertise in counterfeiting money, it
would be difficult for the government to detect which is
genuine money which is counterfeit money.
Do not think that if the offender counterfeit money issued
during the Japanese occupation of the Philippines that
there is no liability. Observe the provision of the code on
counterfeiting that there is no requirement that the
currency counterfeited is legal tender.
The mere possession of counterfeit money knowing that it
is counterfeit would bring about Crime of Illegal Possession
of the Counterfeit Currency, if the possession demonstrates
an intention to circulate the counterfeit money as legal
tender. Such intention will be deduced from the
circumstances of possession that the offender has been
found in the process.
If the liability of the offender is simply possessing the
counterfeit money, there is no proof that he is the one who
counterfeited the currency, the provision of the Code
requires the same must be possessed by him with the
intent to utter or circulate the same. Otherwise, the intent
to defraud the public at large will be negative. Without that
intent to circulate, the fraud which is being penalized under
the title will not accrue or will not happen.
Illustration:
If a person was found to have received a P500 bill
which turned counterfeit, placed this in a picture
frame, displayed it in his room. The fact that he
had placed the counterfeit money in a picture-
frame indicate that he does not have intention to
spend it or introduce it to commerce as a medium
of exchange.
If that counterfeit money was found among the
genuine bills in his wallet, that circumstance will
imply that he intends to spend it among the other
money which is not counterfeit. If he is aware of
the fact that currency is counterfeit then there will
criminal liability.
If he is not aware then there is no liability. The
mind is not criminal.
Mutilation of coins – this refers to the deliberate act of
diminishing the proper metal contents of the coin either by
scraping, scratching or filling the edges of the coin and the
offender gathers the metal dust that has been scraped from
the coin.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
This crime involves - The act of diminishing the precious
metal coating of a coin or precious metal content of the
coin through scraping, scratching, filing the edge of the coin
and the offender must collect the precious metal dust
eroded from the coin. This is where the criminal intent of
the offender is demonstrated.
Regarding mutilation of coins, under the RPC this is
committed by deliberately diminishing the precious metal
contents of a coin and the offender is collecting the metal
dust being remove from the coin.
The criminal intent of the offender is precisely shown by the
fact that he is collecting the metal dust, which is being eroded
from the coin.
Now this is done by scratching the precious metal coating,
the silver coating, or filing the edge of the coin
The offender collects the metal dust and will mint this to
some Jewelry.
There is no expertise involved here. In mutilation of coins
under the Revised Penal Code, the offender does nothing but
to scrape, pile or cut the coin and collect the dust and, thus,
diminishing the intrinsic value of the coin.
Now this is a crime only when the coin is legal tender. So if
the coin is not legal tender, mutilation under the RPC cannot
be committed.
PD 47
If the offender simply brought about the reduction of the
precious metals of the coin without, however, collecting
these the crime will be governed by PD 247.
Those small gamblers playing this game known as Cara y
Cruz.
Before they toss the coins they rub these on the sidewalk
then throw these. Since they do not collect the metal dust
eroded from the coin the crime known mutilation is not
committed because the criminal mind of the offender in
committing the felony against public interest is
demonstrated in his collecting the precious metal dust that
he is eroding from the coin. But the act of eroding the
precious metal dust, coating, content of the coin was only
incidental, because this was done not as the purpose of the
offender, but simply in the course of playing the game the
violation will be of PD 247.
The term mutilation is not limited to coins, because the
term mutilation under the decree carries its ordinary
meaning to a layman – that of destroying in any manner the
medium of exchange issued by the central bank of the
Philippines.
Page | 39
When the vandalism on currencies became rampant, draw
some caricature on the faces of the heroes, write on the
marginal space of the currency. This is a crime under PD
247 but not under the RPC. This is because mutilation
under the RPC can only be committed on coins.
The word “mutilation” under the RPC has a technical
meaning – diminishes the precious metal of the coins. But
under the decree any act which would destroy the currency
as medium exchange is punishable, because it lessens the
volume of money in circulation and that would work a
hardship on the economy of the country.
So you co-relate PD 427 with the crime destroying in any
manner currencies of legal tender issued by the CB of the
Philippines as medium of exchange in the Philippines,
whether it be coins or paper bills.
FORGERY
Art. 169. How forgery is committed. — The forgery referred to in this section
may be committed by any of the following means:
1. By giving to a treasury or bank note or any instrument, payable to
bearer or order mentioned therein, the appearance of a true
genuine document.
2. By erasing, substituting, counterfeiting or altering by any means
the figures, letters, words or signs contained therein.
Now the crime of forgery, this is the crime applicable to
instruments of credit-bank notes, obligations and securities,
like sweepstakes ticket, ticket of the lotto.
Any falsity made on these instruments of credit or obligations
and securities of the Government is covered by Art. 169. The
crime is forgery.
Forgery is committed when the forged instrument had been
given the appearance of a true and genuine instrument. You
noticed that in the provision of Art. 169.
So if the offender was able to complete the forgery, the
imitation, but just the same, the forged instrument clearly
appears to be spurious, not appearing to be a true and
genuine instrument, the crime is only frustrated forgery. Not
simply forgery but frustrated forgery.
Where the instrument is a substitute for money, like bank
notes, obligations or securities of the government whether
payable to bearer or payable to holder, the alteration made
thereon will be a crime of forgery (Art 169), not falsification.
The essence of the Crime of Forgery is that an instrument
which is in the nature of a bank note or obligation or
securities of the government is so altered, or otherwise
erased and superimposed to give it an appearance of a
true and genuine instrument. The crime is committed if the
instrument that was forged could passed on as a genuine
instrument.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Art 169 tells you that the crime of forgery is defined ___
making alterations, substitution or erasures on an
instrument of credit, securities, obligations of the Philippine
government or of a foreign government accepted and
honored in the Philippines, the appearance of a true and
genuine instrument.
If the forged instrument already resembled a true and
genuine instrument, but somehow there are imperfections
that would betray the fact that it is not really genuine, the
SC’s ruling on this is that the crime committed is only
frustrated forgery. Not really a forgery which implies a
consummated felony.
It may be difficult for the offender to hide the fact that the
forged instrument is a mere imitation of a genuine. When
that nature of the forgery is visible to the naked eye but one
who unsuspectingly considers the forged instrument as
genuine will not notice that, the instrument failed to appear
as a true and genuine instrument. The crime is not simply
forgery, which means it is consummated. SC said the crime
is frustrated forgery. The offender was able to perform the
acts of execution to bring about the forgery but for reason
beyond his own action, he failed to perfect the forgery.
FALSIFICATION
Five classes of falsifications
(1) Falsification of legislative documents;
(2) Falsification of a document by a public officer,
employee or notary public;
(3) Falsification of a public or official, or commercial
document by a private individual;
(4) Falsification of a private document by any person;
(5) Falsification of wireless, telegraph and telephone
messages.
This is a crime applicable only to documents.
There are four kinds of documents:
(1) Public document in the execution of which, a
person in authority or notary public has taken
part;
(2) Official document in the execution of which a
public official takes part;
(3) Commercial document or any document,
recognized by the Code of Commerce or any
commercial law; and,
(4) Private document in the execution of which only
private individuals take part.
This can only be committed on writing which qualify in law
as a document. So not any writing may bring about the
crime of falsification. The writing must be a document in
the legal sense.
Page | 40
In law, a document is a writing capable of creating a right
and/or extinguishing an obligation; or it is a writing which is
taken as competent evidence of the fact stated therein.
Where the writing may not be extinguishing an obligation or
creating of right, but if in law it is accepted as competent
memorial of what is written there, it is accepted as
competent evidence, that writing is a document also.
i.e. Hotel registers maintained by hotel operators, generally
those who enter these places just write their fictitious name
there, they state their community tax no. which is not really
true. A crime of falsification is committed, because that
register is evidence of the fact that register is competent
evidence of the fact that may be there - who entered the
hotel on a particular date and time, how long he stayed,
whether he is alone or with somebody else. It is a public
registry.
The writing must be complete. If it is incomplete it is not a
writing. It is a form.
Illustrations:
If a person selling community tax certificate under the
under pass near the Plaza Miranda. Those who do not want
to suffer the inconvenience of getting their residence
certificate at the city hall refer to these people. In a case
where there was a report that the certificate being issued
by this fellow is not really printed by the Bureau of Treasury,
not an accountable form but printed by a private printing
press. The form is spurious, not really an official form. The
City Hall, upon that report, organized a team to apprehend
the fellow selling such spurious tax certificate. The team
proceeded to the place designated and they found that this
fellow have many booklets of community tax certificate laid
on his table. The members of the team simply collected all
of these, arrested the fellow. Eventually it was found that
the forms are not from the government, they are not
accountable forms, and they are printed by private printing
press. This fellow was charged by the prosecutor for a
crime of falsification. The trial court convicted the accused
for the crime of falsification. He appealed to the SC ruled
that the crime of falsification is not committed because the
exhibit presented are not documents, they are mere forms
because they are still to be completed, there are blanks to
filled up. So as long as they are completed they are not
documents. SC pointed out that the crime is under Art 176
if the RPC - the Illegal production, importation or use of
materials, supplies, inks, dyes, or plates used in the crime
of counterfeiting forgery, or falsification, but not a crime of
falsification. So Art 176 the unauthorized use, or
unauthorized possession with intent to use, not of
documents, but of supplies, materials, inks, dyes, plates
which are implements used in counterfeiting, forgery or
falsification.
If an impostor posing as a traffic enforcer stopped vehicles
which incurred violations of traffic rules and they have this
booklet of supposed traffic violation receipts but actually
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
the booklet was not printed by the MMDA. The crime
committed by this fellow is not falsification, but the
unauthorized possession of materials which may be used in
counterfeiting, forgery, or falsification under Art 176.
USE OF FALSE DOCUMENTS
Art. 172. Falsification by private individual and use of falsified documents. —
The penalty of prision correccional in its medium and maximum periods and
a fine of not more than P5,000 pesos shall be imposed upon:
1. Any private individual who shall commit any of the falsifications
enumerated in the next preceding article in any public or official
document or letter of exchange or any other kind of commercial
document; and
2. Any person who, to the damage of a third party, or with the intent
to cause such damage, shall in any private document commit any
of the acts of falsification enumerated in the next preceding
article.
Any person who shall knowingly introduce in evidence in any judicial
proceeding or to the damage of another or who, with the intent to cause
such damage, shall use any of the false documents embraced in the next
preceding article, or in any of the foregoing subdivisions of this article, shall
be punished by the penalty next lower in degree.
Acts punished:
1. Falsification of public, official or commercial
document by a private individual;
2. Falsification of private document by any person:
3. Use of falsified document.
Elements under paragraph 1
1. Offender is a private individual or public officer or
employee who did not take advantage of his official
position
2. He committed any act of falsification;
3. The falsification was committed in a public, official,
or commercial document or letter of exchange
Elements under paragraph 2:
1. Offender committed any of the acts of falsification
except Article I7I (7), that is, issuing in an
authenticated form a document purporting to be a
copy of an original document when no such original
exists, or including in such a copy a statement
contrary to, or different from, that of the genuine
original;
2. Falsification was committed in any private
document;
3. Falsification causes damage to a third party or at
least the falsification was committed with intent to
cause such damage.
Elements under the last paragraph:
In introducing in a judicial proceeding —
1. Offender knew that the document was falsified by
another person;
Page | 41
2. The false document is in Articles 171 or 172 (1 or
2)
3. He introduced said document in evidence in any
judicial proceeding.
In use in any other transaction —
1. Offender knew that a document was falsified by
another person;
2. The false document is embraced in Articles 171 or
172 (1 or 2)
3. He used such document;
4. The use caused damage to another or at least
used with intent to cause damage.
Another important factor of falsification – this Title 4 Book
2 of RPC punishes the crime of falsification of documents
as well as the use of a false or falsified document. The
crime of the user and the crime of the one who falsified are
different.
In crime of FALSIFICATION of a document, the nature of the
document as a public document, private document or
public document is controlling. So if it is a crime of
falsification you must give attention to what document is
falsified.
Take note of this aspect in the crime of use of false or
falsified document under the last paragraph of Art 172.
If the crime was mere USE of a false or falsified document
the nature of the document which appears to be falsified is
not controlling. What is controlling or decisive is the
purpose for which the falsified document was used.
Although an offender may have been arrested while he was
using a false or falsified document, this is not a crime that
you will impute to him.
Bear in mind that even though the offender was
apprehended in act of using a false or falsified document,
the crime to be imputed to him is not the crime of use of a
false or falsified document. Instead, the crime to be
properly imputed to the offender is the crime of falsification
itself. This is so because in criminal law there is a
presumption that the possessor and user of a false or
falsified document is the one who falsified the same. He
has to show that he is not the one who falsified the
document.
Even if the accused was acquitted from the crime of
falsification of document of which he was found to be
using, still he can be prosecuted for the use of false of
falsified document. The acquittal from charge of
falsification will not be a bar for prosecution for the crime of
use of falsified document. There is no double-jeopardy
because as the SC observed the accused may have been
acquitted from the crime of falsification of document he
tried to make use of, either because of reasonable doubt
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
or it was shown that he was not the one who falsified the
document. But that does not mean that such accused was
not aware that at the time he made use of that document
that it was not falsified. And this is the gravamen of the
crime of use of a false or falsified document – the offender
at the time of the use of the document, the offender knows
it is falsified.
But if such offender was found guilty of crime of
falsification, you cannot further prosecute him for use of a
false or falsified document. The logical Inference is that he
falsified the document purposely to use the same. You
cannot split the continuity of the criminal liability and hold
him liable for two crimes.
******
In the crime of falsification of document the nature of the
document is decisive or controlling, whether the document
is private document, or public document or a commercial
document. If you encounter a problem, while your answer is
falsification, the answer is meaningless if you have not
stated the nature of the document falsified – falsification of
private document, falsification of public document,
falsification of commercial document, because the legal
consequence of the falsification are not the same.
Falsification of Private Document
Where the document falsified is a private document
criminal liability for the falsification will only arise if the
falsification resulted to damage, or there is evidence that
the accused made the falsification with a criminal intent to
cause damage.
Absent any evidence of damage or intent to cause damage
would only bring about civil liability for falsification of
private document, minus criminal liability.
Because of this, if the private document after having been
falsified was used by the offender to defraud another
brining about the crime of estafa or swindling, even though
the crime of falsification was committed as a necessary
means to perpetrate a crime of swindling or estafa, the two
crime of falsification and estafa cannot be complexed. So
there is no crime of estafa through falsification of “private”
document.
Falsification of private document cannot be complexed with
the crime of estafa because both crimes require damage or
at least proof of the offenders’ intent to cause damage. So
whatever damage or intent to cause damage attended, the
falsification of the private document will also be the same
damage or intent to cause damage attending the swindling
or estafa.
In short, damage or intent to cause damage is an element
which is requisite of falsification of private document and of
swindling or estafa. We are not allowed to make use of the
same element to build up more than one crime. Otherwise,
Page | 42
prosecution would split the elements and bring about
different crimes. So the offender will be prosecuted for
many crimes. That will run counter to the protection against
double jeopardy.
This is the common predicate Bar problems, where the
document falsified was a private document, and then,
subsequently used to defraud another. Now if you write that
the crime is estafa through falsification of a private
document, that is the end of it. There is no such crime.
It is either estafa only or falsification of private document
only.
So, the question arises: Which is the correct crime to impute
to the offender?
The criterion is this:
If the swindling could not be perpetuated without
the falsified document, the falsification, therefore,
becomes the principal offense without which the
swindling could not have been carried out; hence,
the falsification becomes the main crime. The
swindling becomes only the resultant crime. The
correct crime, therefore, to impute to the offender is
falsification of a private document.
Now if the swindling could be perpetrated even
without the falsified document, but the offender
made use of the falsified document to make the
swindling more convincing, the falsification of the
private document merely facilitated the commission
of the swindling, which may be carried out even
without the falsification of the document, hence, the
falsification is only an incidental crime. The swindling
or estafa is the principal crime. Hence, the correct
crime to impute to the offender is estafa.
This is a common situation given in the Bar.
Falsification of a public or commercial document
On the other hand, if the document falsified was a public or
commercial document, damage or intent to cause damage
on the part of the offender is not required to be
established. It is enough that the offender acted with intent
to pervert the truth. Even though there is no damage or
there is no evidence to show that the accused acted with
the intent to cause damage.
Criminal liability may arise as long as the intent to pervert
the truth, because in falsifications of public and
commercial documents the law is interested in preserving
the faith and credit of the document.
There is crime of estafa through falsification of public
documents and there is a crime of estafa through
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
falsification of a commercial documents because damage
that may attend estafa is not a requisite for falsification of
such public or commercial document.
Shall it be crime of swindling or shall it be a crime of
falsification private document?
The guide is this: If the swindling could not have
been perpetrated without the falsified private
document, then the swindling or estafa is just a
resultant crime which cannot be committed
without going through the falsification. Hence the
proper crime to accuse the offender of is
FALSIFICATION of a private document. The
swindling is in the nature only of an accompanying
or resultant crime.
But if the swindling could have been carried out even
without going through falsification of a private document,
but the offender committed the falsification to make the
swindling more convenient or believable, the falsification is
merely an incident to facilitate the swindling. The principal
crime is the SWINDLING. Hence that is the crime for which
the offender shall be prosecuted, not the crime for
falsification.
When the crime is simply use of a false or falsified
document because the accused was acquitted from the
charge of falsification or at the outset the evidence shows
that somebody else falsified the document. The user was
not the one who falsified the document. In such a case, the
user could incur criminal liability if it could be shown that at
the time he made use of such document, he already knows
that the same was falsified. In this crime it is not the nature
of the document which will control, rather it is the purpose
for which the falsified document was used. Study carefully
the wordings of the last paragraph of Art 172 – using a
false or falsified document.
Now some commentaries may impress you that since damage
or intent to cause damage is not required in falsification of a
public or a commercial document to bring about Criminal
liability, it does not follow that the mere falsification, when
the document is public or commercial, would already bring
about criminal liability.
SC has clarified this:
Falsification of whatever document is still a felony. And to
bring about criminal liability, the act must be characterized by
dolo or characterized by culpa.
The crime will be attended by the dolo __y when the offender
acted with intent to pervert the truth. Absent this intent, or
the same was not proven, no criminal liability will arise, even
though the document falsified is public or commercial. Only
civil liability and, possibly, administrative liability will arise.
Page | 43
Relative to this act of falsifying, the document may be wrong,
but not all wrong will amount to a crime.
Where the act that caused the falsity was deliberately
executed, absent the intent to pervert the truth, no criminal
liability will follow.
SC laid down two (2) conditions to detect whether the
offender acted with intent to pervert the truth or not.
Now SC said, if these two conditions are present, intent to
pervert the truth would be negative. Hence, no criminal
liability will arise.
The conditions are:
• The accused did not gain or benefit anything out of
the falsification; and
• No party, public or private, suffered damage out of
the falsity of the document
When these two conditions concur, the conclusion is that the
accused did not act with intent to pervert the truth.
This was ruled in a case given in the Bar Exam, sometime in
1984 or 1985. The facts run like this: A government employee,
during the last stage of his illness, filed an application for
accumulated sick leave. As usual, the government was so slow
in processing the application for computation of the
accumulated sick leave. When the application was approved,
the applicant was already dead. So it was the widow who
received the notice that the application was approved and the
check is already available for pick-up at the office where her
husband was formerly employed. So the widow went to that
office to receive the check. And she signed several supporting
documents to evidence the receipt of the check. She signed
the name of her husband, because the check was payable to
her husband. But she never exerted effort to imitate the
handwriting of her husband. It is simply that she wrote the
name of her husband.
The COA representative learned that at the time the check
was released, the applicant was already dead. So an
investigation was conducted on who received the check. And
these evidence signed by the wife or the widow pointed to her
as the one who received the check and signed for it
On this basis, a criminal case was filed against the widow for
falsification of a public document.
The trial court convicted her on the premise that criminal
liability is incurred from the mere falsification of a public or
commercial document. Even though no damage was caused
or no evidence of intent to cause damage was ever offered.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
The widow appealed, to the CA. And the CA affirmed the
conviction on the premise that in falsification of a public or a
commercial document damage or intent to cause damage is
not necessary. The mere act of rendering the document false
would already bring about the criminal liability.
On further appeal to the SC, SC acquitted the widow.
SC clarified that not because the document that was
rendered false is a public document or a commercial
document, the criminal liability for falsification
would already be incurred.
Falsification is still a felony. And to give rise to
criminal liability, the act must be committed with
dolo, or, at least, with culpa
In this particular case, what is relevant is dolo. And
the criminal intent employed as applied to
falsification, refers to intent to pervert the truth.
That intent is absent when these two conditions concur:
• Firstly, the accused did not gain or benefit anything
out of the falsification;
Now here, the evidence show that the accused used
the proceeds of the check in paying the
hospitalization expenses of her husband during the
latter's illness.
So all the widow did was to apply the proceeds of
the check, not to her use, but to liquidate the
hospitalization expenses which is the obligation of
her late husband.
She applied the balance to burial expenses of her
husband.
The amount was not even enough to cover all burial
expenses that she had to spend her own money to
fill up such expenses.
So the High Court said, under this situation, it is
never reasonable to impute crimimal liability to the
accused.
• Second condition, no party suffered damage,
whether public or private.
The amount involved is really due to the deceased
husband of the accused.
Page | 44
So whatever was done to the amount, this is due to
the deceased, and since he is dead, the wife is the
one to apply this to the indebtedness of the
deceased.
Based on these conditions, the intent to pervert the truth is
absent. And therefore, the act not being deliberate, there is
no criminal intent.
So the SC reiterated, the act may be wrong, but not all
wrongs amount to a crime. Only civil liability and possibly,
administrative liability may arise out of the wrongful act, but
not necessarily criminal liability.
XXX
This is not the first case where the SC applied these
standards.
The conditions were also invoked in the early case of Yamaso
vs. Sandiganbayan. In this Yamaso Case, the accused were
engineers of DPWH. They were engaged in the construction of
an infrastructure project distant from their engineering office.
Now because they would leave at the sight of the project,
nobody will be left in that office. So they fear that the
engineering equipment and supplies there may be pilfered.
They, therefore, hired a casual laborer to oversee their office
while they were away. So the casual laborer stayed in the
office to prevent any pilferages of the office supplies, office
equipment, and other engineering equipment that the office
keeps.
The engineers returned after 10 days. A voucher was prepared
to pay the wages of the casual laborer for 10 days. But the xxx
to dear the voucher, for the reason that there is no item for
that.
So the engineers met and conferred on how the wages of the
casual laborer would be paid. One of them suggested that
since in the xxx xxx in the payroll as a stand-in so that the
wage payable to the absent/laborer will be paid to casual
laborer.
This was done for 10 days. So every laborer who is absent, the
name of this fellow is placed in the payroll. Another laborer
absent again the name of this fellow is reflected in the
payroll, making it appear that he is a stand-in for the absent
laborer.
The COA auditor tried to figure out how these engineers were
able to pay the wages of the casual laborer to oversee their
office. And he found out that this was done through the
payroll where the name of the casual laborer was made as a
stand-in.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Now that is a Falsification. Because it is made to appear that
this laborer worked at the infrastructure project when in fact
he did not.
Causing it to appear that a person participated in an act or
proceeding, when in fact he did not, is one of the acts of
falsification enumerated in Art. 171.
So, all the engineers were prosecuted before the
Sandiganbayan for a crime of falsification of a public
document.
Sandiganbayan here convicted all the engineers on the
ground that since the document falsified was a public
document, even without damage or intent to cause damage
being proven, the accused are all criminally liable.
So the accused engineers brought this matter to the SC
SC acquitted them.
SC pointed out that they did not act with criminal
intent.
The criminal intent in falsification is the intent to
pervert the truth.
That intent is absent when these two conditions concur:
• Firstly, the accused did not benefit or gain anything
out of the falsification;
• Secondly, no party, public or private, suffered any
damage out of the Falsification.
Now in this case, SC pointed out, through Justice Teehankee,
that the act of the accused is not characterized with criminal
intent, but only an error of the heart.
They pitied the casual laborer, who after rendering service for
10 days would not be able to receive anything out of the
services he had rendered to the government.
SC said, it would be highly unfair unreasonable, and
unjust that this person who served the government,
and prevented the pilferage of the property of the
government inside the engineerings office will not
be compensated after all
The wages offered is even below the minimum
wage. So paying this amount is much less than the
value of the property involved which could have
been pilfered if nobody was left at the office of the
engineers.
Page | 45
Hence, the SC said, the intent to pervert the truth
being absent, the act being deliberate, the criminal
intent to make it a felony is absent.
Intent to pervert the truth is relevant only when falsification
was done in DOLO.
The intent to pervert the truth, however, is irrelevant when
the falsification was the product of culpa.
So in case where the work of the accused was to scrutinize
vouchers before the payee thereof would present this to the
cashier of the office for payment.
The accused was to check on the items, the mathematical
computations there, and if he finds everything to be in order,
he affixed his initial to the voucher. The payee then brings the
voucher to the office cashier, the cashier release the amount.
In an audit, it was discovered that many of the vouchers are
erroneous. The amounts paid are not really correct. Some of
them bloated, some were distorted.
So this fellow, who affixed his signature in the voucher,
virtually attested to the correctness of the amount that will be
paid to the payee of the voucher.
So he was charged for falsification.
The defense of this accused was that he was suffering from
failing eyesight. To this effect, he presented in evidence a
sworn medical certificate from an ophthalmologist showing
that his eyesight is equivalent to that of a 74 yr. old man,
although at that time, he was only 69 years Old.
So he claimed that the error was brought about by the fact
that he could hardly discern the figures in the voucher.
The lower courts convicted him. On appeal, SC affirmed the
conviction.
The High Court said, since he could hardly discern
the figures on the vouchers, knowing that this is
presented to him for verification, he should not have
affixed his signature thereto, knowing that when he
affixed his signature thereto, he clears the payment
of the voucher, implying that the amount is correct
Claiming that he could hardly see the computation,
he should not affix his signature thereto without
eyeglasses.
So failing to use eyeglasses before he certify the
voucher, he is simply recklessly imprudent. His claim
for lack of intent to pervert the truth is misplaced.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
because the act here is not the result of dolus, but
brought about by culpa.
So he was found guilty of falsification resulting from
reckless imprudence.
But since he was already 69 yrs. old, and the
eyesight corresponds to that of one over 70, SC gave
him the benefit of a mitigating circumstance
analogous to one who is already over 70 at the time
of the commission of the crime. So mitigating
circumstance, lower the penalty to the minimum
period.
xxx
Now when the document, when falsified, was a private
document, but the offender knew that the document would
be filed with a public office to form part of public records,
that falsification shall be considered as a falsification of a
public document. Therefore, even without damage or proof
of intent to cause damage, criminal liability shall be incurred.
The contention that a false document cannot be falsified is
wrong.
So even if somebody already falsifies the document, now
here comes another who falsified the document, he will still
be criminally liable.
So in a case where a lawyer married a spinster who is so
wealthy.
The lawyer resigned from his work as justice of the peace,
because the salary is negligible. So he thought his life would
be comfortable after being married to this spinster. But it
turned out different from what he expected, because the
spinster also gave him allowances. But the wife, the spinster,
put up a law office for him, for him to exercise his profession
as a member of the bar.
One afternoon, the wife visited the law office, and found
there women with the husband and the other associate
lawyers there drinking beer.
So the wife closed the law office, and told the husband, just
to go around, no practice of the profession anymore. She
would just give him a fixed allowance daily. So the lawyer was
receiving the amount, but it was not enough for his
extravagance.
So in order to raise a meager amount, the lawyer typed a
subpoena in a bond paper copying a subpoena which is
regularly issued by the City hall of Manila.
Page | 46
He asked a subpoena there, a certain case there, he made his
name appear as respondent in a case of estafa, the name of
the fiscal, the room number at the City Hall, correct. He
mailed this to his house. Made certain that his wife would
receive the subpoena.
So when the wife received the subpoena, the wife was
alarmed why her husband would be sued for estafa.
And this husband called his wife that he had to borrow
money, because the amount given him was not sufficient.
And unless he would pay the money, he would be criminally
liable.
So the wife asked him. how will you bring about the dismissal
of the case. Then the lawyer, the husband said, simple, pay
the amount.
Now, the wife asked, how much? And he said, three thousand
pesos. At that time, P3.000 is more than P300,000 now. So it
was a big amount.
So the wife told him, first thing in the morning she would go
downtown, and withdraw the amount so that the husband
could pay the supposed creditor.
So this husband remained in the house waiting for the wife to
come home with the money. But he underestimated the
intelligence of his wife. He was thinking that from the bank,
the wife, after withdrawing the money, would come home,
give him the money so that he could pay his supposed
creditor.
From the bank, the wife went to the City Hall of Manila,
bringing the spurious subpoena. Looked for the room number
there, the name of the prosecutor.
So the wife went there not because she doubted the case but
because she doubted the amount. The amount may be less
than P3,000. So she wanted to verify that.
Now there is that room, there is that fiscal. So she asked the
fiscal about the case. The fiscal ordered the secretary to look
for the expediente, the records of the case. And they have
already turned everything out, no such case. So the fiscal
issued a real subpoena to the husband.
When the wife came home, the husband learned that the
wife had gone to the City Hall. And so, he learned that he is
now facing a situation when he would be criminally liable.
His defense to the case was, since the subpoena, which he
made in his house, is spurious, the crime of falsification
cannot be committed in respect thereof, Because a false
document cannot be made false any further.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
This was ruled differently, because following the theory of
the accused, one who will falsify a document by simply
making an alteration would be criminally liable, whereas, one
who falsified the entire document can escape prosecution. So
this is absurd.
So even if the falsity was reflected in a document that is
totally spurious, criminal liability for this crime shall be
incurred. SC he was made criminally liable.
False document offered as evidence in judicial proceedings
If the false or falsified document was offered as evidence in
a judicial proceedings, it is not required that damage would
be cost. Even without requiring damage, there is criminal
liability. The mere offer in a judicial proceeding knowing
that it is falsified is already a crime.
Falsified document used in other proceedings
If the false or falsified document was used in any other
proceeding or transaction, damage or proof of intent to
cause damage is required. Otherwise, only civil liability will
be incurred.
Illustration:
A litigant knowing a documentary exhibit to be false offered
this in evidence in a judicial proceeding (special
proceedings for the settlement of the estate of a deceased
person). The document shows the deceased owns the
claimant a certain amount, which however is fictitious.
Upon the offer of the exhibit as an evidence of the
document to prove his claim, the executor objected on the
ground that the document was not properly identified by
the one who supposedly issued the document as receipt.
So it was not admitted.
Will the claimant who offered this exhibit which was
rejected by court incur criminal liability?
Yes, because the law does not require damage or
evidence of intent to cause damage. What the law
requires is the use of the false or falsified
document by offering it as evidence knowing that it
is false or falsified. Damage is necessary only
when the false or falsified document is used in any
other proceedings other than a judicial
proceedings and any other transactions not
involving an offer of evidence.
FALSE TESTIMONY
Art. 180. False testimony against a defendant. — Any person who shall give
false testimony against the defendant in any criminal case shall suffer:
1. The penalty of reclusion temporal, if the defendant in said case
shall have been sentenced to death;
2. The penalty of prision mayor, if the defendant shall have been
sentenced to reclusion temporal or reclusion perpetua;
3. The penalty of prision correccional, if the defendant shall have
been sentenced to any other afflictive penalty; and
Page | 47
4. The penalty of arresto mayor, if the defendant shall have been
sentenced to a correctional penalty or a fine, or shall have been
acquitted.
In cases provided in subdivisions 3 and 4 of this article the offender shall
further suffer a fine not to exceed 1,000 pesos.
Elements:
1. There is a criminal proceeding;
2. offender testifies falsely under oath against the
defendant therein
3. Offender who gives false testimony knows that it is
false
4. Defendant against whom the false testimony is given
is either acquitted or convicted in a final judgment
Three forms of false testimony:
1. False testimony in criminal cases under Article 180
and 181;
2. False testimony in civil case under Article 182;
3. False testimony in other cases under Article 183.
Applying this to a false testimony in a criminal case
AGAINST the accused. This is the false testimony covered
by Art 180. Note there the penalty upon the false witness
follows the penalty for a crime committed by the accused
which will be imposed upon the accused. The higher
penalty imposed upon the accused the higher penalty upon
the false witness.
If the false testimony was given in a judicial proceeding in a
criminal case and against the accused. The liability of the
false will determine the outcome of that criminal case,
whether the accused was acquitted or whether the accused
was convicted. This is not true when the false testimony
was in favor of the accused.
If the false testimony is against the accused the false
testimony cannot be prosecuted yet until the criminal case
against the accused has been decided with finality already
because the liability of the false witness will depend upon
the outcome of that decision.
The liability if the accused is acquitted only arresto mayor
on the part of the false witness. If the penalty upon the
accused is reclusion temporal, liability of the false witness
may be within prision mayor because the liability of the
false witness follows the gravity of the penalty imposed
upon the accused.
In this case of a false testimony against the accused in a
criminal case the prosecution of the accused is suspended
during the pendency of the criminal case. So the
prescriptive period of the crime does not run. This is not the
case in other false testimony.
Right after the false testimony was given, the next day the
false witness can already be prosecuted. ____ the
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
prescriptive period of the crime in such cases would already
commence to run.
In all problems given on false testimony under Art 180 in
the previous bar exams the issue is prescription - The false
witness upon being prosecuted after the accused was
already convicted filed a motion to quash contending the
crime of false testimony for which he is being prosecuted
has already prescribed.
During the pendency of the criminal case the prescriptive
period does not run. You do not count the time that has
lapsed while the false witness was not being prosecuted for
the crime of false testimony.
Art. 181. False testimony favorable to the defendants. — Any person who
shall give false testimony in favor of the defendant in a criminal case, shall
suffer the penalties of arresto mayor in its maximum period to prision
correccional in its minimum period a fine not to exceed 1,000 pesos, if the
prosecution is for a felony punishable by an afflictive penalty, and the
penalty of arresto mayor in any other case.
Elements:
1. A person gives false testimony;
2. In favor of the defendant;
3. In a criminal case
Art. 182. False testimony in civil cases. — Any person found guilty of false
testimony in a civil case shall suffer the penalty of prision correccional in its
minimum period and a fine not to exceed 6,000 pesos, if the amount in
controversy shall exceed 5,000 pesos, and the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period and a fine not
to exceed 1,000 pesos, if the amount in controversy shall not exceed said
amount or cannot be estimated.
Elements:
1. Testimony given in a civil case;
2. Testimony relates to the issues presented in said
case;
3. Testimony is false;
4. Offender knows that testimony is false;
5. Testimony is malicious and given with an intent to
affect the issues presented in said case.
The next important crime is false testimony. The false
testimony you would give attention to, is false testimony
against an accused in a criminal case. This is found in Art. 180.
Note, under the article the penalty upon the false witness
follows the penalty imposed upon the accused against whom
the false testimony is given
This Article applies when the false testimony is against the
accused.
If the false testimony was in favor of the accused, this Article
is not the one to govern.
Page | 48
Now because in the false testimony against an accused, the
penalty upon the false witness depends on the outcome of
the case, the prosecution of the false witness cannot be
commenced until the criminal case where he testified falsely
had already been adjudged with finality, either the accused is
convicted or acquitted.
So during the time such criminal case is pending, the
prescriptive period of the false testimony does not run. It is
suspended.
This is true only when the false testimony is against the
accused, precisely because the penalty is dependent upon the
outcome of the criminal case.
If the false testimony was given in favor of the accused, just
like a false testimony in a civil case, the next day after the
false testimony was given; the false witness can already be
prosecuted on the crime of false testimony.
It is only in this case, where the false testimony was given
against the accused that the prosecution of the false witness
must await the outcome of the criminal case. So it is only in
this case, where the prescriptive period of the crime does not
run until the criminal case had been decided with finality.
Now when they give you a problem in the Bar, invariably, this
is the false testimony. And, in the past Bar Exams where this
was the problem, always the issue of prescription of the
crime.
False witness when prosecuted after several years, because it
took several years before the criminal case was decided,
upon the prosecution of the false witness, he invokes
prescription. And the examinees were asked to rule on
whether the crime has prescribed or not.
The issue here is when will the prescription period commence
to run. Not what is the duration of the prescriptive period. It
is when the prescriptive period will commence to run. And
that will only commence to run when the criminal case where
the false testimony was given against the accused had
already been decided with finality. So it is already known,
what is the outcome of that criminal case.
PERJURY
You have the crime commonly known as perjury. This is
punished under Art. 183.
Art. 183. False testimony in other cases and perjury in solemn affirmation. —
The penalty of arresto mayor in its maximum period to prision correccional in
its minimum period shall be imposed upon any person, who knowingly
makes untruthful statements and not being included in the provisions of the
next preceding articles, shall testify under oath, or make an affidavit, upon
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
any material matter before a competent person authorized to administer an
oath in cases in which the law so requires.
Any person who, in case of a solemn affirmation made in lieu of an oath,
shall commit any of the falsehoods mentioned in this and the three
preceding articles of this section, shall suffer the respective penalties
provided therein.
Acts punished:
1. By falsely testifying under oath;
2. By making a false affidavit.
Elements of perjury:
1. Offender makes a statement under oath or executes
an affidavit upon a material matter;
2. The statement or affidavit is made before a
competent officer authorized to receive and
administer oaths;
3. Offender makes a willful and deliberate assertion of
a falsehood in the statement or affidavit;
4. The sworn statement or affidavit containing the
falsity is required by law, that is, it is made for a legal
purpose.
Perjury is a false testimony in a non-judicial proceeding or in a
narration of facts in an affidavit.
When the false testimony is given in a judicial proceeding the
crime is not perjury but false testimony.
The requisites of perjury are:
• One, there must be a testimony given under oath in
a non-judicial proceedings, or a narration of the fact
in an affidavit.
Do not write affidavit under oath. That would be
redundant. It is not an affidavit if it is not under
oath. It is just like saying a sworn statement under
oath.
• Two, the oath must be administered by an officer
competent to do so, because the oath, must be
valid.
• Three, there must be a willful and deliberate
assertion of a falsehood on a material matter.
The material matter contemplated here is the
subject of inquiry.
So falsity in collateral matters is not a basis for
perjury.
So if, let us say, a suspect picked-up from his house,
taken to the police headquarters. Upon arrival there,
he was given a blank sheet of paper. He was
Page | 49
required to write there, where he was on the date
given, and the time, specify there.
Now this suspect stated that on that date and time
he was at home, because it was the birthday of his
wife, they were taking dinner together. They were
feasting on the lechon since it was the birthday of
his wife. And they were, therefore, there together.
Actually, on that date and time. he was at home.
They were really eating together with his family, but
they were not eating lechon but dried fish. So the
birthday of the wife is being celebrated, as usual,
with dried fish, at there, variance for what they are
eating.
So in that respect there is a falsity. But that is only a
collateral falsity. The subject of inquiry is his
whereabouts on that date and time.
As long as, on that point, the statement is true, he
cannot be prosecuted for perjury, just because there
are some collateral falsities.
SO that falsity notwithstanding will not discredit the
affidavit.
• Four, the testimony for the affidavit containing the
false assertion must have been given or executed to
fulfill a requirement of law or for a legal purpose.
So not all testimonies or affidavits specially may bring about
liability for perjury.
The example I gave here to emphasize this requisite, a man
had been courting a woman for sometime, and the man asked
the woman "how long shall I wait?" The woman answered, I
like you, but I cannot convince myself that you are not yet
married." So this man told the woman, "Next weekend when I
visit you, I will bring proof that I am still a bachelor."
So the next weekend when this fellow visited the woman, he
was carrying an affidavit. In that affidavit, he stated there xxx
then he alleged xxx. He seated there he grew up in a
seminary; and, therefore he had no relationship with any
woman. In the last paragraph he stated there that the only
woman he ever fell in love with is this lady whom he had been
courting. xxx
The Affidavit was sworn to before a notary public who was
the next-door neighbor of the woman. So this fellow showed
the affidavit to the woman. The woman recognized that the
notary public was her next-door neighbor.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
So she accepted the affidavit and was convinced that the
affiant who was courting her was still a bachelor.
Within two months, she gave herself to him. Later, she found
out that this fellow is heavily married.
Can she file a criminal case for perjury against this fellow?
The affidavit was executed not for any public
purpose. The affidavit was executed purely to satisfy
this woman and gain her trust.
Bear in mind that perjury is a crime against public
interest (Title Four) not against any private interest.
So if the affidavit will not serve that purpose, a crime
under this title is not committed.
Possibly, the crime committed there, if the woman is
still below 18, is simply one of seduction. The false
affidavit is the mechanism for deceit that would
bring about the crime of simple seduction. But not
the crime of perjury, because the interest sub served
by the narrations in the affidavit is not of public
concern.
So you get this clear under that last requisite. Not all
affidavits are actionable as a basis for perjury.
SUBORNATION OF PERJURY
You cannot find an article in the RPC about subornation of
perjury.
Under the old penal code there is an article specifically
prescribing a penalty for a crime of subornation of perjury.
That article was not reproduce in the RPC. Does it mean
that subornation of perjury under the old penal code is no
longer punishable under the RPC?
No, subornation of perjury is still a crime even
under the RPC. the provision prescribing a penalty
for this crime has been eliminated from the RPC
because it was regarded as a surplusage,
unnecessary.
The essence of subornation of perjury is that the offender
procures a false witness to testify in a civil or criminal case
and the false witness so procured actually testified,
perjured and prosecuted for perjury was found guilty.
The procurer of the false witness, who acted like a principal
by Inducement, incurs the crime of subornation of perjury.
Note that the procurer of the false witness will only this
crime if the false witness actually perjured, was prosecuted
for perjury, and was convicted for perjury.
Page | 50
If that witness was acquitted from perjury, crime of
subornation is not committed by the procurer.
Since under Art 17 of the RPC a person who directly
induces another or directly forces another to commit a
crime is also criminally liable as a principal in the crime
committed, the article on subornation of perjury was
deemed unnecessary because the liability of the suborner
is that of an inducer.
So the reason why there is no more article on subornation
of perjury in the RPC is not because the crime has been
decriminalized but because the article thereabout is
regarded as unnecessary already in the light of Art 17.
Under the RPC therefore the suborner will be prosecuted
with the false witness for the crime of perjury, the crime
committed by the false witness, but the nature of the
liability of the suborner is what is known as subornation of
perjury, one who inspires the perjury.
What is the difference between the crime of subornation
perjury and the offering false testimony under Art 184?
In subornation of perjury the liability of the
suborner arises only if the person induced by him
actually perjured and having been prosecuted for
perjury was found guilty of perjury. And that is why
the suborner incurs liability as a co-principal by
inducement.
OFFERING FALSE TESTIMONY IN EVIDENCE
Elements:
1. Offender offers in evidence a false witness or
testimony;
2. He knows that the witness or the testimony was
false;
3. The offer is made in any judicial or official
proceeding.
Now under Art. 184, you have there the crime of false
testimony.
You read the provision, and this includes offering a false
witness.
In the Bar exam, during the mid-70's, the examinees were
asked: How subordination of perjury differs from the crime of
offering false testimony under Art.184?
The distinction is manifest.
In subornation of perjury, the false witness must actually
testify, commit perjury, must be prosecuted for perjury, and
must be convicted for perjury, (for the suborner-offerer to be
criminally liable for subordination of perjury.)
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
In this crime of false testimony, however, the mere offer of a
false witness would render the offerer criminally liable even
though the false witness would not actually perjure, (note:
the offerer must knowingly offer to be criminally liable)
So this article is better than that of subornation of perjury
Illustration:
If in a case a false witness was procured by one who is
related to the accused. He promised the accused that he
will work it that he will be acquitted because he has a good
witness who is very good in telling falsehood. The offer of
oral testimony, upon the witness being called to the witness
stand the offer will already be made, unlike in the other
offer of evidence.
Before the first question will be asked of him, the lawyer
will have to make an offer of his testimony, state what are
the matters that will be brought out in the testimony of the
witness, and what is the purpose. So there and then it will
be known already whether really the witness is intended to
state a falsehood or to testify properly. If while he was
stating the preliminaries to his testimony he could hardly
speak because he found out that the judge appears to be
stern. So the judge shouted at him, “Speak louder!” The
more he became nervous. The more his voice could hardly
come out. The judge got mad and shouted, “I told you
speak louder the judge cannot hear you!” The more he
trembled. So he confessed, “Your honor I do not really know
about this case, only I cannot say know to my compadre. He
requested me to testify.” The judge asked him, “Who is your
compadre? The witness pointed _____. The judge called
him what do you know about the testimony of this fellow?
So it was shown that he was the one who induced the
fellow. _____ that fellow can be liable under Art 184,
offering a false witness. This is different from subornation
of perjury.
Withdrawal of the affidavit
The common thinking is that if the perjury was committed
in an application made under oath in an affidavit the
withdrawal from the records of the application or the
affidavit will already negate the crime and the criminal
liability of the one who filed the same with the public office.
That is already resolved by the SC, it does not erase the
criminal liability.
Illustration:
If an applicant to take the bar exams, filed an application
where there is a question if had been previously charged,
whether in a civil, criminal, or administrative case. He
answered there never. Actually he had been charged by
women for having committed acts violating promise to
marry. When several women filed a complaint against this
fellow that he should not be allowed to take the bar exams.
He filed a motion stating that he is discontinuing his
Page | 51
application to take the bar. He is withdrawing already his
application.
Even if he withdraw his application, it will not erase the
prejudice done to public interest. This has already been
ruled by the SC.
The supposed withdrawal is only a matter which is of form,
but the application will still form part of the public records.
Only it is discontinued. The application containing the falsity
will still form part of the archives. And that is why the SC
said that the withdrawal will only mean the discontinuance
of the supposed application. But the application containing
the perjured statement remains part of the public records.
So there will still be criminal liability even though the
application has been discontinued.
On the other hand, not any statement that has been sworn
to will bring about liability if the facts sworn to turn out to
be false.
If the falsity is not in a testimony but in a statement made
under oath perjury will only arise if the statement forms
part of a narration of fact.
Illustration:
In a case where the offender issued a post-dated check to
pay an obligation to the offended party. The offended party
wrote on the dorsal side of the check a certification that on
due date the check will be fully funded, then signature of
the person who issued the check. Subscribed and sworn to
before me – it was acknowledged before a notary public.
The payee of the check would want a case of perjury
because the penalty is higher than that under the Bouncing
Check Law. Upon depositing the check with the drawee
bank, the check was dishonored because of lack of
sufficient funds. The payee filed a case of perjury.
Although the trial court found the person who issued the
check guilty, the SC said no perjury is committed because
there is no narration of fact. Not any statement of fact
which does not constitute a narration of fact may be a basis
for perjury because the falsity in the narration, whether it is
material or not, cannot be determined if it is not a narration
of fact.
If a person simply states there “This is to attest that I am
bachelor,” and he made this under oath. It cannot be
perjury if found out to be false because there is no
narration there.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

USURPATION OF AUTHORITY OFFICIAL FUNCTIONS RA 10

Art. 177. Usurpation of authority or official functions. — Any person who
shall knowingly and falsely represent himself to be an officer, agent or
representative of any department or agency of the Philippine Government or
of any foreign government, or who, under pretense of official position, shall
perform any act pertaining to any person in authority or public officer of the
Philippine Government or any foreign government, or any agency thereof,
without being lawfully entitled to do so, shall suffer the penalty of prision
correccional in its minimum and medium periods.
Acts punished:
1. Usurpation of authority;
Elements:
a. Offender knowingly and falsely represents
himself;
b. As an officer, agent or representative
of any department or agency of the
Philippine government or of any foreign
government.
2. Usurpation of official functions.
Elements:
a. Offender performs any act;
b. Pertaining to any person in authority or
public officer of the Philippine government
or any foreign government, or any agency
thereof;
c. Under pretense of official position;
d. Without being lawfully entitled to do so.
The important aspect of this crime is in the light of RA 10
RA 10 also punishes, usurpation of official authority exactly
the same as Art.177, except that under RA 10, the offender
usurping the official authority or function is criminally liable,
whether he acted with or without false pretense.
Under Art. 177, the criminal liability will only arise in the
exercise of official functions if the offender usurping the same
acted under false pretense of authority.
The commentaries of some authors advanced the view that
RA 10 has in effect amended Art. 177 that in usurpation of
official authority now the act brings about criminal liability,
although the accused did not act under false pretense of
authority. That does not appear to be accurate.
Usurpation of authority under Art. 177 is still a felony. So this
requires dolo or, at least, culpa. And the dolo here is the false
pretense that the offender has the official authority to
perform the official act.
Page | 52
RA 10 punishes identically the usurpation of authority and
usurpation of official functions, in substance identical to Art
177.
But under RA 10, with or without false pretence of
authority, the person accused of usurpation would incur
criminal liability.
There are commentators who advance the view that RA 10
already superseded Art 177 of the Code. It is not correct.
The crime covered by Art 177 is still a felony under the
Code, and criminal liability arises as from this as a felony
only if the act is attended by dolo or by culpa.
Backdrop of RA 10
RA 10 was enacted way back in 1946. At that time the
subversives known the HUKBLAHAB under the command of
Supremo Luis Taruc was powerful that almost all the
municipalities in Central Luzon was overrun. That is the
reason why Mr. Ramon Magsaysay was appointed as the
Secretary of national defense because he is close to the
peasants. To ward off the control of the communist over the
different provinces, municipalities and barrios in Central
Luzon. Mr. Magsaysay organize the so-called Batallion
Combat Team (BCT), to help increase mobility because
there were ambushes everywhere and the military is
demoralized. When the BCT was able to repel the rebels,
they were eventually captured one-by-one and they were
prosecuted for this crime – usurpation of authority,
usurpation of public function, because naturally when they
overrun a certain municipality or province they took over
the public officers administering the government, that is
their bounty. They succeeded. So they were prosecuted for
violation of Art 177. Under the article the liability arises only
if they acted under false pretense. But they did not do so.
They assumed because they succeed in their insurrection.
So they were all acquitted. To plug the loop-hole, the law-
makers enacted immediately RA 10. but that does not
change the situation because the preamble of the law
referred to the backdrop under which the legislation was
enacted. Hence it shall only apply when such situation
exist, but not in social life.
Right now you have so many volunteer fire brigades. They
perform the role of the firemen better than the firemen
themselves. If you prosecute them under RA 10, this is
nonsense. They are not acting out of criminal intent, they
were acting out of civic-spirit. Otherwise, people who collect
garbage in the subdivision will be prosecuted for usurpation
of public function, because the regular garbage collectors
do not perform garbage collection. That is only an exercise
of civic spirit.
When there is traffic jam, a jobless fellow started unwinding
the traffic. They perform better than the MMDA traffic
enforcers. They have a can where the motorist appreciative
of the efforts of this istambay threw coins there. You cannot
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
prosecute this fellow for usurpation of function because he
performed the function of a traffic enforcer.
The distinction between what is a felony and what is a civic
spirit only must be maintained. There is nothing in law
which punishes one who out of civic spirit performs
functions which public officer should perform. Otherwise,
people sweeping the roads in front of their houses which is
the work of street sweepers will be prosecuted for
usurpation of function. Its something which is out of sanity.
Alteration of Trademarks
Art. 188. Substituting and altering trademarks, tradenames, or
servicemarks
Illustration:
If a person has an empty bottle of priceless a wine, filled it
up with a local one to express that it is a priceless one that
he has.
If he displayed it for sale to the public at large the crime is
under Title 4, Substituting and altering trademarks,
tradenames, or servicemarks.
But if that offender went to a friend to impress his friend
that he is short of money and that his priceless collection
will be disposed of by him at a price cheaper than what it
should really cost. His friend, trusting in his honesty, bought
the bottle of wine not knowing that the contents had been
substituted with one not really genuine. The crime is not
against public interest anymore, because the fraud is made
upon a particular person, not the public at large. The crime
is swindling or estafa under Title 10 as a Crime Against
Property.
It is not necessary that the deceit is be consummated.
In the said illustration, it is enough that the offender
displayed the bottle of wine with the substituted content for
public sale. Even if no body has yet acquired it the crime of
Substituting and altering trademarks, tradenames, or
servicemarks is already committed.
If said person displayed such bottle in his house among his
supposed collections to impress his visitors, no crime is
committed because he did not offer it for sale to the public.
Page | 53
TITLE FIVE - CRIMES RELATIVE TO OPIUM AND OTHER
PROHIBITED DRUGS
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (RA
9165)
Most important provisions: Sec 21-26 then Sec 70 on the
Probation, the first time offender who is a minor is entitled
to; the for penalty illegal use the differently from the illegal
possession of a drug (Sec 11 and Sec 15)
In a nutshell the liability under the law depends on whether
the apprehending officers have properly observed the
requirement to preserve the integrity and authenticity of the
dangerous drugs confiscated or seized from the offenders.
The chain in the custody of the drugs form the time it was
seized or confiscated from the offender up to the time this
drugs are presented as evidence in court must be fully
accounted for. This is what is referred to as the rule chain
of custody. Every chain in the flow of the custody must be
disclosed in court by a public officer authorized to be
involved in the movement of the drugs. The word, “chain of
custody” is even defined in the implementing rules of this
law. The liability came from this.
The moment the supposed chain of custody is violated
doubt arises as to whether the drugs confiscated or seized
from the offender is the same drugs that is before the court
on which the court will impose penalty upon the accused.
The moment there is doubt in the flow of custody of drugs,
there is chain there that is not explained, there is an officer
that received the drugs and passed the drugs on and he
was not presented in court, the chain of custody fails, the
accused will be acquitted.
The SC said there is doubt as to whether the penalty
imposed by the court is deserved by him or not because
under the Dangerous Act the penalty is based on the
quantity and the quality of the dangerous drugs involved.
So the moment the quantity of the dangerous drugs is
lessened, because somebody removed part of the quantity
penalty goes down.
On the other hand if the law enforcers demanded some
consideration, the offender could not afford to give a
consideration so they other added quantity, penalty goes up
to the penalty of life imprisonment. When that possibility
exists SC is opt to throw out the case. The high court would
rather acquit an innocent person, regardless how many
they no matter how many they are than to convict one
innocent offender. This is a saying in criminal procedure -
“Better acquit a hundred of guilty person than the convict
one innocent accused.”
In lieu of Title 5 Book 2 of the Code we have to traverse the
special law of dangerous drugs.
Originally it was the RA 6425 the Dangerous Drugs law of
1972, but this was amened by the Heinous Crimes Law.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
The amendment was _____ so much so that the lawmakers
were alarmed and they enacted a more strict dangerous
drugs act in 2002. Now this is the prevailing legislation –
Comprehensive Dangerous Drugs Act of 2002, RA 9165.
The act which was punished as criminal under Dangerous
Drugs Law of 1972 are still punishable under the new law.
What are those new acts which are not punishable under
the former law but which are made criminal under the new
law as well as the changes made under the new law?
The former Dangerous Drugs Law of 1972 was amended by
the Heinous Crimes Law. The amendment deleted the
penalties prescribed for the violation thereunder and
replaced them with penalties under the RPC. That change
in the penalty prescribed for by the law was under the
influence of the drug lords. But those who do not
understand the amendment thought that the Heinous
Crimes Law amended this legislation to make the violations
more strict crime more strict. It is the other way around. The
only amendment or change brought about by the Heinous
Crimes Law, which relaxed the crime, is the violation of the
Dangerous Drugs Act of 1972. It is only in this regard that
the SC had ruled that the amendment should be given
retroactive effect. When a penal law is given retroactive
effect it is because it is beneficial to the offender than the
law that was previously imposed.
The violations became more intense. Drug dependents had
been killing not only the individual offended parties but
families. They massacre them. Because the penalties
under the Code admits of the lowering the penalty by
decree,_____ imposition of divisible penalty by periods. This
is not true in violations special law. The lowering of
penalties by degree, the imposition of penalties by period
(minimum, medium, maximum periods) is true only to
crimes mala in se. That is because there is a scale in Art 71
of the RPC which provides for the lowering of penalty by
degree and Art 76 of the RPC which prescribes the
imposition of the divisible penalty only by periods. So these
were adopted and made applicable under Dangerous Drugs
Act of 1972.
SC laid down this rule under in the case of People vs Martin
Simon, which is a far reaching ruling. Although the crime
committed is malum prohibitum, if a special law adopted
the nomenclature of penalties under the RPC this
demonstrates the legislative intention to punish the
violation in the same manner that violations in the RPC are
penalized. This means mitigating circumstances, including
privilege mitigating, shall be appreciated. Penalties may be
lowered by degree because the scale of Art 71 is also
deemed adopted by the special law. The offenders are
penalized on the basis of their participation – as principal,
accomplice or accessory. This does not apply in violations
of special law. So all in all the crime has been depreciated
and drug lords multiplied, proliferated. There are so many
drug laboratories found in the Philippines, even in the
Page | 54
remote provinces or municipalities. And the worst part of it
the offenders are aliens coming here to make the
Philippines a laboratory for supplying dangerous drugs to
the world. This alarmed our citizenry, our mechanism in the
administration of justice but also attracted the attention of
the lawmakers to make a drastic amendment of the law.
This came about RA 9185, Comprehensive Dangerous
Drugs Act of 2002.
In this law the lawmakers have overacted. They laid
provisions which are almost impossible to comply with and
that defeated implementation of the law.
Sec 21
Study this very well because decisions of the SC resulted in
acquittal even of confirmed drug offenders because of
failure to comply with this provision by law enforcers.
Physical inventory
In substance, under the said Sec 21 upon arrest of the drug
offender the dangerous drugs seized or confiscated from
the offender should be immediately subject of physical
inventory. The impossibility of implementing this
requirement of physical inventory lies in the persons
required to be present during the actual inventory. Those
person required under the provision are not really available
immediately with the law enforcer upon arrest of the
offender. They have to be called in their houses or wherever
they are at night just for them to be present during the
physical inventory. And if they are not around there is a
failure to comply with the provision of the law. For that
failure the SC has been acquitting offenders ruling that the
dangerous drugs confiscated are not admissible in
evidence.
Representative from the DOJ
For one thing it is required under par 1 of Sec 21 there
must be a representative from the DOJ be present during
the raid.
So in the early stage of implementing this law, there were
symposiums held in the central conference room of Camp
Crame of how this provision of the new law will have to be
complied with (Dean Ortega had been invited to speak in
several of this).
Photographer
For one thing is often required that there be a
photographer, who will be taking pictures during the actual
inventory. But, the law enforcers disclosed that commonly
they are found at night, when there are troubles in the
community, there are disturbance of peace and order in the
community. So they react to that trouble which do not imply
any involvement of dangerous drugs.
Upon the arrest of the troublemaker it is a standard
operating procedure to make a body search for the purpose
of determining whether the offender is armed with some
dangerous weapons. In the course of that body search they
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
came upon (commonly trouble makers are under the
influence of drugs) they came up with dangerous drugs
which they are confiscate and seize. Now the new law
comes in.
Under the new law there must be physical inventory. In that
physical inventory there must be a photographer taking
pictures. They are summoned for the trouble. They do not
have any camera to take pictures. So how could they
comply with this provision?
The lawmakers made the provision so strict that it amounts
to acquittal of many offenders, until the SC honored the
Implementing Rules and Regulations by the PDEA adopting
the standard of custody of the drugs. As long as the custody
of the drugs from the time of confiscation or seizure would
be properly accounted for up to the offer in evidence of the
dangerous drugs involved, so much so that the integrity and
authenticity of the dangerous drugs confiscated or seized
from the offender are shown to be not tampered with, on
that score, the court may convict the offender. So the SC
adopted this standard of chain of custody.
Chain of Custody
Under the Implementing Rules and Regulations of the New
Dangerous Drugs Act of 2002, the movement of the drugs
from the time of confiscation or seizure by the law
enforcers must be explained and each authorized public
officer who participated in the handling of such drugs must
be presented in court to testify. So it must be shown that
there is no tampering as to the quantity and quality of the
dangerous drugs that was seized.
The ultimate purpose is to punish the accused for the
violations committed, that there is no possibility of
substitution of the drugs confiscated and the drugs offered
in court has never taken place.
The implication is that what may have been confiscated is
opium or cocaine, but what is presented in court is simply
shabu or methamphetamine hydrochloride. The penalty is
much lesser than that of a prohibited drugs. Or, possibility
that the quantity has been diminished. The penalty for the
violation of Dangerous Drugs Law (even under the former
law) is based on the quantity and quality of the dangerous
drugs confiscated from the offender. The penalty goes
higher as the quantity becomes higher.
So if the chain of custody in the movement of the drugs
from hand to hand on the time of confiscation to the time
of submitting it to the forensic laboratory for examination
down to the storing ____ for purposes of preparing the
Information, the weighing to determine the quantity, the
report of the forensic chemist as to the dangerous drugs
involved. If the authenticity and integrity thereof is shown to
be untampered with, then under the jurisprudence laid
down by the SC, a conviction is proper. But if not, on the
ground of reasonable doubt ____ in a criminal case the
doubt must be resolved in favor of the acquittal accused.
Page | 55
Understand the legal meaning of the so called “chain of
custody”. This has been defined under the Implementing
Rules and Regulations adopted by the Philippine Drugs
Enforcement Agency. The public officers who have had a
hand in the handling of the drugs must be authorized
personnel only.
The moment that there is an unauthorized public officer
handling the drugs, receiving the drugs, storing the drugs
the accused must be acquitted because there is a
possibility that the drugs have been tampered with. When
that possibility is shown, the acquittal of the accused must
follow as a matter of course.
The changes under the new law
Firstly, penalties under the RPC have all been replaced with
penalties strictly applicable to crimes mala prohibita. So the
designation of the penalties under the code have all been
removed.
Under the law now the highest penalty is life imprisonment
because the death penalty has been prohibited, but keep
track with the sentiments of the lawmakers to revive the
death penalty law. But, at present death penalty law
remains to be prohibited.
So the highest penalty under the Dangerous Drugs Law is
life imprisonment, not reclusion perpetua. And relative to
this you must bear in mind the difference between the two
penalties. They are not the same. Know the distinction.
By way of an exception to this under Sec 28 of the
Dangerous Drugs Act of 2002, where the offender
convicted for violation of this law is a minor and the penalty
for the violation would be life imprisonment, instead of this
penalty, it shall be the penalty of reclusion perpetua that
shall be imposed on the minor. This is because if you
impose life imprisonment on the minor, literally you will
have to stay under imprisonment __ unless chief executive
will pardon him. If he is forgotten already he will die in vain.
The law in a way became compassionate upon a minor. So
instead of life imprisonment, exceptionally reclusion
perpetua only, which has the duration of 40 years, unlike
life imprisonment which has no duration at all.
Another change, is the quantity of dangerous drugs and
quality thereof where penalty of life imprisonment and
death before the death penalty became prohibited have
been prescribed by the new law. In otherwords, the quantity
has been considerably lowered when the penalty of life
imprisonment and death is prescribed. From the usual 40 g
that penalty is now prescribed even when the quantity
involved is only 10 g. so this practically renders the
violation not bailable, because those offenders of this law
who were able to post bail under the previous provision of
the dangerous drugs act were never rearrested and
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
prosecuted. They fled. So it became imperative to prevent
them from posting bail. Quantity has no been reduced, the
penalty already life imprisonment. At that penalty the
violation is not bailable.
Third Change,
Change plea bargaining is not allowed under the new
law no matter what the quantity and quality of the drug
involved in the violation, nor of the penalty prescribed
therefore.
Under the former Dangerous Drugs Act of the 1972, which
was amended, plea bargaining is not allowed only when the
violation involved is punishable by reclusion perpetua
and/or death. Otherwise, where the penalty is lower than
even where the penalty is reclusion mayor, reclusion
temporal, prision mayor or prision correctional, the offender
may enter into a plea bargaining. And the most common
plea bargaining under the Rules on Criminal Procedure is
that of allowing the accused to plead guilty to a lesser
offense and at the discretion of the prosecutor in
connivance with the judge __ the accused is allowed to
offer a plea of guilty to a much lesser offense than what is
charged in the information. That is no longer allowed under
the Comprehensive Dangerous Drugs Law eventhough the
violation carries only a penalty of 1 year, 2 years, 3 years or
4 years.
Another change, offenders found guilty of drug pushing or
drug trafficking have been disqualified from applying for
probation. The disqualification is absolute from the
character of the violation committed, regardless of the
penalty.
Relative to this violation under Sec 24 of the new law, even
where the convicted offender was offender criminally liable
for the crime committed he shall not get the benefit of
probation if the violation for which he was convicted
involved drug pushing or drug trafficking. In other words,
the provision of RA 9344 otherwise known as the Juvenile
Justice and Welfare Act of 2006, which gives offenders who
are minors the benefit of probation preferentially from
imprisonment cannot prevail over the specific provision of
the Dangerous Drugs Act. RA 9344 is a general law
governing offenders who are minors, but the provision of
the Comprehensive Dangerous Drugs Law is specific,
particular in violations where the accused is found guilty of
drug pushing and drug trafficking cannot apply or
probation.
Under the new law where a case involving violations of the
Comprehensive Dangerous Drugs Law is already filed in
court, the court should within 24 hours from the filing of the
criminal case conduct and ocular inspection of the
dangerous drugs involved in the violation and within 72
hours direct the destruction thereof by burning the same in
an official manner.
Another change made under this new law, there are new
acts punished as violation of this law such as crime of
Page | 56
cuddling, which partakes the involvement of an accessory
and assisting drugs offenders to evade arrest and
prosecution.
The offender is known as cuddler. The crime is known as
cuddling. The nature of violation is that of an accessory, but
they are not called accessory. There are no accessories
under the law which is malum prohibitum.
Now also those who lend money to borrowers knowing the
borrower is engaged in drug related activities incur criminal
liability as financier.
So lending money knowing that the borrower is engaged in
drug related activities is a crime and the new law imposes
not only the imprisonment of the offender but also the
confiscation of all his assets which may appear to have
been accumulated out of his lending activities to those
involved in drug trafficking.
The new law also show compassion to minor who may be
duped on the use of dangerous drugs. But if the violation is
simply use of dangerous drugs without possession thereof
or any other violation as a user, the minor who is a first
offender shall not be sentenced to the penalty prescribed
by the new, but instead will be put on probation for not less
than 6 months in a rehabilitation center. So no
imprisonment. No conviction. The law considers the user as
a victim of the dangerous drugs rather than as a violator of
the law.
But for as second violation or oftener the full force of the
law will be applied to him. Or if the minor is not only a user
but also a possessor of dangerous drugs, criminal liability
for the illegal possession of the dangerous drugs shall be
imposed on him, not just rehabilitation.
Another change in the new law, the creation of super body
known as the Philippine Drug Enforcement Agency (PDEA)
to undertake the enforcement, supervision and
administration of government programs in combating the
drug menace in the Philippines. So not only the Dangerous
Drugs Board shall oversee the enforcement of the new law,
the super body made up of cabinet members or their
representatives will be the one to implement supervise and
lay down rules and regulations regarding the effective
implementation of the law. The Dangerous Drugs Board will
only be complementary as far as those function assigned to
it still remain under their authority.
Dismissal based on negligent handling of the case
It is noteworthy that under the new law, if a case involving
violation of the this law was dismissed and the accused
was acquitted and it would appear that such dismissal or
acquittal was brought about by the negligent handling of
the case by the prosecutor assigned thereto, the prosecutor
himself will incur criminal liability for his malfeasance or
misfeasance in the handling the criminal prosecution. The
implication is that the prosecutor may have been bought by
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
the accused or the drug lord behind the accused. So should
it appear that the prosecutor did not exercise earnest
efforts in the prosecution of the case involving dangerous,
he himself will incur criminal liability for the negligence. He
will suffer even criminal penalties.
Same is true to law enforcers who previously took part in
the investigation of violations involving dangerous drugs,
but who upon being subpoenaed to testify in court during
the prosecution of the offender would manage to evade the
subpoena and make himself unavailable. The new law
aside from requiring his superior why the subpeona was not
honoured the law enforcer will suffer criminal liability and
may even be dismissed from the service, but always
observing due process.
RA 9344 authorizes minors to use rugby, inhaling rugby. It
exempts them from prosecution. That is the lowest form of
experimenting on dangerous drugs. So even our lawmakers
have become participants in the destruction of mankind.
Possession
Under this law not only the possession of the dangerous
drugs that brings about liability, the possession of
implements, or any form of mechanism apparatus for
imbibing or administering dangerous drugs is also
punishable because some of this drugs cannot be used
without some apparatus being involved.
The mere possession of the apparatus brings about
criminal liability separate from the possession of the drug
itself.
If a person is found with an apparatus for imbibing shabu
and he is also found with shabu and the raw materials for
him to sell, two Information should be filed - one for illegal
possession dangerous drugs, another for the illegal
possession of instruments, implements or apparatus for
administering, imbibing or applying dangerous drugs.
An offender found possessing an opium pipe and also
possessing opium, because use of opium by smoking has
already been sustained as incurring two violations – one for
the illegal possession of the prohibited drugs and another
for the possession of the opium pipe.
But if the offender was caught while smoking opium, the
use of the opium pipe is absorbed by the illegal use of the
prohibited drugs, only one Information should be filed – the
illegal use of the prohibited drugs.
SC reasoned out that since the accused uses the prohibited
drugs by smoking (an opium cannot be smoked in any
ordinary pipe but requires specialized kind of pipe known
as the opium pipe) the use by smoking could not be
possible without the use of the opium pipe.
But if he is not using, he is found possessing these – 2
violations.
Page | 57
Violation on the basis of quantity and quality
The violation of the Dangerous Drugs law is penalized on
the basis of the quantity AND quality of the drugs involved
in the violation. So if during a raid of a known den of drug
users there were offenders found in possession of opium,
in possession of shabu. The quality of these drugs are
different although they are classified as dangerous drugs.
Under the law different penalties are prescribed. They are
not to be prosecuted in one information.
Two Information are incurred – one for the opium, one for
the shabu, although the violation is for illegal possession.
The violations of this law are penalized not only on the
basis of the quantity involved in the violation but also in the
quality of the dangerous drugs. The high grade cocaine or
opium carries a higher penalty than a mere crack, known in
the underworld as shabu. This is a poor man’s dangerous
drugs so the penalty prescribed is lesser. It is not correct to
file one Information for the illegal possession, because
what is illegally possessed is punished by law differently.
You have to prosecute them separately and distinctly.
Because the violations are punished on the basis of the
quantity involved in each violation, you have to prosecuted
the offender for each violation and for the quantity of
dangerous drugs involved in each of these violations.
Illustration:
If the offender is a confirmed user of dangerous drugs and
he belong to an affluent family in rest house – 4 all in all.
When he was apprehended the law enforcers raided all
these four vacation houses in the different beach resorts,
and they (shabu or methamphetamine hydrochloride) were
found there. Although there is one violation only (illegal
possession of the drugs) because there are four places,
there will be four Information filed. For every Information
the quantity kept in that particular resort must be the one
disclosed in that particular Information.
It is not correct to lump up all the quantity and make it
subject of one Information, because the higher the quantity
the higher the penalty.
Each violation must be prosecuted on the basis of the
quantity involved in that violation. So four prosecutions will
have to be filed, although they are all for illegal possession
of the dangerous drugs, and the quantity in each
possession will be the subject of each Information.
To bring about the prosecution of the offender the rule on
chain of custody must be observed in every Information.
Sec 26-28
Although this is a special law, under the provisions of this
law sections 26-28 a mere attempt to do acts enumerated
under that provisions shall be punished as if the act itself
was carried out. So you have here an attempted stage, not
the attempted stage in Art 6 of the Code, not attempted
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
stage in the particular provision of the law. This is limited
only to those specific acts enumerated under that
provision.
Moreover, the same provision punishes conspiracy. So
mere conspiracy, which is a preparatory act, is also
punishable under this new law.
It is not therefore necessary that they actually carried out
the prohibited act. Merely conspiring to commit the
prohibited act under the provision will be treated as though
the act had been carried out.
Planting of dangerous drugs to incriminate
The new law imposes the extreme penalty for crime of
planting dangerous drugs to incriminate innocent persons
as having violated this law.
Before, this crime is punished under the RPC as a crime of
incriminating innocent person under Art 362 or 363 on
Incriminatory Machinations.
Under the Comprehensive Dangerous Drugs Law whether
the offender is a public officer or a law enforcer or a plain
civilian, the act of planting evidence consisting of
dangerous drugs to incriminate an innocent person is
punishable as a violation of the dangerous drugs law itself
and the penalty prescribed there is death penalty (only one
penalty) . Because it is now prohibited penalty will be
lowered to life imprisonment without the benefit of parole.
TITLE SIX - CRIMES AGAINST PUBLIC MORALS
2 Chapters
1. Gambling
2. Offenses against decency
Chapter on Gambling
The current concept of gambling no longer distinguishes
games where the element chance or hazard predominate
over the skill of the players.
The former concept of the gambling under the RPC refers
to any game of scheme where the element of chance or
hazard dominates the skill of the players. If the skill of the
player controls the game, it is not regarded as gambling.
But this concept was taken over by PD 1602 and instead
any game or skill where there is betting or wagering is
considered as a gambling game as far as those who bet or
wager even though the skill of the player dominates the
game or skill. So even in sport contests those who bet may
be prosecuted for gambling, not because the sport contest
is a game of gambling but because of betting.
It is the wagering or betting that brings about the gambling
as far as the debtor is concerned - all those who
participated in betting.
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This is common even in boxing contest. There is wagering.
In fact this is often seen in the TV cameras. They bet on the
fighters. Under the old concept this is not a crime, but
under the new concept this is a crime.
However there are games which are prohibited and so even
without betting the conduct of such game is subject to
criminal prosecution unless authorized by appropriate
government authority.
Example:
Dog racing is not allowed not because it is gambling but
because it is regarded as cruelty to our dogs. The society
for the prevention of cruelty to animals objected to this.
Unless authorized by the government as a form of
entertainment it is contrary to the law creating the society.
There are also games which are prohibited because of the
influence that they __ on the family. These are game of
numbers like jueteng, masiao ____ . the players who get
hooked on these games forget their conjugal duties to their
families, bringing about broken homes. That is why the
game of jueteng despite recommendations to make it a
legitimate game under the control of PAGCOR can never
sanctioned under that name jueteng. This is considered
pernicious to the solidarity of the family. When the father
gets hooked on these games he abandons the needs of his
family. When the mother gets hooked on this normally she
becomes immoral. So these are games which brought
about broken homes. That is why regardless of betting or
what this is prohibited.
But ironically the Government has even established an
instrumentality to administer gambling in the country. So
the biggest gambler is the government.
GRAVE SCANDAL
Art. 200. Grave scandal. — The penalties of arresto mayor and public
censure shall be imposed upon any person who shall offend against decency
or good customs by any highly scandalous conduct not expressly falling
within any other article of this Code.
Elements:
1. Offender performs an act or acts;
2. Such act or acts be highly scandalous as offending
against decency or good customs;
3. The highly scandalous conduct is not expressly railing
within any other article of this Code; and
4. The act or acts complained of be committed in a
public place or within the public knowledge or view.
In Art. 200. you have here the crime of grave scandal. This is
different from Alarms and Scandals which is a crime against
public order. Here, the crime is against decency.
So the scandal referred to here has something to do with
sexual activities. The crime of Grave Scandal involves the act
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
which is highly offensive to decency. This may be committed
in a public or in a private place.
When the act offensive to decency is committed in a public
place, even though nobody is, watching, the public character
of the place supplies the public requisite of the act.
The performance of the act offensive to decency is already a
crime if committed in a public place, even though there is no
third party looking at it.
It is only when the act offensive to decency was performed in
a private place, that to be actionable, it must be open to
public view.
So you expect a third party watching the conduct offensive to
decency as a requisite of this crime only when the act or the
conduct which offends decency is being performed in a
private place.
Most important of this crime, this can only be committed if
the act does not constitute any other crime under the RPC. In
short, grave scandals only a crime of last resort.
So although the conduct or act involved is highly offensive to
decency, if it would constitute another crime, it is that crime
and not grave scandal which is committed.
A problem on this point was given in the Bar Exam of 1994.
Under the facts given, a girl barely 12 yrs. Old promised her
fiancée that on the latter's coming birthday she would give
herself to him as a gift.
Came that day, the girl and her fiancée who is a tricycle
driver, 15 years of age, went on board the tricycle to a
secluded public place. And there, they had intercourse on the
grass. Unknown to them, there was a roving policeman who
came upon them and arrested them.
Now the question: What crime did they commit?
There were so many who immediately concluded that the
crime is grave scandal. They explained that since the sexual
intercourse was carried out in a public place, even though the
same is not open to public view, criminal liability for grave
scandal is incurred.
Obviously, the examinees overlooked the provision of Art.
200 which brings about this crime only if the act is not a crime
under other provisions of the RPC
Page | 59
In the problem give, the intercourse with the girl amounts to
statutory rape. So this crime cannot be incurred, because this
is a crime of last resort.
Although it was the girl who invited the intercourse, you
know that any intercourse with a girl less than 12 yrs. old is
rape. It is the law which makes the condition than intercourse
with a girl less than 12 yrs. old is rape. No argument about
that. That is why this is known as statutory rape.
Now that being obvious from the problem given, the crime of
grave scandal cannot be incurred. Because this crime, as
provided in Art. 200, will only arise, if the act offensive to
decency is not punishable under some other provision of the
code.
The test of obscenity on this, has become already obsolete.
Whether the act is highly offensive to decency or not, is now
a matter of whether it offends the senses of society.
The test of obscenity, which before had been asked in the
bar, has been abandoned, because it is useless.
Under this test a material is obscene, if it has the tendency to
corrupt or deprave the mind of the person open to the
influences thereof.
So you will notice, the test is relative, depending upon the
viewer. If the viewer can no longer be influenced by the act
involved, the act as far as they are concerned cannot be
considered obscene.
But if the viewers can be depraved or corrupted by the act or
conduct, then, as far as they are concerned, the act is
considered obscene.
Now they have classified this. There are exhibitions where,
for adults only. That mean the adults will not be corrupted or
depraved anymore. So the exhibition is not regarded as
obscene.
So, if let us say, a woman with a sickly body walked co the
beach to take a swim in abbreviated bikini. At that time, there
were several persons catching fresh air from the beach, but
all of them are on wheelchair because they are senior
citizens.
So even if this woman would perform any lewd act there, that
cannot be considered obscene, because it has no more effect
on the viewers. Now if the viewers are, let us say, 80 yrs. old.
So they simply look, but it cannot corrupt or deprave their
minds anymore.
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But if the same act is done by the woman where there are
boys gathered around, 15 -17yrs. old, to take the swim. then
that conduct of the woman is offensive to decency. That is
why this crime is relative. And that is why it is a crime of last
resort. What may be offensive to some may not be offensive
to others: depending on whose standard of decency is being
applied.
Art. 201. Immoral doctrines, obscene publications and exhibitions and
indecent shows. — The penalty of prision mayor or a fine ranging from six
thousand to twelve thousand pesos, or both such imprisonment and fine,
shall be imposed upon:
(1) Those who shall publicly expound or proclaim doctrines openly
contrary to public morals;
(2) (a) the authors of obscene literature, published with their
knowledge in any form; the editors publishing such literature; and
the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other
place, exhibit, indecent or immoral plays, scenes, acts or shows,
whether live or in film, which are prescribed by virtue hereof,
shall include those which (1) glorify criminals or condone crimes;
(2) serve no other purpose but to satisfy the market for violence,
lust or pornography; (3) offend any race or religion; (4) tend to
abet traffic in and use of prohibited drugs; and (5) are contrary to
law, public order, morals, and good customs, established policies,
lawful orders, decrees and edicts;
(3) Those who shall sell, give away or exhibit films, prints, engravings,
sculpture or literature which are offensive to morals.
Art 201, Art 202 have become common nowadays. These
will not pose any problem to you anymore.
Understand, however, that the provisions of the code under
this chapter is intended to protect the morals of those who
are ____ to the influence of these exhibitions. So these do
not apply to the morality of a particular person. These refer
to the morality of the public.
Illustrations: If a man could not sleep at night without
viewing dancer of erotic dances. He used to spend his
evenings in the bars and clubs, until he became so old that
he cannot walk anymore. He just stayed in the house. But
every evening before he goes to bed he recruits a dancer to
dance for him until he falls asleep.
The dancer exhibiting it to him only does not engage in
public exhibition. It is only between the dancer and this
fellow. No violation.
The moment that there is an outsider, a third person who
view this, that it becomes public because the influence will
affect a third party. This is what the law seeks to protect.
A person who knows that his friend is celebrating his
birthday is a lover of nude photographs so he gifted him
with thousand photos of nude women as a birthday gift. Is
he committing a crime?
Page | 60
No, because it is only the morality of his friend
which is. What are intended to be protected are
public morals. The law is not concerned with the
morality of any particular person. So irregardless of
how erotic it may be, how pornographic it may
appear, if it does not affect public morals no
criminal liability will arise.
In a case where a lady coming home from work, everytime
she would already changer her clothes from office she does
it in a room with lights on, but only the curtain separates
her from the viewer who were already lined up at the
sidewalk, because by that time she knows that she will be
removing here clothes piece by piece and they were there
watching the silhouette on the curtain. The lady was
questioned on this because obviously she was aware that
these people are lined up there by that time, after that they
disappear because they are excited by the silhouette where
lady undresses piece by piece.
That was held to be a violation of the law on public morals.
When any of the acts performed is offensive to decency in a
private place, criminal liability arises if there are viewers
from the public who will be witnessing the public exhibition.
On the other hand offensive to decency is not open to
public view, if the same was performed in a public place,
the fact that it was committed in a public place brings
about criminal liability.
So being open to public view is a requirement in incurring
criminal liability here only if the offender is performing in a
private place.
But if the offender is doing the offensive act in a public
place, whether it is open to public view or not is immaterial
because the fact is the act is being done in a public place.
The problem is how to prove that the act was committed.
VAGRANCY & PROSTITUTION
Art. 202. Vagrants and prostitutes; penalty. — The following are vagrants:
1. Any person having no apparent means of subsistence, who has
the physical ability to work and who neglects to apply himself or
herself to some lawful calling;
2. Any person found loitering about public or semi-public buildings
or places or trampling or wandering about the country or the
streets without visible means of support;
3. Any idle or dissolute person who ledges in houses of ill fame;
ruffians or pimps and those who habitually associate with
prostitutes;
4. Any person who, not being included in the provisions of other
articles of this Code, shall be found loitering in any inhabited or
uninhabited place belonging to another without any lawful or
justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually
indulge in sexual intercourse or lascivious conduct, are deemed to be
prostitutes.
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Any person found guilty of any of the offenses covered by this articles shall
be punished by arresto menor or a fine not exceeding 200 pesos, and in case
of recidivism, by arresto mayor in its medium period to prision correccional
in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in
the discretion of the court.
Offenders below 18 are exempt from prosecution for these
offenses.
Vagrants
1. Any person having no apparent means of
subsistence, who has the physical ability to work and
who neglects to apply himself or herself to some
lawful calling;
2. Any person found loitering about public or semi-
public buildings or places or trampling or wandering
about the country or the streets without visible
means of support;
3. Any idle or dissolute person who ledges in houses of
ill fame;
4. Ruffians or pimps and those who habitually associate
with prostitutes;
5. Any person who, not being included in the provisions
of other articles of this Code, shall be found loitering
in any inhabited or uninhabited place belonging to
another without any lawful or justifiable purpose;
Vagrancy
As to the crime of vagrancy, you have in par. 4 of the article,
the act of wandering in an estate belonging to another
without any reasonable cause and without the consent of
the owner of the estate.
Prostitutes are women, who for money or profit habitually
indulge in sexual intercourse or lascivious conduct.
Under this title, you have the crime of vagrancy. More
important of this crime is where a vagrant is found loitering in
an estate belonging to another without any lawful purpose
and without the consent of the owner or overseer of that
estate. The same may amount to trespass to property under
Art. 281. Also the same act may amount to the crime of theft
under the last paragraph of Art. 308.
So that act of loitering in an estate belonging to another may
either constitute vagrancy or trespass to property or theft.
You must know the difference between these.
The act of loitering in an estate belonging to another without
any lawful purpose would bring about the crime of vagrancy
only if the estate is not fenced.
The crime will be trespass to property under Art. 281 when
the estate is fenced and there is a clear and manifest
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prohibition against entering, and the offender is found inside
that estate. This is different from trespass to dwelling, in the
sense that, the trespass is committed not inside a place of
habitation but only an estate.
Thirdly, the crime will be theft under par.3 of Art. 308, if the
estate was fenced and the offender was found inside that
estate without the consent of the owner or overseer thereof,
purposely for him to hunt, to fish, or gather any farm product
within the estate.
Vagrancy
As to the crime of vagrancy, you have in par. 4 of the article,
the act of wandering in an estate belonging to another
without any reasonable cause and without the consent of
the owner of the estate.
The crime is vagrancy provided that the act does not
constitute some other crime under the RPC.
What other crimes will may act of wandering in an estate
belonging to another will bring about?
It may only amount to vagrancy, a light felony, if
does not amount to some other crime under the
Code.
The other crimes under the Code are found in: Art 281 as
Trespass to Property
Art 308 as a crime of Theft
So the crime is vagrancy only if it does not amount to a
trespass to property nor to a crime of theft.
The premises on which the crime is determined are these:
First, the crime is vagrancy if the estate where the
offender has been loitering or wandering without
legal cause is not fenced but belonging to another
and without the latter’s consent
Second, the crime is trespass to property under Art
281 when the estate in which the offender has
been wandering about or loitering was fenced and
there is a manifest prohibition against entering and
the offender did enter without the consent of the
owner thereof.
Third, the crime would amount to theft under the
last enumeration in Art 308 if the offender entered
the estate which is fenced without the consent of
the owner thereof and he did so to hunt or to fish
within such estate or to gather farm products
inside the same.
These are the possible crime that may result from the
offenders entering in a fenced estate. So he cannot just
claim vagrancy if he did enter in order to hunt within the
estate or to fish within the body of water within the estate
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or to gather any farm product within the estate as long as it
will be done without the consent of the owner of the estate.
Whatever is found in the estate owned another belongs to
the owner, because that is an accessory to the principal
which is the estate.
Prostitution and vagrancy are both punished by the same
article, but prostitution can only be committed by a woman.
The term prostitution is applicable to a woman who for profit
or money habitually engage in sexual or lascivious conduct. A
man if he engages in the same conduct — sex for money — is
not a prostitute, but a vagrant.
In law the mere indulging in lascivious conduct habitually
because of money or gain would amount to prostitution,
even if there is no sexual intercourse.
Virginity is not a defense. Habituality is the controlling factor,
it has to be more than one time.
There cannot be prostitution by conspiracy. One who
conspires with a woman in the prostitution business like
pimps, taxi drivers, solicitor of clients are guilty of the crime
under Art. 341 for white slavery
TITLE SEVEN - CRIME COMMITTED BY PUBLIC OFFICERS.
Although the Title gives the impression that the crimes here
are committed by public officers; yet, you get it clear that
only the principal offender need be a public officer.
A civilian who conspires or cooperates with the public officer
committing any of the crimes under this title will also incur
such crime.
There are some crimes here where the offender is purely a
civilian without the participation of a public officer. For
instance, in the crime of malversation, private citizens can
incur this crime alone.
PUBLIC OFFICERS
Requisites to be a public officer under Article 203:
1. Taking part in the performance of public functions in
the government; or
2. Performing in said government or in any of its
branches public duties as an employee, agent or
subordinate official, or any rank or class:
3. His authority to take part in the performance of
public functions or to perform public duties must be
- 2. Accepting a gift in consideration of the execution of
a. By direct provision of the law;
b. By popular election; or
c. By appointment by competent authority.
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Firstly, the term public officer is defined in Art 203. And you
should take note of this by now, that all public servants from
the President down to the garbage collector if employed and
paid by the government comes within the term public officer.
So when you use this term do not add any further the phrase
"employees", "or employees", because that would be a mere
surplusage. It is enough that you write the term public officer.
And that would save you time.
BRIBERY
First, is the crime of bribery. This is the crime of the receiver
not the giver.
So bribery is committed by the public officer who will receive
money, gift or present for the performance of a public duty or
refraining from performing that public duty.
Under this Title, bribery may be direct or indirect.
Art. 210. Direct bribery. — Any public officer who shall agree to perform an
act constituting a crime, in connection with the performance of this official
duties, in consideration of any offer, promise, gift or present received by
such officer, personally or through the mediation of another, shall suffer the
penalty of prision mayor in its medium and maximum periods and a fine [of
not less than the value of the gift and] not less than three times the value of
the gift in addition to the penalty corresponding to the crime agreed upon, if
the same shall have been committed.
If the gift was accepted by the officer in consideration of the execution of an
act which does not constitute a crime, and the officer executed said act, he
shall suffer the same penalty provided in the preceding paragraph; and if said
act shall not have been accomplished, the officer shall suffer the penalties of
prision correccional, in its medium period and a fine of not less than twice
the value of such gift.
If the object for which the gift was received or promised was to make the
public officer refrain from doing something which it was his official duty to
do, he shall suffer the penalties of prision correccional in its maximum period
and a fine [of not less than the value of the gift and] not less than three times
the value of such gift.
In addition to the penalties provided in the preceding paragraphs, the culprit
shall suffer the penalty of special temporary disqualification.
The provisions contained in the preceding paragraphs shall be made
applicable to assessors, arbitrators, appraisal and claim commissioners,
experts or any other persons performing public duties.
Acts punished:
1. Agreeing to perform, or performing, in consideration
of any offer, promise, gift or present — an act
constituting a crime, in connection with the
performance of his official duties;
an act which does not constitute a crime, in
connection with the performance of his official duty;
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3. 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. Offender is a public officer within the scope of
Article 203
2. Offender accepts an offer or a promise receives a gift
or present by himself or another.
3. Such offer or promise be accepted, or gift or present
received by the public officer.
a. With a view to committing some crime; or
b. In consideration of the execution of an act
which does not constitute a crime, but the
act must be unjust; or
c. To refrain from doing something which it is
his official duty to do.
4. the act which offender agrees to perform or which
he executes be connected with the performance of
his official duties.
Art. 211. Indirect bribery. — The penalties of prision correccional in its
medium and maximum periods, and public censure shall be imposed upon
any public officer who shall accept gifts offered to him by reason of his office.
Elements:
1. Offender is a public officer;
2. He accepts gifts;
3. The gifts are offered to him by reason of his office.
The common crime that is committed under this title is
bribery which may be direct or indirect.
Although you have the crime of qualified bribery under
article 211-A, qualified bribery is a kind of direct bribery. If
the article on qualified bribery is not applicable, the article
on direct bribery will apply.
About bribery, you should have in mind that this is a crime
of the receiver not of the giver.
The common newspaper publications portrayed bribery as a
crime of the one corrupting public official.
Bear in mind, bribery is a crime of the public officer who
receives the bribe money.
On the part of the giver of the bribe money, the crime is
corruption of public official.
So although there is a conspiracy between the giver of the
bribe money and the receiver thereof, and you have a rule
in conspiracy that the act of one is the act of all, yet
because of the code gives different designation to the
crime committed by the giver of the bribe money and the
public officer who receives the bribe money, the conspiracy
between them will not bring about the commission only of
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one crime because the code itself the felonious act
different designations.
Relative to indirect bribery, you also should read PD 46.
The bribery is DIRECT when the public officer who receives
the bribe money, gift or present is to perform or refrain from
performing an official duty involving the exercise of his
public office because of the consideration in money, gift or
present that he is to receive. The nature of the transaction
is reciprocal.
On the other hand, the bribery is indirect when the public
officer merely receives money, gift or present by reason of
his being a public officer holding the position that he
performs without his doing or refraining from doing any act
involving the duties of his office. The essence of the
violation is not reciprocal but unilateral.
Because of this distinction, indirect bribery is always
consummated. There is no attempted nor frustrated
indirect bribery. On the other hand, direct bribery being
reciprocal may be committed in the attempted and
consummated stages. There is no frustrated stage in
bribery whether direct or indirect because the crime cannot
be completed without being consummated.
It is a requirement in the frustrated stage of a felony that
the offender must have perform all the acts of execution
and in bribery, the moment the offender have performed all
acts of execution, the bribery is consummated.
Direct bribery will be attempted only if the giver of the bribe
money, gift or present was not minded to corrupt the public
officer seeking the bribery but only pretended to agree
thereto in order to entrap or bring about the arrest of the
public officer committing the bribery.
This not possible in an indirect bribery because in indirect
bribery there is a voluntary delivery of gifts or present to the
public officer involved. The public officer simply acts in a
passive way receiving or accepting the bribe money, gift or
present.
From the nature of the crime, in a direct bribery, there is a
consideration involved because the transaction is
reciprocal. The corruptor will give the money, gift or present
while public officer, on his part will perform an act involving
the duties of his office or he refrain from performing a duty
required by his office. So the transaction is beneficial to
both. That is why it admits of the attempted stage.
It may happen that at the outset, the public officer received
or accepts the bribe money, gift or present delivered to him
without requiring him to perform any act or refrain from
performing such act involving the duties of his office. In
which case, the crime is indirect bribery. But if such public
officer is impressed or influenced by the amount of the
money or the character of the gift or present delivered to
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
him, and so he return the favor to the giver of the gift or
present or money by doing an act involving the duties of his
office or refraining from doing an act involving the duties of
his office, what is initially indirect bribery becomes a direct
bribery. This is the situation you should guard against
because the crime is not indirect bribery as what appears,
but rather direct bribery because the public officer returns
the favor and therefore a consideration is brought about for
the money, gift or present ____ ___. (Conversion from
indirect to direct bribery)
But you must get clear, it is not indirect bribery if a public
officer simply receives a gift or present delivered to his or to
his home. SC ruled, the public officer must have done any
act appropriating the gift or present delivered to him, that is
the acceptance that brings about the crime as indirect
bribery.
It may happen that the public officer is not really willing to
accept the gift or present delivered to his office or home
but he cannot simply return the same because he does not
know who delivered the same or brought to his office or
home. In short, it is the acceptance the gift or present or
money given that will bring about indirect bribery since this
crime is always consummated.
SC said, if this would not be the interpretation of the law,
very few public officer will remain in office because some
unscrupulous citizen can simply give a gift or present to the
office or home of the public officer. And because they
cannot return this because he does not know who made
the delivery, they would be committing this felony, so some
unscrupulous citizen can simply removed a public officer
by doing this.
The SC said, there must be proof of acceptance. The SC
made mention of acceptance like, calling his subordinates
to partake of the gift or the present given to him. So if the
gift or present is something that can be eaten and the
public officer to whom it was delivered called his
subordinate to have him ____ with the gift, then that is
acceptance and that will bring about indirect bribery. Or if
the public officer kept the money, gift or present in the
drawer of his table or in the cabinet of his office, that is a
manifestation of acceptance, or if the public officer
involved called on his driver to bring the gift to his car and
bring it home, that is a manifestation of acceptance of the
same.
Indirect bribery vs. PD 46:
The only difference between indirect bribery and PD 46 is
that PD 46 punishes the gift giving even when there is an
occasion for the giving of the gift as long as the value of the
gift given is material.
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So this means to say, the law would only tolerate gift giving to
a public officer which would not be of material value, so like
simple greeting cards.
The giving of gifts of material value, even during Christmas,
during Birthdays, or wedding anniversaries is a violation of PD
46 if the value of the gift given is material.
To illustrate: One of the problems given in a relatively recent
Bar Exam is to this effect.
On Christmas Day, an RTC judge received a basket full of
assorted fruits easily worth P1O.OOO
Q: Is there a crime committed by the Judge?
Although it was Christmas, and it was really an occasion for
giving gifts in the nature of fruits, but because the value of
the gift is already material or considerable being valued at P
10.000. if the giver of the gift has a reason to give such
material gift, then, the giving thereof even on this occasion
violates PD 46.
Under the Decree, both the giver of the gift and the public
officer shall be prosecuted for violation thereof.
It is not even necessary that the public officer receiving the
gift has rendered some service to the giver of the gift in the
past, or there is an anticipated service to be given to the giver
of the gift. Even though there is no such reason, but the gift
was given because of no other reason except the person
receiving the gift is a public officer, then, PD 46 is violated.
Exception:
If the giver of such basket fruits, however, is related to the
judge, member of his family, or a close relative, then, it is not
his being a judge or a public officer that is the reason for the
giving of the gift. So PD 46 will not be violated.
Included in the violation of PD 46 by express provision
thereof is the throwing of parties for a public officer or his
immediate relatives.
So when the daughter of a public officer is to celebrate her
18th birthday, her debut, and a private citizen gave a gift — in
the problem given in the bar, a small refrigerator. Although
there is that occasion to give the gift if the giver has no
reason to give that gift except the fact that the father or
mother of the celebrant is a public officer, then PD 46 is
violated.
This is a practice which has become accepted currently. But
though it is tolerated, it violates PD 46 which is still enforced.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
So many problems have been given in the bar on this decree.
Unless you are aware of this, you may take the situation as
already tolerated or current under the prevailing customs of
the people in the Philippines. But that is a violation of PD 46.
It is a common practice that when the head of the office or
his wife celebrates a birthday, anniversary. The subordinates
in the office organize sort of "asallo". They go to the house of
the superior – upon the invitation of the superior of course -
but in going there, they have to bring some gifts of
extravagant value to impress the superior. Now that is a
crime under PD 46.
A problem given in the Bar along this line was about an
appointee to the Bureau of Customs at the NAIA. And his
close friends organized a party to honor him at the Manila
Hotel.
Q: Is there a violation committed?
Readily, PD 46. Giving a party at that place is no joke.
Because, definitely, it is considerable and material.
When the public officer is prosecuted under PD 46, the giver
of the gift should not be prosecuted for corruption of public
officials, because the decree also punishes the giver of the
gift. So the giver must be prosecuted also under PD 46 jointly
with public officer accused thereof
If the public officer, however, is prosecuted under the RPC,
then the giver should be made answerable for the crime of
corruption of public official
Art. 211-A. QUALIFIED BRIBERY
You have a form of direct bribery known as qualified bribery.
Elements:
1. Offender is a public officer entrusted with law
enforcement;
2. He refrains from arresting or prosecuting an
offender who has committed a crime;
3. Offender has committed a crime punishable by
reclusion perpetua and/or death;
4. Offender refrains from arresting or prosecuting in
consideration of any offer, promise, gift, or present.
Relative to the crime of qualified bribery, the peculiar
aspect of the crime is that only public officers charged with
enforcement of the law, arresting or prosecuting those who
commit crimes may incur qualified bribery. So not any
public officer can commit this crime.
Page | 65
The nature of the violation by the public officer charged
with law enforcement is that of refraining from arresting or
prosecuting an offender who had committed a crime. But to
constitute qualified bribery, the crime committed by the
offender who was not arrested nor prosecuted should carry
a penalty of reclusion perpetua and/or death penalty.
So if the penalty was lower than reclusion perpetua or
death, crime of qualified bribery is not committed.
Under the crime, the public officer refrains from arresting or
prosecuting the person who had committed a crime,
because of the money, gift or present, promise or offer
made to him for refraining from arresting or prosecuting
that offender. And under the provision of the code, if it was
the public officer himself who asked for such corrupt
consideration the penalty for the qualified bribery is no less
than death penalty. Since the death penalty is prohibited, it
will be reclusion perpetua without the benefit of parole.
The article on qualified bribery refers only to the crime
committed by the person who was not arrested or
prosecuted as reclusion perpetua and/or death. So if the
penalty for the crime was life imprisonment and because of
the bribery, the public officer charged with the enforcement
of the law refrain from arresting or prosecuting the
offender, the crime is direct bribery not qualified bribery.
The law must be strictly construed, what is not there should
not be included there.
It will be a crime of direct bribery because the transaction in
a qualified bribery is reciprocal, the public officer refrains
from doing an official duty and he is refraining because he
receives money, gift, present, offer or promise. If the act
would have been qualified bribery but the same cannot be
considered as qualified bribery because of the requisites of
this crime, the offender-public officer who refrained from
arresting or prosecuting the person who committed a crime
will be prosecuted not only for direct bribery but also for the
crime of dereliction of duty under art 208. The reason for
this is in Article 210, and in that article, u will find in the
last paragraph thereof, that in the direct bribery if the act
agreed upon between the corruptor and the public officer
committing direct bribery constitutes a crime for violation of
law and that crime was committed, then there will be an
additional penalty to be imposed meaning to say, you will
not complexed the violations. So although the dereliction of
duty was brought about by the direct bribery, the wordings
of the provision of art 210 would not allow a complexing of
the 2 crimes because the same refers to a penalty or
liability in addition to what is provided for direct bribery in
article 210. This is not true to qualified bribery, if the crime
is qualified bribery, then there will be no further prosecution
for dereliction of duty. We do not find in the article for
qualified bribery the same provision we find in art 210 and
that is because the essence of qualified bribery is a
dereliction of duty. The public officer refrains from what the
duties of his office require him to perform.
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PD 749 – to be discussed later
DERELICTION OF DUTY
Art. 208. Prosecution of offenses; negligence and tolerance. — The penalty of
prision correccional in its minimum period and suspension shall be imposed
upon any public officer, or officer of the law, who, in dereliction of the duties
of his office, shall maliciously refrain from instituting prosecution for the
punishment of violators of the law, or shall tolerate the commission of
offenses.
Acts Punished:
1. Maliciously refraining from instituting prosecution
against violators of the law;
2. Maliciously tolerating the commission of offenses.
Elements of dereliction of duty in the prosecution of
offenses:
1. Offender is public officer or officer of the law who
has a duty to cause the prosecution of, or to
prosecute, offenses;
2. 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. Offender acts with malice and deliberate intent to
favor the violator of the law.
Under Art. 208, you have there the crime commonly known
as Dereliction of duty, where a public officer maliciously
refrain from prosecuting an offender who had committed a
violation of law, or otherwise, tolerate the commission of
crimes.
Dereliction of duty may be committed by a prosecution
officer or any officer of the law.
Under this Art. it is not necessary that such public officer
refrain from prosecuting the offender because of money, gift,
present, promise or offer.
The mere malicious refusal to prosecute one who has
committed a crime or otherwise, tolerate the commission of
offenses is already a dereliction of duty.
If that was done because of some monetary consideration,
then there is direct bribery and dereliction of duty committed
by the public officer. And this is because in the latter part of
par.1 of Art. 210 on direct bribery, you have there a provision
that the penalty for direct bribery shall be in addition to the
penalty for direct bribery shall be in addition to the penalty
for the crime agreed upon if it was committed.
Now if the bribery is qualified, because the crime committed
by the offender who was not arrested or prosecuted carries a
penalty of Reclusion Perpetua and/or Death, there will be no
Page | 66
further prosecution for dereliction of duty, because the
essence of qualified bribery is precisely a dereliction of duty.
And you do not find a provision under Art. 211-A, on qualified
bribery, the same as the provision in the latter part of par. 1
of Art. 210 on direct bribery.
So if it is qualified bribery, only one prosecution. If it was
direct bribery, two prosecutions. Aside from the prosecution
for direct bribery, another prosecution for dereliction of duty,
if the public officer receiving the bribe money is one charged
with the prosecution of an offender, and he maliciously
refrain from doing so thereby tolerating the commission of
crimes.
PD. 749 - GRANTING IMMUNITY FROM PROSECUTION TO GIVERS OF
BRIBES AND OTHER GIFTS AND TO THEIR ACCOMPLICES IN BRIBERY AND
OTHER GRAFT CASES AGAINST PUBLIC OFFICERS
Relative to Bribery, you should also go over PD 749. The
decree affords immunity to a bribe giver or an accomplice to
the corrupt transaction of a public officer if such bribe giver
would voluntarily disclose informations concerning the
corrupt transaction of the public officer and he will willingly
testify in the prosecution of the public officer.
If therefore, the bribe giver or an accomplice to such bribery
or other corrupt transactions of a public officer would be
willing to testify against the public officer when the latter is
prosecuted, and he provided the information that would
supply the prosecution, then, the bribe giver may qualify for
the immunity provided under PD 749.
Under this decree, you note. there are five (5) conditions
provided under the Rules on Criminal Procedure governing an
accused who is utilized as a state witness.
So the bribe giver under PD 749 will enjoy the immunity in
the same manner that a state witness is given immunity
under the law.
Because of these five conditions that are also found in PD
749. SC clarified, it is not the mere testifying of the bribe giver
against a public officer that will earn him immunity.
That bribe giver or accomplice must first be charged under
the same information as the public officer against whom he
voluntarily gave information, but before the presentation of
evidence for the prosecution, the bribe giver must be
dropped from the information.
It is in that process of dropping the bribe giver from the
information that the five (5) conditions set forth in the decree
will have to be followed.
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This is just like one of several accused who would be utilized
as a state witness. Before he may be utilized as a state
witness, the court will have to determine whether he would
qualify as such, and that is also true here.
The conditions are almost identical as the conditions required
for a state witness.
So it is explained that what would give immunity to the bribe
giver is not alone his disclosure and the testimony he would
give but the protection against double jeopardy that he
would earn because he was dropped from the information
and utilized as a witness for the government.
So it is not the automatic testifying. It is because he was
initially charged and he was dropped to be utilized as a
witness for the Government that he will enjoy protection
against double jeopardy. So he cannot be charged any
further.
This, therefore, will also be subject to the Rules in Criminal
Procedure that although an accused was dropped from the
information to be utilized as a witness for the state, if that
accused after having been dropped, testifies in a manner
different from what is expected of him, then he violated his
arrangement with the Government. And so doing, he will not
qualify for the protection against double jeopardy. He will
only be protected by the principle of double jeopardy if he
would really testify as he had manifested that he would give
the testimony.
That is why now, you know, that when an accused would be
dropped to be utilized as a witness for the State, the new
Rules require that the State witness must be taken down,
placed under oath and filed with the court. So the court will
be the one to assess whether really the testimony would
suffice to bring about the conviction of the accused. Because
if the testimony would not, after all, bring about the
conviction of the accused, the court will deny the dropping of
that accused from the information and for him to enjoy
immunity.
This also will have to be followed for the immunity given
under PD 749.
You go over this because this has been subject of so many Bar
problems in the past.
When this matter was asked in the Bar, the examiner at that
time was Justice Plana, the correlative question was asked "to
what extent does the immunity apply?"
Under the Decree itself, the immunity will only apply to that
particular transaction revealed by the bribe giver and on
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which he testified against the public officer accused or the
violation.
So if the public officer had, let us say, five corrupt
transactions, the bribe giver was a participant in those five
transactions but he availed of PD 749 with respect to. one
transaction only. So there are still four remaining. To that 4
remaining, he is not automatically immune from prosecution.
He will have to follow again the same routine as was followed
in the first transaction where he will earn immunity because
of the protection against double jeopardy.
Also, the Decree provided that any prosecution against the
bribe giver by the public officer involved for the crime of false
testimony or perjury is not covered by the immunity.
So if the bribe giver in testifying against the public officer
involved had committed false testimony or perjury, the
immunity under this decree will not cover prosecution for
such false testimony or perjury. The only limitation is that the
public officer involved is not allowed to file a criminal case
against such public officer is still pending. Public officer
accused of the violation may only proceed against the bribe
giver for a false testimony or a perjury committed if the case
against the public officer had already been decided with
finality. Otherwise, his right to prosecute the bribe giver is
suspended until the crime charged against that public officer
had already been decided with finality.
RECAP:
PRESIDENTIAL DECREE NO. 749
The decree grants immunity from prosecution to a private
person or public officer who shall voluntarily give information
and testify in a case of bribery or in a case involving a
violation of the Anti-graft and Corrupt Practices Act.
It provides immunity to the bribe-giver provided he does
two things;
1. He voluntarily discloses the transaction he had with
the public officer constituting direct or indirect
bribery, or any other corrupt transaction;
2. He must willingly testify against the public officer
involved in the case to be filed against the latter
Before the bribe-giver may be dropped from the information,
he has to be charged first with the receiver. Before trial,
prosecutor may move for dropping bribe-giver from
information and be granted immunity. But first, five
conditions have to be met.
1. Information must refer to consummated bribery;
2. Information is necessary for the proper conviction of
the public officer involved;
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
3. That the information, or testimony to be given is not
yet in the possession of the government or known to
the government;
4. That the information can be corroborated in its
material points;
5. That the information has not been convicted
previously for any crime involving moral turpitude,
These conditions are analogous to the conditions under the
State Witness Rule under Criminal Procedure.
The immunity granted the bribe-giver is limited only to the
illegal transaction where the informant gave voluntarily the
testimony. If there were other transactions where the
informant also participated, he is not immune from
prosecution. The immunity in one transaction does not
extend to other transactions.
The immunity attaches only if the information given turns out
to be true and correct. If the same is false, the public officer
may even file criminal and civil actions against the informant
for perjury and the immunity under the decree will not
protect him.
ILLEGAL EXACTION
Art. 213. Frauds against the public treasury and similar offenses. — The
penalty of prision correccional in its medium period to prision mayor in its
minimum period, or a fine ranging from 200 to 10,000 pesos, or both, shall
be imposed upon any public officer who:
1. In his official capacity, in dealing with any person with regard to
furnishing supplies, the making of contracts, or the adjustment or
settlement of accounts relating to public property or funds, shall
enter into an agreement with any interested party or speculator
or make use of any other scheme, to defraud the Government;
2. Being entrusted with the collection of taxes, licenses, fees and
other imposts, shall be guilty or any of the following acts or
omissions:
(a) Demanding, directly, or indirectly, the payment of
sums different from or larger than those authorized by
law.
(b) Failing voluntarily to issue a receipt, as provided by
law, for any sum of money collected by him officially.
(c) Collecting or receiving, directly or indirectly, by way of
payment or otherwise things or objects of a nature
different from that provided by law.
When the culprit is an officer or employee of the Bureau of Internal Revenue
or the Bureau of Customs, the provisions of the Administrative Code shall be
applied.
Acts punished:
1. Entering into an agreement with any interested
party or speculator or making use of any other
scheme, to defraud the government, in dealing with
any person with regard to furnishing supplies, the
making of contracts, or the adjustment or
settlement of accounts relating to public property or
funds;
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2. Demanding, directly or indirectly the payment of
sums different from or larger than those authorized
by law, in collection of taxes, licenses, fees, and
other imposts;
3. Failing voluntarily to issue a receipt, as provided by
law, for any sum of money collected by him officially,
in the collection of taxes, licenses, fees, and other
imposts;
4. Collecting or receiving, directly, or indirectly, by way
of payment or otherwise, things or objects of a
nature different from that provided by law, in the
collection of taxes, licenses, fees and other imposts.
Another important crime under this Title Seven is the crime
of illegal exaction found in the second subdivision of Art. 213.
Elements illegal exactions under paragraph 2
1. Offender is a public officer entrusted with the
collection of taxes, licenses, fees and other imposes;
2. He is guilty of any or the following acts or omissions:
a. Demanding, directly or indirectly, the
payment of sums different from or larger
than those authorized by law; or
b. Failing voluntarily to issue a receipt, as
provided by law, for any sum of money
collected by him officially; or
c. Collecting or receiving, directly or indirectly,
by way of payment or otherwise, things or
objects of a nature different from that
provided by law.
In Art. 213, you have there the crime of fraud against public
treasury. In the second subdivision thereof, you have the
crime of illegal exaction. This crime can only be committed by
a public officer whose official duties are to collect taxes,
licenses, and impose due to the Government. So not any
public officer can commit this crime.
The crime arises from the irregular manner of making the
collection.
So whether the money collected was misappropriated,
malversed, squandered is not covered by the crime. Another
prosecution will have to be initiated. The illegal exaction only
has something to do with how the collection officer followed
the law or the rules and regulations governing case
collections.
There are three ways of committing the crime. The most
common given in the Bar is the first one demanding an
amount different from or larger than what is authorized by
law.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Note that the word used here is "demanding" not - collecting.
So although the taxpayer upon whom the demand was made
refused to pay the amount demanded, because he knew that
the same was over the amount required by law, as long as the
demand by the collecting officer is persistent and
determined, criminal liability for illegal exaction will arise
because the law here uses the word demanding not
collecting.
It is immaterial that the amount demanded was used by the
collecting officer or not used by him. The crime is committed,
as I said, on the irregular manner the collection is being done.
Now you realize this because the preparation of the yearly
budget is considered on the basis of these collections.
So if the collecting officers will do the collections irregularly.
the amount will be fluctuating difficult to prepare a reliable
budget.
So if, let us say, the amount payable to the Government is
P400. The collecting officer envied the taxpayer because the
taxpayer appeared to be more handsome than him. So
instead of requiring the taxpayer to pay only the amount due
the Government, the collecting officer demanded P500.
Taxpayer paid P500. The collecting officer is happy because
he put one over the taxpayer. Now although he is ugly he is
more intelligent than the taxpayer. So he is happy.
The entire P500 collected by him was placed in the public
vault or safe of the Government. So the Government made an
excess of P100 out of that collection. The Government
benefited. Is there a crime of illegal exaction?
The answer is yes. It is immaterial, as I have said,
whether the Government benefited or was
disadvantaged by the manner the collection was
done.
The usual problem given here is where the collecting officer
demanded an amount larger than what the taxpayer should
pay, and he pocketed the excess amount, and spent this for
his own private use and benefit.
One of the problems given before run like this. The amount
payable to the Government is only P400. The collecting
officer demanded from the taxpayer P500. He wrote out a
receipt for P500, gave this to the taxpayer. After the taxpayer
left, collecting officer erased the amount reflected on the
duplicate and triplicate copies of the official receipt made it
appear that he collected only P400. And he pocketed the
difference. What crime or crime
Analyzing the facts given, crime of illegal exaction is
committed. This is the first crime. Because the
collecting officer not only demanded but even
Page | 69
collected an amount larger than what the law
authorizes him to collect.
For erasing the duplicate and triplicate copies of the official
receipt, he incurs the crime of falsification of a public
document. That official receipt is an official document. And all
official documents are necessarily public documents.
Now when he pocketed the P100. he is committing already
the crime of malversation not just estafa. Because that P1OO
was included in the official receipt of the Government which
the collecting officer issued to the taxpayer. That writing out
of the official receipt of the Government of the amount of
P500 is operative act that impressed the whole P500 with the
character of being already fund of the Government.
So when he extracted the P100 although this is not really
payable as part of the taxes, because he covered this with the
official receipt of the Government, the same acquire the
character of being part of the funds of the Government. So
when he spend this after covering this up with that receipt,
he is already misappropriating public funds.
Now you understand why. When a taxpayer has an official
receipt of the Government for the amount he paid, and it
turned out that he paid more than what is due to the
Government, with that official receipt he apply for a refund
or for tax credit. So ultimately it is the Government who will
suffer for the loss of the P100. That is why the crime with
respect to that because it was covered already by the official
receipt of the Government is one of malversation already.
These are not complexed. These are all separate and distinct.
Art. 48 cannot apply because the acts committed were not
means to commit the illegal exaction.
Now you note also, under the last part of Art. 213. the
provision, therefore, does not apply to collecting officers of
the BIR and the Bureau of Customs.
So when the collecting officer is that of the BIR or the Bureau
of Customs, you do not apply this Art.
The reason for that is this: If you would apply this crime of
illegal exaction to a public officer who collects for the Bureau
of Customs or the BIR, all of them will be out of office,
because they do not really collect what is required by law for
them to collect. Invariably, they impose penalties, they slap
surcharges. interest. Then, they enter a compromise. It is in
the compromising that corruption is always committed. As to
how much it would be lowered, that depends on the
agreement of the parties. So here, the amount collected is
always different from the amount required by law for him to
collect. Now that is because he has the discretion to impose
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
penalties, interests, slap surcharges. They always find a way
of finding a violation where they can impose penalties. So the
amount that they collect is always fluctuating. There is no
fixed amount, unless the taxpayer is so honest that he will
really comply with the letter of the law for what he should
pay the BIR or the Bureau of Customs. But there is always a
room for finding a violation, and so, there is always the
surcharges, there is always thee penalties. And the taxpayer
will then make some negotiations on how to lower that. So
the amount they collected always fluctuates. Now if you will
apply Art.213 on illegal exaction to them, because the
amount collected is different from what the law requires
them to collect, none of them will stay in office. Because they
always collect amounts different from what the law requires
them to collect.
MALVERSATION
Art. 217. Malversation of public funds or property; Presumption of
malversation. — Any public officer who, by reason of the duties of his office,
is accountable for public funds or property, shall appropriate the same or
shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or
property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum
periods, if the amount involved in the misappropriation or
malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods,
if the amount involved is more than two hundred pesos but does
not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more
than six thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum
periods, if the amount involved is more than twelve thousand
pesos but is less than twenty-two thousand pesos. If the amount
exceeds the latter, the penalty shall be reclusion temporal in its
maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the funds
malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal use.
Acts punished:
1. Appropriating public funds or property;
2. Taking or misappropriating the same;
3. Consenting, or through abandonment or negligence,
permitting any other person to take such public
funds or property; and
4. Being otherwise guilty of the misappropriation or
malversation of such funds or property
Elements common to all acts of malversation under Art. 217
1. Offender is a public officer
Page | 70
2. He had 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.
In the last Bar Examination there are 3 problems given on
malversation.
The common thinking is that this is a crime. committed by
public officers who are accountable officers like cashiers,
treasurers, supply officers, this payroll clerks. That is not
correct.
Any public officer can commit malversation. But the crime
can only be committed in respect of funds or property which
the public officer is legally bound to account to the
Government
It is on that obligation imposed on the public officer to
account for the fund or property involved that brings about
the crime of malversation if such public officer would not
account for that fund or property. And, instead, utilizes it for
his own private benefit or gain.
When a demand is made to such public officer for the fund or
property under his accountability, generally, failure on his
part to have that fund or property forthcoming or available,
would bring about the presumption that he has converted it
to his own private use.
It is not necessary that the property involved should come
from the government. Property involved may come from a
private citizen or from a foreign country.
What is material is that the accused is under the law required
to account for that, but he did not account for it. Hence, the
presumption arises that he has misappropriated the same.
Now if the public officer who misappropriated the fund or
property involved is not the one required for that his crime is
not malversation.
So this crime arises from the relation of the accused to the
fund or property involved. He must be the one accountable
for such fund or property. Otherwise, his crime is not
malversation.
In a public office, one of the employees was assigned to
fieldwork. And to carry out the duties of his office in the field,
that particular worker is given the privilege to withdraw cash
from the office cashier. The routine was as follows: After this
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
particular employee report to the office, he will write a
disbursement voucher for the amount he needed. And this he
will present to the office cashier, office cashier gives him the
amount. Now when he comes back from his field work to the
office to time out, he will liquidate the amount of the
advance given him in the morning. He will state there how
and where the amount was spent. Whatever balance would
remain, return this back over to the cashier.
Now here was one of the co-employees in the office who
happened to have a need for money. Now he does not know
how to raise the amount. So he forged the signature of that
co-employee who is assigned to the field, making it appear
that the voucher covers an amount to be used by that
employee who is assigned to field work. And this fellow who
has the need for money presented the voucher to the
cashier. So he was given the amount corresponding thereto.
For sometime, the voucher was not liquidated. So the cashier
called the attention of this fellow who has that privilege
because he is assigned to field work. And this fellow looked
over the voucher and said, "that is not my signature." So he
denied that the money was received by him. The cashier
remembered that amount was received by a co-employee in
the office. And it was the co-employee who presented the
voucher.
So an investigation was conducted. And this co-employee
who presented the voucher was discovered to be the one
who falsified the voucher and received the amount.
After the investigation, this fellow was prosecuted before the
Sandiganbayan for the crime of malversation through
falsification. Sandiganbayan convicted him.
He appealed to the SC On appeal, SC ruled, the crime is not
malversation through falsification but estafa through
falsification. It cannot be malversation because the accused is
not the one required to liquidate the amount received from
the cashier on such voucher. So the obligation to account
does not rest on him, but rest on the other employee who
has that authority to withdraw cash from the cashier.
Absent that accountability for the amount he had withdrawn.
SC ruled, the misappropriation, therefore, cannot bring about
the crime of malversation.
This is what I am calling your attention to. It is only
malversation if the person accused of the crime is the one
who under the law has the obligation to account for the fund
or property that was missing or to account for the fund or
property which should be accounted for the Government.
Page | 71
Even though the fellow who is legally obligated to account for
that fund or property is not the one who misappropriated the
amount, but somebody else, if he was negligent or remiss in
the safekeeping of the fund or property involved he will be
liable for malversation.
Now the fellow who misappropriated the same, is not liable
for malversation even though he knows that that is
Government property. His liability will be only for estafa or
for qualified theft or simple theft. But not for malversation.
Now on the part of the public officer who is accountable for
the fund or property, if he were negligent that amount to
abandoning his duties that enabled the third party to
misappropriate the amount, he will be liable for
malversation.
This is one crime where the penalty is the same whether
committed through dolo or incurred through culpa.
In fact, the first question asked in one Bar Examination a long
time ago required the examinees to give a crime under the
RPC where the penalty is the same whether committed with
dolo or incurred through culpa.
Generally, when the crime is committed through. culpa
penalty is lower. And that is understandable. In dolo, that act
is deliberate. In culpa, it is nothing but the omission of the
diligence to safeguard the property.
The answer to that question: malversation.
Under this Article 217. whether it was deliberately
misappropriated or misappropriated because of the
negligence of the public officer accountable therefore, crime
of malversation will be incurred by him.
So understand this. Malversation can be committed by any
public officer. It is a crime arising from the accountability of
the public officer involved for the fund or property that is
under his custody.
One question asked before was a simple one: Can a traffic
policeman commit the crime of malversation?
Common answer no, because he is not an
accountable officer. That answer is wrong.
Every public officer can commit the crime of malversation as
long as he has in his custody any fund or property which
under the law he should account to the Government.
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A traffic policeman has his service revolver, which he is
accountable to the Government. If he would sell this, he will
be incurring malversation,
In fact, in one of the Bar Problems given, problem no.10 was
to this effect. Two policemen were assigned to the
checkpoint. They were able to check a motorist who was
carrying in his vehicle a sophisticated firearm without any
license or permit to carry. The two policemen made a
proposal to the motorist, whether he would choose just to
forget the firearm, he can go, or they will have to take him to
the police headquarters for investigation. This motorist opted
to accept the first one. Forget about the firearm, he can go.
So he left the firearm with the two, and he was allowed
already to go.
After he left, the two policemen went to a third party who
was interested to buy a handgun. And they offered this
handgun to the latter. The latter paid for the handgun.
May this buyer of the firearm be prosecuted for fencing?
What crime is committed by the two policemen?
You know that fencing is a crime incurred in relation to the
proceeds of theft or robbery. So if you answered yes. you are
implying that the two policemen committed theft or robbery.
But that is not the crime committed by the two policemen.
The policemen committed the crime of malversation.
Because they are supposed to account for that firearm, since
it was carried by the motorist in violation of law. So a crime is
committed. The law enforcers are required to turn over the
firearm to the property custodian of the command. Because
this is evidence of the crime. Now when they did not do so,
instead, they make money out of it, they are committing
malversation.
Now as to the crime committed by the buyer, then he will
incur the crime of malversation as an accessory and also the
crime of illegal possession of firearm. So two crimes not,
fencing.
On the part of the two policemen, the crime is malversation.
They cannot be an accessory to the illegal possession,
because that is a malum prohibitum.
PRESUMPTION OF MALVERSATION
About this crime, you have here a presumption that when
demand is made upon the public officer who has funds or
property under his custody, and that public officer cannot
have the fund or property forthcoming, presumption arises
that he had misappropriated such fund or property.
Page | 72
Now it does not follow that because a public officer cannot
produce the fund or property under his custody that the
presumption would already arise.
The jurisprudence here clarified that the presumption will
only arise when there is no doubt at all that the fund or
property involved should be in the possession of the public
officer; that said fund or property was not utilized by the
Government for any other public purpose.
Thus, in Dumagat vs Sandiganbayan, 160 SCRA 483, it was
held that the prima facie presumption under the Revised
Penal Code arises only if there is no issue as to the accuracy,
correctness and regularity of the audit findings and if the fact
that public funds are missing is indubitably established. The
audit must be thorough and complete down to the fast detail,
establishing with absolute certainty the face that the funds
are indeed missing.
So when there is a need to audit the accounts of the public
officer, the presumption will only arise if the audit was
complete.
If it was only a partial audit, there is soil doubt on whether
the missing funds or property was used for public purpose of
the accountable officer, presumption does not arise here.
Although there was an audit conducted, the audit must be
complete, must be thorough. So that the result of the audit is
reliable.
Where there is any circumstance that would show that the
result of the audit is not reliable, the presumption will not
arise.
So, in the case of an audit conducted of a treasurer. Treasurer
was assured that if he could show the vouchers that would
explain the missing funds, he would be credited therewith.
The COA auditor returned to Manila, and reported the paper
shortage. Subsequently, a case of malversation was filed
against the treasurer. In the course of the trial, the treasurer
appeared on three different occasions bringing with him
vouchers which were not taken up in the audit. So during that
trial, the information had to be amended. The amount
originally stated to be stricken out. The voucher brought by
the accused would be credited. And the amount accordingly
adjusted. This occurred three times.
Now when the accused did not come up with any further
voucher, the Sandiganbayan convicted him already for the
outstanding balance on the presumption that the same was
used by him and misappropriated for his private benefit.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
On appeal to the SC. SC set aside the judgment of conviction
by the Sandiganbayan.
SC said, the presumption would not suffice to convict the
accused where there is doubt as to the shortage evidenced by
the audit.
Considering that on three occasions, the accused came forth
with vouchers that were not credited to his account, but
which upon examination a report turned out to be authentic
and should be credited to the accounts of the accused, this
would only demonstrate that the audit is not thorough. That
the results of the audit are not reliable. For that reason, the
presumption does not arise. Presumption will only arise when
it is indubitable that the fund or property which the Public
officer cannot produce has not been used for the
Government.
In this case, the accused can only be convicted not on
presumption but on direct evidence of malversation.
What the SB should have done, said the SC, was to suspend
the trial and order a re-audit, and not to proceed with the
trial and convict the accused on the amount that is no longer
supported by the voucher.
Now that would imply that the accuse was convicted on mere
presumption of malversation. And this is not proper where it
would appear, that the audit was not thorough.
The OSG here argued that when the accused signed the audit
report indicative of a shortage, the accused in effect admitted
that part of the shortage was misappropriated by him or used
by him unofficially.
SC, however, countered that this is not proper, because when
the accused was required to sign the audit report showing
the shortage, he was never reminded of his right to be
assisted by counsel And there being no counsel assisting him
at the time, the signature on the audit report cannot be taken
as an admission of the shortage. At most, that signature on
the audit report is only, an admission that an audit was
conducted. But not due a shortage existed. Because insofar as
it would incriminate him, the same cannot be admitted as
such, since he was never informed of his Constitutional right
as required under Sec.12 Art III of the Constitution.
The point, however, here is that, do not rely alone on the
presumption of malversation, if after all, there is doubt as to
whether the accused actually misappropriated the fund or
property that was missing, or there is probability that this
was not properly accounted for although utilized by the
Government.
Page | 73
Malversation is one crime where the penalty is the same
whether committed thru dolo or incurred thru culpa.
A felony that is incurred thru culpa or criminal negligence
carries a penalty, generally, one degree lower than the
same crime committed thru dolo or criminal intent. But in
Malversation (note: Art. 270) the penalties are the same
whether it was brought about by negligence of the public
officer having custody of the funds or properties
accountable to the Philippine Government or it was brought
about by his own misappropriation.
One Bar problem: the accused is a public officer in custody
of the funds that was missing was charged with
malversation. The evidence showed that he was not the
one who misappropriated the missing amount. It was
somebody else in the same office but nevertheless, the
Sandiganbayan found him negligent in not exercising
proper custody of the funds involved. He was convicted. He
challenged the validity of conviction explaining that his
constitutional right to be informed of the nature and the
cause of accusation against him is violated. He argued that
he was prosecuted for malversation brought about by dolo
and yet the court convicted him for malversation brought
about by culpa. Resolved the merit of the appeal to the SC
Answer: whether it is thru dolo or culpa, the
punishment is the same. There is no substantive
right of the accused that was violated. Between the
crime brought about by dolo and the crime
incurred thru culpa, the same crime incurred thru
culpa is the lesser crime than a crime brought by
dolo. Under the rules on criminal procedure, an
accused may be convicted for a crime necessarily
included in the crime charged. The contention of
the accused in that problem is wrong. The
conviction is valid because after all, the penalty is
the same.
In Malversation, it is not necessary that the fund or property
misappropriated should come from the Philippine
government. What is required is that the fund or property
misappropriated is accountable to the government but the
public officer who should account for it for the government
did not do so, precisely, because the misappropriated the
same or by being negligent allowed others to
misappropriate the same.
Example: a mayor from a 3rd class municipality of the
Philippines was among those who attended a convention
and during the discussion he made known the
handicapped that he is suffering from his local
administration because there is no ambulance for the
province. That was taken note of the secretariat of the
convention. After the convention this mayor came back in
the Philippines. And this particular mayor who brought out
the fact that his constituents were not even have the
necessity of an ambulance. About 2 months later, an
ambulance had arrived addressed to the mayor. That
mayor thought that the ambulance is his, he stripped the
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
ambulance of all the medical facilities and equipment and
made it a private van, but a notice is posted in the door of
the vehicle “for official use only” but it was being used by
the family of the mayor and some higher official of the
municipality. The oppositionist mayor who lost in the past
election filed a criminal case against him for malversation.
His defense was the government property did not come
from the Philippine government. The SB convicted him. In
the appeal in the SC, the SC affirmed the conviction.
No person or entity would get any value with an
ambulance unless it is a hospital because that
vehicle is for public service. It was addressed to
the accused because he was the chief executive of
the municipality he represents. So that property is
accountable to the Philippine government thru that
municipality. When he defeated that purpose and
makes it for private use, that is misappropriation
already.
This case is an example that the fund or property
need not come from the Philippine government. It
may be donated. As long as it is donated to the
government, since the government is incorporeal
this has to be coursed thru a government official.
But it does not mean that the government official
who was the one who is the beneficiary. Any such
misappropriation of what is donated to the
government will bring about malversation if the
one who misappropriated this is the one who
should account for the fund or property received by
him to the government he represents.
In the crime of Malversation, it is not necessary that the
offender should consume or misappropriate the fund or
property involved. It is enough that the public officer
entrusted with the custody of the fund and property
involved have made use of such fund or property as if it
was his own.
Example: a woman cashier whose husband came to her
after 3pm. The husband requested her to change in cash
the personal check of the husband because the bank is
already closed. The cashier got the check changed it with
the face value of the check Php3000. Put the check among
those collected by her. Is there a crime committed?
Under civil law, payment by check is no payment at
all until the check is encashed. When the wife get
Php3000 from the government, it is the legal
tender, changed the check of her husband, she is
already appropriating money of the government,
that check is only a mere piece of paper. Unless it
is cashed it is nothing but a piece of paper and yet
she got money of the government. Even though the
money will be restituted during three days that the
check has not been cleared, the cashier has made
use of the money and that is the one which will
suffice to amount to the crime of malversation. A
public office is a public trust. Especially when it
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involves money, fund or property of the
government.
When a cashier make a reconciliation and discussed it on
hand and cashed supposedly on hand shown by the
receipts he issued considering that there are tax payers
would did not bother to collect the change for the amount
they paid. “Keep the changed” Eventually during the
reconciliation, the cash count is more than the amount that
is supposed to be on hand. This was the situation where
the cashier after making the reconciliation found out that
the cash on hand is more than the cash which should be
on hand per official receipt issued by him, so he got the
difference and pocketed it. Is there a crime committed?
Yes, once any money not belonging to the
government or forming part of the public funds is
deposited and co-mingled with the public fund of
the government in the government safe or vault,
the same acquires the character of being part of
the public funds. Once it was co-mingled in the
amount in the public safe or vault, nobody can say
which is public and which is private. Under the civil
law rule of accession, the owner of the lesser bulk
loses ownership of the lesser bulk which is
absorbed by the bigger bulk. The owner of the
bigger bulk becomes the owner of the entire bulk.
TECHNICAL MALVERSATION
Art. 220. Illegal use of public funds or property. — Any public officer who
shall apply any public fund or property under his administration to any public
use other than for which such fund or property were appropriated by law or
ordinance shall suffer the penalty of prision correccional in its minimum
period or a fine ranging from one-half to the total of the sum misapplied, if
by reason of such misapplication, any damages or embarrassment shall have
resulted to the public service. In either case, the offender shall also suffer the
penalty of temporary special disqualification.
If no damage or embarrassment to the public service has resulted, the
penalty shall be a fine from 5 to 50 per cent of the sum misapplied.
Elements:
1. Offender is a public officer;
2. There are public funds or property under his
administration;
3. Such fund or properties were appropriated by law or
ordinance;
4. He applies such public fund or property to any public
use other than for which it was appropriated for.
Under this chapter on Malversation, you also have the crime
of technical malversation or illegal use of public funds and
property.
In technical malversation under Art. 220, you understand, the
fund or property involved are already appropriated by law or
ordinance to a particular public purpose. The public officer
here is simply to administer or apply such fund or property to
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
the public purpose for which it is appropriated. But instead of
applying it to that public purpose, the same was applied to
another purpose.
Since damage is not an element of malversation, whether the
Government suffered damage or benefited from the
application of said funds to another public purpose, there is
still criminal liability. The fact that the Government did not
suffer damage will only bring about the non-imposition of the
fine.
But as far as the criminal liability is concerned, there is
criminal liability.
Now you notice here, the fund or property subject to
technical malversation is already appropriated for a particular
public purpose.
So if the fund or property that was applied to a public
purpose was not appropriated yet by law or ordinance to a
particular public purpose, the crime is not technical
malversation but simple malversation.
Now here, the evidence required to prove technical
malversation is different from plain and simple malversation
where the fund or property is said to have been used by the
accused for his own private benefit. Hence, where the
accused was charged of plain and simple malversation under
Art.217, but in the course of the trial, it was found out that
the fund or property subject of the accusation was actually
applied to a public purpose, the court cannot, on the basis of
that information for simple malversation, convicted the
accused for technical malversation because technical
malversation is not necessarily included in the crime of plain
and simple malversation,
So if the accused was charged for plain and simple
malversation, and in the course of the trial, the evidence
showed that the crime is one of technical malversation xxx If
the evidence would show that the crime is not simple
malversation but technical malversation, the court should
suspend the proceedings, require the prosecution to file an
information for technical malversation because the court can
never render a valid judgment on technical malversation
under Art. 220 if the information charges the accused for
simple malversation under Art. 217.
Thus, in Parungao v. Sandiganbayan, 197 SCRA 173, it was
held that a public officer charged with malversation couldn't
be convicted of technical malversation (illegal use ofpublic
funds under Article 220). To do so would violate accused's
right to be informed of nature of accusation against him.
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Under the new information for technical malversation is filed,
the accused should not proceed with the trial
xxx What the trial court should do is require the prosecutor to
file a new information for technical malversation. The original
information, however, should not be dismissed until the new
information is filed. And, the accused, if detained, should not
be discharged.
The original should only be dismissed when the new
information for technical malversation is already filed.
On that new information, the accused should be re-arraigned.
So a new plea will have to be entered. And, the evidences
supporting this crime, that which were already adduces under
the old information, must be re-offered.
The re-offer however, does not mean that the witness will be
called back to the witness stand. The prosecution and the
defense may simply agree or stipulate on the evidence that
will be offered and admitted. Only then, may the court
proceed with the case on the basis of an information for
technical malversation. Otherwise, the judgment that the trial
court may render finding the accused guilty of technical
malversation is null and void, because this crime is not
necessarily included in the crime charged. Hence, the right of
the accused under the Constitution to be informed of the
nature and cause of the accusation against him shall be
violated. This is the reason why the court should not proceed,
if after all, the evidences would show that the crime is not
simple malversation but technical malversation.
A problem on this was given not so long ago.
If the accused was charged, however, for intentional
malversation, but during the trial the evidences showed that
somebody else misappropriated the fund or property
involved, not the accused. If the evidence would show that
the accused was negligent or remiss in his accountability that
is why a third party was able to misappropriate the fund or
property involved, SC ruled, the accused may be validly
convicted for reckless imprudence resulting to such
malversation. This is so, because the penalty for malversation
whether committed deliberately by the accused himself or
through his abandonment or negligence was misappropriated
by somebody else, the penalty is the same. And between dolo
and culpa, dolo is the more serious; the crime committed
with dolo is the more serious crime. Hence, the crime
brought about by culpa is necessarily included in such crime.
Now a private citizen, as said earlier, can incur the crime of
malversation.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
In the last Bar Exam, three problems were on malversation.
Two were involving private citizens or non-public officers.
A private citizen may incur the crime of malversation in the
following situations:
First, when such private citizen conspires with a public officer
who commits the crime of malversation.
Second, when a private citizen cooperates with a public
officer as accomplice or accessory to the crime of
malversation committed by the public officer.
Third, when a private citizen is made the custodian of the
funds or property and in whatever capacity and whether such
funds or property belong to the national government or to
the local government, if the private citizen would
misappropriate the same, crime of malversation is
committed.
Fourth, where a private citizen is made the depositary or the
administrator of fund or property attached, seized, or
deposited by public authority, and such private citizen
misappropriated the fund or property involved, even though
the same belongs to a private individual, this is the provision
of Art. 222.
Now you understand, when a private fund or property have
been the subject of attachment or seizure by the public
authority that fund or property is constituted in custodia
legis. Therefore, it becomes impressed with the character of
being public. Should the custodian or the depositary
therefore misappropriate this, he is committing the crime of
malversation not theft or estafa, even though that fund or
property came from a private individual. The seizure, the
attachment, the deposit renders the same in custodia legis,
and that would clothe the fund or property involved with the
character of being public.
Once the funds or property are commingled with those of the
Government, so much so that the funds or property
commingled no longer show the identity as which is public
which is private, the whole will be impressed with the
character of a public fund or public property, so that nobody
may take any part of that fund or property where the identity
can no longer be established. Or, by commingling, will be
considered as property of the Government.
He, who would cake it after such commingling, where his
property has already lost its identity as private, would be
committing malversation.
Page | 76
Example: a public officer who is a treasurer, in a surprised
audit it was found short of what should be the fund on
hand. He admitted to the COA auditor that he went to the
hospital when he was undergoing hospitalization treatment
and made use of the amount for his medical treatment. But
he said that his salary will be used to pay the same. The
COA auditor noted the explanation, he reported the amount
of the deficiency and the explanation made by the officer.
When the auditor returned to manila, the matter was
reported to the officer of COA and a criminal case was filed
against the treasurer before the Sandiganbayan. At the
time when the criminal case is filed, there was no shortage
anymore because the treasurer already restored the
amount, he just used it when he was hospitalized on that
day. His defense was, at the time the information was filed
in the Sandiganbayan, there was no shortage and as a
matter of fact this was confirmed by the municipality whose
funds are involved. The COA auditor then was presented as
witness by the special prosecutor of the SB and COA
auditor testified as to the disclosure made by the accused
to him. The accused admitted that he made used of the
fund that was missing during the surprised audit for his
hospitalization.
The SC affirmed the conviction. Primarily on the
principle that a public office is a public trust.
Nobody may use any government fund or property
as though he is the owner thereof. The SC noted
the fact that the amount had been restituted, that
at the time the case was filed, there was really no
shortage. The SC said that the restitution of the
amount does not erase the crime committed
because in malversation, it is not necessary that
the accused would actually misappropriate the
fund or property involved. It is enough that any
fund or property of the government is used for the
purpose which should not be appropriated by him.
The SC pronounced the fact that the amount was
already restored as of the time the information for
malversation was filed may be appreciated as a
mitigating circumstance that the offender did not
intend to commit so grave a wrong as that which
was committed (praeter intentionem)
Example: A governor of tarlac and a director of a non-
governmental organization also in tarlac. Before Cory
Aquino’s assumption of power, a law was enacted providing
for hundred million of government fund to be utilized to
finance worthy livelihood projects of local government. In
tarlac, the same was given to assist the government to
finance worthy livelihood projects. It was supposedly
undertaken by the office of the governor. But since this
involves the laying of study to show the worthiness of
projects, the provincial government of tarlac designated a
non-government entity known as “lingkod ng kaunlaran ng
tarlac” and this NGO was to process the application and
after processing the application, they approved this then
forward such in the office of the governor. The office of the
governor will then provide the funds for the projects as
found to be viable and worthy. Some 56 million was given
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
to the province of tarlac to be used to finance the livelihood
projects. After 3 years, an audit was made from the
supposed livelihood projects, many of them are ghost
projects. The COA summoned the auditor to trace the items
of disbursement of these funds and they found that the
many of them are really ghost projects. Since this was
received by the provincial government under the office of
the governor and the office of the governor undertake the
release of the funds, there being no such projects which
appear to be funded, the governor of tarlac and the office
of the treasurer together with the director of the NGO were
prosecuted for the crime of malversation. SB found them
guilty for multiple counts of malversation. Even their motion
for reconsideration in the SB was denied. But when Cory
assumed presidency, SC enterained the MR and came out
with the ruling that there is no malversation because the
amount released was in the nature of a loan. The
beneficiary of the amount is a debtor and therefore the
relationship between the government and the people who
availed the financing was that of creditor and debtor
relationship. The SC said that it is a civil not a criminal
obligation. If the prosecution was for the violation of RA
3019, causing undue injury under subsection e of section
3, whether a public or private entity due to manifest
partiality, evident bad faith or gross negligence, the
accused will have a hard time being acquitted from liability.
If it partakes the nature of the loan, it is not subject to audit
of COA because it is a private fund already.
So if the amount is released as a financial assistance by
way of loan to undertake private livelihood projects, the
amount ceases to be public funds. Once it is received by
the supposed private citizen to undertake the livelihood
program and the remedy is not a criminal case but only a
civil action.
INFIDELITY IN THE CUSTODY OF PRISONERS
Another crime under this title that has been subject of Bar
Problems, every now and then. Infidelity in the custody of
prisoners.
Art. 224. Evasion through negligence. — If the evasion of the prisoner shall
have taken place through the negligence of the officer charged with the
conveyance or custody of the escaping prisoner, said officer shall suffer the
penalties of arresto mayor in its maximum period to prision correccional in
its minimum period and temporary special disqualification.
Elements:
1. Offender is a public officer;
2. He is charged with the conveyance or custody of a
prisoner or prisoner by final judgment
3. Such prisoner escapes through negligence
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Article 225. Escape of Prisoner under the Custody of a Person
not a Public Officer
Elements:
1. Offender is a private person;
2. The conveyance or custody of a prisoner or person
under arrest is confided to him
3. The prisoner or person under arrest escapes;
4. Offender consents to the escape, or that the escape
takes place through his negligence.
Your attention is called to the infidelity under Art 224 where
the custodian has enabled the prisoner to escape because of
his negligence.
In the earlier ruling of the SC, in the case of Nava vs. CA, the
SC made a pronouncement that mere laxity in the handling of
prisoners will not bring about criminal liability under this Art.
The negligence contemplated here must be one which would
amount to a virtual abandonment of duty.
So in that case of Nava vs. CA where the police escort of a
prisoner whi is being brought to the municipal hall of
Caloocan — at that time it was still a municipality — and who
upon request of the prisoner, allowed the prisoner to enter
the men's room alone.
After a while the police escort was tired of waiting so he tried
to force the door of the CR, and he found the prisoner
already gone. The back walk of the CR was so dilapidated that
the prisoner was able to make an opening in that back wall
where he escaped. Nava was prosecuted for infidelity but he
was acquitted on appeal to the SC
On a similar case several years later, case of Rodillas vs. SB,
the prisoner was escorted to the City Hall of Manila to attend
a hearing. Also suffered the same situation.
Rodillas accompanied a female prisoner to the City Hall in
Manila for hearing. The prisoner would have been escorted
by the policewoman, but the escort assigned to her was
absent that morning. And so, it was Rodillas who
accompanied the prisoner to the City Hall of Manila.
Upon arriving to the courtroom, the police escort Rodillas
allowed the prisoner to sit on the bench for prisoners but the
husband was there. And so, the husband conferred with the
woman prisoner.
SC noted that this is negligence. That when a prisoner is taken
out of his or her cell, he should never be allowed to converse
with any outsider. Because it is in such conversation where
the plan to escape could be hatched. Moreover, since the
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
sheriff lasted up to 12nn or past 12nn, the woman prisoner
with her husband requested Rodillas that they be allowed to
take lunch together. And Rodillas allowed them to do that.
They ate at the canteen of the City Hall in Manila.
SC noted this also as negligence, because the authority given
to Rodillas was only to take the prisoner to the courtroom.
And therefore, to bring her back to the City Jail where she is
confined. When Rodillas violated that instruction, he is remiss
in the performance of his duties.
After they had taken lunch together, the woman prisoner
requested Rodillas to accompany her to the ladies' room
allegedly because she was visited by her monthly period. So
Rodillas accompanied the woman prisoner to the ladies
room. But because he was a male, he just stayed outside by
the door of that room.
SC noted this as negligence. The High Court said, one who
escorts a prisoner outside of his or her cell should never
allow, for any moment, such prisoner to be out of his sight.
Whatever the prisoner is doing, the escort must be around
and be aware of what the prisoner was doing.
Rodillas explained that he cannot be expected to enter the
ladies room that is why he just waited by the door.
But the SC rejected this. The high court said, when the
accused, after waiting so long, managed to request the other
ladies, who wanted to use the ladies' room, to defer their
entry thereto, because he was to look for the prisoner, he
should have done this in the first place when the prisoner
entered the ladies' room. He should have escorted the
woman prisoner inside the ladies' room, because, he should
never allow a prisoner out of his sight when entrusted to be
escorted out of the cell. Failing in this, Rodillas was convicted
for infidelity under Art.224, because the prisoner here was
able to escape. The prisoner disappeared. So it must be that
the prisoner was able to wear a disguise, that she was able to
leave the ladies' room unnoticed by Rodillas. So it was after
sometime that Rodillas requested the other ladies to defer
their entering to the ladies' room, because he was going to
look for the prisoner. So Rodillas went inside. There is no face
of the prisoner.
So whereas in the Nava case, the same situation was
presented, and the SC said, mere laxity in the handling of the
prisoner will not give rise to this criminal liability. The police
escort may be held administratively liable but not criminally.
But here, the SC even made a pronouncement that it is in
situations like this where a policeman escorts a prisoner out
of his cell to a purported hearing in court that many prisoners
were able to escape. So it is now high times said the SC, that
Page | 78
police escorts be strictly made to follow their trust given
them over the prisoner. Any violation of this, which resulted
to the disappearance or loss of the prisoner, must be the
liability of the police escort.
So now, a different criterion is used. The Nava ruling is no
longer to be followed.
Infidelity in the custody of the prisoner my also be committed
by a private citizen.
You will notice that this crime can also be committed by a
private citizen.
In Art. 225 when a prisoner is entrusted to the custody of a
private citizen, if that private citizen through connivance or
negligence, would allow the prisoner to escape, crime of
infidelity in the custody of prisoners is, likewise, incurred by
him.
INFIDELITY IN THE CUSTODY OF DOCUMENTS
You also have here the crime of removal, concealment, or
destruction of documents constituting the crime of infidelity
in the custody of official documents.
Art. 226. Removal, concealment or destruction of documents. — Any public
officer who shall remove, destroy or conceal documents or papers officially
entrusted to him, shall suffer:
1. The penalty of prision mayor and a fine not exceeding 1,000
pesos, whenever serious damage shall have been caused thereby
to a third party or to the public interest.
2. The penalty of prision correccional in its minimum and medium
period and a fine not exceeding 1,000 pesos, whenever the
damage to a third party or to the public interest shall not have
been serious.
In either case, the additional penalty of temporary special disqualification in
its maximum period to perpetual disqualification shall be imposed.
Elements
1. Offender is a public officer
2. he abstracts, destroys or conceals a document 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 has been caused.
This crime can only be committed by a custodian. So this
crime of infidelity in the custody of public records or official
documents is a crime of the custodian. Not just any public
officer.
In the infidelity in Art 226, the removal, concealment, or
destruction of public document or public papers. damage is
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
an essential element. Without damage, the crime cannot be
incurred.
SC however, said that mere delay in rendering public service
is already damage.
So where the person interested to view a Certificate Of Title,
went to the office of the Registrar of Deeds, and he asked for
the copy of the Certificate of Title he was interested in. The
Certificate could not be located. So this interested taxpayer
had to return every now and then while that office of the RD
had been trying to locate that title.
After so much time had been consumed, the taxpayer gave
up, and reported that the document is missing.
Thereafter, the document was simply found. And so, the
custodian, the RD, was charged for infidelity in the custody of
public documents or public records.
The defense was, damage is an essential element of this
crime. And there was no damage because the certificate of
title, after all, is still there and nothing happened to it.
SC upheld the conviction of the accused. And seated that
mere delay in rendering the public service to a taxpayer is
already damage. So because of that the accused was
convicted.
Regarding this infidelity in the custody of public records,
where money is used as evidence in a case for bribery, or a
case involving selling of dangerous drugs where marked
money was used to entrap a drug pusher, that marked money
as introduced in court is not to be regarded as a medium of
exchange or as money, they are to be regarded as a
document because they are there marked as exhibits. So If
the trial was not completed on that day, and so, the marked
money was left with the custodian of all the documents of
that branch. The branch clerk of court, however, had a need
for money. And so he took one of the denominations marked
in evidence. When he returned the next day, however, he
restituted this with the same denominations. And since he is
the one xxx xxx the officer noted that the serial number was
changed. But they have a list of the marked money that was
used in entrapping the offender. And the same marked
money were the ones adduced in evidence. When the
marked money was to be offered in evidence there was one
where the serial number differs from what were listed in the
list of the apprehending unit.
So an Investigation was found, the branch clerk of court
admitted that he had done this.
He was prosecuted for the crime of malversation. And he was
found guilty because he spent the amount.
Page | 79
But on review. SC said, the crime is not malversation. because
the currency was placed under the custody of the accused
not as money but as a document, because they are adduced
as exhibits. And, therefore, form part of the records of the
court. Hence, the crime is infidelity in the custody of public
records
In a similar case, it was the court stenographer who found
herself in need of money. So that folder containing the
marked money that was used. The court stenographer took
one of the denominations there. And when she had already
the amount and she returned, she replaced this. But during
the offer also it was discovered that this is not the original
money. An investigation was conducted. The court
stenographer was eventually prosecuted.
Following this early decision on the matter, the court
stenographer was prosecuted and convicted by the lower
court for the crime of infidelity in the custody of public
records that he has.
On appeal SC said the charge is wrong. Infidelity can only be
committed by custodians. Since the court stenographer is not
the custodian legally of the records of the court but the
branch clerk of court, crime committed by the court
stenographer in extracting that exhibit is not infidelity in the
custody of the document. It is a case of Theft.
So the focus is on the offender — who is the offender? - If the
offender is not the custodian legally assigned for the
document, this crime cannot be incurred.
MALTREATMENT OF PRISONERS
Another provision under Title Seven which has been subject
of Bar Problems in the past is the crime of maltreatment of
prisoners under Art 235.
Art. 235. Maltreatment of prisoners. — The penalty of arresto mayor in its
medium period to prision correccional in its minimum period, in addition to
his liability for the physical injuries or damage caused, shall be imposed upon
any public officer or employee who shall overdo himself in the correction or
handling of a prisoner or detention prisoner under his charge, by the
imposition of punishment not authorized by the regulations, or by inflicting
such punishment in a cruel and humiliating manner.
If the purpose of the maltreatment is to extort a confession, or to obtain
some information from the prisoner, the offender shall be punished by
prision correccional in its minimum period, temporary special disqualification
and a fine not exceeding 500 pesos, in addition to his liability for the physical
injuries or damage caused.
Elements:
1. Offender is a public officer or employee;
2. He has under his charge a prisoner or detention
prisoner;
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
3. He maltreats such prisoner in 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 punishment
not authorized by the regulations;
or
ii. By inflicting such punishments
(those authorized) in a cruel and
humiliating manner; or
b. By maltreating such prisoners to extort a
confession or to obtain some information
from the prisoner.
Only such public officer charged with direct custody of the
prisoner commits this.
If the public officer is not the custodian of the prisoner, and
he manhandles the latter, the crime is physical injuries.
The maltreatment does not really require physical injuries.
Any kind of punishment not authorized or though authorized
if executed in excess of the prescribed degree.
Also, the important thing here is that the offended party
must already booked. The booking sheet and arrest report
must have been fully accomplished already. Otherwise, for
purposes of this crime, one who is only arrested and detained
is not a prisoner within the meaning of Art. 235. Any
maltreatment done to him would only bring about the crime
of Physical Injuries not this crime of maltreatment of
prisoners.
The prisoner contemplated here is one already covered by a
booking sheet and arrest report fully accomplished — The
fingerprints of the prisoner had already been taken. The left
and right side profile and the front appearance of the
prisoner had already been photograph and attached thereto.
The distinguishing marks of the prisoner are already reflected
there. — Only then will the prisoner becomes a chattel of the
Government. And, therefore, an accountability of the
Government.
Any maltreatment done would bring about this crime.
Before that, the crime is only Physical Injuries.
When there is the maltreatment already, aside from this
crime, if the prisoner suffered physical injuries, there will be a
separate prosecution for the physical injuries suffered by the
prisoner. You note this from Art.235 where the criminal
liability for maltreatment of prisoners shall be in addition to
whatever physical injuries may be suffered by that prisoner.
Page | 80
So if the offender is not yet a prisoner in the legal sense —
the booking sheet and arrest report is still not yet fully
accomplished — any maltreatment done to him is only
physical injuries.
But under this Art. 235, if the prisoner suffered injuries, two
charges will be filed. One for maltreatment of prisoners.
Another for Physical Injuries.
ABUSES AGAINST CHASTITY
Another crime under this Title that is worth passing on is the
crime of abuse against chastity under Art 245.
Art. 245. Abuses against chastity; Penalties. — The penalties of prision
correccional in its medium and maximum periods and temporary special
disqualification shall be imposed:
1. Upon any public officer who shall solicit or make immoral or
indecent advances to a woman interested in matters pending
before such officer for decision, or with respect to which he is
required to submit a report to or consult with a superior officer;
2. Any warden or other public officer directly charged with the care
and custody of prisoners or persons under arrest who shall solicit
or make immoral or indecent advances to a woman under his
custody.
If the person solicited be the wife, daughter, sister of relative within the
same degree by affinity of any person in the custody of such warden or
officer, the penalties shall be prision correccional in its minimum and
medium periods and temporary special disqualification.
Acts punished:
1. Soliciting or making immoral or indecent advances to
a woman interested in matters pending before the
offending officer for decision, or with respect to
which he is required to submit a report to or consult
with a superior officer;
2. Soliciting or making immoral or indecent advances to
a woman under the offender's custody;
3. Soliciting or making immoral or indecent advances to
the wife, daughter, sister or relative within the same
degree by affinity of any person in the custody of the
offending warden or officer.
Elements:
1. Offender is a public officer
2. He solicits or makes immoral or indecent advances
to a woman;
3. Such woman is —
a. Interested in matters pending before the
offender for decision, or with respect to
which he is required to submit a report to
or 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
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
c. The wife, daughter, sister or relative within
the same degree by affinity of the person in
the custody of the offender.
This has caught attention of the Senate that there has been a
pending bill calling for the amendment of this Art. Instead of
Abuse against chastity, the suggested title is Sexual
Harassment by public officers. The nature of the violation
here does not really require an abuse on the chastity of the
woman involved. You will notice the gravamen of the crime is
the mere making of immoral or indecent solicitations or
advances upon a woman either in a situation where the
woman is a party to a case being investigated by the public
officer, or the public officer is to render a report or consult
with superiors about such case where one of the parties is
the woman. Or, the offender for this crime may be a jail
warden making the immoral or indecent advances upon a
prisoner.
Now here, it is not alone the position of ascendancy that the
jail warden occupies that will bring about this crime. The
relationship between the jail warden and the prisoner is one
that involves a certain fidelity. That is why if a prisoner
disappears, the jail warden and the custodian will incur the
crime of fidelity.
As far as the jail warden is concerned, the crime may be
incurred where the prisoner is a female, or even if the
prisoner was a male, if the immoral or indecent solicitation or
advances were made upon the wife of the prisoner, or upon
thee daughter of the prisoner, or upon the sister, or upon a
relative by affinity of the prisoner in the same degree, that
making of indecent or immoral solicitations or advances
would bring about the crime of abuse against chastity.
Even if the woman consented, there is still this crime of abuse
against chastity, because the offender here occupies a
position of ascendancy over the woman against whom the
immoral or indecent solicitations or advances were made.
And so, the offender took advantage of his official position of
ascendancy over the woman.
You note the woman is a party to a case where the public
officer charged for this crime is conducting an investigation,
or is to make a report, or to consult with superiors regarding
the disposition of the case, or where the offender is a jail
warden and he makes the immoral or indecent solicitations
or advances, upon a woman prisoner under his charge, or
even if the immoral or indecent advances was not made to
the prisoner, if this was made to the wife, the daughter, or
the sister, or a female relative by affinity in the same degree,
the crime is committed also.
Page | 81
In a case where a woman was convicted, so she was sent to
jail. In her cell, she was being visited by religious nuns or
sisters, bringing her some religious articles for her to read and
pray. At the start, the woman prisoner appeared to be
perfectly single, but as these religious nuns had been visiting
her, weeks and months, they notice that the prisoner is
becoming pregnant. So they reported this to the higher
authorities in charge of the penal establishment.
An investigation was conducted; the jail warden admitted
that he was the author of the pregnancy. So he was accused
for this crime.
Now his defense was, he does not commit this crime, because
he never made any immoral or indecent solicitations or
advances upon the prisoner. Their relationship was simply the
product of mutual consent and affection. So the jail warden
explained that it is simply that at night there were only the
two of them there, they feel miserable. And so, they love the
company of each other. Out of that friendship, developed
kindness, out of kindness, developed love. So they had a
relationship. Just the same, the jail warden was convicted of
this crime, because he had taken advantage of his position of
ascendancy over the woman prisoner.
Now he raised a question of law to the SC claiming that how
could he be convicted of this crime where it is the solicitation
or advances of an immoral character that is being penalized.
And as testified to by the woman prisoner herself, the jail
warden did not make any solicitations or advances to her.
Everything was simply spontaneous. They fell in love with
each other. And that brought about the pregnancy.
The SC affirmed the conviction. And the High Court said,
actions speak louder than words. The best evidence of the
immoral or indecent advances is the pregnancy. So with that,
the jail warden was convicted. Now this is because, as I have
intimated to you before, a prisoner under our system of
criminal law is regarded as a chattel of the Government -
Government property. So the public officer entrusted with
the custody of a prisoner should never tinker with the
prisoner because that is Government Property. That is why
the word G.I. has been used. In this case of soldiers, they are
called G.I.'s — Government Issue. They are regarded as
Government Chattels. That is the same status that prisoners
occupy. And so, the custodian should never tinker with the
prisoner.
So even if the jail warden, let us say, was a bachelor who cries
to court the prisoner, for as long as that is their relationship
— jail warden and prisoner - he is not free to tinker with the
prisoner, because the prisoner is a Government Property. So
he should first resign his position in the Government,
because, as such, he is entrusted with that property. He is not
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
supposed to take advantage of his position. So this crime is at
once committed.
Now you will notice here, where the immoral advances is
made to the mother of the prisoner, this crime is not
committed. The mother of the prisoner is not included among
the woman to whom the immoral or indecent solicitations or
advances if made would also bring about this crime. Only the
wife, the daughter, the sister, or a female relative by affinity
in the same degree. The mother, not included.
Now it does not mean, however, that if the jail warden made
the immoral or indecent solicitations upon the mother that
there is no criminal liability. There will still be criminal liability
but not under this Art. anymore. It will be under the ANTI-
GRAFT and CORRUPT PRACTICES ACT under Sec. 3 thereof —
demanding, soliciting, or receiving a gift from someone who
transact with his office as a corrupt practice. So it is there.
Now one of the questions asked before is whether this crime
can be committed if the jail warden was a homosexual, the
prisoner is a handsome male, and the jail warden makes
immoral or indecent advances upon the prisoner under his
custody?
The answer is NO. Because under criminal law males
do not have chastity. So there is no chastity to talk
about, to violate or to abuse. This is a privilege of
women
Now also, question was asked: Supposing the National
Correccional Institute for Women, the jail warden was a
lesbian, and she made immoral or indecent advances upon a
female prisoner. Is the crime committed?
The answer is YES. As long as the offended party is a
woman, and the offender is a jail warden. The law
does not distinguish whether the jail warden is a
male or female.
RECAP:
Three instances when this crime may arise:
1. The woman, who is the offended party, is the party
in interest in a case, where the offended is the
investigator or he is required to render a report or
he is required to consult with a superior officer.
It is immaterial whether the woman did not agree or
agreed to the solicitation. If the woman did not
agree and the public officer involved pushed through
with the advances, attempted rape may have been
committed.
Page | 82
2. The woman who is the offended party in the crime is
a prisoner under the custody of a warden or the
jailer who is the offender.
This crime cannot be committed if the warden is a
woman and the prisoner is a man. Men have no
chastity.
If the jail officer forced himself against the will of the
woman, another crime is committed, that is, rape
aside from abuse against chastity.
You cannot consider the abuse against chastity as
absorbed in the rape because the basis of penalizing
the acts is different from each other.
3. The crime is committed upon a female relative of a
prisoner under the custody of the offender, where
the woman is the daughter, sister or relative by
affinity in the same line as of the prisoner under the
custody of the offender who made the indecent or
immoral solicitation.
The mother is not included so that any immoral or
indecent solicitation upon the mother of the
prisoner does not give rise to this crime, but the
offender may be prosecuted under the Section 28 of
Republic Act No. 3019 (And-graft and Corrupt
Practices Act).
Why is the mother left out?
Because it is the mother who easily succumbs to
protect her child.
If the offender were not the custodian, then crime would fall
under Republic Act No. 3019 (The Anti- Graft and Corrupt
Practices Act).
ANTI GRAFT AND CORRUPT PRACTICES ACT
(RA 3019. AS AMENDED)
XXX the bulk of the violations of this law are covered by Sec 3
thereof. Familiarize yourselves with the different subsections
under sec 3 of this law.
Section 3. Corrupt practices of public officers. In addition to acts or omissions
of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to
be unlawful:
(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.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
(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.
(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 | 83
The person giving the gift, present, share, percentage or benefit referred to
in subparagraphs (b) and (c); or offering or giving to the public officer the
employment mentioned in subparagraph (d); or urging the divulging or
untimely release of the confidential information referred to in subparagraph
(k) of this section shall, together with the offending public officer, be
punished under Section nine of this Act and shall be permanently or
temporarily disqualified in the discretion of the Court, from transacting
business in any form with the Government.
The most commonly violated provision is subsection e —
causing undue injury to another, whether private public, by
giving unwarranted benefits through manifest partiality,
evident bad faith, gross inexcusable negligence.
Regarding this subsection e, the injury contemplated here
must be material injury — one which is quantifiable in
money.
And although in crimes mala prohibita, evidence of good faith
or lack of malice or criminal intent is not a defense, under
subsection e, if the complaint is premised on alleged evident
bad faith, SC has already ruled, by way of exception to the
principle that in mala prohibita, evidence of good faith, lack
of malice or criminal intent is not admissible, in this particular
case, it should be allowed.
So when the complaint is based on alleged evident bad faith,
the accused should be allowed to prove that he did not act in
bad faith but in good faith, and that he acted without malice
nor criminal intent. This is because, otherwise, the complaint
having been premised on this cause, to deny the accused to
present evidence that he acted in good faith, that he acted
without malice or criminal intent, would be to deprive his of
any defense for himself.
So by way of exception, this would allow evidence of good
faith, evidence of lack of malice or criminal intent, although
violations of the Anti Graft and Corrupt Practices Act are
concededly mala prohibita.
It is important for you to bear in mind that all violations of
this law are mala prohibita. That in these violation, the law is
not interested with the effect but simply, on the violation of
the prohibition.
So although in the act committed against the prohibition
here, the government benefited, the government profited,
that notwithstanding, the public officer involved will be
criminally liable.
So in a case where the newly elected municipal mayor
assumed office without any money left in the municipal
coffers. So his problem was how to deliver the basic services
to the constituents of the municipality since there is no
money. He could not even think of where to pay the salaries
of the employees of the municipality.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
So he met with the municipal board or municipal council. And
they discussed about how to raise revenues for the
municipality. They thought that one of the spaces in the
municipal hall be leased to the concessionaire to be operated
as a canteen and convenience store so that the municipality
will have some revenues.
So bids were invited for this purpose but none of the bids
proved favorable because the interested parties wanted the
municipal government to make some preparations for that
space suitable to make it a canteen or a convenience store.
And the municipality has no funds at all to make the
necessary renovations.
So the bids start out to be futile. Because of that, the
municipal council resolved to entertain negotiated bids. So
the municipal council started accepting proposals from
interested parties on how to operate the space. The son of
the mayor was interested and he offered that he will
shoulder all the expense to improve the place, make it
suitable for a convenience store and a canteen at his own
expense, but the municipality must reimburse him when
the municipality already has money.
Now, likewise, he is willing to operate the place. All income
will go to the municipality because, allegedly, he wanted only
to help his father who is the mayor. He will advance the
expenses and the municipality will simply reimburse the
expenses. All income will go to the municipality.
This was considered as most advantageous. So the municipal
council passed a resolution accepting such proposal
A contract was prepared. And naturally the contract had to
be signed by the mayor because he is the chief executive of
the municipality. So the contract turned out to be father and
son.
The interested parties filed a civil case in the local RTC for the
annulment of the contract. But the RTC found nothing
violative of civil law that will bring about the nullification of
the contract. So dismissed the complaint.
Te plaintiffs thought of filing a criminal case against the father
— the mayor. And they filed this with the SB for violation of
the Anti-Graft and Corrupt Practices Act.
The defense of the father that this is the only offer that would
raise revenues for the municipality. That the municipality was
bankrupt and does not even have the money to pay the
salaries of the employees. So this appears to be necessary for
the municipality in order that it may raise revenues. And as
the proposal was presented, the municipality or the
Page | 84
government will get all the benefits. There is no
disbursement, there is no expenses because the expenses
were all shouldered by the son of the mayor who will operate
this.
SB, nevertheless, convicted the mayor because the thrust of
his defense is one of good faith.
So he appealed to the SC. And this time, he emphasized on
the benefits and the advantage received by the municipal
government
SC qualified that even if the prohibited act may have
redounded to the benefit of the government, as long as it is
prohibited, one who violates the prohibition would incur a
crime. This is the nature of crimes mala prohibita. It is enough
that the prohibited act be voluntarily committed. Criminal
liability will at once attach whether the act proved
advantageous to the government or otherwise. The act is
prohibited. And so, anyone who voluntarily commits the act
will incur criminal liability. So the mayor was convicted.
Take note of the subsection and the case because this has not
yet been the subject of a bar problem.
Under subsection f, you have here a situation where the
public officer neglected or refused to act on a matter pending
before him. And he, in spite of demand from the interested
parties, refused to act thereon without any justification.
A process server of the RTC was accused on the basis of a
violation of this subsection.
The process server delayed the service of notice of judgment
to the judgment debtor. Now you know that for as long as the
notice of judgment has not been served to any of the party
litigants, the period for finality of the judgment will never
commence to run.
The process server delayed the service of the notice of
judgment to the defendant for five months. So although the
counsel for the plaintiff had been egging him to serve already
the notice, for one reason or another, he simply does not
serve the notice until the defendant, was able to move out of
his old residence.
So he had to look for the new address. And when he found
this, he served the notice of judgment.
The defendant did not appeal from the judgment so it
became final and executory, the plaintiff then moved for the
issuance of a writ of execution. The court issued a writ of
execution. Again this process server delayed the service of
the writ.
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Now when he finally came upon the place of the judgment
debtor to levy in satisfaction of the judgment, there was
nothing lo levy upon anymore. The judgment debtor has
nothing left which is not exempt from execution. Everything
he has is exempt from execution.
So the plaintiff was left holding a paper judgment. Because of
that, they were so mad at this process server, they filed a
criminal case before the SB for violation of sec 3, subsection f
of the Anti Graft and Corrupt Practices Act.
SB convicted the process server because there was really
unexplained delay. And damage was suffered by the plaintiff.
The process server appealed to the SC, the SC acquitted him.
SC called attention that under subsection f, it is not alone the
neglect or refusal to act on a matter pending before a public
officer that would bring about the violation. It is the essence
of the violation that the neglect or refusal to act was dictated
by pecuniary interest or a demand for a certain amount.
So unless this is proven, mere delay or neglect in acting on a
matter pending before a public officer can only bring about
administrative case not a criminal case. There is no doubt
that the neglect to act is answerable, and therefore an
administrative case, if filed, would be against the process
server. But not criminally because under subsection f, what
brings about the criminal liability is when the neglect or
refusal to act is dictated by pecuniary interest or pecuniary
demand by that public officer. Meaning to say, public officer
was demanding certain amount, and for as long as that
amount was not given, he would not act on the paper
pending before him. X X
It is not alone the neglect or the delay. There must be
evidence to show that, that neglect or delay was brought
about by a demand for money or by certain pecuniary
interest. And that without that, the public officer involved
would not act on papers pending before him.
Now also you should note in subsection i, regarding the filing
of an application before a board, panel or group requiring the
exercise of discretion, and a public officer who is a member of
that board, panel, or group has financial interest in the
enterprise applying before that board, panel, or group.
Note here, firstly, the act of the board, panel, or group on
such application must involve discretion. If it is only
ministerial, the subsection will not govern.
Next, you take note, a public officer who is a member of that
board, panel, or group has no choice except to renounce
Page | 85
whatever interest he has in that enterprise interested in that
application, or resigns his membership in that board, panel,
or group.
It is expressly stated in that subsection i, that even though
the public officer who is a member of that board, panel, or
group would vote against the application or would abstain,
criminal liability is still incurred.
So the only option available to hi to avoid criminal liability
under the Anti Graft and Corrupt Practices Act is to renounce
his financial interest in the enterprise or entity interested in
the application or for him to resign his membership of that
board, panel, or group.
His voting against the application would not suffice, or his
abstaining from acting on that application would not suffice.
Now this is the situation where then Trade Secretary
Concepcion found himself
As Secretary of Trade and Industry, he was also the Chairman
of the Board of Investments. And this board acts on
applications of new industries to import, free from tariff and
customs duties, machineries and equipment of new
industries to encourage their setting up in this country.
One of such applicant was the Concepcion Industries in which
this Trade Secretary was the President. And that is why there
were so many importations of Concepcion Industries which
came in without any payment of customs duties or tariffs
because they were brought in under the Omnibus
Investments Act.
So Secretary Concepcion has been approving this. And that is
why the complaint that in a matter of short time Concepcion
Industries bloated, bigger than San Miguel. Whereas San
Miguel has been doing business in the Philippines for
centuries already. And this group of companies only came out
during the Marcos Regime.
The Senate X X X on the Ombudsman. And the Senate
conducted an investigation.
The defense of Secretary Concepcion was that he divested
himself of interest in the Concepcion Industries. The
divestment, however, was in favor of his son. So this became
questionable. But he claimed that his son is already of age,
has his own family, and therefore, he is legally separated
from his family. Therefore, this is like a renunciation to a third
party.
Of course, we cannot accept this. But because the Senate
jumped on this and cleared him, the Congressmen cannot act
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
anymore because the Senate already cleared him. Although
the Senate is not supposed to be the body to act on this. You
see how immoral the looting was handled.
There is clear violation of Section 3i of the Anti-Graft and
Corrupt Practices Act.
Now under this law, when a public officer is under
investigation for unexplained wealth amassed in violation of
this law, his bank accounts and those of his wife, his children
below 18, his nominees, his assignees, and transferees shall
be examined to determine whether there is probable cause
for the investigation against him.
In a case where this Banco Filipino Savings and Mortgage
Bank was the depositary, the bank refused to allow an
examination of the records invoking the law on secrecy of
bank deposits (RA 1405). So this became an issue that
reached the SC because the bank would not allow the
examination of the records regarding the bank accounts of a
ranking public officer who is under investigation for
accumulated ill gotten wealth.
SC ruled that this examination done pursuant to the provision
of the Anti Graft and Corrupt Practices Act should be
regarded as an exception to the prohibition; otherwise the
investigation would be useless.
So although among the exception stated in the law
maintaining secrecy of bank deposits, this examination of
bank accounts should be considered as an added exception
where the bank cannot invoke this law to prevent the
examination of the accounts of a public officer who is under
investigation for the violation of the Anti Graft and Corrupt
Practices Act.
In other words, there is already a precedent. That is why
during this impeachment proceedings against Mr. Estrada,
the Equitable Bank at first refused to bring out the records
but they were advised about this ruling that the bank cannot
invoke the law on secrecy of bank deposits to prevent any
examination of bank accounts of public officers under
investigation for violation of the Anti-Graft and Corrupt
Practices Act.
So now it is seeded, that law on secrecy of bank deposits
cannot prevent the examination of bank accounts of public
officers charged with violation of the Anti-Graft and Corrupt
Practices Act.
Now under Sec 13 of this law, a public officer who had been
charged in court to; violation of this law shall be suspended
upon a finding by the court of a valid information against him.
Page | 86
Section 13. Suspension and loss of benefits. Any public officer against whom
any criminal prosecution under a valid information under this Act or under
the provisions of the Revised Penal Code on bribery is pending in court, shall
be suspended from office. Should he be convicted by final judgment, he shall
lose all retirement or gratuity benefits under any law, but if he is acquitted,
he shall be entitled to reinstatement and to the salaries and benefits which
he failed to receive during suspension, unless in the meantime administrative
proceedings have been filed against him.
This provision of the law has been construed to be mandatory
but it is not automatic. In other words, it does not mean that
when an information is already filed with the SB against a
public officer that, that public officer may already be
suspended by his superior or by the head of the office.
The law requires that the court which is now the SB having
exclusive Jurisdiction for violations of the Anti-Graft and
Corrupt Practices Act must first make a finding that indeed
there is a valid information filed against the public officer.
The purpose is to avoid elimination of public officers who do
not belong to the same political administration running the
government because on trumped up charges, public officers
may simply be ousted from his office, if every time they file a
case against a public officer for alleged violation of this law
that public officer can already be suspended out of office.
The law requires that the court where the case is filed must
find a valid information against the accused.
It is the court who will order the suspension. So when an
information is filed against the public officer with the SB, SB
may issue an order to the public officer charged to show
cause why he should not be suspended. Or the SB may
schedule the case for a pre-suspension hearing. You have
learned this in Administrative Law. There is such a thing as
the so-called pre-suspension hearing. That before a public
officer may be suspended from office, he should be given the
benefit of due process. He must be heard.
One of the problems given in Remedial Law, I think this was
2003 or 2002, I think the answer is wrong. Because in the
facts given, after the Ombudsman forwarded the information
with the records of the investigation, the affidavits of the
parties, the SB found that there is a prima facie case against
the accused public officer. And so, the SB issued an order for
suspension of the public officer involved.
The question was whether the order was valid?
The panel readily answered valid because suspension under
this law is mandatory. What was overlooked was the
pronouncement in the case of Estrella vs CA — this is the case
of the former mayor in Makati — that although suspension is
mandatory, it is not automatic. The court must first
determine that there is merit in the violation charged. For
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
this purpose, the public officer accused of the crime must be
given the opportunity to be heard.
So considering especially the current attitude that the
employment of a person is his source of livelihood, that you
cannot deprive him of his livelihood without the benefit of
due process, because that would be tantamount to depriving
him of his life. And this is prohibited under the Constitution.
The public officer must be served with notice to explain why
or to show cause why he should not be suspended from
public office. There must be a hearing. He must be given his
day in court. Only then will the suspension order be valid.
So although the suspension is mandatory, it is not automatic.
This is a settled jurisprudence on this. So you do not view this
only from one aspect.
When it is already shown that there is merit in the
accusation, the SB which is now the court exercising exclusive
jurisdiction over violations of the Anti Graft and Corrupt
Practices Act will then be issuing the, order of suspension.
In the case of Libanan, this Congressman. He was ordered
suspended by the SB for a violation committed while he was a
member of the provincial board — Sangguniang
Panlalawigan. The order came when he was already elected
as vice governor. So he claimed he cannot be suspended from
that elective office because the charge for violation of this X X
X whatever public office is held by the accused when the
order of suspension was issued, he shall be suspended from
that public office even though it is not in that office where
the violation of this law was committed by him.
So it is clear, that the suspension order will not be in respect
of the office where the violation was committed. Suspension
order will affect the accused in whatever public office he was
holding at the time that suspension order was issued, even
though it is not in that office where the violation was
committed. SC noted there is no qualification. Sec 13 says
public office: So any office as long as it is a public office will
bring about his suspension pursuant to the order issued by
the SB.
The most violated provision in Section 3 is subsection e
(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.
Violations of RA 3019 are considerably mala probihita. In
crime mala prohibita, the criminal intent or the good faith of
the offender is not a defense, it is not enough that the
Page | 87
offender violated the provision of the law and he did so
voluntarily or not under duress.
Under subsection e, one of the grounds for the case
covered thereunder is manifest partiality, evident bad faith
and gross inexcusable negligence, the SC already rule that
if the criminal case against the accused was premised on
alleged evident bad faith by way of exception to the rule
that good faith or lack of criminal intent is not a defense in
crimes mala prohibita, in this particular section under
subsection e of section 3, evidence of good faith or lack of
criminal intent is a admissible if the case is predicated on
alleged evident bad faith. This should be considered an
exception, otherwise the accused who is charged on the
ground of evident bad faith will not be able to defend
himself from the prosecution. Although that the violation is
a malum prohibitum, exceptionally on that particular
ground only, that the undue injury was brought about by
evident bad faith, the accused should be allowed to adduce
evidence that he did not act in bad faith, or acted without
criminal intent.
The injury referred in this subsection is material injury. If it
would be by way of lost earnings that is not covered by the
subsection. Filing a case under this subsection for a
purported loss in the nature of moral damages, this is not
the material injury purported here. The injury must be
tangible or actual and not merely speculated which may or
may not really true.
Under subsection F
(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.
Pay attention to the nature of the violation. Neglect or
refusal of a public officer to act on a matter pending before
him without justification and despite repeated demands.
The SC, in this respect, ruled that it is not enough that the
accused-public officer should neglect or refused to act on a
matter pending before him despite demands from
interested party and without justification. It is of the
essence of the violation that the accused-public officer
must be impelled by pecuniary interest in the matter he is
to act upon. Otherwise, mere neglect or refusal to act on a
matter pending before a public officer would only be a
ground for administrative sanction not criminal liability. To
bring about criminal liability from the public officer involved,
there must be proof that the accused refuses or neglects to
act on the matter pending before him because of some
pecuniary interest or demand that he wants to be satisfied.
In subsection I
(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
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
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.
The situation refers to an entity having filed an application
before a board panel or group composed of public officer to
approve the application. The provision covers only
applications requiring the exercise of discretion in the
approval thereof. Any public officer who is a member of that
board panel or group to act on the application should resign
therefrom or renounce his financial interest in the
enterprise making the application. Otherwise, even if the
public officer which is a member of that board or group
would vote against the application he would incur a
violation of this provision of subsection i. the only way to
avoid liability is to resign membership to that board panel
or group or renounce his interest in the enterprise which
aspire application for approval involving the exercise of
discretion of that board panel or group.
The approval must involve exercise of discretion, if the
approval is merely ministerial action, the prohibition does
not apply
Example: in an airport in Cebu city, the board of canvassers
there approving the payment of the amount of the lights
were prosecuted, the SB convicted them but the SC
acquitted them because their involvement requires only a
ministerial duty in approving the appropriation of the
amount which is fixed by some other group or authority in
that entity.
Under this RA 3019, when a public officer is under
investigation for accumulating or amassing ill-gotten wealth
in violation of this law, the property of the public officer may
be examined including his bank accounts, those of his
relatives, dummies, associates and family except children
over 18 yrs old already. In that examination, bank accounts
are included. In respect of this, take note of the law on
secrecy of bank deposit (RA1405). When the examination
of bank account is to be undertaken pursuant to an
investigation conducted under this law (RA3019), the SC
ruled that the secrecy of bank deposit cannot preclude or
prevent the examination of bank accounts of the public
officers under investigation or ill-gotten wealth. Otherwise,
the very law will be the instrument to defeat the
investigation. Although the law on secrecy of bank deposits
does not expressly include as exception thereto (violation of
corrupt practices act) necessarily this should be considered
as an exception against the law prohibiting the examination
of bank deposits.
RA 1405 cannot stand against the investigation an
examination of accounts against public officer charged with
having amassed or accumulated ill-gotten wealth.
Page | 88
When a public officer is charged before the SB for violation
of RA 3019, the suspension of such public officer is
mandatory. The SB cannot proceed with the hearing of the
case without issuing an order of suspension for the
accused-public officer. The suspension, however, is not
automatic. The SB which is the court having exclusive
jurisdiction over violations of the RA 3019 should first
assessed the validity of the information filed against the
public officer and when there is merit in the prosecution of
the accused-public officer shall the court issue an order of
suspension. The suspension is only good for 90 days. On
the other hand even a regular RTC or even a MTC can issue
an order of suspension of a public officer accused for
violation of penal laws involving the duties of his office
which do not constitute violation of RA 3019. This is an
inherent prerogative of a court when the court deems it
necessary to suspend the accused public officer from
exercising his public office. The purpose of suspension is to
preserve the evidence or to safeguard the authenticity of
integrity of public records.
RA 6713 –code of conduct and ethical standards of public
officials and employees
Many of the acts prohibited or penalize under this law are
also prohibited and penalized under the RPC and in the
Anti-graft and corrupt practices act. But most significant are
those covered by sections 8 and 9 of this law.
Section 8. Statements and Disclosure. - Public officials and employees
have an obligation to accomplish and submit declarations under oath of,
and the public has the right to know, their assets, liabilities, net worth and
financial and business interests including those of their spouses and of
unmarried children under eighteen (18) years of age living in their
households.
(A) Statements of Assets and Liabilities and Financial Disclosure. -
All public officials and employees, except those who serve in an
honorary capacity, laborers and casual or temporary workers,
shall file under oath their Statement of Assets, Liabilities and
Net Worth and a Disclosure of Business Interests and Financial
Connections and those of their spouses and unmarried children
under eighteen (18) years of age living in their households.
The two documents shall contain information on the following:
(a) real property, its improvements, acquisition costs,
assessed value and current fair market value;
(b) personal property and acquisition cost;
(c) all other assets such as investments, cash on hand or
in banks, stocks, bonds, and the like;
(d) liabilities, and;
(e) all business interests and financial connections.
The documents must be filed:
(a) within thirty (30) days after assumption of office;
(b) on or before April 30, of every year thereafter; and
(c) within thirty (30) days after separation from the
service.
All public officials and employees required under this section to
file the aforestated documents shall also execute, within thirty
(30) days from the date of their assumption of office, the
necessary authority in favor of the Ombudsman to obtain from
all appropriate government agencies, including the Bureau of
Internal Revenue, such documents as may show their assets,
liabilities, net worth, and also their business interests and
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

financial connections in previous years, including, if possible,
the year when they first assumed any office in the Government.
Husband and wife who are both public officials or employees
may file the required statements jointly or separately.
The Statements of Assets, Liabilities and Net Worth and the
Disclosure of Business Interests and Financial Connections
shall be filed by:
(1) Constitutional and national elective officials, with the
national office of the Ombudsman;
(2) Senators and Congressmen, with the Secretaries of
the Senate and the House of Representatives,
respectively; Justices, with the Clerk of Court of the
Supreme Court; Judges, with the Court Administrator;
and all national executive officials with the Office of
the President.
(3) Regional and local officials and employees, with the
Deputy Ombudsman in their respective regions;
(4) Officers of the armed forces from the rank of colonel
or naval captain, with the Office of the President, and
those below said ranks, with the Deputy Ombudsman
in their respective regions; and
(5) All other public officials and employees, defined in
Republic Act No. 3019, as amended, with the Civil
Service Commission.
(B) Identification and disclosure of relatives. - It shall be the duty of
every public official or employee to identify and disclose, to the
best of his knowledge and information, his relatives in the
Government in the form, manner and frequency prescribed by
the Civil Service Commission.
(C) Accessibility of documents. –
(1) Any and all statements filed under this Act, shall be
made available for inspection at reasonable hours.
(2) Such statements shall be made available for copying
or reproduction after ten (10) working days from the
time they are filed as required by law.
(3) Any person requesting a copy of a statement shall be
required to pay a reasonable fee to cover the cost of
reproduction and mailing of such statement, as well
as the cost of certification.
(4) Any statement filed under this Act shall be available
to the public for a period of ten (10) years after
receipt of the statement. After such period, the
statement may be destroyed unless needed in an
ongoing investigation.
(D) Prohibited acts. - It shall be unlawful for any person to obtain or
use any statement filed under this Act for:
(a) any purpose contrary to morals or public policy; or
(b) any commercial purpose other than by news and
communications media for dissemination to the
general public.
Section 9. Divestment. - A public official or employee shall avoid conflicts
of interest at all times. When a conflict of interest arises, he shall resign
from his position in any private business enterprise within thirty (30) days
from his assumption of office and/or divest himself of his shareholdings or
interest within sixty (60) days from such assumption.
The same rule shall apply where the public official or employee is a
partner in a partnership.
and network as well as other specified statements of
disclosures. The statements of disclosures are:
• Disclosures of such public officers financial
interest in the government
• Disclosures of the ____ collections of the same
public officer in the government
• Disclosures of his relatives employed in the
government in so far as they are known to him by
the ____
Failure of the public officer to comply with this will bring
about the prosecution under the Anti-graft and corrupt
practices act.
However expressly excluded by this law from filing these
statements are:
• Those holding public office in an honorary capacity
• Laborers
• Casual or temporary workers
The above public officers need not file a statement of
assets and liabilities and networks and even statement of
disclosure required.
Under section 9, if the public officer involved was elected or
appointed to a public office whereas he also holds a
position in a private enterprise or he has financial interest
by way of shareholding and investments in a private
enterprise, should there be a conflicting interest between
said private enterprise and the public office which he
assumes, this law requires of him to resign or renounce his
position in the private enterprise or otherwise his position
in the public office. He is given 30 days after assumption of
public office to divest himself of such interest.
And if he has investments in the private enterprise with
conflicting interest with the public office he has assumed,
he is allowed with a period of 60 days within which to divest
himself of his shareholdings or investment in the private
enterprise.
However, this law likewise expressly excludes the following
from complying from this requirement of divesting
conflicting interest:
• Those who hold the public office in a temporary
capacity
• Laborers
• Casuals and temporary workers
The requirements of section 8 and 9 are not absolute. The
above public officers are the exceptions

The requirement of divestment shall not apply to those who serve the
Government in an honorary capacity nor to laborers and casual or
temporary workers.

Under section 8, every public officer upon assumption of

public office should file statement of assets and liabilities

Page | 89
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
RA 7080 - Plunder
The common idea is that if the amount in gross value of the
ill-gotten wealth already exceeds or amounted to no less
than Php50,000,000 the crime of plunder is already
committed. THIS IS A WRONG NOTION.
Even though the amount accumulated is much more than
50M in gross value, the act by which the amount is
accumulated determines whether the crime of plunder had
been committed or not. In the case filed by then President
Estrada questioning the constitutionality of this law, the SC
called attention to the manner of committing the crime of
Plunder. There are 2 ways mentioned:
• Thru a combination of overt or criminal acts
• Thru a series of overt or criminal acts
The acts referred to are enumerated in 6 paragraphs under
subsection D section 1 of this law
Section 1. Definition of Terms - As used in this Act, the term -
e) 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:
2) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public
treasury;
3) By receiving, directly or indirectly, any commission,
gift, share, percentage, kickbacks or any other form
of pecuniary benefit from any person and/or entity in
connection with any government contract or project
or by reason of the office or position of the public
officer concerned;
4) 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;
5) By obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other
form of interest or participation including promise of
future employment in any business enterprise or
undertaking;
6) 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
7) 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.
The SC took note of the word combination which means “to
act at least”. So even though 350M of purported ill-gotten
wealth was accumulated, if it is by single kick back, the
crime of plunder is not committed. In other words, it is not
alone the amount, it is also the manner by which the ill-
gotten wealth was accumulated.
Since the law uses the word combination, reference is
made to the different paragraphs constituting acts of
Page | 90
plunder, the 2 acts at least that would bring about the
crime must be separately enumerated in each of the 6
paragraphs. If the 2 acts that brought about no less than
50M in gross value are both punished under paragraph 1
of section 1, subsection D, that is not a combination. The
combination implies that each of the 2 acts must be
punished under each of the 6 enumerations and not under
the same enumeration.
So if the amount of no less than 50M was accumulated out
of malversation which is found in the 1st enumeration also
out of bribery found also in the same enumeration, that will
not be a basis for plunder.
Each of the 2 acts must be provided in different
enumerations. The first act is by malversation, the 2nd act is
kick back from government transaction which is
enumerated under the 2nd enumeration then we have a
combination. So if the amount of the ill-gotten wealth under
that combination amounts already to no less than 50M in
gross value, then the crime of plunder is committed
On the second manner by which the crime may be
considered, the law uses merely the word “series”. This
implies more than 2 acts without reference to the nature of
the violation committed. So if the amount of no less than
50M in gross value was accumulated out of 3 acts of
malversation even though the crime that brought about the
accumulation is found in one paragraph only of subsection
D, plunder is already incurred.
So we only observe the difference of the acts if it were
under the first manner of committing the crime and that is
because the word uses combination. It must not be the
same act but it should be different acts, but if it were a
series, then it can admit of the same act but it should be no
less than 3.
If the amount although in excess of 50M in gross value was
not accumulated in this manner, the crime of plunder is not
incurred. The act would be penalized under the Anti-graft
and corrupt practices act, the procedure provided in RA
3019 will be the one applicable.
In the crime of plunder, the SC has pronounced that the
violations are mala inse, not mala prohibita. So the same
principles observed in respect of crimes under RPC will
equally apply here because the acts punished hereunder
are not mala prohibita. That pronouncement by the SC
must have been made because this law provides that the
degree of accomplishment of the crime shall be taken into
account. When it is degree of accomplishment, we only
have this in the RPC (attempted, frustrated, consummated).
Moreover the law expressly provides that mitigating and
extenuating circumstances shall be considered in fixing the
penalty. This is true to felonies under the code. In short,
plunder is not a malum prohibitum.
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This crime prescribes in 20 years from the time the last act
accumulating ill-gotten wealth was committed and the
amount of no less than 50M in gross value is already
reached. So if the amount involved were accumulated in 5
different acts, during the 1st, 2nd, 3rd and the 4th, no plunder
yet, it is when the last act, the 5th act that would already
complete the amount of no less than 50M will the crime of
plunder be considered committed. So the 20 yrs
prescriptive period will start from there not from the 1st, 2nd,
3rd, or 4th act.
But for purposes of the violation of the Anti-graft and
corrupt practices act, the prescriptive period is 15 yrs
If it was not a violation of the anti-graft and corrupt
practices act, and the act involve is a felony, then the RPC
will control the prescriptive period.
TITLE EIGHT - CRIMES AGAINST PERSONS
The crimes against persons are of the essence involving
destructions of human life or limb. It is only the crime of rape
that is foreign to this. But since the crime of rape had been
transposed to Title 8 as a crime against persons, the attitude
about this crime is no longer centered on the gender of the
offended party. This is more regarded now as a violation of
the person of the victim. That is why the offended party may
be a male, not anymore limited to a female. So the sexual
aspect of the crime of rape is only secondary.
Under this title, you have different forms of killing with
different designations. You should familiarize yourselves on
the element that makes one crime different from the other.
For instance, first crime here is Parricide.
PARRICIDE
Art. 246. Parricide. — Any person who shall kill his father, mother, or child,
whether legitimate or illegitimate, or any of his ascendants, or descendants,
or his spouse, shall be guilty of parricide and shall be punished by the penalty
of reclusion perpetua to death.
Elements:
1. A person is killed
2. The deceased is killed by the accused
3. The deceased is the father, mother, or child,
whether legitimate or illegitimate, or a legitimate
other ascendant or other descendant, or the
legitimate spouse, of the accused.
It is the blood relation between the offender and the victim.
That blood relationship qualifies the crime and, therefore,
must be alleged in the information charging the accused of
Parricide.
Page | 91
It is only when the offender and the offended party are
husband and wife that there is no blood relationship. But the
marriage should be valid to justify the treatment of a crime as
one of parricide. All others to bring about parricide must be
brought about by relationship by blood.
The blood relationship, however, is limited only to the direct
line (ascending or descending). Blood relationship in the
collateral line is not included.
So when a person kills a brother or a sister although of full
blood, that is not parricide because the relationship is in the
collateral line.
This must be in the direct ascending line or direct descending
line.
Also, the relationship between the offender and the offended
party must be legitimate, except when the offender and the
offended party are related as parent and child.
If the offender and the offended party, although related by
blood and in the direct line are separated by an intervening
illegitimate relationship, parricide can no longer be
committed because it sever the continuity of the blood
relationship between the ascendant and the descendant.
The illegitimate relationship between the child and the
parent renders all relatives after the child in the direct line to
be illegitimate too.
The only illegitimate relationship that can bring about
parricide is that between parents and illegitimate children as
the offender and the offended parties.
as between husband and wife, it will only be parricide if the
marriage is not null and void. If the marriage is null and void
ab initio, the killing cannot be parricide. It will be ordinary
homicide or murder.
Also, as between spouses, there is a ruling by the
Supreme Court, that in the case of Muslim husband,
who under the Muslim code, allowed to marry 4
wives. Parricide would only arise from the killing of
the first wife. The killing of the 2nd, 3rd or 4th wife
cannot be regarded as parricide anymore. The SC
said that the reason for this is that a catholic
husband can commit parricide only once. Muslim
Husband are authorized by law to marry according
to their customs 4 times. If such Muslim husband
would be liable for more than one parricide
because he had married much as four times, in
effect, he would be penalized for what the law had
authorized to do.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Since parricide is a crime of relationship, if a stranger
conspired in the commission of the crime, he cannot be held
liable for parricide. His participation would make him liable
for murder or for homicide, as the case may be. The rule of
conspiracy that the act of one is the act of all does not apply
here because of the personal relationship of the offender to
the offended party.
INFANTICIDE
Art. 255. Infanticide. — The penalty provided for parricide in Article 246 and
for murder in Article 248 shall be imposed upon any person who shall kill any
child less than three days of age.
If the crime penalized in this article be committed by the mother of the child
for the purpose of concealing her dishonor, she shall suffer the penalty of
prision correccional in its medium and maximum periods, and if said crime be
committed for the same purpose by the maternal grandparents or either of
them, the penalty shall be prision mayor.
Elements:
1. A child was killed by the accused;
2. The deceased child was less than 3 days of age
Now although the killing of a child whether legitimate or
illegitimate, by a parent is parricide, yet if the child is less
than 3 days old when killed, the crime is not parricide
anymore but infanticide.
In the crime infanticide, it is the circumstance of age that
controls, not anymore that circumstance of blood
relationship.
So although the killer may be the parent of the child, if the
child when killed was less than 3 days old, not years, days
only, or 72 hours, the crime is infanticide. This is crucial
because if a mother wanted to kill her child to conceal her
dishonor but she could not do the killing, she had to request
her brother to do it. Now you are asked, what crime or crimes
did the mother and her brother committed?
If the child when killed was less than 3 days old, both
the mother and her brother commits infanticide.
Here, the relationship is immaterial. So only one
information will have to be filed.
But if the child was 3 days old or more, the crime of
the mother would be parricide. The crime of her
brother would be murder. Two informations
therefore will have to be filed.
Page | 92
INFANTICIDE VS. ABORTION
In the crime of Infanticide, you take this in contradistinction
with the crime of Abortion.
The common thinking about abortion is the violent expulsion
of the fetus from the maternal womb. Although in law, that is
also abortion, yet, abortion is not limited to that. Even though
the offspring was already delivered out of the maternal
womb, if the umbilical cord was not yet cut when the
offspring was killed, that killing will still be abortion because
the victim is still a fetus.
In Infanticide, the victim must be a person, but less than 3
days old.
So your knowledge of civil law will come in here. When will a
new born become a person?
For as long as the new born is not yet a person, the
killing cannot be infanticide. It is only a destruction
of the fetus. Hence, abortion only.
In Civil Law, personality is determined by the cutting of that
umbilical cord. If the newborn even after the umbilical cord
was cut is already living apart from the mother, is already
viable, it will acquire personality.
For as long as the newborn is attached by the umbilical cord
to the mother, it is a part of the mother because it is drawing
life from the mother. Hence, if that was destroyed, the crime
is abortion even though the newborn is already out of the
maternal womb.
So if let us say, a woman who is married was raped. Because
of the rape, she became pregnant. On the date that she would
deliver her pregnancy, she was attended to by a midwife and
the husband was assisting. As soon as the offspring was
brought out of the mother's womb, the husband saw the face
which is a carbon copy of the rapist. So the husband cannot
withstand the face of the boy throughout his life has the face
of the rapist. So he got a bolo,
that killing is abortion because the umbilical cord
which connects the newborn to the mother has not
been cut yet.
In Civil Law, however, when a conceived child had an intra
uterine life of less than 7 months, even after the umbilical
cord is cut, he must live for at least 24 hours before he will
acquire personality. So during that 24 hours, he remains as a
fetus. It does not acquire personality yet. It is not a person
yet. The destruction will not be infanticide but abortion.
Now you explain this from the legal sense based on your
learning of how personality is acquired. This is because in
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infanticide, the victim must be a person but less than 3 days
old. In abortion, the victim is only a fetus.
Abortion is not a crime upon the pregnant woman. Abortion
is a crime upon the fetus. So if the pregnant woman suffered
from the felonious act, there will be an added crime
committed upon the pregnant woman aside from the
abortion. Usually the crimes are complexed where, therefore,
in the course of the quarrel the husband lost his temper. He
got hold of an empty family size soft drink bottle, hit die wife
at the buttocks. The wife moaned in pain. She took some
steps and she collapsed. There was massive bleeding and
abortion followed. The wife eventually died. The crime is
Parricide with Unintentional Abortion.
In a case where there was a quarrel, violent quarrel, testified
by the neighbors. Now the quarrel suddenly became silent in
the house. The quarrel died down. So the neighbors thought
that it was the usual quarrel between the spouses. That after
a violent quarrel they are as sweet as newlyweds. So they just
dismissed this. But in this last quarrel which they heard, they
saw the next day, the wife was hanging in a tree. Obviously it
was made to app ear that the wife committed suicide.
So the authorities brought the body of the wife from the tree.
And this was examined by a medico-legal officer. It was found
out that the wife had a broken leg. So it was not possible for
her to go up the tree and commit suicide.
The husband with whom there was a quarrel the night before
was hunted by the law enforcers. Eventually, he was arrested.
He was charged for parricide.
The husband claimed that during the quarrel he announced
to his wife that he would leave her forever. And because the
wife had no means of livelihood, she must have become
desperate and hung herself. Now since there was nobody
who saw the hanging of the wife, the imputation upon thee
husband was only brought about by circumstantial evidence.
The husband was convicted for the crime of Parricide. And
because the death penalty was imposed, the case goes to the
SC on automatic review.
The SC centered on the medico-legal report, the necropsy
report. SC noted the findings by the medico-legal officer that
the victim was two months on the family way. Now because
of this, SC said the crime is not only Parricide. The crime is
Parricide with Unintentional Abortion. Being a complex crime,
the maximum penalty for the more serious crime-which is
death is really to be imposed. So the SC affirmed the death
penalty.
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DEATH OR PHYSICAL INJURIES INFLICTED UNDER
EXCEPTIONAL CIRCUMSTANCES
Art. 247. Death or physical injuries inflicted under exceptional circumstances.
— Any legally married person who having surprised his spouse in the act of
committing sexual intercourse with another person, shall kill any of them or
both of them in the act or immediately thereafter, or shall inflict upon them
any serious physical injury, shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be
exempt from punishment.
These rules shall be applicable, under the same circumstances, to parents
with respect to their daughters under eighteen years of age, and their
seducer, while the daughters are living with their parents.
Any person who shall promote or facilitate the prostitution of his wife or
daughter, or shall otherwise have consented to the infidelity of the other
spouse shall not be entitled to the benefits of this article.
Elements:
1. 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. 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. 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.
Now relative to the relationship of husband and wife, you
have this exceptional circumstance in Art 247 where a spouse
surprised his better half or worse half committing sexual
intercourse with a paramour or mistress.
If such spouse who surprised the other would kill or inflict
serious physical injuries, the penalty is only destierro. And if
the physical injuries are only less serious or slight, then is no
penalty prescribed.
For you to be guided on this exceptional circumstance, think
of 2 stages here.
Two stages contemplated before the article will apply:
1. when the legally married offender surprised that
his/her spouse with a paramour or mistress, the
attack must take place while the sexual intercourse
is going on. For this article to apply, the suprising
must take place while the sexual intercourse is going
on. If the surprise was before or after the
intercourse, no matter how immediate it may be,
Article 247 does not apply. The offender, in this
situation, only gets the benefit of mitigating
circumstance that is sufficient provocation
immediately preceding the act.
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2. When the offender kills or inflicts serious physical
injury upon the other spouse and/or paramour while
in the act of intercourse, or immediately thereafter,
that is, after surprising.
The first stage is the surprising. The second stage is the killing
or inflicting serious physical injuries.
Before the exceptional circumstance may be invoked, the
surprising must have taken place while the sexual intercourse
between the other spouse and the paramour or mistress was
still continuing. So if the sexual intercourse between the
other spouse and the paramour or mistress had not yet
begun or it had already ended when they were surprised, this
exceptional circumstance is no longer available.
It is the basis here that the other spouse and the paramour or
mistress must have been surprised while the sexual
intercourse is going on — no more, no less. This is because of
the reason of the law that when a legally married person
surprised his or her spouse having sexual intercourse with a
paramour or mistress, that spouse who surprised the other
would be suffering from an instantaneous mental blackout.
So whatever acts he would be committing there would be
without reason. So it is considered an act without freedom of
action, without intelligence. And that is why it is the view that
this circumstance is absolutory, no criminal liability. That
there is no crime committed here.
If the sexual intercourse had not yet begun or it is
already ended, this article is no longer applicable.
We do not have to go on the 2nd stage and discuss
this if, in the first place, the first stage is not in
conformity with what is required under the
circumstance.
The penalty of destierro is prescribed. This is cleared
by the SC that the same is not a penalty but more
of a prevention of any retaliation from the family of
the other spouse and/or the paramour or mistress.
In short, the destierro here is regarded as only a
preventive measure. Which, however, is not really
true because the preventive measures provided
under the RPC (Art 24). And destierro is not
mentioned there.
In the case of People v. Coringcor, however, SC
made a pronouncement that destierro here is not a
penalty but more of a protection of the legally
married person against any retaliation from the
family of the offended spouse and/or that of the
paramour or mistress.
Page | 94
If it is not a penalty, therefore, the crime of evasion
of service of sentence will not arise if such legally
married person would violate the deprivation
prescribed under Art 87 on the penalty of destierro.
If the legally married person, therefore, would enter
the places specified in the sentence which he is
prohibited from entering under the destierro or
within the radius of less than 25km therefrom,
ordinarily, there would be an evasion of service of
sentence. This is how the penalty of destierro is
evaded. But in the light of this pronouncement by
the SC, that the destierro here is not a punishment,
therefore it cannot be evaded.
In the second stage, which is the killing or the inflicting of
serious physical injuries the provision requires that this be
done while the sexual intercourse was going on or
immediately thereafter.
The immediately thereafter refers to the killing or the
inflicting of serious Physical injuries. Do not apply this to the
surprising. If the offended parties were surprised immediately
after the sexual intercourse, the benefit of the exceptional
circumstance does not apply anymore. As I said, that first
stage when the accused surprised his or her spouse, the
sexual intercourse between the spouse and the paramour or
mistress must still be going on.
In the second stage when the killing or the serious physical
injuries were inflicted, if these were done while sexual
intercourse was taking place, then there is no problem.
Because that means the accused surprised the victims or the
offended parties while the sexual intercourse was going on.
Problem arises when the accused killed or inflicted serious
physical injuries when the offended parties are no longer in
sexual intercourse.
Two questions arise:
• were they surprised while the sexual intercourse was
taking place?
• were they killed or serious physical injuries inflicted
immediately after the sexual intercourse?
These 2 need be answered in the affirmative, otherwise. Art
247 cannot be invoked.
The phrase "immediately thereafter" is relative. It requires
that the accused must still be under the influence of the
overwhelming outrage that engulfed him or her when he
surprised the other spouse in sexual intercourse with the
paramour or mistress.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
So if the accused is no longer under the influence of that
outrage, he is already acting normally. The benefit of that Art
cannot be invoked anymore. Because the contemplation here
is that the accused had killed or inflicted serious physical
injuries while he is still out of his mental equanimity.
So the word "immediately thereafter" is a relative term. it is
up for you to observe whether at the time of the killing or in
the inflicting of the serious physical injuries, the accused is
still acting under the so-called mental blackout. If not, the act
cannot be benefited by the circumstance anymore.
In the case of People vs Francisco Abarca, about 60 minutes
or 1 Hour had transpired between the surprising and the
killing. SC gave Abarca the benefit of this exceptional
circumstance. Whereas, in an earlier case of People v.
Gonzales. although about 30 minutes had lapsed between the
surprising and the killing, SC ruled that in as much as the
accused had already returned to his work, he must be no
longer affected by what he saw in the earlier part of the day.
So that cannot be invoked for purposes of this circumstance
at the time he killed his wife.
Now in the Abarca case. the accused surprised his wife in
actual sexual intercourse but the paramour chased him. So
this is unprecedented in that instead of the husband running
after the paramour, it was the paramour who ran after the
husband. So Abarca had to run away because the paramour
had a firearm. So Abarca went back to town in Tacloban,
looked for a friend from whom he could borrow a firearm.
And not until he was able to borrow an armalite did he
return. When he returned, the wife and the paramour were
no longer in his house. So he looked for the paramour in the
usual places where he could be found. And he found him
already playing mahjong. So thereupon, he shouted at the
other players, SCRAM! And he fired at the paramour from
behind. The paramour was hit with 4 bullets and died
instantaneously.
The trial court in fact did not give Abarca the benefit of this
exceptional circumstance because of the time that had
transpired indicative that Abarca was already in possession of
his sound mind. Because he had to go from one house to
another borrowing a firearm.
But the SC gave Abarca the benefit of Art 247 presumably
because they pitied him since he just came from the taking of
the Bar exams. He was here in Manila preparing for the Bar
when his wife engaged in extra-marital relations.
Abarca was a law graduate. He reviewed for the Bar in
Manila, took the Bar, and immediately rushed home because
he wanted to see his only child, a daughter. When he arrived
home, the daughter was not there. The wife told him that
Page | 95
their daughter was borrowed by Abarca's sister who is from
Dolores, Samar. So Abarca lost no time to go to Samar. He
went to the bus terminal that would take him to Samar. But
he missed the first trip. So in order not to miss the second
trip, he stayed within the bus terminal and was able to take
the second and last trip.
Now somewhere along the way the bus bogged down. So
Abarca had to walk home. He cannot proceed anymore. It
was then, upon coming home, that he heard animated voices
inside the house. Instead of immediately entering the
bedroom, he went atop the cabinets that separates the
bedroom from the living room. And from the top he looked
down below. Now his wife saw his face, pushed the
paramour. Paramour was frustrated and ran after Abarca. He
even threatened Abarca not to return otherwise he would kill
him.
So Abarca had to run away, go back to town, borrow a
firearm. It was not until he was able to borrow an armalite
did he return. So all these would indicate somehow that he
must have regained his senses already.
But through Justice Sarmiento, SC gave Abarca the benefit of
Art 247. the decision penned by Justice Sarmiento explained
that for as long as the circumstance would show that at the
time of the killing or inflicting of serious physical injuries, the
accused was still suffering from the overwhelming outrage
that engulfed him or her when he saw the other spouse in
sexual intercourse, there, is no reason why the benefit of Art
247 shall not be accorded to him.
It is not the time element that transpired, it is whether he
was already acting in full possession of his mental faculties or
he is still under the influence of the outrage.
The circumstances mentioned by Justice Sarmiento was that
the outrage was continuing even when he went from house
to house of his friends. He was insistent to secure a firearm
precisely because that burning anger in him is still there. And
he returned, and even looked for the paramour in the places
where he usually hung around precisely because the outrage
continues.
Now for as long as that outrage continues to hound the
offender, there is no reason why he should not be given the
benefit of Art 247. That is the philosophy behind this article.
And there is no reason to deny him the circumstance.
Abarca, however, was held liable for reckless imprudence
resulting in physical injuries because when he fired at the
paramour, behind the wall of that room, there was a man and
a woman on bed.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
And they were the ones hit by the bullets that went through
the body of the paramour. So as far as the paramour is
concerned, Art 247 applies. As far as those two behind the
wall are concerned, Abarca was regarded to have acted with
reckless imprudence in not considering the possibility that
there are other people on the other side of the room. This is
sensible because if Abarca was acting out of the fury, you
cannot expect him to be examining first before firing.
So clearly the decision was to accommodate Abarca without
however freeing him from liability for the two who were
seriously wounded. For these two, he was held liable only for
physical injuries although the prosecutor charged him for
frustrated murder. SC ruled there is no intent to kill and it
cannot be qualified by any aggravating circumstance since
under Art 247, there is no felony committed, at most, this is
only the result of failure to anticipate the possible injury that
may be caused. Hence, brought about only by negligence or
reckless imprudence.
Now this was considered as lax because the accused was a
Bar reviewee. He wanted to become a lawyer. He found
himself to be one who is lawless. He has been convicted. But
then the conviction will not involve moral turpitude. So if he
wants to take the Bar exams again, he can take it.
Now incidentally about this exceptional circumstance under
Art 247, the parents also are given this benefit if they would
kill a daughter surprised under the same circumstances
having sexual intercourse in the parental home with a lover
or seducer.
The daughter must be below 18 so as to be under parental
authority here. However, it is not the disregard of the
parental authority that would give the parent the benefit of
the exceptional circumstance. It is the fact of indiscretion on
the part of the daughter to have the sexual intercourse in the
parental home. If, therefore, this was committed not in the
home of the parents, the benefit of Art 247 cannot be
invoked by the parents. It is regarded as the reason for giving
the parents the exceptional circumstance because the
daughter had defied, demeaned, or dishonored the respect
due the parental home, or just the parental authority.
So if the intercourse was done not in the parental home, do
not apply the benefit of the article to the parents.
It is because of the disgrace, the dishonor to the parental
home that is considered as the reason that made the parents
furious against the daughter.
If this was committed in the boarding house of the latter, the
parents cannot invoke the benefit of the article.
Page | 96
MURDER
Art. 248. Murder. — Any person who, not falling within the provisions of
Article 246 shall kill another, shall be guilty of murder and shall be punished
by reclusion temporal in its maximum period to death, if committed with any
of the following attendant circumstances:
1. With 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 impunity.
2. In consideration of a price, reward, or promise.
3. By means of inundation, fire, poison, explosion, shipwreck,
stranding of a vessel, derailment or assault upon a street car or
locomotive, fall of an airship, by means of motor vehicles, or with
the use of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive
cyclone, epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person or
corpse.
Elements:
1. A person was killed;
2. Accused killed him;
3. The killing was attended by any of the following
qualifying circumstances:
a. With treachery, taking advantage of
superior strength, with the aid or armed
men, or employing means to waken the
b. defense, or of means or persons to insure
or afford impunity;
c. In consideration of a price, reward or
promise;
d. 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
e. On occasion of any of the calamities
enumerated in the preceding paragraph, or
of an earthquake, eruption of a volcano,
destructive cyclone, epidemic, or any other
public calamity;
f. With evident-premeditation;
g. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim, or
outraging or scoffing at his person or
corpse.
h. The killing is not parricide or infanticide.
Now in the crime of Murder, more important here, the killing
would have been homicide but attended by any of the
aggravating circumstances mentioned in Art 248.
About this crime of murder, the common issue in Bar
problems is where free is used.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
In order that the killing with the use of fire may bring about
the crime of murder, the offender must be acting with intent
to kill in using the fire.
So if the fire was used in a jest or as a joke and the victim was
burned to death, the killing would only be reckless
imprudence resulting to homicide or simply homicide but not
murder.
in the case of People vs Pugay and Samson, SC through
Justice Makaraig ruled on this. In this case, the accused has a
ward who is a retarded boy. They are the ones taking care of
the victim as their ward.
Now during a town fiesta, there were merry making. The two
were intoxicated with the local wine called tuba. In the
evening, they were roaming at the place where there were
carnival rides because it was town fiesta. There was music
along the carnival rides so they were dancing there. They saw
their ward. They called on him to dance. The ward being a
retardate simply danced without inhibitions. People gathered
around happy.
Now while in that situation, Pugay out of extreme happiness
simply picked up a can containing liquid, splashed it over the
body of the ward by way of a Joke. It turned out the liquid
was gasoline being used by the carnival rides to fuel the
motor.
The other fellow, Samson, saw a thread while the ward was
dancing and he got out his lighter and lighted the thread. In a
moment, the ward became a human torch. The two became
frantic, they got water and used water on him. The more the
flames grew intense. There was one who pushed the ward
down and doused him with sand. Only then was the fire put
out. But the ward suffered already third degree burns.
Eventually he died.
The two were prosecuted for murder. They were convicted by
the trial court.
On review, SC ruled Pugay who poured the liquid over the
body of the victim may only be held liable for reckless
imprudence resulting to homicide because he failed to see or
provide for the precautions that the liquid being gasoline is
highly flammable. He should not have used his even as a joke.
On the other hand, the one who lighted was made liable for
homicide because the records do not show intent to kill.
There was no reason for them to desire the death of the ward
because the ward was their errand boy. In fact, they are the
one rearing the ward. They have loved him, stayed with
them.
Page | 97
So the High Court said there is no indication on record that
the two committed the acts with intent to kill. Although it
was fire that caused the death, the aggravating circumstances
that will qualify a killing from homicide to murder must be
attended by intent to kill. This is correct.
The thinking that just because any of these circumstances
attended the crime it will already be murder. These
circumstances must have been resorted to precisely with
intent to kill. If these are only incidental, that will not qualify
the killing to murder. It may only be appreciated as generic.
With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person
or corpse.
Now another circumstance under Art 248, you have here in
par 6, cruelty.
Note that in that paragraph, aside from cruelty, you have
there another circumstance where the offender had scoffed
at the person or corpse of the victim. (SCOFFING)
Between cruelty and this circumstance you have there the
disjunctive word "or". Hence, the SC considered this as 2
separate circumstances that would qualify a killing to murder.
In a case where the accused was charged with murder
qualified by cruelty. The information alleged the cruelty as
chopping off the head of the victim. The trial court convicted
the accused for murder. The accused appealed because there
was no evidence adduced that the victim was still alive when
his head was chopped off the body. So he claimed that he
should only be liable for homicide.
On scrutiny of the records, SC agreed that cruelty should not
be appreciated as qualifying circumstance to murder because
for cruelty to be appreciated, there must be evidence that
the victim was still alive when the supposed cruel wounds
were inflicted. Beyond that, it must be shown that the
accused inflicted the cruelty by other acts while enjoying
seeing the victim suffer slowly but gradually while in pain.
So the High Court said (really there is no) cruelty should not
be appreciated but under this paragraph it is not only cruelty
that may qualify a killing to murder.
However in a case like this, where the prosecution
failed to proved that the victim is still alive when the
supposed cruel wounds were inflicted, the
allegation in the information only sub-mentioned
about acts unnecessary to the killing which the
accused committed against the corpse of the
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
victim. Cutting off the extremities and decapitating
the body of the victim. This was construed by the SC
to come under 2nd circumstance in the same
paragraph 6 of Art 248. And the SC called attention
to the conjunctive word “or” scoffing the person or
corpse of the offended party. This stands as a
separate qualifying circumstance to cruelty. So
even the absence of evidence to show that the
cruelty was resorted to while the victim is still alive, if
however, after the killing, the offender resorted to
acts that would insult or scoff the corpse of the
victim, like decapitating the body of the victim;
cutting the arms and legs of the victim. These are
acts which would qualify a killing from homicide to
murder. The SC regarded the act unusual because
the killing is already consummated and yet
circumstance brought about after the killing will still
qualify the killing to murder, instead of only
homicide. But the SC, clarified this that, normally, a
person who would kill his adversary will somehow
commiserate with the victim who already lose his
life. So respect is accorded to one who is already
dead. If therefore the offender after the killing his
adversary would not respect the body of the victim
but instead subject this to some acts that would
humiliate or dishonor the corpse of the victim, it
would only show that the accused is one who is a
cold-blooded killer; one who is highly criminally
perverse. And this justifies the higher imposition of a
penalty for the crime which is qualified as murder.
Illustration: when 2 persons engaged in combat,
one killed the other. After that point, the crime is
homicide. If the successful killer who killed his
adversary got a can of gasoline, pour it on the face
of the victim so that the victim will not be identified.
That act is an act of humiliating the corpse of the
victim. That is an act of scoffing and that would
qualify the killing to murder under the second part
of par 6 of art 248.
By means of inundation, fire, poison, explosion, shipwreck,
stranding of a vessel, derailment or assault upon a street car
or locomotive, fall of an airship, by means of motor vehicles,
or with the use of any other means involving great waste and
ruin.
A case decided by the SC in 2010, on the crime of
whether it should be arson or murder or arson with
homicide because the person died as a
consequence of the arson.
Currently, there is no more complex crime of arson
with homicide. Even when a person is burned to
Page | 98
death because of the arson, the crime will only be
arson because the pertinent article of the RPC only
quailed the penalty to mandatory death if a person
died as a consequence of the arson. The arson
where death resulted is only considered as a single
indivisible offense and therefore death can only
qualify the penalty to a higher degree. But because
of RA 9346, death penalty cannot be imposed. At
most, in such a case, where the arson brought
about the death of the person as a consequence
thereof, the penalty will be reclusion perpetua
without the legibility for parole.
The distinguishing point whether it will be arson or
murder is the primordial criminal intent of the
offender in making use of fire. If the offender
resorted with the use of fire in order to kill a person,
the crime will be murder because the criminal
intent is not to destroy property by burning, but to
take the life of the intended victim.
On the other hand, if the criminal intent of the
offender was to destroy property making use of fire,
but the offender was not aware that there was an
infant inside the house when he set fire the house,
the crime is arson. The fact that there was a person
burned to death would only call for the penalty of
death.
Relative to this, in the same paragraph where the
manner of killing is carried out by the use of fire, we
have there also the use of explosives. In the light of
the new firearms law, a specific provision included
there that a use of unlicensed firearm and
homicide or murder will only be an aggravating
circumstance. The language of the law does not
refer to the circumstance as qualifying and
therefore those who were indicted after the new
firearms law to effect considered that art 248 of the
RPC had already been modified by the new
firearms law, where the use of unlicensed firearm
and/or unauthorized or improvised explosive will not
be murder anymore. The SC rejected this view. The
SC said that it is never the intention of the new
firearms law to modify the crime of murder. So the
use of the explosives remains as a circumstance to
qualify a killing to murder. But in view of the fact
that the explosives under the new firearms law are
those illegitimately manufactured, those which are
unlawfully made, the same will only qualify murder if
the explosive used was under that circumstance
that it is not legitimately produced.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
So parallel to the use of unlicensed firearm, if the
explosive used is one that is lawfully manufactured,
it will not qualify the killing to murder because that is
simply an ordinary means of carrying out the killing.
It would qualify the killing into murder if the
explosive used is unlawfully manufacture or
produced.
HOMICIDE
Art. 249. Homicide. — Any person who, not falling within the provisions of
Article 246, shall kill another without the attendance of any of the
circumstances enumerated in the next preceding article, shall be deemed
guilty of homicide and be punished by reclusion temporal.
Elements
1. A person was killed;
2. Offender killed him without any justifying
3. Offender had die intention to kill, which is
presumed;
4. The killing was not attended by any of the qualifying
circumstances of murder, or by that of parricide or
infanticide.
Homicide is the unlawful killing of a person not constituting
murder, parricide or infanticide.
Distinction between homicide and physical injuries;
In attempted or frustrated homicide, there is no intent to kill
In physical injuries, there is none. However, if as a result of
the physical injuries inflicted, the victim died, the crime will
be homicide because the law punishes the result, and not the
intent of the act.
The following are holdings of the Supreme Court with respect
to the crime of homicide:
1. Physical injuries are included as one or the essential
elements of frustrated homicide.
2. If the deceased received two wounds from 2 persons
acting independently of each other and the wound
inflicted by either could have caused death, both of
them are liable for the death of the victim and each
of than is guilty of homicide.
3. If the injuries were mortal but were only due to
negligence, the crime committed will be serious
physical injuries through reckless imprudence as the
element of intent to kill in frustrated homicide is
incompatible with negligence or imprudence.
4. Where the intent to kill is not manifest, the crime
committed has been generally considered as
physical injuries and not attempted or frustrated
murder or homicide.
Page | 99
5. When several assailants not acting in conspiracy
inflicted wounds on a victim but it cannot be
determined who inflicted which would which caused
the death of the victim, all are liable for the victim's
death.
Note that while it is possible to have a crime of homicide
through, reckless imprudence, it is not possible to have a
crime of frustrated homicide through reckless imprudence.
ABORTION
Art. 256. Intentional abortion. — Any person who shall intentionally cause an
abortion shall suffer:
1. The penalty of reclusion temporal, if he shall use any violence
upon the person of the pregnant woman.
2. The penalty of prision mayor if, without using violence, he shall
act without the consent of the woman.
3. The penalty of prision correccional in its medium and maximum
periods, if the woman shall have consented.
Acts punished:
1. Using any violence upon the person of the pregnant
woman;
2. Acting, but without using violence, without the
consent of the woman. (By administering drugs or
beverages upon such pregnant woman without her
consent.)
3. Acting (by administering drugs or beverages),
with the consent of the pregnant woman.
Elements:
1. There is a pregnant woman;
2. Violence is exerted, or drugs or beverages
administered, or that the accused otherwise acts
upon such pregnant woman;
3. As a result of the use of violence or drugs or
beverages upon her or any other act of the accused,
the fetus dies, either in the womb or after having
been expelled therefrom;
4. The abortion is intended.
Art. 257. Unintentional abortion. — The penalty of prision correccional in its
minimum and medium period shall be imposed upon any person who shall
cause an abortion by violence, but unintentionally.
Elements
1. There is a pregnant woman;
2. Violence is used upon such pregnant woman without
intending an abortion;
3. The violence is intentionally exerted;
4. As a result of the violence, the fetus dies, either in
the womb or after having been expelled therefrom.
Unintentional abortion requires physical violence inflicted
deliberately and voluntarily by a third person upon the
person of the pregnant woman. Mere intimidation is not
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
enough unless the degree of intimidation already
approximates violence.
If the pregnant woman aborted because of intimidation, the
crime committed is not unintentional abortion because
there is no violence; the crime committed is light threats.
If the pregnant woman was killed by violence by her husband,
the crime committed is the complex crime of parricide with
unlawful abortion.
Questions & Answers
A pregnant woman decided to commit suicide. She jumped
out of a window of a building but she landed on a passerby.
She did not die but an abortion followed. Is she liable for
unintentional abortion?
No. What is contemplated in unintentional abortion
is that the force or violence must come from
another. If it was the woman doing the violence
upon herself, it must be to bring about an abortion,
and therefore, the crime will be intentional abortion.
In this case where the woman tried to commit
suicide, the act of trying to commit suicide is not a
felony under the Revised Penal Code. The one
penalized in suicide is the one giving assistance and
not the person trying to commit suicide.
If the abortive drug used in abortion is a prohibited drug or
regulated drug, what are the crimes committed?
The crimes committed are:
1. Intentional abortion; and
2. violation of the Comprehensive Dangerous
Drugs Act of 2002 (RA 9165).
Art. 258. Abortion practiced by the woman herself of by her parents. — The
penalty of prision correccional in its medium and maximum periods shall be
imposed upon a woman who shall practice abortion upon herself or shall
consent that any other person should do so.
Any woman who shall commit this offense to conceal her dishonor, shall
suffer the penalty of prision correccional in its minimum and medium
periods.
If this crime be committed by the parents of the pregnant woman or either
of them, and they act with the consent of said woman for the purpose of
concealing her dishonor, the offenders shall suffer the penalty of prision
correccional in its medium and maximum periods.
Elements:
1. There is a pregnant woman who has suffered an
abortion;
2. The abortion is intended;
3. Abortion is caused by:
a. The pregnant woman herself;
b. Any other person, with her consent; or
c. Any of her parents, with her consent for the
purpose of concealing her dishonor.
Page | 100
Art. 259. Abortion practiced by a physician or midwife and dispensing of
abortives. — The penalties provided in Article 256 shall be imposed in its
maximum period, respectively, upon any physician or midwife who, taking
advantage of their scientific knowledge or skill, shall cause an abortion or
assist in causing the same.
Any pharmacist who, without the proper prescription from a physician, shall
dispense any abortive shall suffer arresto mayor and a fine not exceeding
1,000 pesos.
Elements:
1. There is a pregnant woman who has suffered an
abortion;
2. The abortion is intended;
3. Offender, who must be a physician or midwife,
caused or assisted in causing the abortion;
4. Said physician or midwife took advantage of his or
her scientific knowledge or skill
If a physician to save the life of the mother produces the
abortion, there is no liability. This is known as a therapeutic
abortion. But abortion without, medical necessity to warrant
it is punishable even with the consent of the woman or her
husband.
Question & Answer
What is the liability of a physician who aborts the fetus to
save the life of the mother?
None. This is 2 case of therapeutic abortion which is
done out of a scare of necessity. Therefore, the
requisites under Article II, paragraph 4 of the
Revised Penal Code must be present. There must be
no other practical or less harmful means of saving
the life of the mother to make the killing justified.
Abortion is penalized as intentional or unintentional.
Now do not think that unintentional abortion is the product
of culpa. Unintentional abortion is also committed through
dolo.
The physical violence applied upon the person of the
pregnant woman must be intentional. And that physical
violence is the one that resulted to an abortion. What is
absent is only the specific intent to abort.
If the abortion was the result of reckless imprudence, the
crime is not unintentional abortion the crime is Reckless
Imprudence resulting in Unintentional Abortion.
So if a pregnant woman was riding in a tricycle that was
bumped from behind by a reckless Jeepney driver. She was
thrown out of the tricycle, abortion followed. The crime will
be Reckless Imprudence resulting in Unintentional Abortion
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

with Physical Injuries upon the mother if the mother suffered victim. The law proceeds on this premise because
physical injuries. the particular killer cannot be ascertained.

DEATH CAUSED IN A TUMULTUOUS AFFRAY If that person or persons, who inflicted serious
physical injuries upon the victim who was found
Art. 251. Death caused in a tumultuous affray. — When, while several dead during the tumultuous affray, cannot be
persons, not composing groups organized for the common purpose of
assaulting and attacking each other reciprocally, quarrel and assault each
ascertained also then next in line to answer for this
other in a confused and tumultuous manner, and in the course of the affray crime is the person or persons who may have
someone is killed, and it cannot be ascertained who actually killed the employed any form of violence upon the victim.
deceased, but the person or persons who inflicted serious physical injuries
can be identified, such person or persons shall be punished by prision mayor.
And if this person or persons (who may have
If it cannot be determined who inflicted the serious physical injuries on the employed any form of violence upon the victim)
deceased, the penalty of prision correccional in its medium and maximum cannot be identified also, nobody will answer for
periods shall be imposed upon all those who shall have used violence upon the death of the victim.
the person of the victim.

Here, we notice that if the circumstance would

Elements:
warrant this crime, not everybody who took part in
1. There are several persons;
the tumultuous affray would be accused of this
2. They do not compose groups organized for the
crime. Observed the article that only the person or
common purpose of assaulting and attacking each
persons who may have inflicted serious physical
other reciprocally;
injuries upon the victim who will be accused of this
3. These several persons quarreled and assaulted
crime. The other who took part in the tumultuous
one another in a confused and tumultuous manner;
affray but does not come within the offender who
4. Someone was killed in the course of the affray;
will be charged of this crime, will only be
5. It cannot be ascertained who actually killed the
prosecuted for disturbance of the public order. They
deceased;
will not be prosecuted for a crime of death caused
6. The person or persons who inflicted serious physical
by tumultuous affray.
injuries or who used violence can be identified.
When there is a tumultuous affray, conspiracy is out. So in a
Tumultuous affray simply means a commotion in a
situation like this, conspiracy cannot be appreciated.
tumultuous and confused manner, to such an extent that it
Conspiracy cannot co-exist with a tumultuous affray.
would not be possible to identify whom the killer is if death
results, or who inflicted the serious physical injury, but the
Understand, however, the idea of a tumultuous affray is that
person or persons who used violence are known.
there is no organized group formed to attack each other. It is
simply a free for all where one simply hits anybody without
The crime of Death Caused in a Tumultuous Affray is not
any specific adversary. It is called a rumble.
based on the tumultuous affray. The crime is brought about
by the fact that the particular killer cannot be ascertained or
So if you have one group, another group they attack each
identified. And that is precisely because there was a
other, if they are formed purposely to attack each other, it
tumultuous affray when the killing took place.
will not be a tumultuous affray. The liability of those in one
group will be collective insofar as the crime inflicted on the
Now if despite the tumultuous affray, the particular killer can
other group.
be ascertained, the crime committed is Homicide or Murder,
not Death Caused in a Tumultuous Affray.
So tumultuous affray presupposes that they are not
organized. They simply engaged in what you call labo-labo. If
You will only impute the crime if the particular killer cannot
that is not the nature, do not apply this article.
be ascertained. And that is precisely because of the
tumultuous affray.
PHYSICAL INJURIES CAUSED IN A TUMULTUOUS AFFRAY
The one who will answer for the crime is not the Art. 252. Physical injuries inflicted in a tumultuous affray. — When in a
killer. The one who will answer for the crime is the tumultuous affray as referred to in the preceding article, only serious
person or persons who inflicted physical injuries physical injuries are inflicted upon the participants thereof and the person
upon the victim because the law considers that it is responsible thereof cannot be identified, all those who appear to have used
violence upon the person of the offended party shall suffer the penalty next
his/their act that brought about the death of the lower in degree than that provided for the physical injuries so inflicted.

Page | 101
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
When the physical injuries inflicted are of a less serious nature and the
person responsible therefor cannot be identified, all those who appear to
have used any violence upon the person of the offended party shall be
punished by arresto mayor from five to fifteen days.
Elements:
1. There is a tumultuous affray;
2. A participant or some participants thereof suffered
serious physical injuries or physical injuries of a less
serious nature only;
3. The person responsible thereof cannot be identified;
4. All those who appear to have used violence upon the
person of the offended party are known.
The important thing you should notice here, you can only
have this crime if the physical injuries inflicted are serious or
less serious.
If the physical injuries resulting in the tumultuous affray is
slight, that is not included in the crime, because slight
physical injuries are inherent in a tumultuous affray. The
offended party is himself to blame for participating in a
tumultuous affray. So only when the physical injuries inflicted
are serious or less serious will this bring about this crime.
The crime will be imputed to the person or persons who
employed any form of violence upon the victim. And if that
person cannot be identified or ascertained, nobody will
answer for the crime.
GIVING ASSISTANCE TO SUICIDE
Art. 253. Giving assistance to suicide. — Any person who shall assist another
to commit suicide shall suffer the penalty of prision mayor; if such person
leads his assistance to another to the extent of doing the killing himself, he
shall suffer the penalty of reclusion temporal. However, if the suicide is not
consummated, the penalty of arresto mayor in its medium and maximum
periods, shall be imposed.
Acts punished:
1. Assisting another to commit suicide, whether the
suicide is consummated or not;
2. Lending his assistance to another to commit suicide
to the extent of doing the killing himself.
You also have here the crime of Giving Assistance to Suicide.
When this was asked in the Bar, the examinees were also
asked what is euthanasia. Is this penalized under the RPC?
Now euthanasia is mercy killing where the offended party is
suffering from terminal illness or terminal injuries. This is
included in our crime of Giving Assistance to Suicide because
here it is not required that the victim of this killing be
suffering from some terminal illness or some terminal
injuries.
Page | 102
So here what is necessary that you should give attention to,
the initiative to end his life must come from the victim who
wanted to end his life.
A problem was given in the Bar exams before on this point
where the head of the family was bedridden in the hospital.
The family was feeling already the burden of maintaining him
at the hospital. So the family met to discuss what they should
do because they are slowly being driven to poverty by the
exorbitant hospital bills.
So in that gathering of the members of the family, they
arrived at a consensus that their father be laid to rest. So they
have to decide who will effect that. So they started drawing
lots — who will be able to pull the bigger stick will carry out
the means to put their father to rest. It was the son.
And they then went to the hospital to visit their father. After
kissing their father and bidding him goodbye, the son pulled
the tube connecting the father to the oxygen tank. In a little
while, the father started dying. He died.
What was the crime committed, if any?
Now that is not giving assistance to suicide because
the father never intimated his desire to end his life.
In this crime of Art 253, it must be on the part of the
person was put to death due the initiative to end his
life in a determined manner must come or must
have originated.
So in this problem given in the Bar, the crime of
Parricide was committed because the act carried out
the killing. All the others who are co-conspirators
will be criminally liable, because they unanimously
decided to put their father to death.
If a man for instance is courting a lady for quite
sometime. Then the lady told him that she cannot
possibly like him. This fellow invited his friend for a
drink and he said that there is no more reason for
him to live, he wanted to end his life. And his friend
said “I think so”. He asked his friend to accompany
him to get on top of a building and from there he
will jump down below. They went up and he ask his
friend to push him. But his friend said, “you just
jump”. But such fellow is afraid to jump, that means
that he is not determined to end his life.
If his friend pushed him, he will be the one to
answer for homicide or at least suffer the
penalty for homicide
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
DUEL
Art. 260. Responsibility of participants in a duel. — The penalty of reclusion
temporal shall be imposed upon any person who shall kill his adversary in a
duel.
If he shall inflict upon the latter physical injuries only, he shall suffer the
penalty provided therefor, according to their nature.
In any other case, the combatants shall suffer the penalty of arresto mayor,
although no physical injuries have been inflicted.
The seconds shall in all events be punished as accomplices.
Art. 261. Challenging to a duel. — The penalty of prision correccional in its
minimum period shall be imposed upon any person who shall challenge
another, or incite another to give or accept a challenge to a duel, or shall
scoff at or decry another publicly for having refused to accept a challenge to
fight a duel.
Now after this, you have the crime of Duel — responsibility of
participants in a duel, challenging to a duel. You disregard this
crime. The duel contemplated here is a classical duel. This is
no longer carried out at present. The duel contemplated here
is one which is attended by seconds and there is a referee to
administer the duel. Without this, it is not a classical duel and
the provisions of the RPC will not apply.
In a case where a neighbor had a quarrel with another. So he
armed himself with a bolo, went by the house of his
adversary, and there calling his adversary to come out of the
house, come down, to see who is the better man between
them, and see whose intestines would come out. The fellow
who was being challenged to a duel simply called for police
assistance and the one who was making the challenge was
arrested. Because he was making a challenge to a duel, he
was charged of the crime of Challenging to a Duel.
The trial court convicted the fellow for this crime. But on
appeal, SC said it cannot be a crime of challenging to a duel
because this duel under the Code is a classical duel where
there are seconds who stipulate on the terms and conditions
of the duel, the instruments that would be used or the
weapons that would be used.
The crime committed in this case is Grave Coercion, not
challenging to a duel
So although you have that crime there of challenging to a
duel, that is not the crime because the duel referred to there
is a classical duel, not just a combat between two persons.
PHYSICAL INJURIES
the nature of this crime abhor the stages. It cannot
be committed in the attempted or frustrated
stages. Only consummated because the
Page | 103
classification of the crime is on the seriousness of the
injuries inflicted.
Where the determination is whether the physical
injuries inflicted are slight or less serious, you
consider both the healing duration of the wound
and the period of incapacity from labor of which
the offended party was deprived. If any of these
(period of incapacity from labor and period of
medical attention required) lasted beyond 9 days,
the crime is less serious physical injuries.
To be considered as slight physical injuries, both the
period of incapacity from labor and period of
medical attention required, should not go beyond 9
days.
If we are to determine whether the physical injuries
are serious or less serious, we should note that under
the articles here that the period of medical
treatment required by the wound is not taken into
account. What is taken into account only is the
period of incapacity from labor. To be considered
serious that period should go beyond 30 days. If
that period does not go beyond 30 days, even
though the medical treatment continued for
months, the crime is only less serious physical injuries.
In other words, the predicate we use in the RPC for
classifying the injuries as less serious, slight or serious
are not uniform.
There is one injury here, where we do not consider
at all the duration of incapacity from labor that the
offended party may have suffered and also the
during of medical treatment required for the
wound, that is where the physical injuries inflicted
brought about an ugliness on the offended party.
This is what known in law as a legal deformity.
Art. 262. Mutilation. — The penalty of reclusion temporal to reclusion
perpetua shall be imposed upon any person who shall intentionally mutilate
another by depriving him, either totally or partially, or some essential organ
of reproduction.
Any other intentional mutilation shall be punished by prision mayor in its
medium and maximum periods.
Acts punished:
1. Intentionally mutilating another by depriving him,
either totally or partially, of some essential organ for
reproduction:
ELEMENTS
a. There be a castration, that is, mutilation of
organs necessary for generation, such as
the penis or ovarium;
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

b. The mutilation is caused purposely and

The provisions of the preceding paragraph shall not be applicable to a parent
deliberately, that is, to deprive the
who shall inflict physical injuries upon his child by excessive chastisement.
offended party of some essential organ for
reproduction How committed
1. By wounding;
2. Intentionally making other mutilation, that is, by 2. By beating;
lopping or clipping off any part of the body of the 3. By assaulting; or
offended party, other than the essential organ for 4. By administering injurious substance.
reproduction, to deprive him of that part of his body.
In one case, the accused, while conversing with the offended
Mutilation is the lopping or clipping off of some part of the party, drew the latter's bolo from its scabbard. The offended
body. party caught holds of the edge of the blade of his bolo and
wounded himself. It was held that since the accused did not
The intent to deliberately cut off the particular part of the wound, beat or assault the offended party, he cannot be
body that was removed from the offended party must be guilty of serious physical injuries.
established. If there is no intent to deprive victim of particular
part of body, the crime is only serious physical injury. Serious physical injuries:
1. When the injured person becomes insane, imbecile,
The common mistake is to associate this with the impotent or blind in consequence of the physical
reproductive organs only. Mutilation includes any part of the injuries inflicted:
human body that is not susceptible to grow again. 2. When the injured person —
a. Loses the use of speech or the power to
If what was cut off was a reproductive organ, the penalty is hear or to smell, or loses an eye, a hand, a
much higher than, that for homicide. foot, an arm, or a leg;
b. Loses the use of any such member; or
This cannot be committed although criminal negligence. c. Becomes incapacitated for the work in
which he was theretofore habitually
Art. 263. Serious physical injuries. — Any person who shall wound, beat, or
assault another, shall be guilty of the crime of serious physical injuries and engaged, in consequence of the physical
shall suffer: injuries inflicted;
1. The penalty of prision mayor, if in consequence of the physical 3. When the person injured —
injuries inflicted, the injured person shall become insane,
a. Becomes deformed; or
imbecile, impotent, or blind;
2. The penalty of prision correccional in its medium and maximum b. Loses any other member of his body; or
periods, if in consequence of the physical injuries inflicted, the c. Loses the use thereof; or
person injured shall have lost the use of speech or the power to d. Becomes ill or incapacitated for the
hear or to smell, or shall have lost an eye, a hand, a foot, an arm,
performance of the work in which he was
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 for more than 90 days in
habitually engaged; consequence of the physical injuries
3. The penalty of prision correccional in its minimum and medium inflicted,
periods, if in consequence of the physical injuries inflicted, the
4. When the injured person becomes ill or
person injured shall have become deformed, or shall have lost any
other part of his body, or shall have lost the use thereof, or shall incapacitated for labor for more than 30 days (but
have been ill or incapacitated for the performance of the work in must not be more than 90 days), as a result of the
which he as habitually engaged for a period of more than ninety physical injuries inflicted.
days;
4. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period, if the physical injuries inflicted The crime of physical injuries is a crime of result because
shall have caused the illness or incapacity for labor of the injured under our laws the crime of physical injuries is based on the
person for more than thirty days. gravity of the injury sustained. So this crime is always
consummated, notwithstanding the opinion of Spanish
If the offense shall have been committed against any of the persons
enumerated in Article 246, or with attendance of any of the circumstances commentators like Cuello Calon, Viada, etc, that it can be
mentioned in Article 248, the case covered by subdivision number 1 of this committed in the attempted or frustrated stage.
Article shall be punished by reclusion temporal in its medium and maximum
periods; the case covered by subdivision number 2 by prision correccional in
If the act does not give rise to injuries, you will not be able to
its maximum period to prision mayor in its minimum period; the case
covered by subdivision number 3 by prision correccional in its medium and say whether it is attempted slight physical injuries, attempted
maximum periods; and the case covered by subdivision number 4 by prision less serious physical injuries, or attempted serious physical
correccional in its minimum and medium periods. injuries unless the result is there.
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 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
The reason why there is no attempted or frustrated physical
injuries is because the crime of physical injuries is determined
on the gravity of the injury. As long as the injury is not there,
there can be no attempted or frustrated stage thereof.
Classification of physical injuries:
1. Between slight physical injuries and less serious
physical injuries, you have a duration of one to nine
days if slight physical injuries; or 10 days to 20 days if
less serious physical injuries. Consider the duration
of healing and treatment.
The significant part here is between slight physical
injuries and less serious physical injuries. You will
consider not only the healing duration of the injury
but also the medical attendance required to treat
the injury. So the healing duration may be one to
nine days, but if the medical treatment continues
beyond nine days, the physical injuries would
already qualify as less serious physical injuries. The
medical treatment may have lasted for nine days,
but if the offended party is still incapacitated for
labor beyond nine days, the physical injuries are
already considered less serious physical injuries.
2. Between less serious physical injuries and serious
physical injuries, you do not consider the period of
medical treatment. You only consider the period
when the offended party is rendered incapacitated
for labor.
If the offended party is incapacitated to work for less
than 30 days, even though the treatment continued
beyond 30 days, the physical injuries are only
considered less serious because for purposes of
classifying the physical injuries as serious, you do not
consider the period of medical treatment. You only
consider the period of incapacity from work.
3. When the injury created a deformity upon the
offended party, you disregard the healing duration
or the period of medical treatment involved. At
once, it is considered serious physical injuries.
So even though the deformity may not have
incapacitated the offended party from work, or even
though the medical treatment did not go beyond
nine days, that deformity will bring about the crime
of serious physical injuries.
Page | 105
Deformity requires the concurrence of the following
conditions:
1. The injury must produce ugliness;
2. It must be visible;
3. The ugliness will not disappear through natural
healing process.
Illustration:
Loss of molar tooth — This is not deformity as it is
not visible.
Loss of permanent front tooth — This is deformity as
it is visible and permanent
Loss of milk front tooth — This is not deformity as it
is visible but will be naturally replaced.
Question & Answer
The offender threw acid on the face of the offended party.
Were it not for timely medical attention, a deformity would
have been produced on the face of the victim. After the plastic
surgery, the offended party was more handsome than before
the injury. What crime was committed? In what stage was it
committed?
The crime is serious physical injuries because the
problem itself states that the injury would have
produced a deformity. The fact that the plastic
surgery removed the deformity is immaterial
because in law what is considered is not the artificial
treatment but the natural healing process.
In a case decided by the Supreme Court, accused
was charged with serious physical injuries because
the injuries produced a scar. He was convicted under
Article 263 (4). He appealed because, in the course
of the trial, the scar disappeared. It was held that
accused cannot be convicted of serious physical
injuries. He is liable only for slight physical injuries
because the victim was not incapacitated, and there
was no evidence due the medical treatment lasted
for more than nine days.
When the injuries inflicted brought about a legal
deformity, the period of incapacity from labor and
the period for medical treatment required by the
injury are immaterial. If it is the ugliness that makes it
at once serious physical injuries (par 3 of art 263)
When we say deformity, it means ugliness.
If 2 persons exchanged fist blows, one of them is
crossed-eyed and the other one gave him a strong
fist blow on the head and the eyes went straight, it
is not a deformity.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
In a case where 2 drivers quarreled because they
out race peeking a passenger, the driver who was
ahead of the road and the other simply __ to get
the passenger, went down from his jeep carrying a
___ and immediately swung this to the other driver.
The other driver evaded the blow but his eyebrows
was scratched. On the next day, he just put a bond
aid there. although the wound did not disqualify
him from driving, it produces a deformity and
therefore the physical injuries is one that is serious.
The ugliness must be visible. So if a person boxed a
person in the front part of the mouth, then a tooth
was removed. Immediately that is serious physical
injuries, unless it was an artificial tooth, then it is only
slight physical injuries.
If a person boxed a victim on the jaw and an inner
molar was removed, since it is not visible, it is not
considered a deformity unless the one whose molar
is removed have a very wide mouth and every time
he talk, the missing molar could be seen.
Serious physical injuries is punished with higher penalties in
the following cases:
1. If it is committed against any of the persons referred
to in the crime of parricide under Article 246;
2. If any of the circumstances qualifying murder
attended its commission.
Thus, a father who inflicts serious physical injuries upon his
son will be liable for qualified serious physical injuries.
Art. 264. Administering injurious substances or beverages. — The penalties
established by the next preceding article shall be applicable in the respective
case to any person who, without intent to kill, shall inflict upon another any
serious, physical injury, by knowingly administering to him any injurious
substance or beverages or by taking advantage of his weakness of mind or
credulity.
Elements:
1. Offender inflicted upon another any serious physical
injury;
2. It was done by knowingly administering to him any
injurious substance or beverages or by taking
advantage of his weakness of mind or credulity;
3. He had no intent to kill
Art. 265. Less serious physical injuries. — Any person who shall inflict upon
another physical injuries not described in the preceding articles, but which
shall incapacitate the offended party for labor for ten days or more, or shall
require medical assistance for the same period, shall be guilty of less serious
physical injuries and shall suffer the penalty of arresto mayor.
Whenever less serious physical injuries shall have been inflicted with the
manifest intent to kill or offend the injured person, or under circumstances
Page | 106
adding ignominy to the offense in addition to the penalty of arresto mayor, a
fine not exceeding 500 pesos shall be imposed.
Any less serious physical injuries inflicted upon the offender's parents,
ascendants, guardians, curators, teachers, or persons of rank, or persons in
authority, shall be punished by prision correccional in its minimum and
medium periods, provided that, in the case of persons in authority, the deed
does not constitute the crime of assault upon such person.
Matters to be noted in this crime:
1. Offended party is incapacitated for labor for 10 days
or more (but not more than 30 days), or needs
medical attendance tor the same period of time;
2. The physical injuries must not be those described in
the preceding articles
Qualified as to penalty
1. A fine not exceeding P 500.00. in addition to arresto
mayor, shall be imposed for less serious physical
injuries when -
a. There is a manifest intent to insult or offend
the injured person; or
b. There are circumstances adding ignominy to
the offense.
2. A higher penalty is imposed when the victim is either
—
a. The offender's parents, ascendants,
guardians, curators or teachers; or
b. Persons of rank or person in authority,
provided the crime is not direct assault.
If the physical injuries do not incapacitate the offended party
nor necessitate medical attendance slight physical injuries is
committed. But if the physical injuries heal after 30 days,
serious physical injuries is committed under Article 263,
paragraph 4.
Article 265 is an exception to Article 48 in relation to complex
crimes as the latter only takes place in cases where the
Revised Penal Code has no specific provision penalizing the
same with a definite, specific penalty. Hence, there is no
complex crime of slander by deed with less serious physical
injuries but only less serious physical injuries If the act which
was committed produced the less serious physical Injuries
with the manifest intent to insult or offend the offended
party, or under circumstances adding ignominy to the
offense.
Art. 266. Slight physical injuries and maltreatment. — The crime of slight
physical injuries shall be punished:
1. By arresto menor when the offender has inflicted physical injuries
which shall incapacitate the offended party for labor from one to
nine days, or shall require medical attendance during the same
period.
2. By arresto menor or a fine not exceeding 20 pesos and censure
when the offender has caused physical injuries which do not
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
prevent the offended party from engaging in his habitual work nor
require medical assistance.
3. By arresto menor in its minimum period or a fine not exceeding
50 pesos when the offender shall ill-treat another by deed
without causing any injury.
Acts punished:
1. Physical injuries incapacitated the offended party for
labor from one to nine 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.
The common question here, the distinction between the
crime of maltreatment or ill-treatment from the crime of
slander by deed under Art 359.
The crime of maltreatment is found in par 3 of Art 266. This is
a form of slight physical injuries except that no wound was
inflicted.
Slapping the offended party may be a form of maltreatment
or ill-treatment or it may be slander by deed.
Slapping the offended party will only be a form of slight
physical injuries which is commonly called maltreatment or
ill-treatment when the offender did the act to punish the
offended party.
It would be a case of slander by deed if the offender
performed the act to humiliate, embarrass, dishonor, or
cast discredit upon the offended party.
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.
Illustration:
If Hillary slaps Monica and told her "You choose your
seconds. Let us meet behind the Quirino Grandstand
and see who is the better and more beautiful
between the two of us",
the crime is not ill-treatment, slight physical
injuries or slander by deed; it is a form of
challenging to a duel. The criminal intent is
to challenge a person to a duel.
The crime is slight physical injury if there is no proof
as to the period of the offended party's incapacity
for labor or of the required medical attendance.
Page | 107
XXX
Also, if the offended party was running in a crowded street,
he bumped somebody who fell. So this fellow who fell stood
up and slapped him, the crime is maltreatment because the
purpose is to punish him for what he had done.
But if a person challenged another to a Fight, the latter would
not accept. So in order to make it appear that he is a coward,
this fellow who is challenging him slapped him just to make
him accept the challenge. Now that is slander by deed
because clearly the purpose was done to humiliate, to
belittle, to discredit, to dishonor the person who was slapped.
However, bear in mind that slander by deed is a crime against
honor. And the crimes against honor cannot be committed if
it was not in public.
So if a person followed his enemy entering a comfort room.
He locked the door of the CR. There were only two of them
inside. So, he started slapping the other, this cannot be
slander by deed because that element of being public is
absent.
REPUBLIC ACT 7610 (Special Protection of Children Against
Child Abuse, Exploitation and Discrimination Act)
In relation to murder, mutilation or injuries to a child:
The last paragraph of Article VI of RA 7610. provides:
"For purposes of this Act, the penalty for the commission of
acts punishable under Articles 248, 249. 262(2) and 263(1) of
Act. 3815, as amended, of the Revised Penal Code for the
crimes of murder, homicide, other intentional mutilation, and
serious-physical injuries, respectively, shall be reclusion
perpetua when the victim is under twelve years of age."
The provisions of RA 7610 modified the provisions of the RPC
in so far as the victim of the felonies referred to is under 12
years of age. The clear intention is to punish the said crimes
with a higher penalty when the victim is a child of tender age.
Incidentally, the reference to Article 249 of the Code which
defines and penalizes the crime of homicide where the victim
is under 12 years old is an error. Killing a child under 12 is
murder, not homicide, because the victim is under no
position to defend himself as held in the case of People Y.
Ganohon, 196 SCRA 431.
For murder the penalty provided by the Code, as amended by
RA 7659, is reclusion perpetua to death—higher than what
RA 7610 provides. Accordingly, in so far as the crime is
murder. Article 248 of the Code as amended, shall govern
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
even if the victim was under 12 years of age. It is only in
respect of the crimes of intentional mutilation in paragraph 2
of Article 262 and of serious physical injuries in 263(1) of the
Code that the quoted provision of RA 7610 may be applied
for the higher penalty when the victim is under 12 years old.
RAPE
Article 266-A. Rape, When and How Committed
Elements under paragraph I:
1. Offender is a man
2. Offender had carnal knowledge of a woman
3. Such act 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;
c. By means of fraudulent machination or
grave abuse of authority; or
d. When the woman is under 12 years of age
or demented.
Elements under paragraph 2:
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 person's
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; or
b. When the woman is deprived of reason or
otherwise unconscious; or
c. By means of Fraudulent machination or
grave abuse of authority; or
d. When the woman is under 12 years of age
or demented.
Republic Act No. 8353 (An Act Expanding the Definition of
the Crime of Rape. Reclassifying the Same as A Crime
against Persons. Amending for the Purpose the Revised
Penal Code) repealed Article 335 on rape and added a
chapter on Rape under Title 8. (Oct 22, 1997)
Classification of rape
• Traditional concept under Article 335 - carnal
knowledge with a woman against her will. The
offended party is always a woman and the offender
is always a man.
Page | 108
• Sexual assault - committed with an instrument or an
object or use of the penis with penetration of mouth
or anal orifice. The offended party or the offender
can either be man or woman, that is, if a woman or a
man uses an instrument on anal orifice of male, she
or he can be liable for rape.
Before Oct 22, 1997, the second form of rape will
only constitute as acts of lasciviousness. It is only
after oct 22, 1997, when the new rape law took
effect, that we should consider as rape a sexual
assault brought about by any of the 2 acts stated
under the new law.
Since this is a crime against persons, the liability for
impossible crime may now be incurred.
Treachery may be utilized as an aggravating
circumstance. Also cruelty may be appreciated as
an aggravating circumstance.
When the offender tied the victim to the four
corners of the bed and while raping the victim,
every time the victim cries, the offender trust his
lighted cigarette on the body of the victim, the SC
held that cruelty is aggravating.
The three underlying principles that the SC has laid
down as a guide to the court in resolving rape
cases are as follows:
• A complaint for rape can easily be
fabricated although difficult to prove, it is
more difficult for the accused to disprove.
This simply implies that the court should not
readily believe a complaint for rape but
must look into the circumstances on the
credibility of the imputation
• The intrinsic nature of the crime of rape is
that only the offender and the offended
party knew what really happened between
them. Hence the version given by each
party must be thoroughly scrutinized to
determine which between the 2 versions is in
accord with human nature and experience,
hence more credible.
• The prosecution’s evidence should not draw
strength from the witness of the defense
evidence but should rise or fall on each own
merit. If the prosecution’s evidence is weak
even though the defense evidence is
weaker, the accused must be acquitted.
A 4th rule that has been drafted in some cases by
the trial courts, this is as follows:
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
• The assessment by the trial court of the
testimonies of the witnesses deserve great
respect and almost conclusive because trial
courts are in the best position to appreciate
such testimony than appellate courts who
rely only on the records shown by the
transcript.
So unless the trial court committed serious
errors in the appreciation of the facts, the
finding of facts of the trial court must be
respected.
As far as this crime of rape is concerned, we have
one crime of rape with homicide as an indivisible
offense, a special complex crime. Here, the criminal
intent must be rape. If the criminal intent was to kill
and then the victim was raped, then there will be 2
separate crimes for the intended killing and for the
rape if the victim was still alive when she was raped.
Otherwise, when the rape is done when the victim is
already dead, it will amount into an impossible
crime.
Rape is committed when a man has carnal knowledge of a
woman under the following circumstances:
1. Where intimidation or violence is employed with a
view to have carnal knowledge of a woman:
2. Where the victim is deprived of reason or otherwise
unconscious;
3. Where the rape was made possible because of
fraudulent machination or abuse of authority; or
4. Where the victim is under 12 years of age, or
demented, even though no intimidation or violence
is employed.
Sexual assault is committed under the following
circumstances:
1. Where the penis is inserted into the anal or oral
orifice; or
2. Where an instrument or object is inserted into the
genital or oral orifice.
If the crime of rape/sexual assault is committed with the
following circumstances, the following penalties are
imposed:
1. Reclusion perpetua to death/ prision mayor to
reclusion temporal —
a. Where rape is perpetrated by the accused
with a deadly weapon; or
b. Where it is committed by two or more
persons.
2. Reclusion perpetua to death/ reclusion temporal -
Page | 109
a. Where the victim of the rape has become
insane; or
b. Where the rape is attempted but a killing
was committed by the offender on the
occasion or by reason of the rape.
3. Death / reclusion perpetua —
a. Where homicide is committed by reason or
on occasion of a consummated rape.
4. Death/reclusion temporal —
a. Where the victim is under 18 years of age
and the offender is her ascendant
stepfather, guardian, or relative by affinity
or consanguinity within the 3rd civil degree,
or the common law, husband of the victim's
mother; or
b. Where the victim was under the custody of
the police or military authorities, or other
law enforcement agency;
c. Where the rape is committed in full view of
the victim's husband, the parents, any of
the children or relatives by consanguinity
rd
within the 3 civil degree;
d. Where the victim is a religious, that is, a
member of a legitimate religious vocation
and the offender knows the victim as such
before or at the time of the commission of
the offense;
e. Where the victim is a child under 7 yrs of
age;
f. Where the offender is a member of the
AFP, its paramilitary arm, the PNP, or any
law enforcement agency and the offender
took advantage of his position;
g. Where the offender is afflicted with AIDS or
other sexually transmissible diseases, and
he is aware thereof when he committed
rape, and the disease was transmitted;
h. Where the victim has suffered permanent
physical mutilation;
i. Where the pregnancy of the offended party
is known to the rapist at the time of the
rape; or
j. Where the rapist is aware of the victim's
mental disability, emotional disturbance or
physical handicap.
Prior to the amendment of the law on rape, a complaint must
be filed by the offended woman. The persons who may file
the same in behalf of the offended woman if she is a minor or
if she was incapacitated to file, were as follows:
• a parent:
• in default of parents, a grandparent;
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
• in default of grandparent, the judicial guardian.
Since rape is not a private crime anymore, it can be
prosecuted even if the woman does not file a complaint.
If carnal knowledge was made possible because of fraudulent
machinations and grave abuse of authority, the crime is rape.
This absorbs the crime of qualified and simple seduction
when no force or violence was used, but the offender abused
his authority to rape the victim.
Under Article 266-C, the offended woman may pardon the on
offender through a subsequent valid marriage, the effect of
which would be the extinction of the offender's liability.
Similarly, the legal husband may be pardoned by forgiveness
of the wife provided that the marriage is not void ab initio.
Obviously, under the new law, the husband may be liable for
rape if his wife does not want to have sex with him. It is
enough that there is indication of any amount of resistance as
to make it rape.
Incestuous rape was coined in Supreme Court decisions. It
refers to rape committed by an ascendant of the offended
woman. In such cases, the force and intimidation need not be
of such nature as would be required in rape cases had the
accused been a stranger. Conversely, the Supreme Court
expected that if the offender is not known to woman, it is
necessary that there be evidence of affirmative resistance put
up by the offended woman. Mere "no, no" is not enough if
the offender is a stranger, although if the rape is incestuous,
this is enough.
The new rape law also requires that there be a physical overt
act manifesting resistance, if the offended party was in a
situation where he or she is incapable of giving valid consent,
this is admissible in evidence to show that carnal knowledge
was against his or her will
When the victim is below 12 years old, mere sexual
intercourse with her is already rape. Even if it was she who
wanted the sexual intercourse, the crime will be rape. This is
referred to as statutory rape.
In People vs. Luna (2003), it was held that it would be
unrealistic to expect a uniform reaction from rape victims.
Note that it has been held that in the crime of rape,
conviction does not require medico-legal finding of any
penetration on the part of the woman. A medico-legal
certificate is not necessary or indispensable to convict the
accused of the crime of rape.
An accused may be convicted of rape on the sole testimony
of the offended woman. It does not require that testimony be
Page | 110
corroborated before a conviction may stand. This is
particularly true if the commission of the rape is such that the
narration of the offended woman would lead to no other
conclusion except that the rape was committed.
Now you take note of this, in the new law on rape, there
were added 2 grounds that would bring about any carnal
knowledge or sexual assault as rape.
One, where the offender gains carnal knowledge of a woman
with grave abuse of authority; and two, when the offender
gains carnal knowledge of a woman through fraudulent
machinations.
Before the new law on rape was enacted, one who would
gain sexual intercourse with another with grave abuse of
authority commits qualified seduction. This, before, was a
means of incurring qualified seduction. But the seduction can
only be incurred if the victim is a virgin below 18 but not less
than 12, because if the victim is less than 12, it will be
statutory rape.
So, in Art 337, gaining sexual intercourse with a woman who
is a virgin below 18 but not less dun 12, by a person in
authority, a priest, a teacher, a person who is entrusted with
the care and education of the woman, this would bring about
a grave abuse of authority. And this is now a basis for rape.
Qualified seduction will now be limited to a case where there
is an abuse of confidence, not anymore an abuse of authority,
such as when the offender is a domestic, a co-boarder, a
friend.
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 punished by 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.
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.
Now likewise, the ground of gaining carnal knowledge of a
woman through fraudulent machinations. Since the crime of
simple seduction is committed through deceit, you have to
draw a line between fraudulent machinations and simple
deceit.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
The essence of seduction is also sexual intercourse. Now, if
that sexual intercourse was gained through fraudulent
machinations not just by simple deceit, the crime is now rape.
Fraudulent machinations implies deceit, but this
contemplates of an insidious act resorted to by the offender
to influence the mind of the victim to submit. It is different
from simple deceit.
Fraudulent machinations contemplates of some insidious
ways by which the offender would defraud the victim making
the victim believe that he is worthwhile being a companion in
life. But if it is purely deceit, seduction only, provided that the
woman is not less than 12 years old but she must be below
18. If less than 12, automatically it is statutory rape.
About this inserting an instrument or object into the genitals
of the victim.
Before, there had been discussions whether the act of
fingering would bring about the crime of rape. The common
thinking is that this would only bring about acts of
lasciviousness.
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.
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.
A case, however, was decided by the CA.
In the case of Una Ovania v. Hon. Judge Soriano of Bulacan
and Jaime Liroco, the CA considered inserting a finger into the
genitals of a woman, a girl, as rape.
The clarification made is sound and so unless there is a
decision by the SC to the contrary, this decision is of
persuasive authority.
The clarification made by the CA why inserting a finger into
the genitals of a female is rape:
• Firstly, the crime of rape was transposed to Title 8 as
a crime against persons precisely to consider the act
which violates the person of a woman as a crime of
rape against persons. This emphasis is not on the sex
but on the violence done to the person of the victim.
That is why this was taken out of the classification of
crimes against chastity.
• Secondly, the title of the new law on rape (RA 8353)
itself indicates that it is to expand the concept of the
Page | 111
crime of rape, not limiting it anymore to mere
intercourse.
• Thirdly, under the absurdity rule of statutory
construction, the courts should avoid giving a law
that interpretation which would result to absurdity.
Here, it would be absurd to consider that in object
like a toothpick or a ball pen if inserted into the
genitals of a woman would amount to rape; and yet,
if it were 2 finger it would not amount to rape. This
interpretation is absurd and therefore, it cannot be
adopted as this is against the absurdity rule.
• Lastly, under the law dictionary, this Bouvier's Law
Dictionary, the word object includes a thing, and a
finger is regarded as a thing. So within the term
object, finger is included.
The explanation made by the CA here is indeed sound
and reasonable to consider this as a case of rape but this
will be rape of the second form effected through sexual
assault.
QUALIFIED RAPE
More important about the crime of rape are the
circumstances that will bring about the death penalty. This is
what you call qualified rape.
When the rape is attended by any circumstance that would
call for the penalty of death, the crime is known as qualified
rape.
Now here, the inclination is to find the accused liable only for
simple rape so that the penalty would only be reclusion
perpetua.
So given a problem where there appears to be a circumstance
that would qualify the rape and therefore would bring about
the death penalty, do not jump into conclusion that it is
qualified rape. You look for any loophole to avoid the
qualified rape bringing it only to simple rape.
This is because the moment you consider the crime as
qualified rape, there is no penalty except death. And the SC
has shown an inclination to avoid imposing the death penalty
for the crime of rape. So, they would rather held the accused
liable only for simple rape.
So in a case where the circumstance was that the victim was
less than 18 and the offender was her own father, although
the father admitted the age of the victim, yet because the
birth certificate was not adduced in evidence, SC ruled that
there is doubt as to the age of the victim. And therefore, the
accused can only be found guilty of simple rape.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
In a case where the victim was less than 18 and the accused
was her stepfather. The mother of the victim testified about
her marriage to the accused. Because the marriage contract
was not presented. SC ruled there is doubt as to the
relationship due the accused is the stepfather of the victim.
And so with that doubt, the accused can only be held liable
for simple rape.
You follow the same inclination.
XXX and the offending spouse is valid. So if the marriage is
not valid, or they were not married at all, the crime cannot be
marital rape. The importance of this, if it were marital rape,
pardon would suffice to extinguish criminal liability. But if it
was not marital rape, the only way for the offender to
extinguish the criminal liability is to marry the offended
woman, not by pardon.
Now in the case of marriage by the offender with the
offended woman, it is no longer Art 344 that will govern. I
called your attention to this. It is a specific provision of the
new Marriage Law which is incorporated as Chapter 3 of Title
8 of the RPC
The marriage will extinguish the liability only of the offender
who married. The co-principals by inducement or by
indispensable cooperation as well as the accomplice and the
accessory will not benefit out of the marriage. The marriage
law is silent on this, unlike in Art 344 where co-principals by
inducements, co-principal by indispensable cooperation,
accomplice, and accessory will benefit from the marriage.
Now about these cases of rape, there are 3 underlying
guidelines which the SC has repeatedly called for in deciding
or reviewing cases of rape. And these are:
• First, a complaint for rape can easily be made.
Although it is difficult to prove, it is more difficult to
disprove.
So a complaint for rape can be made with facility,
although it is difficult to prove, is more difficult to
disprove. This suggests that the court should be
cautious in believing a complaint for rape.
• Secondly, the inherent nature of the crime involves
only the offender and the offended party who knows
what really happened between the two because this
crime is committed in private. Now, this means to
say that the court will have to examine the version
of the complainant, the version of the accused to
know which is believable since this crime is
committed in private and only the two know what
really happened to them.
Page | 112
The court should not believe the version given by the
complainant. He must determine the version also
given by the accused, find out which conforms, to
human experience and human reasonable belief.
• Third, the evidence of the prosecution must stand or
fall on its own merits and should not draw strength
from the weakness of the defense's evidence.
This means to say no matter how weak the evidence
of the defense may be, if the evidence of the
prosecution is doubtful, the accused must be
acquitted.
In a case where the woman testified, her testimony was
straightforward, and the court already felt that indeed the
crime of rape was committed.
During the presentation of the defense, the accused disclosed
the details of the sexual encounter between him and the
complainant even picturing the erotic ways by means they
have been making love with each other.
In order to controvert this, the prosecution moved for
presentation of rebuttal testimony. So after the accused had
testified, the case was again set for the presentation of the
rebuttal testimony of the girl. In the meantime, the hearing is
reset.
Now during the period that the case was reset, the
complainant went to the house of the accused alone. When
she testified on rebuttal, the defense counsel asked her if
indeed she went to the house of the accused. And she
admitted she went there. It was established she went there
alone. But when she was asked what she did there, she
explained that she went there to the accused for telling lies
about their erotic ways of having sexual intercourse.
Because that was explained by the girl the court convicted
the accused.
On appeal, SC acquitted the accused. SC noted it is not
believable that a victim of a rape would return to the place
where she was raped alone because the crime of rape brings
about such traumatic memories that the girl who was raped
would not even want to remember anything about it. For the
complainant to go back to the house where allegedly she was
raped is something unusual, beyond human experience. It
only suggested that what took place in that house was
something which is not really traumatic but something to
remember. So the High Court said the accused must be
acquitted.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Now this conforms with that second guiding principle, that
the inherent nature of the crime of rape involves only two
persons who knew what really happened between them
because this is a crime committed in private. So you will apply
there the common experiences of man to find out the
credibility of one version from the other.
Now because of the act alone of going to the house of the
accused, the High Court said, this is unusual because rape is
one crime that produces so much traumatic effect that the
victim who had been deflowered would not even want to
think about it, much less return to the place where she had
been deflowered. The suggestion is that, that place does not
really bring about traumatic thinking or traumatic feeling but
something to remember. And that is why the girl had the
courage to go there. Now this should also be your attitude.
Give attention to those circumstances that qualifies rape
which requires knowledge on the part of the offender.
Where the offender raped a woman who is already pregnant,
the circumstance would bring about qualified rape only if
before or during the rape the offender knew that the woman
is pregnant.
So if he learned this after the rape, it will not qualify the rape
anymore.
So also, where the accused is afflicted with AIDS virus, the
circumstance requires that the offender is aware that he had
the AIDS virus. So if he is not aware that he has this, it cannot
qualify the rape for the death penalty.
Also, where the woman is a religious person, a nun or a sister,
the circumstance requires that the accused must be aware of
that. If not, it will not qualify the rape.
So you give attention to those circumstances. They are the
ones which may be fitting for a problem in the crime of rape.
If the woman or if the victim of the rape is below 18 but not
less than 12, SC ruled that the prosecution should be under
RA 7610 for a rape under the RPC XXX.
If the rape, however, involved a victim below 12 or it is a
qualified rape, the prosecution cannot be under RA 7610. it
will always be under the RPC.
So that pronouncement that the prosecution will be under RA
7610 is true only in simple rape where the victim is below 18
but not less than 12.
Page | 113
TITLE IX CRIMES AGAINST PERSONAL LIBERTY AND SECURITY
Article 267. Kidnapping and Serious Illegal Detention — Any private
individual who shall kidnap or detain another, or in any other manner
deprive him of his liberty, shall suffer the penalty of reclusion perpetua to
death:
1. If the kidnapping or detention shall have lasted more than five
days.
2. If it shall have been committed simulating public authority.
3. 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.
4. If the person kidnapped or detained shall be a minor, female or a
public officer.
The penalty shall be death where the kidnapping or detention was
committed for the purpose of extorting ransom from the victim or any other
person, even if none of the circumstances above-mentioned were present in
the commission of the offense.
Elements
1. Offender is a private individual;
2. He kidnaps or detains another, or in any other
manner deprives the latter of his liberty;
3. The act of detention or kidnapping must be illegal;
4. In the commission of the offense, any of the
following circumstances is present:
a. The kidnapping lasts for more than 3 days;
b. It is committed simulating public authority;
c. Any serious physical injuries are inflicted
upon the person kidnapped or detained or
threats to kill him are made; or
d. The person kidnapped or detained is a
minor, female, or a public officer.
The essence of the crime under art 267 and art 268
is that the purpose of the offender is lock up the
offended party. To deprive the offended party of
his liberty. So if the offender had some other
purpose not really to lock up and deprived the
offended party of his or her freedom of movement,
the crime will not be one of detention. It will not be
under this title because it will not be a crime against
personal liberty.
Commonly, the crime committed where it will not
be a case of illegal detention is one of grave
coercion. The offended party was compelled to do
something against his/her will, or otherwise, the
offended party was prevented on what he wanted
to do.
If there is any crime under Title IX which has no
corresponding provision with crimes under Title II, then, the
offender may be a public officer or a private person. If there
is a corresponding crime under Title II, the offender under
Title IX for such similar crime is a private person.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
When a public officer conspires with a private person in the
commission of any of the crimes under Title IX, the crime is
also one committed under this title and not under Title II
Illustration:
If a private person commits the crime of kidnapping
or serious illegal detention, even though a public
officer conspires therein, the crime cannot be
arbitrary detention. As far as that public officer is
concerned, the crime is also illegal detention.
In the actual essence of the crime, when one says kidnapping,
this connotes the idea of transporting the offended party
from one place to another. When you think illegal detention,
it connotes the idea that one is restrained of his liberty
without necessarily transporting him from one place to
another.
The crime of kidnapping is committed if the purpose of the
offender is to extort ransom either from the victim or from
any other person. But if a person is transported not for
ransom, the crime can be illegal detention. Usually, the
offended party is brought to a place other than his own, to
detain him there.
When one thinks of kidnapping, it is not only that of
transporting one person from one place to another. One also
has to think of the criminal intent.
Forcible abduction — If a woman is transported from one
place to another by virtue of restraining her of her liberty,
and that act is coupled with lewd designs.
Serious illegal detention - If a woman is transported just to
restrain her of her liberty. There is no lewd design or lewd
intent.
Grave coercion - If a woman is carried away just to break her
will, to compel her to agree to the demand or request by the
offender.
In a decided case, a suitor, who cannot get a favorable reply
from a woman, invited the woman to ride with him,
purportedly to take home the woman from class. But while
the woman is in his car, he drove the woman to a far place
and told the woman to marry him. On the way, the offender
had repeatedly touched the private parts of the woman. It
was held that the act of the offender of touching the private
parts of the woman could not be considered as lewd designs
because he was willing to marry the offended party. The
Supreme Court ruled that when it is a suitor who could
possibly marry the woman, merely kissing the woman or
touching her private parts to "compel" her to agree to the
marriage, such cannot be characterized as lewd design. It is
Page | 114
considered merely as the "passion of a lover'. But if the man
is already married, you cannot consider that as legitimate but
immoral and definitely amounts to lewd design.
If a woman is carried against her will but without lewd design
on the part of the offender, the crime is grave coercion.
Illustration:
Tom Cruz invited Nicole Chizmacks for a snack. They
drove along Roxas Boulevard, along the Coastal Road
and to Cavite. The woman was already crying and
wanted to be brought home. Tom imposed the
condition that Nicole should first marry him. Nicole
found this as, simply, a mission impossible. The
crime committed in this case is grave coercion. But if
after they drove to Cavite, the suitor placed the
woman in a house and would not let her out until
she agrees to marry him, the crime would be serious
illegal detention.
If the victim is a woman or a public officer, the
detention is always serious — no matter how short
the period of detention is.
Circumstances which make illegal detention serious:
1. When the illegal detention lasted for three days,
regardless of who the offended party is;
2. When the offended party is a female, even if the
detention lasted only for minutes;
3. If the offended party is a minor or a public officer, no
matter how long or how short the detention is;
4. When threats to kill are made or serious physical
injuries have been inflicted; and
5. If it shall have been committed simulating public
authority.
Distinction between illegal detention and arbitrary detention:
Illegal detention is committed by a private person
who kidnaps, detains, or otherwise deprives another
of his liberty.
Arbitrary detention is committed by a public officer
who detains a person without legal grounds.
The penalty for kidnapping is higher than for forcible
abduction. This is wrong because if the offender
knew about this, he would perform lascivious acts
upon the woman and be charged only for forcible
abduction instead of kidnapping or illegal detention.
He thereby benefits from this absurdity, which arose
when Congress amended Article 267, increasing the
penalty thereof without amending Article 342 on
forcible abduction.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Article 267 has been modified by Republic Act No. 7659
(Heinous Crimes) in the following respects:
1. Illegal detention becomes serious when it shall have
lasted for more than three days, instead of five days
as originally provided;
2. In paragraph 4, if the person kidnapped or detained
was a minor and the offender was anyone of the
parents, the latter has been expressly excluded from
the provision. The liability of the parent is provided
for in the last paragraph of Article 271;.
3. A paragraph was added to Article 267, which states:
"When the victim is killed or dies as a
consequence of the detention or is raped,
or is subjected to torture, or dehumanizing
acts, the maximum penalty shall be
imposed."
This amendment brings about a composite crime of
kidnapping with homicide when it is the victim of the
kidnapping who was killed, or dies as a consequence of the
detention and. thus, only one penalty is imposed which is
death.
Article 48, on complex crimes, does not govern in this case.
But Article 48 will govern if any other person is killed aside,
because the provision specifically refers to "victim".
Accordingly, the rulings in cases of People v, Parulan, People
v. Ging Sam, and other similar cases where the accused were
convicted for the complex crimes of kidnapping with murder
have become academic.
In the composite crime of kidnapping with homicide, the term
"homicide" is used in the generic sense and thus, covers all
forms of killing whether in the nature of murder or otherwise.
It does not matter whether the purpose of the kidnapping
was to kill the victim or not, as long as the victim was killed,
or died as a consequence of the kidnapping or detention.
There is no more separate crime of kidnapping and murder if
the victim was kidnapped not for the purpose of killing her.
If the victim was raped, this brings about the composite crime
of kidnapping with rape. Being a composite crime, not a
complex crime, the same is regarded as a single indivisible
offense as in fact the law punishes such acts with only a single
penalty. In a way, the amendment depreciated the
seriousness of the rape because no matter how many times
the victim was raped, there will only be one kidnapping with
rape. This would not be the consequence if rape were a
separate crime from kidnapping because each act of rape
would be a distinct count.
Page | 115
However for the crime to be kidnapping with rape. the
offender should not have taken the victim with lewd designs
as otherwise the crime would be forcible abduction; and if
the victim was raped, the complex crime of forcible abduction
with rape would be committed. If the taking was forcible
abduction, and the woman was raped several times, there
would only be one crime of forcible abduction with rape, and
each of the other rapes would constitute distinct counts of
rape. This was the ruling in the case of People v. Bacalso.
In People v. Lactao, decided on October 29, 1993. the
Supreme Court stressed that the crime is serious illegal
detention if the purpose was to deprive the offended party of
her liberty. And if in the course of the illegal detention, the
offended party was raped, a separate crime of rape would be
committed. This is so because there is no complex crime of
serious illegal detention with rape since the illegal detention
was not a necessary means to the commission of rape.
In People v. Bernal, 131 SCRA 1, the appellants were held
guilty of separate crimes of serious illegal detention and of
multiple rapes. With the amendment by Republic Act No.
7659 making rape a qualifying circumstance in the crime of
kidnapping and serious illegal detention, the jurisprudence is
superseded to the effect that the rape should be a distinct
crime. Article 48 on complex crimes may not apply when
serious illegal detention and rape are committed by the same
offender. The offender will be charged for the composite
crime of serious illegal detention with rape as a single
indivisible offense. regardless of the number of times that the
victim was raped.
Also, when the victim of the kidnapping and serious illegal
detention was subjected to torture and sustained physical
injuries, a composite crime of kidnapping with physical
injuries is committed.
Kidnapping should be punished with death if this
was carried out for the purposes of ransom. The
crime of kidnapping for ransom is still a heinous
crime. In this case, we have to observe the
definition of the term “ransom” which is identified
with the crime of kidnapping. It is not necessary
though that the offender would be able to obtain
ransom. It is enough that this was committed by the
offender for the purpose of extorting ransom
whether the ransom extorted or not, it is immaterial.
For as long as it is the purpose of the offender in
kidnapping the offended party.
The word ransom as used under the article was
already construed by the SC to carry the definition
that this word has in ___ dictionary. Under such
dictionary, ransom is any price or money paid as a
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
condition for the release of a person held in
captivity. So any demand for ransom before, would
bring about death penalty already. Except that
now the death penalty has been prohibited and so
the reason why it cannot be imposed.
Under the Limberg law which the SC also adopted
as a matter of determining whether there was
ransom or not being demanded, the Limberg law
defined ransom as any price or money paid or
given as a condition for the release of a person
held in captivity.
One of the circumstances that would make the
detention serious is when the victim was a minor.
We also have article 270, where the subject is also a
minor. Hence we have to know the distinction
between the 2 crimes Art 267 and Art 270 as far as a
minor who had been kidnapped is concerned.
Under the limberg law, as adopted by the SC,
ransom may not be in terms of money. It is a
demand required for the release of a person held in
captivity. It may be a demand which the offender
demanding had a right to demand. For as long as it
is made as a condition on the release of a person
held in captivity, it is regarded as ransom.
Illustration: if a person was indebted to another and
it had been a long time that he kept on promising
that he would pay but no substantial payment was
ever made, so the creditor send his hand-helpers
and invited the debtor to his place to discuss the
obligation to be paid. The debtor went to the house
of the creditor and the creditor directed his boys to
lock him up, then allowed him a chance to write to
his family to disclose that he will not be allowed to
leave until he had paid the amount of the
indebtedness.
In this case the SC rules that the demand will
partake the nature of a ransom. A creditor
has no right to detain his debtor just so he
can collect. A demand for the obligation as
a condition for the release of a person held
in captivity is clearly a case of ransom. The
moment there is ransom, the penalty will be
death.
As to the kidnapping of a minor, when it will be
governed by art 267 as a case of kidnapping and
serious illegal detention and when will it be a case
of kidnapping on failure to return a minor where art
270 shall governed. The SC had the occasion to
point out when art 267 would governed considering
Page | 116
that a minor have been taken and there was a
demand for money or some consideration.
The SC pointed out that if the minor was taken by
the offender without knowledge nor consent of the
parent of the minor or of a person legally charged
with the custody of the minor, the crime would be
serious illegal detention under art 267.
But if the offender befriended a minor and then
asked the permission of the parents to allow the
minor to taken around the city, the parents agreed.
Then the child was taken around the city until it is
already dark, in such a situation the SC held that
the crime is merely under Art 270, kidnapping and
failure to return a minor.
The SC is clear that the crime is kidnapping and
serious illegal detention if the minor was taken
without the knowledge or consent of the parent or
of a person exercising legal authority over such
minor. Otherwise the crime will be one of
kidnapping and failure to return a minor.
Art. 268. Slight Illegal Detention — The penalty of reclusion temporal shall be
imposed upon any private individual who shall commit the crimes described
in the next preceding article without the attendance of any of circumstances
enumerated therein.
The same penalty shall be incurred by anyone who shall furnish the place for
the perpetration of the crime.
If the offender shall voluntarily release the person so kidnapped or detained
within three days from the commencement of the detention, without having
attained the purpose intended, and before the institution of criminal
proceedings against him, the penalty shall be prision mayor in its minimum
and medium periods and a fine not exceeding seven hundred pesos.
Elements
1. Offender is a private individual;
2. He kidnaps or detains another, or in any other
manner deprives him of his liberty.
3. The act of kidnapping or detention is illegal;
4. The crime is committed without the attendance of
any of the circumstances enumerated in Article 267.
This felony is committed if any of the five circumstances in
the commission of kidnapping or detention enumerated in
Article 267 is not present.
The penalty is lowered if—
1. The offended party is voluntarily released within
three days from the start of illegal detention;
2. Without attaining the purpose;
3. Before the institution of the criminal action.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
One should know the nature of the illegal detention to know
whether the voluntary release of the offended party will
affect the criminal offender.
When the offender voluntarily releases the offended party
from detention within three days from the time the restraint
of liberty began, as long as the offender has not
accomplished his purposes, and the release was made before
the criminal prosecution was commenced, this would serve to
mitigate the criminal liability of the offender, provided that
the kidnapping or illegal detention is not serious.
If the illegal detention is serious, however, even if the
offender voluntarily released the offended party, and such
release was within three days from the time the detention
began, even if the offender has not accomplished his purpose
in detaining the offended party, and even if there is no
criminal prosecution yet, such voluntary release will not
mitigate the criminal liability of the offender.
One who furnishes the place where the offended party is
being held generally acts as an accomplice. But the criminal
liability in connection with the kidnapping and serious illegal
detention, as well as the slight illegal detention, is that of the
principal and not of the accomplice.
Before, in People v. Salience, if the offended party subjected
to serious illegal detention was voluntarily released by the
accused in accordance with the provisions of Article 268 (3),
the crime, which would have been serious illegal detention,
became slight illegal detention only.
The prevailing rule now is Asistio v. Judge, which provides
that voluntary release will only mitigate criminal liability if
crime was slight illegal detention. If serious, it has no effect.
In kidnapping for ransom, voluntary release will not mitigate
the crime. This is because, with the reimposition of the
death penalty, this crime is penalized with the extreme
penalty of death.
What is ransom?
It is the money, price or consideration paid or
demanded for redemption of a captured person or
persons, a payment that releases a person from
captivity.
The definition of ransom under the Lindberg law of the US,
has been adopted in our jurisprudence in People v. Akiran, 18
SCRA 239,242, such that when a creditor detains a debtor and
releases the latter only upon the payment of the debt, such
payment of the debt, which was made a condition for the
release is ransom, under this article.
Page | 117
In the case of People v. Roluna, decided March 29, 1994,
witnesses saw a person being taken away with hands tied
behind his back and was not heard from for six years.
Supreme Court reversed the trial court ruling that the men
accused were guilty of kidnapping with murder. The crime is
only slight illegal detention under Article 268, aggravated by a
band, since none of the circumstances in Article 267 has been
proved beyond a reasonable doubt. The fact that the victim
has been missing for six years raises a presumption of death,
but from this disputable presumption of death, it should not
be further presumed that the persons who were last seen
with the absentee is responsible for his disappearance.
In contrast to the crime of kidnapping and serious
illegal detention we have a crime of slight illegal
detention.
The crime is slight illegal detention if none any of the
circumstances committed in a detention regarded
as serious or in an act regarded as kidnapping
attended the commission of the crime. If there was
ransom demanded then it will fall under art 267, the
crime cannot be slight illegal detention.
The significance of this, under art 268 on slight illegal
detention, we have a circumstance there that
mitigates the criminal liability of the offender known
as voluntary release of the offended party by the
offender. This circumstance has been construed
ultimately as true only if the illegal detention was
slight.
If the illegal detention is governed by art 267 as a
case of kidnapping and serious illegal detention,
voluntary release by the offender cannot at all
affect the criminal liability of the offender.
For the voluntary release of the offended party by
the offender, there are requisites that must be
complied with:
• The voluntary release must have been
effected within 3 days following the date of
detention. This is because otherwise, the
crime will become serious illegal detention
and that voluntary release will not anymore
mitigate the liability of the offender
• The release must have been made before
criminal prosecution is commenced
• The offender effected the voluntary release
without accomplishing his purpose. If the
offender had already accomplished his
purpose and that is why the offended party
was voluntarily released, that release will not
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
mitigate the liability anymore of the
offender
Article 269. Unlawful Arrest — The penalty of arresto mayor and a fine not
exceeding 500 pesos shall be imposed upon any person who, in any case
other than those authorized by law, or without reasonable ground therefor,
shall arrest or detain another for the purpose of delivering him to the proper
authorities.
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.
This felony consists in making an arrest or detention without
legal or reasonable ground for the purpose of delivering the
offended party to the proper authorities.
The offended party may also be detained but the crime is not
illegal detention because the purpose is to prosecute the
person arrested. The detention is only incidental, the primary
criminal intention of the offender is to charge the offended
party for a crime he did not actually commit.
Generally, this crime is committed by incriminating innocent
persons by the offender's planting evidence to justify the
arrest — a complex crime results, that is, unlawful arrest
through incriminatory machinations under Article 363.
If the arrest is made without a warrant and under
circumstances not allowing a warrantless arrest, the crime
would be unlawful arrest.
If the person arrested is not delivered to the authorities, the
private individual making the arrest incurs criminal liability for
illegal detention under Article 267 or 268.
If the offender is a public officer, the crime is arbitrary
detention under Article 124.
If the detention or arrest is for a legal ground, but the public
officer delays delivery of the person arrested to the proper
judicial authorities, then Article 125 will apply.
Note that this felony may also be committed by public
officers.
Page | 118
Article 270. Kidnapping and Failure to Return A Minor — The penalty of
reclusion perpetua shall be imposed upon any person who, being entrusted
with the custody of a minor person, shall deliberately fail to restore the latter
to his parents or guardians.
Elements
1. Offender is entrusted with the custody of a minor
person (whether over or under seven years but less
than 21 years of age);
2. He deliberately fails to restore the said minor to his
parents or guardians.
If any of the foregoing elements is absent, the kidnapping of
the minor will then fall under Article 267.
If the accused is any of the parents, Article 267 does not
apply; Articles 270 and 271 apply.
If the taking is with the consent of the parents, the crime in
Article 270 is committed.
In People v. Generosa, it was held that deliberate failure to
return a minor under one's custody constitutes deprivation of
liberty. Kidnapping and failure to return a minor is necessarily
included in kidnapping and serious illegal detention of a
minor under Article 267(4).
In People v. Mendoza, where a minor child was taken by the
accused without the knowledge and consent of his parents, it
was held that the crime is kidnapping and serious illegal
detention under Article 267, not kidnapping and failure to
return a minor under Article 270.
As to the kidnapping of a minor, when it will be
governed by art 267 as a case of kidnapping and
serious illegal detention and when will it be a case
of kidnapping on failure to return a minor where art
270 shall governed. The SC had the occasion to
point out when art 267 would governed considering
that a minor have been taken and there was a
demand for money or some consideration.
The SC pointed out that if the minor was taken by
the offender without knowledge nor consent of the
parent of the minor or of a person legally charged
with the custody of the minor, the crime would be
serious illegal detention under art 267.
But if the offender befriended a minor and then
asked the permission of the parents to allow the
minor to taken around the city, the parents agreed.
Then the child was taken around the city until it is
already dark, in such a situation the SC held that
the crime is merely under Art 270, kidnapping and
failure to return a minor.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
The SC is clear that the crime is kidnapping and
serious illegal detention if the minor was taken
without the knowledge or consent of the parent or
of a person exercising legal authority over such
minor. Otherwise the crime will be one of
kidnapping and failure to return a minor.
So in a situation where there was a parent-teachers
meeting, a mother of one of the pupils in a
secondary school took along her young child, a girl,
with her to attend such meeting. Another lady
whom the parent of the minor thought will also be
attending the meeting, befriended the young girl
until this stranger had earned the confidence and
trust of the minor. At that point, seeing that the child
is already open to her, the offender asked the
permission of the mother to allow her to bring the
child to a nearby ice peddler. She offered to buy
ice cream for the child. The mother agreed thinking
that, after all, the woman is also there to attend the
meeting. Hence this woman took the minor to the
nearby ice peddler. The meeting of the association
began when the mother is looking for her child, the
child is nowhere to be found together with the
woman asked the permission to take the minor to
the nearby ice vendor. The mother went to the NBI
and the child was traced to a childless couple in
tondo. And there the childless family that the
mother of the child brought the child there and let
the child for money. Allegedly, this has to be spent
by the mother of the child for suing her common-
law husband with the fortune of the family. The NBI
traced the woman and proceeded to Samar
where the woman was traced. Eventually, they
were able to apprehend the woman who
conveyed the girl to the childless couple. Because
of the situation where the offender appear to have
intended to demand the ransom, the case was
filed under art 267.
The SC ruled that the condition was for a
crime which is wrong because the child was
obtained from the custody of the mother
where the mother consented. The
contemplation in art 267 is that the child is
taken without the knowledge or consent of
the parent. Instead the SC said that if the
child was taken without the consent and
knowledge of the parent, then the crime will
be under art 267. But if the child was taken
with the knowledge and conformity of the
parent, the crime committed by the
offender is kidnapping and failure to return
a minor under art 270
Page | 119
Article 271. Inducing A Minor to Abandon His Home — The penalty of prision
correccional and a fine not exceeding seven hundred pesos shall be imposed
upon anyone who shall induce a minor to abandon the home of his parent or
guardians or the persons entrusted with his custody.
If the person committing any of the crimes covered by the two preceding
articles shall be the father or the mother of the minor, the penalty shall be
arresto mayor or a fine not exceeding three hundred pesos, or both.
Elements
1. A minor (whether over or under seven years of age)
is living in the home of his parents or guardians or
the person entrusted with his custody;
2. Offender induces said minor to abandon such home.
Article 272. Slavery — The penalty of prision mayor and a fine of not
exceeding 10,000 pesos shall be imposed upon anyone who shall purchase,
sell, kidnap or detain a human being for the purpose of enslaving him.
If the crime be committed for the purpose of assigning the offended party to
some immoral traffic, the penalty shall be imposed in its maximum period.
Elements
1. Offender purchases, sells, kidnaps or detains a
human being;
2. The purpose of the offender is to enslave such
human being.
This is committed if anyone shall purchase, kidnap, or detain
a human being for the purpose of enslaving him. The penalty
is increased if the purpose of the offender is to assign the
Offended party to some immoral traffic
This is distinguished from illegal detention by the purpose. If
the purpose of the kidnapping or detention is to enslave the
offended parry, slavery is committed.
The crime is slavery if the offender is not engaged in the
business of prostitution. If he is, the crime is white slave trade
under Article 341.
Anti-Trafficking of Persons Act of 2003 (RA 9208)
Sec 4 enumerates the following as unlawful:
1. recruiting, transporting, harboring, transferring,
providing or receiving persons, even under the
pretext of overseas employment, for purposes of
prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude and debt
bondage;
2. facilitating, for profit or consideration introductions
or mail-order bride schemes between Filipinas and
foreigners for purposes of prostitution,
pornography, sexual exploitation, forced labor,
slavery, involuntary servitude and debt bondage;
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
3. offering and contracting marriages for purposes of
prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude and debt
bondage;
4. organizing sex tours and similar travel packages;
5. hiring persons for purposes of prostitution or
pornography;
6. adopting children for purposes of prostitution,
pornography, sexual exploitation, forced labor,
slavery, involuntary servitude and debt bondage;
7. engaging in illegal trade of body organs, including
abducting and forcing persons to sell/donate
organs/tissues;
8. adopting/recruiting child soldiers for armed conflict
Sec 5 also penalizes acts that promote, facilitate or otherwise
assist in the commission of the acts enumerated in Sec. 4.
Under Sec 6. trafficking is qualified when:
1. the trafficked person is a child; the inter-country
adoption is effected for purposes of prostitution,
pornography, sexual exploitation, forced labor,
slavery, involuntary servitude and debt bondage;
2. trafficking is committed by a syndicate (large scale);
3. offender is an ascendant, parent, sibling, guardian or
otherwise exercises authority over the trafficked
person or a public officer or employee;
4. trafficking is made for purposes of engaging in
prostitution with law enforcement/military agencies;
5. offender is a member of law
enforcement/military agencies;
6. by reason of trafficking, the victim dies, becomes
insane, suffer mutilation or is infected with HIV
virus/AIDS.
Article 273. Exploitation of Child Labor — The penalty of prision correccional
in its minimum and medium periods and a fine not exceeding 500 pesos shall
be imposed upon anyone who, under the pretext of reimbursing himself of a
debt incurred by an ascendant, guardian or person entrusted with the
custody of a minor, shall, against the latter's will, retain him in his service.
Elements:
1. Offender retains a minor in his services;
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.
Anti-Child Labor Act of 2003 (RA 9231)
RA 9231 amended RA 7160 by imposing heavier penalties on
parents, guardians and employers of children 18 years and
below who commit any of the following acts:
1. Making the child work beyond the maximum
number of working hours provided by said law;
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2. Misappropriating the earnings of the child and/or
failure to set up a trust fund for the latter and render
a semi-annual accounting of such;
3. using, procuring or offering the child for purposes of
prostitution or pornographic activities;
4. Making the child work in hazardous working
conditions;
5. Subjecting the Child to various forms of slavery as
defined in RA 9208, including trafficking of children,
recruitment of child soldiers, etc.
Article 274. Services Rendered under Compulsion in Payment of Debt - The
penalty of arresto mayor in its maximum period to prision correccional in its
minimum period shall be imposed upon any person who, in order to require
or enforce the payment of a debt, shall compel the debtor to work for him,
against his will, as household servant or farm laborer.
Elements
1. Offender compel a debtor to work for him, either as
household servant or farm laborer;
2. It is against the debtor's will;
3. The purpose is to require or enforce the payment of
a debt.
Article 275. Abandonment of Persons in Danger and Abandonment of One's
Own Victim — The penalty of arresto mayor shall be imposed upon:
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.
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.
Acts punished
1. Failing to render assistance to any person whom the
offender finds 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
i. The place is not inhabited;
ii. Accused found there a person
wounded or in danger of dying
iii. Accused can render assistance
without detriment to himself;
iv. Accused fails to render assistance.
2. Failing to help or render assistance to another whom
the offender has accidentally wounded or injured;
3. By failing to deliver a child, under seven years of age,
whom the offender has found abandoned, to the
authorities or to his family, or by failing to take him
to a safe place.
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Under the first act, the offender is liable only when he can Acts punished
render such assistance without detriment to himself, unless 1. Delivering a minor to a public institution or other
such omission shall constitute a more serious offense. persons without the consent of the one who
Where the person is already wounded and already in danger entrusted such minor to the care of the offender or,
of dying, there is an obligation to render assistance only if he in the absence of that one, without the consent of
is found in an uninhabited place. If the mortally wounded, the proper authorities;
dying person is found in a place not uninhabited in legal
contemplation, abandonment will not bring about this crime. Elements
An uninhabited place is determined by possibility of person a. Offender has charge of the rearing or
receiving assistance from another. Even if there are many education of a minor;
houses around, the place may still be uninhabited if b. He delivers said minor to a public institution
possibility of receiving assistance is remote. or other persons;
c. The one who entrusted such child to the
If what happened was an accident at first, there would be no offender has not consented to such act; or
liability pursuant to Article 12 (4) of the Civil Code — if the one who entrusted such child to the
damnum absque injuria. But if you abandon your victim, you offender is absent, the proper authorities
will be liable under Article 275. Here, the character of the have not consented to it.
place is immaterial. As long as the victim was injured because 2. Neglecting his (offender's) children by not giving
of the accident caused by the offender, the offender would them the education which their station in life
be liable for abandonment if he would not render assistance requires and financial condition permits.
to the victim.
Elements
Article 276. Abandoning A Minor — The penalty of arresto mayor and a fine a. Offender is a parent;
not exceeding 500 pesos shall be imposed upon any one who shall abandon a
b. He neglects his children by not giving them
child under seven years of age, the custody of which is incumbent upon him.
When the death of the minor shall result from such abandonment, the culprit education;
shall be punished by prision correccional in its medium and maximum c. His station in life requires such education
periods; but if the life of the minor shall have been in danger only, the and his financial condition permits it.
penalty shall be prision correccional in its minimum and medium periods.
Article 278. Exploitation of Minors — The penalty of prision correccional in its
The provisions contained in the two preceding paragraphs shall not prevent
minimum and medium periods and a fine not exceeding 500 pesos shall be
the imposition of the penalty provided for the act committed, when the
imposed upon:
same shall constitute a more serious offense.
1. Any person who shall cause any boy or girl under sixteen years of
Elements age to perform any dangerous feat of balancing, physical strength,
1. Offender has the custody of a child; or contortion.
2. Any person who, being an acrobat, gymnast, rope-walker, diver,
2. The child is under seven years of age;
wild-animal tamer or circus manager or engaged in a similar
3. He abandons such child; calling, shall employ in exhibitions of these kinds children under
4. He has no intent to kill the child when the latter is sixteen years of age who are not his children or descendants.
abandoned. 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.
Circumstances qualifying the offense 4. Any ascendant, guardian, teacher or person entrusted in any
1. When the death of the minor resulted from such capacity with the care of a child under sixteen years of age, who
abandonment; or shall deliver such child gratuitously to any person following any of
the callings enumerated in paragraph 2 hereof, or to any habitual
2. If the life of the minor was in danger because of the
vagrant or beggar.
abandonment.
If the delivery shall have been made in consideration of any price,
Article 277. Abandonment of Minor by Person Entrusted with His Custody; compensation, or promise, the penalty shall in every case be
Indifference of Parents — The penalty of arresto mayor and a fine not imposed in its maximum period.
exceeding 500 pesos shall be imposed upon anyone who, having charge of
the rearing or education of a minor, shall deliver said minor to a public In either case, the guardian or curator convicted shall also be
institution or other persons, without the consent of the one who entrusted removed from office as guardian or curator; and in the case of the
such child to his care or in the absence of the latter, without the consent of parents of the child, they may be deprived, temporarily or
the proper authorities. perpetually, in the discretion of the court, of their parental
authority.
The same penalty shall be imposed upon the parents who shall neglect their
children by not giving them the education which their station in life require 5. Any person who shall induce any child under sixteen years of age
and financial conditions permit. to abandon the home of its ascendants, guardians, curators, or
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 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
teachers to follow any person engaged in any of the callings
mentioned in paragraph 2 hereof, or to accompany any habitual
vagrant or beggar.
Acts punished
1. Causing any boy or girl under 16 years of age to
perform 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 engaged in a similar calling;
3. Employing any descendant under 12 years of age in
dangerous exhibitions enumerated in 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 following any of the callings
enumerated in paragraph 2. or to any habitual
vagrant or beggar, the offender being an ascendant,
guardian, teacher or person entrusted in any
capacity with the care of such child; and
5. Inducing any child under 16 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 or to accompany
any habitual vagrant or beggar, the offender being
any person.
The offender is engaged in a kind of business that would
place the life or limb of the minor in danger, even though
working for him is not against the will of the minor.
Nature of the Business -- This involves circuses which
generally attract children so they themselves may enjoy
working there unaware of the danger to their own lives and
limbs.
Age — Must be below 16 years. At this age, the minor is still
growing.
If the employer is an ascendant, the crime is not committed,
unless the minor is less than 12 years old. Because if the
employer is an ascendant, the law regards that he would look
after the welfare and protection of the child; hence, the age
is lowered to 12 years. Below that age, the crime is
committed. This article has become obsolete because under
RA 7610.
Under RA 7610, it is considered as child abuse for
any person to employ a child less than 18 years old
in any calling or work where the physical, mental,
spiritual and moral development of the child will be
Page | 122
prejudiced. As we can see, the age of the child is
below 18 years of age and the nature of the work is
no limited only to that of a circus; any kind of work.
If the work would be detrimental to the physical,
mental, spiritual and moral development of the
child, the same is prohibited under RA 7610.
Pursuant to this an employment of a young girl as
dishwasher in a night club was considered
detrimental to the moral development of the child.
Hence, a violation of this law as a form of child
abuse.
The employment of a young boy as a water boy,
bring a pale of warm water to the cubicle of a
massage parlor where the men are being subject
of a massage is considered as detrimental to the
moral development of the child.
So this is not merely on a hazardous aspect.
Under RA 7610, it is not necessary that the act be
done habitually, a single act alone may be
characterized as a child abuse already.
Relative to the crimes under title IX of the RPC, we
have to read RA 7610, particularly section 10 of Art
6, where we have a crime of cruelty
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other
Conditions Prejudicial to the Child's Development. –
(a) Any person who shall commit any other acts of child
abuse, cruelty or exploitation or to be responsible for
other conditions prejudicial to the child's development
including those covered by Article 59 of Presidential
Decree No. 603, as amended, but not covered by the
Revised Penal Code, as amended, shall suffer the
penalty of prision mayor in its minimum period.
Given a setting where it would be by RA 7610,
cruelty is not an aggravating circumstance here. It
is a crime itself. It is punishable by itself.
A teacher, for instance who could not control his
pupils being talkative, got hold of the heads of the
pupils and bump each other. One of pupils suffered
a broken skull and the other complained of head
ache.
As far as the one who survives, who
complained for head ache, the teacher
was convicted of cruelty
As far as the other one who died, the
teacher was convicted for homicide
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Article 280. Qualified Trespass to Dwelling — Any private person who shall
enter the dwelling of another against the latter's will shall be punished by
arresto mayor and a fine not exceeding 1,000 pesos.
If the offense be committed by means of violence or intimidation, the
penalty shall be prision correccional in its medium and maximum periods and
a fine not exceeding 1,000 pesos.
The provisions of this article shall not be applicable to any person who shall
enter another's dwelling for the purpose of preventing some serious harm to
himself, the occupants of the dwelling or a third person, nor shall it be
applicable to any person who shall enter a dwelling for the purpose of
rendering some service to humanity or justice, nor to anyone who shall enter
cafes, taverns, inn and other public houses, while the same are open.
Elements
1. Offender is a private person;
2. He enters the dwelling of another;
3. Such entrance is against the latter's will
Two forms of trespass
• Qualified trespass to dwelling — This may be
committed by any private person or public officer
not authorized to implement search warrant, so he
will not be acting in a public capacity, who shall
enter the dwelling of another against the latter's
will. The house must be inhabited at the time of the
trespass although the occupants are out. Or offender
breaks in with force and violence (Article 280).
• Trespass to property - Offender enters the closed
premises or fenced estate of another; such close
premises or fenced estate is uninhabited; there is a
manifest prohibition against entering such closed
premises or fenced estate; and offender has not
secured the permission of the owner or caretaker
thereof (Article 281). This does not refer to the
nature of the structure. The structure may
actually be a dwelling but for as long as it is
not tenanted and the trespass thereto will
be governed by Art 281 as trespass to
property.
It is a trespass to dwelling if the place, where
the trespass was effected, was, at the time
of the trespass, tenanted using it as a
dwelling. It may be a garage. For as long as
it is a place of domicile of persons living
there, it is regarded as a dwelling.
Even if the property is a dwelling but if it is
not tenanted, the crime is only trespass to
property
Page | 123
(See also Presidential Decree No. 1227 regarding
unlawful entry into any military base in the
Philippines.)
Dwelling — This is the place that a person inhabits. It includes
the dependencies which have interior communication with
the house. It is not necessary that it be the permanent
dwelling of the person. So a person's room in a hotel may be
considered a dwelling. It also includes a room where one
resides as a boarder.
If the purpose in entering the dwelling is not shown, trespass
is committed. If the purpose is shown, it may be absorbed in
the crime as in robbery with force upon things, the trespass
yielding to the more serious crime. But if the purpose is not
shown and while inside the dwelling he was found by the
occupants, one of whom was injured by him, the crime
committed will be trespass to dwelling and frustrated
homicide, physical injuries, or if there was no injury, unjust
vexation.
If the entry is made by a way not intended for entry, that; is
presumed to be against the will of the occupant (example,
entry through a window), it is not necessary that there be a
breaking.
"Against the will" — This means that the entrance is, either
expressly or impliedly, prohibited or the prohibition is
presumed. Fraudulent entrance may constitute trespass. The
prohibition to enter may be made at any time and not
necessarily at the time of the entrance. It must be
“against the will” not “without the consent of the
owner” what the law contemplates is that there is
an express prohibition in entering and the offender
violated the prohibition by so entering in the face of
the prohibition
To prove that an entry is against the will of the occupant, it is
not necessary that the entry should be preceded by an
express prohibition, provided that the opposition of the
occupant is clearly established by the circumstances under
which the entry is made, such as the existence of enmity or
strained relations between the accused and the occupant.
On violence, Cuello Calon opines that violence may be
committed not only against persons but also against things.
So, breaking the door or glass of a window or door
constitutes acts of violence. Our Supreme Court followed this
view in People v. Tayag. Violence or intimidation must,
however, be anterior or coetaneous with the entrance and
must not be posterior. But if the violence is employed
immediately after the entrance without the consent of the
owner of the house, trespass is committed. If there is also
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
violence or intimidation, proof of prohibition to enter is no
longer necessary.
Distinction between qualified trespass to dwelling and
violation of domicile:
Unlike Qualified trespass to dwelling, violation of domicile
may be committed only by a public officer or employee and
the violation may consist of any of the three acts mentioned
in Article 128 -
(1) entering the dwelling against the will of the
owner without judicial order;
(2) searching papers or other effects found in
such dwelling without the previous consent
of the owner thereof; and
(3) refusing to leave the dwelling when so
requested by the owner thereof, after
having surreptitiously entered such
dwelling.
Cases when Article 280 does not apply:
1. When the purpose of the entrance is to prevent
serious harm to himself the occupant or third
persons;
2. When the purpose of the offender in entering is to
render some service to humanity or justice;
3. Anyone who shall enter cafes, caverns, inns and
other public houses while they are open.
Pursuant to Section 6, Rule 113 of the Rules of Court, a
person who believes that a crime has been committed
against him has every right to go after the culprit and arrest
him without any warrant even if in the process he enters the
house of another against the latter's will.
Article 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.
Elements
1. Offender enters the closed premises or the fenced
estate of another;
2. The entrance is made while either of them is
uninhabited;
3. The prohibition to enter is manifest;
4. The trespasser has not secured the permission of
the owner or the caretaker thereof
Article 282. Grave Threats — Any person who shall 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, shall suffer:
1. The penalty next lower in degree than that prescribed by law for
the crime be threatened to commit, if the offender shall have
made the threat demanding money or imposing any other
Page | 124
condition, even though not unlawful, and said offender shall have
attained his purpose. If the offender shall not have attained his
purpose, the penalty lower by two degrees shall be imposed.
If the threat be made in writing or through a middleman, the
penalty shall be imposed in its maximum period.
2. The penalty of arresto mayor and a fine not exceeding 500 pesos,
if the threat shall not have been made subject to a condition.
Acts as punished:
1. Threatening another with the infliction upon his
person, honor or property or that of this 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;
2. Making such threat without the offender attaining
his purpose;
3. Threatening another with the 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 a condition.
Threat is a, declaration of an intention or determination to
injure another by the commission upon his person, honor or
property or upon that of his family of some wrong which may
or may not amount to a crime:
Grave threats — when the harm or wrong involved
is in the nature of a crime. The case falls under
Article 282. Such as threat to kill, threat to inflict
physical injury or threat to destroy property by
burning.
Light threats — if it does not amount to a crime. The case
falls under Article 283.
However, even though the harm or wrong
threatened is in the nature of a crime, if this was
done orally and in heat of anger, but the offender
making the threat did not pursue any act to carry
out what was threatened, that threat will be
regarded only as other forms of light threat under
Article 285.
To constitute grave threats, the threats must refer to a future
wrong and is committed by acts or through words of such
efficiency to inspire terror or fear upon another. It is.
therefore, characterized by moral pressure that produces
disquietude or alarm.
The greater perversity of the offender is manifested when the
threats are made demanding money or imposing any
condition, whether lawful or not, and the offender shall have
attained his purpose. So the law imposes upon him the
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

penalty next lower in degree than that prescribed for the • in threats, it may be through an intermediary.
crime threatened to be committed. But if the purpose is not
attained, the penalty lower by two degrees is imposed. The As to subject matter –
maximum period of the penalty is imposed if the threats are • Robbery refers to personal property;
made in writing or through a middleman as they manifest • threat may refer to the person, honor or property.
evident premeditation.
As to intent to gain —
Distinction between threat and coercion: • In robbery, there is intent to gain;
As to the crime of threat, this crime is carried • in threats, intent to gain is not an essential element
out thru intimidation, whereas Coercion is
carried out thru violence. • In robbery, the robber makes the danger involved in
his threats directly imminent to the victim and the
Although the threat is so serious as to obtainment of his gain immediate, thereby also
approximate violence, it is also regarded in taking rights to his person by the opposition or
law as a case of coercion. resistance which the victim might offer;
• in threat, the danger to the victim is not instantly
Threatening the offended party with a 9mm imminent nor the gain of the culprit immediate.
pistol directed at the latter, that if he would
not desist, he would shoot him because of Article 283. Light Threats — Any threat to commit a wrong not constituting a
the seriousness of the use of a 9mm firearm, crime, made in the manner expressed in subdivision 1 of the next preceding
article, shall be punished by arresto mayor.
the crime is considered not simply as a
threat but a case of coercion because the
Elements:
use of the firearm is a violent means to
1. Offender makes a threat to commit a wrong:
accompany an act which is illegal.
2. The wrong does not constitute a crime;
3. There is a demand for money or that other condition
In threat, the harm or wrong threaten is
is imposed, even though not unlawful;
future and conditional, whereas, in coercion
4. Offender has attained his purpose or, that he has not
the wrong presented is direct and personal
attained his purpose.
Threat may be committed in writing or thru
In order to convict a person of the crime of light threats, the
an intermediary. In coercion, it cannot be
harm threatened must not be in the nature of crime and
committed in writing nor thru an
there is a demand for money or any other condition is
intermediary.
imposed, even though lawful
If the harm or wrong involved will be
Question & Answer
inflicted at some future time and there was
condition that must be fulfilled, if the
Blackmailing constitutes what crime?
offended party may not want to suffer the
It is a crime of light threat under Article 283 if there
harm or wrong presented, then it is a crime
is no threat to publish any libelous or slanderous
of threat because the harm will come at
matter against the offended party.
some future time.
If there is such a threat to make a slanderous or
But if the harm or wrong involve is
libelous publication against the offended party, the
immediate, and the offender is demanding
crime will be one of libel, which is penalized under
this directly under pain of some act of
Article 356.
violence, then it is a case of coercion.
For example, a person threatens to expose the
Distinction between threat and robbery
affairs of married man if the latter does not give him
As to intimidation —
money. There is intimidation done under a demand.
• In robbery, the intimidation is actual and immediate:
• in threat, the intimidation is future and conditional
The law imposes the penalty of bond for good behavior only
in case of grave and light threats. If the offender cannot post
As to nature of intimidation —
the bond, he will be banished by way of destierro to prevent
• In robbery, the intimidation is personal: him from carrying out his threat.
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Acts punished-
Article 285. Other Light Threats — The penalty of arresto menor in its 1. Preventing another, by means of violence, threats or
minimum period or a fine not exceeding 200 pesos shall be imposed upon:
intimidation, from doing something not prohibited
1. Any person who, without being included in the provisions of the by law;
next preceding article, shall threaten another with a weapon or 2. Compelling another, by means of violence, threats or
draw such weapon in a quarrel, unless it be in lawful self-defense. intimidation, to do something against his will,
2. Any person who, in the heat of anger, shall orally threaten
whether it be right or wrong.
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, provided that the circumstances of the offense shall Elements
not bring it within the provisions of Article 282 of this Code. 1. A person prevented another from doing something
3. Any person who shall orally threaten to do another any harm not
not prohibited by law, or that he compelled him to
constituting a felony.
do something against his will; be it right or wrong;
Acts punished: 2. The prevention or compulsion be effected by
1. Threatening another with a weapon, or by drawing violence, threats or intimidation; and
such weapon in a quarrel, unless it be in lawful self- 3. The person that restrained the will and liberty of
defense; another had not the authority of law or the right to
2. Orally threatening another, in the heat of anger, do so, or in other words, that the restraint shall not
with some harm constituting a crime, without be made under authority of law or in the exercise of
persisting in the idea involved in his threat; any lawful right.
3. Orally threatening to do another any harm not
constituting a felony. Grave coercion arises only if the act which the offender
prevented another to do is not prohibited by law or
ordinance. If the act prohibited was illegal, he is not liable for
An incident crop out where a man went over the
grave coercion.
merchandise of a stall holder of a market selling
some miscellaneous __. The man is attracted with
If a person prohibits another to do an act because the act is a
the merchandise but eventually he decided not to
crime, even though some sort of violence or intimidation is
buy. The woman mad at him then the woman
employed, it would not give rise to grave coercion. It may
started berating him. Initially, the man answered
only give rise to threat, or physical injuries, if some injuries
but in the exchanges of altercations, the man
are inflicted. However, in case of grave coercion where the
cannot out shot the woman. So he simply stopped
offended party is being compelled to do something against
and kept quiet but the woman kept on uttering
his will, whether it be wrong or not, the crime of grave
nasty words against him. The man carries a firearm
coercion is committed if violence or intimidation is employed
and thrust the same to the mouth of the woman.
in order to compel him to do the act. No person shall take the
The woman became hysterical. The woman
law into his own hands.
immediately withdraw and upon withdrawing she
fell then abortion followed. The man was sued for
Illustration:
unintentional abortion. The lower courts convicted
Compelling the debtor to deliver some of his
the man.
properties to pay a creditor will amount to coercion
The SC said that it cannot be an intentional
although the creditor may have a right to collect
abortion because an unintentional abortion
payment from the debtor, even if the obligation is
is a product of violence and not of threat or
long overdue.
intimidation. The SC said that the crime
committed is of one under Art 285, drawing
The violence employed in grave coercion must be immediate,
a weapon in the course of a quarrel but not
actual, or imminent. In the absence of actual or imminent
as legitimate self-defense.
force or violence, coercion is not committed. The essence of
Article 286. Grave Coercions — The penalty of arresto mayor and a fine not
coercion is an attack on individual liberty.
exceeding 500 pesos shall be imposed upon any person who, without
authority of law, shall, by means of violence, prevent another from doing The physical violence is exerted to prevent a person from
something not prohibited by law, or compel him to do something against his doing something he wants to do; or compel him to do
will, whether it be right or wrong.
something he does not want to do.
If the coercion be committed for the purpose of compelling another to
perform any religious act or to prevent him from so doing, the penalty next
higher in degree shall be imposed.

Page | 126
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Illustration:
If a man compels another to show the contents of
the latter's pockets, and takes the wallet, this is
robbery and not grave coercion. The intimidation is a
means of committing robbery with violence or
intimidation f persons. Violence is inherent in the
crime of robbery with violence or intimidation upon
persons and in usurpation of real properties because
it is the means of committing the crime.
Exception to the rule that physical violence must be exerted;
where intimidation is so serious that it is not a threat
anymore — it approximates violence.
In Lee vs CA. 201 SCRA 405, it was held that neither the crime
of threats nor coercion is committed although the accused, a
branch manager of a bank made the complainant sign a
withdrawal slip for the amount needed to pay the spurious
dollar check she had encashed, and also made her execute an
affidavit regarding the return of the amount against her
better sense and judgment. According to the court, the
complainant may have acted reluctantly and with hesitation,
but still, it was voluntary. .It is different when a complainant
refuses absolutely to act such an extent that she becomes a
mere automaton and acts mechanically only, not of her own
will. In this situation, the complainant ceases to exist as an
independent personality and the person who employs force
or intimidation is, in the eyes of the law, the one acting; while
the hand of the complainant sign, the will that moves it is the
hand of the offender.
Article 287. Light Coercions — Any person who, by means of violence, shall
seize anything belonging to his debtor for the purpose of applying the same
to the payment of the debt, shall suffer the penalty of arresto mayor in its
minimum period and a fine equivalent to the value of the thing, but in no
case less than 75 pesos.
Any other coercions or unjust vexations shall be punished by arresto menor
or a fine ranging from 5 pesos to 200 pesos, or both.
Elements
1. Offender must be a creditor;
2. He seizes anything belonging to his debtor.
3. The seizure of the thing be accomplished by means
of violence or a display of material force producing
intimidation
4. The purpose of the offender is to apply the same to
the payment of the debt.
The first paragraph deals with light coercions wherein
violence is employed by the offender who is a creditor in
seizing anything belonging to his debtor for the purpose of
applying the same to the payment of the debt.
In the other light coercions or unjust vexation embraced in
the second paragraph, violence is absent.
Page | 127
In unjust vexation, any act committed without violence, but
which unjustifiably annoys or vexes an innocent person
amounts to light coercion.
As a punishable act, unjust vexation should include any
human conduct which, although not productive of some
physical or material harm would, however, unjustifiably
annoy or vex an innocent person.
It is distinguished from grave coercion under the first
paragraph by the absence of violence.
Illustration:
Persons stoning someone else's house. So long as
stoning is not serious and it is intended to annoy, it is
unjust vexation. It disturbs the peace of mind.
The main purpose of the statute penalizing coercion and
unjust vexation is precisely to enforce the principle that no
person may take the law into his hands and that our
government is one of laws, not of men. The essence of the
crimes is the attack on individual liberty.
Article 288. Other Similar Coercions Compulsory purchase of merchandise
and payment of wages by means of tokens.) — The penalty of arresto mayor
or a fine ranging from 200 to 500 pesos, or both, shall be imposed upon any
person, agent or officer, of any association or corporation who shall force or
compel, directly or indirectly, or shall knowingly permit any laborer or
employee employed by him or by such firm or corporation to be forced or
compelled, to purchase merchandise or commodities of any kind.
The same penalties shall be imposed upon any person who shall pay the
wages due a laborer or employee employed by him, by means of tokens or
objects other than the legal tender currency of the laborer or employee.
Acts punished
1. Forcing or compelling, directly or indirectly, or
knowingly permitting the forcing or compelling of
the laborer or employee of the offender to purchase
merchandise of commodities of any kind from him;
Elements.
a. Offender is any person, agent or officer of
any association or corporation;
b. He or such firm or corporation has
employed laborers or employees;
c. He forces or compels, directly or indirectly,
or knowingly permits to be forced or
compelled, any of his or its laborers or
employees to purchase merchandise or
commodities of any kind from him or from
said firm or corporation.
2. Paying the wages due his laborer or employee by
means of tokens or object other than the legal
tender currency of the Philippines, unless expressly
requested by such laborer or employee.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Elements:
a. Offender pays the wages due a laborer or
employee employed by him by means of
tokens or object;
b. Those tokens or objects are other than the
legal tender currency of the Philippines;
c. Such employee or laborer does not
expressly request that he be paid by means
of tokens or objects.
Article 290. Discovering Secrets through Seizure of Correspondence — The
penalty of prision correccional in its minimum and medium periods and a fine
not exceeding 500 pesos shall be imposed upon any private individual who in
order to discover the secrets of another, shall seize his papers or letters and
reveal the contents thereof.
If the offender shall not reveal such secrets, the penalty shall be arresto
mayor and a fine not exceeding 500 pesos.
The provision shall not be applicable to parents, guardians, or persons
entrusted with the custody of minors with respect to the papers or letters of
the children or minors placed under their care or study, nor to spouses with
respect to the papers or letters of either of them.
Elements:
1. Offender is a private individual or even a public
officer not in the exercise of his official function;
2. He seizes the papers or letters of another;
3. The purpose is to discover the secrets of such
another person;
4. Offender is informed of the contents of the papers
or letters seized.
This is a crime against the security of one's papers and
effects. The purpose must be to discover its effects. The act
violates the privacy of communication.
According to Ortega, it is not necessary that the offender
should actually discover the contents of the letter. Reyes,
citing People v. Singh. CA. 40 OG, SuppL 5. 35. believes
otherwise.
The last paragraph of Article 290 expressly makes the
provision of the first and second paragraph thereof
inapplicable to parents, guardians, or persons entrusted with
the custody of minors placed under their care or custody, and
to the spouses with respect to the papers or letters of either
of them. The teachers or other persons entrusted with the
care and education of minors are included in the exceptions.
The term “secret” here does not literally means a
secret, but something that is private. When sent in a
letter that is closed, whether it is “tsismis” or what, it
is considered a secret in law. But if it is in an open
letter, we don’t call it a secret.
Page | 128
The seizure of correspondence of another to
discover what is in writing there is a crime against
personal liberty and security. Security of one’s
communication.
If in a boarding house of ladies, there was a lady
and every time the postman comes around, she
was first to received the mail of the other boarders.
But unfortunately, there is no mail for her. She got
some of the letters address to her other boarders
and open the same to read what the contents.
That is a crime under the article.
The revelation of what is inside is not really part of
the crime.
The law will bring about a higher penalty if what is
read in a correspondence is publicly disclosed, but
even without disclosing it, the seizure of
correspondence to discover the secrets inside is
already a crime.
In one case where the wife went to the clinic of her
husband-physician and the husband was not in his
clinic, the wife sat on the chair of the husband while
waiting for him. While waiting, she opened the
drawer of the table of her husband and went over
some of the matters there. she came upon letter
which are scented, she started opening the letters
and read the same. It turned out that it came from
another woman. She opened all the drawers and
took the cards and left. The wife filed a legal
separation case and she wanted to deprive her
husband of any share in the conjugal property. She
wanted to prove that the fault was on her husband
and therefore the husband will be the guilty spouse.
The evidence are the letters obtained by the wife.
The counsel of the husband objected that the
same is not admissible in evidence because it was
the fruit of a poisonous tree. It was obtained without
proper search warrant. The counsel of the wife
advanced the contention that since under this Art
290, the spouses are exempt from criminal liability
before the seizure of correspondence and the case
between the 2 of them, the evidence cannot be
excluded. The lower court agreed and allowed the
evidence to be marked as exhibit.
The SC ruled that they are not admissible in
evidence because the SC said that this is a
right guaranteed by the Constitution to
every citizen of the Philippines and that right
to be secured in ones papers and effects is
not lost just because the citizen got married.
The right to privacy of ones papers and
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
effects continues before, during and after
marriage.
Distinction from estafa, damage to property and unjust
vexation:
If the act had been executed with intent of gain, it
would be estafa;
If, on the other hand, the purpose was not to
defraud, but only to cause damage to another's, it
would merit the qualification of damage to property;
If the intention was merely to cause vexation
preventing another to do something which the law
does not prohibit or compel him to execute what he
does not want, the act should be considered as
unjust vexation.
TTTLE X. CRIMES AGAINST PROPERTY
Article 293. Who Are Guilty of Robbery — 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 shall be
guilty of robbery.
Robbery — This is the taking or personal property belonging
to another, with intent to gain, by means of violence against,
or intimidation of any person, or using force upon anything.
Elements of robbery in general:
1. There is personal properly belonging to another;
2. There is unlawful taking of that property;
3. The taking must be with intent to gain; and
4. There is violence against or intimidation of any
person, or force upon anything.
As to the crime of robbery and theft, these are
almost identical in that the gravamen of the crime
is the taking of personal property belonging to
another. The taking must be characterized by intent
to gain. That the 2 crimes differ only on the manner
of taking. In robbery, violence and intimidation
against persons or forced upon things is employed.
In theft, the taking is merely without the consent of
the owner.
We have, however, the case of theft where the
personal property is entrusted by the owner or
possessor to another and this is regarded not as
swindling but a crime of theft because only physical
or material possession was yielded to the transferee
which does not carry with it juridical possession.
The crime of robbery under Art 294, may be
committed with violence against or intimidation of
Page | 129
persons. Under Art 299, with force upon things.
These 2 robberies are covered by 2 separate
provisions on how the crime is to be carried out.
Article 294. Robbery with Violence against or Intimidation of Persons — Any
person guilty of robbery with the use of violence against or intimidation of
any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been
committed.
2. The penalty of reclusion temporal in its medium period to
reclusion perpetua when the robbery shall have been
accompanied by rape or intentional mutilation, or if by reason or
on occasion of such robbery, any of the physical injuries penalized
in subdivision 1 of Article 263 shall have been inflicted; Provided,
however, that when the robbery accompanied with rape is
committed with a use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death (As
amended by PD No. 767).
3. The penalty of reclusion temporal, when by reason or on occasion
of the robbery, any of the physical injuries penalized in
subdivision 2 of the article mentioned in the next preceding
paragraph, shall have been inflicted.
4. The penalty of prision mayor in its maximum period to reclusion
temporal in its medium period, if the violence or intimidation
employed in the commission of the robbery shall have been
carried to a degree clearly unnecessary for the commission of the
crime, or when the course of its execution, the offender shall have
inflicted upon any person not responsible for its commission any
of the physical injuries covered by sub-divisions 3 and 4 of said
Article 23.
5. The penalty of prision correccional in its maximum period to
prision mayor in its medium period in other cases.
Acts punished
1. When by reason or on occasion of the robbery
(taking of personal property belonging to another
with intent to gain), the crime of homicide is
committed;
2. When the robbery is accompanied by rape or
intentional mutilation or arson;
3. When by reason of on occasion of such robbery, any
of the physical injuries resulting in insanity,
imbecility, impotency or blindness is inflicted;
4. When by reason or on occasion of robbery, any of
the physical injuries resulting in the loss of the use of
speech or the power to hear or to smell, or the loss
of an eye, a hand, a foot, an arm, or a leg or the loss
of the use of any such member or incapacity for the
work in which the injured person is theretofore
habitually engaged is inflicted;
5. If the violence or intimidation employed in the
commission of the robbery is carried to a degree
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 sue thereof or
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
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 the 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.
Under Art 294, the robbery is carried out with
violence against and intimidation of persons.
The violence is in the nature of a:
• Killing,
• Rape,
• Mutilation,
• Arson,
• serious physical injuries or
• unnecessary violence
Under Art 299, the robbery is committed without
any such violence or intimidation of persons but
with an element of trespass, where the entry is
made to the premises where the robbery is
committed. Or once inside such premises, there is
breaking of locks or sealed cabinets, furniture,
wardrobe and other receptacles.
So under art 294, we should understand that the
killing here does not stand as a crime. It is the
violence that characterizes the taking as robbery. If
we removed that, the crime is theft. That is why this
is regarded as a single indivisible offense, the killing
here is the violence that makes the taking robbery.
But there are some ruling that the SC considered
the killings as a separate crime. This brought about
the confusion because this is not a complex crime
where the component crimes are distinct from
each other. This is only one crime. That is why, do
not count the number of persons killed. The penalty
is the same whether in a robbery, only one person is
killed or there are several persons killed. Because
the killing is here the violence, you cannot quantify
the violence.
Sometime in the year 2000 and 2003, SC came out
thru the lady magistrates who are now retired, that
the ruling in earlier jurisprudence on this crime, that
if in a robbery, there was a killing or rape
committed, the rape will be considered as
aggravating. Or if in a robbery, there are several
persons killed, the fact that several persons are
killed, it will be taken as aggravating. This was voted
against in an en banc ruling in the case of people
Page | 130
vs regala because there is no basis. In criminal law,
we do not consider aggravating by mere
presumption. There must be a specific provision,
saying that this is aggravating because we do not
assume aggravating circumstance.
Par. 10 of Art 13, we can take mitigating
circumstances by analogy but never to an
aggravating circumstance. But in a decision in
2010, the fact that there are several persons killed, it
will be regarded as aggravating, which abrogate
the ruling in people vs regala and people vs
castanito gano. In these cases, the decisions were
correct, that whether several persons are killed or
only one persons is killed, you cannot consider that
as aggravating. It is the violence that attended the
robbery. It is immaterial whether the killing was
ahead of the robbery or during the robbery or after
the robbery, for as long as the killing is intimately
connected with the robbery.
the SC said that if the conspiracy was to commit
robbery and during the robbery, rape or homicide
was committed, only those who are present and
who could have prevented the rape or the robbery
but did not do so and those participated in the
killing and the rape will be answerable with the
crime of robbery with rape or robbery with
homicide. To those who took part in the robbery
only, will answer for the crime of robbery without
rape or homicide.
We have to consider the killing, rape, mutilation,
arson, serious physical injuries and unnecessary
violence only as a means to effect the taking.
Never regard this as a crime by themselves
otherwise, our appreciation of the crime will be
distorted. It is only one crime.
Under this article, we have to consider the primary
intent of the offender. The intent must be “rob”. It is
a crime against property. The killing here is only the
means to effect the taking. If the primary intent of
the offender was to kill, then it shall be a crime
against person. The fact that during the killing, a
property was taken, then we have to consider
whether the victim was already when the property
was taken. In which case, if he was already dead,
he cannot be intimidated anymore. So the taking
will only be theft. But the fact is that, the killing will
constitute a crime against person. The taking
(theft), if the victim is already dead at the time that
the body was stripped off his jewelries and
valuables.
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The way that the SC construed this crimes brought
about several interpretations which deviated from
the original concept of these provisions as
translated from the Spanish codigo penal.
Note that in robbery with homicide, as long as the
intent is to rob, whether the killing was committed
ahead of the robbery or during or after the robbery
and for as long as it is intimately related to the
robbery, the crime is robbery with homicide.
Since this is the violence that attended the robbery,
we have to observe the sequence in which the
violence is appreciated under Art 294. First, we
have there a killing. Second, a rape. So we cannot
have a case of robbery with rape if there was a
killing because only one violence is needed to
characterize the taking as robbery. We observe the
violence in the order in which they are successively
penalized under Art 294. Do not go against that.
First, we have a killing. Second, a rape, third, a
mutilation, fourth, an arson, fifth, a serious physical
injuries, sixth, any unnecessary violence and lastly,
intimidation.
A ruling that if violence or intimidation against
persons and force upon things attended the
commission of the robbery, the offender shall be
prosecuted for robbery under Art 294. This is
regarded as the more serious crime than the
robbery with force upon things. If the robbery under
Art 294 is the more serious crime than the robbery
with force upon things, then the penalty must be
heavier. But that was not the case if the robbery
comes under paragraph 5 of Art 294. Compare this
with robbery under art 299, where the penalty is
reclusion temporal as against the penalty of
reclusion correccional in the medium and
maximum period.
Hence, in a situation like this where there were 2
offenders committing the robbery with an entry
breaking into the sari-sari store, breaking the wall
thereof. Once inside, they started ransacking the
store, the owner awakened and they employed
violence upon the owner. To accused the offenders
of robbery with unnecessary violence, the penalty is
lesser than to accused them for robbery with force
upon things because the offenders broke into an
inhabited house, they were armed and they were
able to divest the __ with 2k which is under Art 299
only takes at 250 pesos. The penalty under art 299 is
Page | 131
higher, reclusion temporal. In order not to sacrifice
the rule, that between the 2 robberies, robbery
under 294 should be the one charged because this
was considered as the most serious crime, the SC in
the case of Mapoles vs CA, complexed the 2
robberies, robbery with violence and intimidation
upon person and robbery with force upon things. In
a single case of robbery, the offenders were
prosecuted with 2 robberies, one under art 294
another one with Art 299 just to availed of a higher
penalty between the 2 robbery. We should adopt
this handling of these 2 cases if in the facts given,
the penalty for robbery with force upon things is
higher than the penalty for the robbery with
violence and intimidation upon person because
the violence employed was only productive of less
serious or slight physical injuries. In robbery with
physical injuries, we should note that the physical
injuries are only serious. We do not have robbery
with physical injuries if the physical injuries is slight or
less serious. It will be robbery with unnecessary
violence.
Another unusual situation, in a robbery, the robber
usually heard or gathered the members of a
household while they ransack the place. They
collected the members of the household and
locked them up in one room in the house. In the
case of people vs desierto, the robbers were
prosecuted also for serious illegal detention
because women and children were locked up in
one of the rooms of the house while the offenders
were ransacking the house. So 2 crimes were
considered as committed and the offenders were
convicted for these in the lower courts. But on
review, the SC ruled that the detention of the other
members of the household is part of the violence
that characterizes the crime as robbery, therefore,
it should not be considered as separate from the
crime of robbery.
Until another case come up where, this time, the SC
ruled that the crime committed is robbery with
serious illegal detention. The peculiar facts of this
case: 2 person went to a store engaged in
hardware service. They confronted the cashier and
with the gun poke at the cashier, the offender
directed her to scoop the money inside the cash
register put the same in the paper bag. The paper
bag was placed on top of the counter so the other
robber would just simply pick it up and run away.
The cashier did as instructed. When the offenders
asked her how much, she disclosed, it was only 7k.
and the offenders are not contented with that
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
amount. So they barged inside the hardware store
and they confronted the proprietor of the store.
They were demanding 100k at least. The owner of
the store said that he has only that much and he
could not offer more than is scooped out of the
cash register. One of the 2 robbers ordered the
other to gather all the members of the household
and locked them up in one room and killed them
one by one. So the other robber gather all the
members of the household which include women,
housemaids, children and the other members. The
other robber who was with the head of the family
threatened that the other robber who was inside
with the locked members of the household to start
killing them one by one if he will not give the
amount that was demanded. The robber with the
locked members of the household started striking
the members so that they will cry. The proprietor
was able to get 20k only. There was this negotiation.
In effect, the SC considered that because of
the haggling as to the amount that the
offenders demanded and because of that
demand, the members of the household
were gathered and deprived of their liberty,
the SC said that this is analogous to a case
of kidnapping for ransom. That the members
of the household were locked up and the
condition for their release is the coming out
of 100k. so a different criminal intent was
interpreted by the SC to characterized the
locking up of the members of the household
in order to demand 100k. this influenced the
high court to consider the serious illegal
detention because of the women and
children involved as a serious as a separate
crime for the robbery. So in this case of
people vs salvilla.
We only do this (complexing) if the offenders
are not willing to get or carry away what is
available to them. They were demanding
for more and as a condition for that higher
demand, the members of the household
were locked up under threat that they will
be killed one by one unless the proprietor of
the store will come out with the amount that
they were demanding. That is why the
demand was taken as a nature of a ransom
where the release of the members of the
household who were held in captivity is
conditioned upon the payment of that
amount.
Page | 132
It is a one of a kind case where the
gathering the members of the household
and locking them up is not considered
anymore as part of the violence that
attended the robbery but itself is considered
as a separate crime to be complexed with
the robbery
Although with the crime of robbery with homicide,
the killing may be ahead of the robbery, during or
after the robbery as long as it is intimately
connected with the commission of the robbery. This
is not true if instead of killing, it was rape, mutilation
or arson that accompanied the robbery.
The term "Homicide" is used in the generic sense, and the
complex crime therein contemplated comprehends not only
robbery with homicide in its restricted sense, but also with
robbery with murder. So, any kind of killing by reason of or on
the occasion of a robbery will bring about the crime of
robbery with homicide even if the person killed is less than
three days old or even if the person killed is the mother or
father of the killer, or even if on such robbery the person
killed was done by treachery or any of the qualifying
circumstances. In short, there is no crime of robbery with
parricide, robbery with murder, robbery with infanticide —
any and all forms of killing is referred to as homicide.
Illustration:
The robbers enter the house. In entering through the
window, one of the robbers stepped on a child less
than three days old. The crime is not robbery with
infanticide because there is no such crime. The word
homicide as used in defining robbery with homicide
is used in the generic sense. It refers to any kind of
death.
Although it is a crime against property and treachery is an
aggravating circumstance that applies only to crimes against
persons, if the killing in a robbery is committed with
treachery, the treachery will be considered a generic
aggravating circumstance because of the homicide.
When two or more persons are killed during the robbery,
such should be appreciated as an aggravating circumstance.
As long as there is only one robbery, regardless of the
persons killed, you only have one crime of robbery with
homicide. Note, however, that "one robbery" does not mean
there is only one taking.
Illustration:
Robbers decided to commit robbery in a house,
which turned out to be a boarding house. Thus,
there were different boarders who were offended
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
parties in the robbery. There is only one count of
robbery. If there were killings done to different
boarders during the robbery being committed in a
boarder's quarter, do not consider that as separate
counts of robbery with homicide because when
robbers decide to commit robbery in a certain
house, they are only impelled by one criminal intent
to rob and there will only be one case of robbery. If
there were homicide or death committed, that
would only be part of a single robbery. That there
were several killings done would only aggravate the
commission of the crime of robbery with homicide.
In People v. Quinones, 183 SCRA 747, it was held that there is
no crime of robbery with multiple homicides. The charge
should be for robbery with homicide only because the
number of persons killed is immaterial and does not increase
the penalty prescribed in Article 294. All the killings are
merged in the composite integrated whole that is robbery
with homicide so long as the killings were by reason or on
occasion of the robbery.
In another case, a band of robbers entered a compound,
which is actually a sugar mill. Within the compound, there
were quarters of the laborers. They robbed each of the
quarters. The Supreme Court held that there was only one
count of robbery because when they decided and determined
to rob the compound, they were only impelled by one
criminal intent to rob.
With more reason, therefore, if in a robbery, the offender
took away property belonging to different owners, as long as
the taking was done at one time, and in one place, impelled
by the same criminal intent to gain, there would only be one
count of robbery.
In robbery with homicide as a single indivisible offense, it is
immaterial who gets killed. Even though the killing may have
resulted from negligence, you will still designate the crime as
robbery with homicide.
Illustration:
On the occasion of a robbery, one of the offenders
placed his firearm on the cable. While they were
ransacking the place, one of the robbers bumped the
table. As a result, the firearm tell on the floor and
discharged. One of the robbers was the one killed.
Even though the placing of the firearm on the table
where there is no safety precaution taken may be
considered as one of negligence or imprudence, you
do not separate the homicide as one of the product
of criminal negligence. It will still be robbery with
homicide, whether the person killed is connected
Page | 133
with the robbery or not. He need not also be in the
place of the robbery.
In one case, in the course of the struggle in a house where
the robbery was being committed, the owner of the place
tried to wrest the arm of the robber. A person several meters
away was the one who got killed. The crime was held to be
robbery with homicide.
Note that the person killed need not be one who is identified
with the owner of the place where the robbery is committed
or one who is a stranger to the robbers. It is enough that the
homicide was committed by reason of the robbery or on the
occasion thereof.
Illustration:
There are two robbers who broke into a house and
carried away some valuables. After they left such
house these two robbers decided to cut or divide the
loot already so that they can go of them. So while
they are dividing the loot the other robber noticed
that the one doing the division is trying to cheat him
and so he immediately boxed him. Now this robber
who was boxed then pulled out his gun and fired at
the other one killing the latter. Would that bring
about the crime of robbery with homicide?
Yes. Even if the robbery was already
consummated, the killing was still by reason
of the robbery because they quarreled in
dividing the loot that is the subject of the
robbery.
In People v. Domingo, 184 SCRA 409, on the occasion of the
robbery, the storeowner, a septuagenarian, suffered a stroke
due to the extreme fear which directly caused his death when
the robbers pointed their guns at him. It was held that the
crime committed was robbery with homicide. It is immaterial
that death supervened as a mere accident as long as the
homicide was produced by reason or on the occasion of the
robbery, because it is only the result which matters, without
reference to the circumstances or causes or persons
intervening in the commission of the crime which must be
considered.
Remember also that intent to rob must be proved. But there
must be an allegation as to the robbery not only as to the
intention to rob.
If the motive is to kill and the taking is committed thereafter,
the crimes committed are homicide and theft. If the
primordial intent of the offender is to kill and not to rob but
after the killing of the victims a robbery was committed, then
there are will be two separate crimes.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Illustration:
If a person had an enemy and killed him and after
killing him, saw that he had a beautiful ring and took
this, the crime would be not robbery with homicide
because the primary criminal intent is to kill. So,
there will be two crimes: one For the killing and one
for the taking of the property after the victim was
killed. Now this would bring about the crime of theft
and it could not be robbery anymore because the
person is already dead.
For robbery with homicide to exist, homicide must be
committed by reason or on the occasion of the robbery, that
is, the homicide must be committed "in the course or
because of the robbery." Robbery and homicide are separate
offenses when the homicide is not committed "on the
occasion" or "by reason" of the robbery.
Where the victims were killed, not for the purpose of
committing robbery, and the idea of taking the money and
other personal property of the victims was conceived by the
culprits only after the killing, it was held in People v.
Domingo. 184 SCRA 409, that the culprits committed two
separate crimes of homicide or murder (qualified by abuse of
superior strength) and theft.
The victims were killed first then their money was taken the
money from their dead bodies. This is robbery with homicide.
It is important here that the intent to commit robbery must
precede the taking of human life, in robbery with homicide.
The offender must have the intent to take personal property
before the killing
It must be conclusively shown that the homicide is committed
for the purpose of robbing the victim. In People v. Hernandez,
appellants had not thought of robbery prior to the killing. The
thought of taking the victim's wristwatch was conceived only
after the killing and throwing of the victim in the canal.
Appellants were convicted of two separate crimes of
homicide and theft as there is absent direct relation and
intimate connection between the robbery and the killing.
The latter part of Art 294 par 1, to bring about the
crime as robbery with rape, the robbery must
precede the rape.
This is also true to robbery with mutilation. The
robbery must precede the mutilation. And so also
with the crime of arson.
Note that in the first paragraph of Art 294, the RPC
provides that the robbery is accompanied by a
rape, mutilation or arson. So the principal crime
(robbery) is accompanied by rape, mutilation or
Page | 134
arson. We can only apply this provision to consider
the crime as a crime against property if the robbery
preceded rape.
Hence, in a case where, it was already getting dark
and late and the lights inside the house was still off.
So the robber anticipated that the owners of that
house has not yet come home. The offender
entered the house and he was that there was a
lady lying on bed. The lady was terrified, she spoke
to the robber and said that “you can take all what
you but just do not molest me” the robber replied
that “it is you that I want” and so he took
advantage of her. After having consummated the
rape, the offender sat of the edge of the bed
where the rape was committed and lighted a
cigarette. Upon using his cigarette lighter, the
flames caught the new wrist watch of the victim.
This attracted the attention of the offender. The
lady immediately retracted her arm and placed it
beside her back. The robber notice that and he
pulled out the arm and removed the wrist watch.
The robbery came about after the rape. The
SC said that it is not a robbery with rape. It is
rape and robbery. The SC said that the
crime will not be robbery with rape. It is rape
accompanied by robbery. And that is not
the wordings of Art 294. The wordings of the
Art 294 is “accompanied by rape”. The SC
emphasized that the intent to rob must
precede the rape. Otherwise it will bring
about separate crime for the rape and
separate for the robbery.
When the rape is the component of the robbery,
we do not count the number times the rape was
committed. It will be a case of robbery with rape
whether the rape was done only once or carried
out several times. This is because the rape here is
viewed not as a crime of rape but as the
component of violence attending the taking as
robbery.
If the rape was committed ahead of the robbery,
then we count the number of times the victim was
raped. Because when the rape was ahead of the
robbery then this is not anymore a component of
the robbery. It will be punished as a separate crime.
When it is robbery with rape, the robbery must
precede the rape and the intention must be to rob.
If the intention was to rape, then it will be different.
It will not fall under this title. It will fall under title 8
because rape is a crime against person
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
This is another form of violence or intimidation upon person.
The rape accompanies the robbery. In this case where rape
and not homicide is committed, there is only a crime of
robbery with rape if both the robbery and the rape are
consummated. If during the robbery, attempted rape were
committed, the crimes would be separate, that is, one for
robbery and one for the attempted rape.
The rape committed on the occasion of the robbery is not
considered a private crime because the crime is robbery,
which is a crime against property. So, even though the robber
may have married the woman raped, the crime remains
robbery with rape. The rape is not erased. This is because the
crime is against property which is a single indivisible offense.
If the woman, who was raped on the occasion of the robbery,
pardoned the rapist who is one of the robbers, that would
not erase the crime of rape. The offender would still be
prosecuted for the crime of robbery with rape as long as the
rape is consummated.
If the rape is attempted, since it will be a separate charge and
the offended woman pardoned the offender, that would
bring about a bar to the prosecution of the attempted rape. If
the offender married the offended woman, that would
extinguish the criminal liability because the rape is the
subject of a separate prosecution.
The intention must be to commit robbery and even if the
rape is committed before the robbery, robbery with rape is
committed. But if the accused tried to rape the offended
party and because of resistance, he failed to consummate the
act, and then he snatched the vanity case from her hands
when she ran away, two crimes are committed: attempted
rape and theft.
There is no complex crime under Article 48 because a single
act is not committed and attempted rape is not a means
necessary to commit there and vice-versa.
The Revised Penal Code does not differentiate whether rape
was committed before, during or after the robbery. It is
enough that the robbery accompanied the rape. Robbery
must not be a mere accident or afterthought:
In People v. Flores, 195 SCRA 295, although the offenders
plan was to get the victim's money, rape her and kill her, but
in the actual execution of the crime, the thoughts of
depriving the victim of her valuables was relegated to the
background and the offender's prurient desires surfaced.
They persisted in satisfying their lust. They would have
forgotten about their intent to rob if not for the accidental
touching of the victim's ring and wristwatch. The taking of
Page | 135
the victim's valuables turned out to be an afterthought. It was
held that two distinct crimes were committed: rape with
homicide and theft.
In People v. Dinola. 183 SCRA 493, it was held that if the
original criminal design of the accused was to commit rape
and after committing the rape, the accused committed
robbery because the opportunity presented itself, two
distinct crimes — rape and robbery were committed — not
robbery with rape. In the latter, the criminal intent to gain
must precede the intent to rape.
The Arson is misplaced here. This was brought about
by the amendment from the heinous crimes law
(RA 7659). Generally, the burning of the place
where the robbery was committed is done in a
case of robbery with force upon things. The idea of
the burning is to hide the body of the crime. But the
lawmakers made this amendment to Art 294 which
involved robbery committed upon an unattended
party which is a female. {So with this, we have to
consider this also as significant in determining the
crime. The rape refer to here was really the rape
punished as a crime. It is the violence that
attended the taking to make it one of robbery with
violence or intimidates of a person.} transcriber’s note, I
don’t really see the relevance of this sentence. In case of an arson,
to be covered under art 294, the purpose of the
offender must be to use the arson or the burning as
part of the violence or intimidation upon the party
or the members of the household. Otherwise, it will
not characterized by the arson. What should we
guard against is when the robbery is committed
under Art 299 in which case, the force upon things
may be in the nature of burning or arson but
because of the amendment that brought in the
crime of arson as committed in the process of the
taking, this is not appreciable in a robbery under Art
299. The pilferage is included under Art 294. We
notice that it is misplaced, the lawmakers simply
amended it and put it in the wrong kind of robbery.
Because the robbery under Art 294, the emphasis is
on how the robbery was committed. It is with
violence against and intimidation of persons. Arson
is not to this effect. The arson must have been
placed in the circumstance in article 299 in the
manner of committing the crime.
But since it is already in Art 294, then we should
consider on how will it affect the commission of the
crime. If the primary purpose was to destroy
property by burning, then the burning cannot be a
component of the robbery. Because the primary
intent was not to rob but to burn.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

Transcriber’s note: Art 294 par 5:

Because the killing, rape, mutilation, arson, physical Paragraph 5, in particular, defines what is
injuries or unnecessary violence are merely the known as simple robbery. Simple robbery
violence that makes the taking as robbery, the involves only slight or less serious physical
killing, rape, mutilation, arson, physical injuries and injuries. For conviction under this
unnecessary violence must all be consummated to paragraph, the injury inflicted should not fall
be considered in the commission of the robbery. If within the categories provided for in
they are not consummated, then we do not have a paragraphs 1 to 4 of Article 294. (Ocampo
case of attempted homicide with robbery. vs people of the Philippines, 2007)
Precisely, it is the violence. It is not a crime against
person. The violence must be consummated. The On robbery with physical injuries
robbery may not be consummated.
To be considered as such, the physical injuries must always be
In art 297, the provision is to the effect that the serious. If the physical injuries are only less serious or slight,
attempted or frustrated robbery may still be a they are absorbed in the robbery. The crime becomes merely
component of a single indivisible offense, if the robbery. But if the less serious physical injuries were
robbery was attempted or frustrated but the killing is committed after the robbery was already consummated,
consummated. The violence should always be there would be a separate charge for the less serious physical
consummated although the crime of robbery itself injuries. It will only be absorbed in the robbery if it was
may be attempted or frustrated only. But there is a inflicted in the course of the execution of the robbery. The
ruling to the effect that the crime of robbery same is true in the case of slight physical injuries.
cannot be carried in the frustrated stage. So it must
be attempted or consummated. Illustration:
After the robbery had been committed and the
The robbery with unnecessary violence. We notice robbers were already fleeing from the house where
that the violence is penalized differently. Whether it the robbery was committed, the owner of the house
is a killing, rape, mutilation or serious physical chased them and the robbers fought back. If only
injuries. less serious physical injuries were inflicted, there will
be separate crimes: one for robbery and one for less
Where the violence is in the nature of serious serious physical injuries.
physical injuries, we look into the intent of the
offender whether the intent of the offender was to But if after the robbery was committed and the
kill or merely inflicts only physical injuries. We have robbers were already fleeing from the house where
robbery with physical injuries under paragraph 4 of the robbery was committed, the owner or members
this article, robbery with unnecessary violence. In of the family of the owner chased them, and they
such a case, the killing must be consummated. fought back and somebody was killed, the crime
What may be attempted of frustrated is only the would still be robbery with homicide. But if serious
bringing about the robbery but the killing must be physical injuries were inflicted and the serious
consummated. The violence must be physical injuries rendered the victim impotent or
consummated because that is the one that insane or the victim lost the use of any of his senses
characterizes the crime as robbery. This is because or lost a part of his body, the crime would still be
the killing does not stand as a crime but a robbery with serious physical injuries. The physical
component of robbery. injuries (serious) should not be separated regardless
of whether they retorted in the course of the
If the physical injuries were inflicted were only less commission of the robbery or even after the robbery
serious or slight, the crime will be regarded as one was consummated.
with unnecessary violence. And the penalty will be
that in paragraph 4 because the nature of the In Article 299, it is only when the physical injuries resulted in
violence brought about the robbery is to be the deformity or incapacitated the offended party from labor
counted. It will have to be taken separately. for more than 30 days that the law requires such physical
Transcriber’s note: be it less serious or slight physical injuries, the crime will fall injuries to have been inflicted in the course of the execution
under paragraph 4 if the violence committed is “unnecessary” of the robbery, and only upon persons who are not
responsible in the commission of the robbery.

Page | 136
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
But if the physical injuries inflicted are those falling under
subdivision 1 and 2 of Article 263, even though the physical
injuries were inflicted upon one of the robbers themselves,
and even though it had been inflicted after the robbery was
already consummated, the crime will still be robbery with
serious physical injuries. There will only be one count of
accusation.
Illustration:
After the robbers fled from the place where the
robbery was committed, they decided to divide the
spoils and in the course of the division of the spoils
or the loot, they quarreled. They shot it out and one
of the robbers was killed. The crime is still robbery
with homicide even though one of the robbers was
the one killed by one of them. If they quarreled and
serious physical injuries rendered one of the robbers
impotent, blind in both eyes, or got insane, or he lost
the use of any of his senses, lose the use of any part
of his body, the crime will still be robbery with
serious physical injuries.
If the robbers quarreled over the loot and one of the
robbers hacked the other robber causing a deformity
in his face, the crime will only be robbery and a
separate charge for the serious physical injuries
because when it is a deformity that is caused, the
law requires that the deformity must have been
inflicted upon one who is not a participant in the
robbery. Moreover, the physical injuries which gave
rise to the deformity or which incapacitated the
offended party from labor for more than 30 days,
must have been inflicted in the course of the
execution of the robbery or while the robbery was
taking place.
If it was inflicted when the thieves/robbers are already
dividing the spoils, it cannot be considered as inflicted in the
course of execution of the robbery and hence, it will not give
rise to the crime of robbery with serious physical injuries. You
only have one count of robbery and another count for the
serious physical injuries inflicted.
If, during or on the occasion or by reason of the robbery, a
killing, rape or serious physical injuries took place, there will
only be on crime of robbery with homicide because all of
these - killing, rape, serious physical injuries -- are
contemplated by law as the violence or intimidation which
characterizes the taking as on of robbery. You charge the
offenders of robbery with homicide. The rape or physical
injuries will only be appreciated as aggravating circumstance
and is not the subject of separate prosecution. They will only
call for the imposition of the penalty in the maximum period.
Page | 137
Regarding the robbery under art 294, think that the
crime of snatching before had been considered as
one of robbery because the offender in snatching
a wrist watch of the offended party, may have in
the process drawn the victim to fell to the floor. SC
on this therefore made a distinction between he
force upon things and force applied to the victim. If
the crime was snatching, it is, generally, a case of
robbery because of the violence to be able to
extract the valuable of the victim.
When the offender, let’s say, side swipes the victim.
In the process of getting hold of the wrist watch, the
interpretation here before is that, it is simply a crime
of theft because the force applied to be able to
extract the wrist watch was simply a matter of
thought. The criminal intent of the offender was
really to commit the crime in that way. So the
snatching is one of robbery. But subsequent rulings
made a distinction, if the snatching was carried out
in a manner that brings about violence, then that
violence is inherent in the taking of the personal
property. Then it should not be separately taken
from the offended party. If, therefore, the offender
side swipes the offended party and at the same
time grabbing the wrist watch, but the wrist watch
would not go off, so the offended party
immediately alerted, so he boxed the robber. The
robber, however, fought back. That fighting to the
offended party still proximate the result of the
robbery. If in that process were in the first attempt,
the robber was not able to grab the wrist watch
because the offended party fought back, so the
offender had to fought back, there is an
unnecessary violence aside from the act of
snatching the wrist watch. That added violence is
not regarded as a course of robbery. If there is no
added violence, the violence was simply in the
manner that the taking is committed which is by
snatching, then the higher crime of robbery will not
be considered. It is only regarded as a case of
theft. But now there are injuries that was suffered by
the victim because he/she tried to fight it out to get
hold of the wrist watch then there is nothing in the
law that would prevent wrist watch or valuables
being accumulated where the offender is identified
with the manner of taking property of another with
the use of force, but the SC said that the force
there is inherent in the manner of taking. For as long
as it is done that way, it is simply a case of theft.
But recent ruling held it that if on first attempt, the
offender did not succeed and so the owner was
alerted and the owner had to prevent the snatcher
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
from divesting him of his wrist watch. So the
snatcher had to apply added violence, that added
violence makes the crime robbery.
Robbery (art 294) vs Highway robbery or
brigandage (PD 532)
The robbery under Art 294 should be taken in
contrast with highway robbery or brigandage. The
robbery may be under the RPC but committed in
the highways. That does not make the crime
highway robbery just because it is committed in the
highway.
If it was highway robbery or brigandage, the
governing law will be PD 532. Under this crime, the
offender is a brigand. One who carried out this
activity of roaming around public places and the
moment they could confront a unwary commuter,
he would confront him and commit acts of
depredation against him. Whether he carries some
valuables or not. The crime of brigandage under PD
532 impresses that the offender is brigand. A
brigand is different from a robber. A brigand is one
who roams around in public places and whenever
the opportunity to commit acts of depredation
arises, they simply confront the victim. That is why
the main distinction between highway robbery and
robbery in the RPC but committed in the highway is
this point: In highway robbery or brigandage, the
offended party is not determined; the robbery is
committed indiscreetly against the commuters
regardless of the potentiality that they may offer.
The brigand does not know whether the victim has
something valuable or not, as long as the
opportunity is there, he tries to confront the victim
and find out the valuable he is carrying.
So a brigand is one who operates publicly, more or
less, in a frequent manner. They move from place to
place. Hence, the frequency which the robbery is
carried out will help in determining if the same is a
case of brigandage or robbery under the RPC but
committed in the highway.
In short, not all robberies committed in the highway
would engender the crime as highway robbery or
brigandage. It is still robbery, the fact that it was
committed in the highway may only be an
aggravating circumstance of an inhabited place.
In robbery committed under the RPC but
committed in the highway, the act was committed
isolately without any predetermined intent. Let’s say
Page | 138
the offender pose as a passenger in a taxi cab. He
asked the taxi driver to bring him in a place which
the offender knew that it is dark. When the taxi cab
is in that place, he announce a hold-up; divested
the taxi driver of his earnings
The crime is not brigandage or highway
robbery because the offender is not a
brigand. He is only a simple robber because
he committed the robbery in an isolated
way. The frequency by which the offender
rob people in the highway characterizes
whether he is a highway robber or
otherwise. If he committed the crime only
once, we do not consider it as highway
robbery or brigandage. Brigandage requires
frequency committing robbery in public
highways
Brigandage is indiscriminate robbery. It is without a
predetermined offended party. It is more
dangerous than ordinary robbery because
merchants are afraid to commute in public that is
infested with brigands. That is why, this is a crime
that affect even the economy of a country and the
penalty is higher.
Where, however, the offender confronted
passengers inside a public utility bus. Let’s say the
bus came form Olongapo. The robbers posed as
passengers so that they will be able to sit in a
strategic seats inside the bus. When the bus is
already travelling from manila, upon passing a dark
place, the robbers announced a hold up. They
required the passengers to bring out whatever
valuables they have. So more than one person is
robbed and the robbers committed acts of
depredation. They confronted the victims without
knowing what potentiality they offer. Without
knowing whether they have money or what. It was
committed against a public at large.
The SC ruled that the same is highway
robbery or brigandage under PD 532.
Because there are so many passengers
there. so the robbery is indiscriminate
Where, however, the offenders followed a person
who was walking in a highway and when is fellow is
already far from the others, the offenders
immediately confronted him, they took the
valuables that the victim have.
The case is not highway robbery or
brigandage. The offenders have a particular
victim to whom the surveyed all the while
when this fellow is walking alone in the street
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
at night. But if after that robbery, they again,
robbed another commuter walking there,
the frequency by which the robbery was
carried out in the highway already
characterized them as highway robbers or
brigands. So the crime will be brigandage or
highway robbery under PD 532
PD 532 vs Art 306 RPC
Under PD 532, the brigandage is carried out even
by one person only as long as it is in the nature of a
highway robbery as defined in the decree.
Highway Robbery/Brigandage. The seizure of any person for
ransom, extortion or other unlawful purposes, or the taking away
of the property of another by means of violence against or
intimidation of person or force upon things of other unlawful
means, committed by any person on any Philippine Highway
(section 2 (e) PD 532)
We have Art 306 of the RPC, also a crime of
brigandage. But the brigandage under Art 306 is
not the actual commission of the robbery but the
organizing of a band. So when we say band, it must
be armed and at least 4 are armed. The essence of
Brigandage under the RPC in art 306 is held by the
SC in that case of people vs Puno to be of the
same concept as highway robbery in PD 532
except that the act penalized are different under
art 306, the act is the organizing of a band for that
purpose of robbing people in the highway while
under PD 532, the act is the actual robbery of a
commuter in a public highway.
SECTION 4 PD 532 vs Anti-fencing law
When it is PD 532 that governs, the act of an
accessory cannot be characterized as fencing.
Because there is a definite provision in section 4 of
PD 532 that considers the crime as aiding or
abetting the brigandage. That is a violation that is
specifically provided for in PD 532
Section 4. Aiding pirates or highway robbers/brigands or abetting
piracy or highway robbery/brigandage. Any person who
knowingly and in any manner aids or protects pirates or highway
robbers/brigands, such as giving them information about the
movement of police or other peace officers of the government, or
acquires or receives property taken by such pirates or brigands or
in any manner derives any benefit therefrom; or any person who
directly or indirectly abets the commission of piracy or highway
robbery or brigandage, shall be considered as an accomplice of
the principal offenders and be punished in accordance with the
Rules prescribed by the Revised Penal Code.
It shall be presumed that any person who does any of the acts
provided in this Section has performed knowingly, unless the
contrary is proven. (section 4, PD 532)
Under this presidential decree, one who will perform
any of the acts there which, ordinarily, an act of an
accessory will incur the penalty of an accomplice,
Page | 139
not as an accessory. And for that reason, we
cannot make the offender a fence because
fencing can only be incurred by an accessory to a
robbery or theft. If the participant in a robbery or
theft is an accomplice or principal, we cannot hold
him liable for fencing because his liability as an
accomplice or as a principal is different from the
essence of fencing under the Anti-fencing law. The
essence of fencing under the Anti-fencing law is the
participation of an accessory in a theft or robbery.
That is why, one who has participated in a theft or
robbery as an accessory cannot be prosecuted
under that law for theft or robbery and then at the
same time under the decree on fencing. It is only
one because the essence of their participation is
identical.
Article 295. Robbery with Physical Injuries, Committed in An
Uninhabited Place and by A band
Robbery with violence against or intimidation of
person qualified is qualified if it is committed
1. In an uninhabited place;
2. By a band;
3. By attacking a moving train, street car, motor
vehicle, or airship;
4. By entering the passengers' compartments in a train,
or in any manner taking the passengers thereof by
surprise in the respective conveyances; or
5. On a street, road, highway or alley, and the
intimidation is made with the use of firearms, the
offender shall be punished by the maximum periods
of the proper penalties prescribed in Article 294.
Article 296 defines a robbery by a band as follows when at
least four armed malefactors take part in the commission of a
robbery.
Requisites for liability for the acts of the other members of the
band:
1. He was a member of the band;
2. He was present at the commission of a robbery by
that band;
3. The other members of the band committed an
assault;
4. He did not attempt to prevent the assault.
Art. 297. Attempted and frustrated robbery committed under certain
circumstances. — When by reason or on occasion of an attempted or
frustrated robbery a homicide is committed, the person guilty of such
offenses shall be punished by reclusion temporal in its maximum period to
reclusion perpetua, unless the homicide committed shall deserve a higher
penalty under the provisions of this Code.
Although we have learned that to bring about the
robbery under Art 294, the robbery must be
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
consummated as well as the component violence
or intimidation employed. The killing, rape,
mutilation there must be consummated. But we
have this Art 297 where the robbery may be
attempted or frustrated (currently the concept of
frustrated robbery is academic) as long as the
component violence is consummated, we still have
a special complex crime or composite crime of
attempted robbery with homicide.
Article 297 refers only to killing, it does not include
rape, mutilation or any other component violence.
The principal rule here is that to convict an offender
for robbery with homicide both the robbery and the
homicide must be established beyond reasonable
doubt.
The common attitude is that if there was a killing
committed but the persons who are supposed to
be offended party in case of robbery testified that
they did not lose anything during the occasion, trial
courts would find the offender guilty only for the
killing only. SC corrected this, as long as there is an
indication that the criminal intent of the offender
was to rob, even though the offended parties have
not lost anything, a crime should at least be
attempted robbery with homicide. Art 297 will be
the governing provision.
In case where the offenders joined passengers who
boarded a jeep, when the jeep is already in the
darker part of the road, the trio who were seated
differently inside the jeep announced a hold up
and demanded all the passengers to bring out all
their valuables. In that few seconds when the
announcement was made, one of the passengers
happens to be a law enforcer in civilian clothes, so
he pulled out his service firearm and shot the
offender who announced a hold up. He shot him in
the thigh. But this law enforcer was not aware that
the one seated beside him is a conspirator. So such
persons beside the law enforcer struck the heart of
the law enforcer with an ice pick. The law enforcer
died. Since only one of the conspirators stabbed
the victim and the trial court find their liability to be
for the killing only because there was nothing taken
from the passengers. The 2 other offenders
appealed the ruling of the trial court. They claim
that since the group is found liable for homicide but
they have no hand in the killing, they should not be
sentenced for the homicide.
The SC that for as long as there is evidence that the
accused acted with intent to rob, even if they have
Page | 140
not taken anything from the intended victims, there
is article 297 which punishes the crime of attempted
or frustrated robbery with homicide, as long as, the
killing was consummated.
In the case of Manalilin vs CA, the SC stated there
that the crime cannot be robbery with homicide if
the one who was killed was not done so by the
robber because in this case the offended party
shot one of the robbers. So the one who was killed
was not the victim of the robbery but the robber
who was carrying out the robbery.
The common concept now, under Art 294, which
have been prevailing for a long time ago that for as
long as there is a killing during a robbery, the crime
will be robbery with homicide whether it is the
robber who was killed by the person who was being
robbed. This has been the ruling because this is
considered as single indivisible offense. Under that
ruling, for as long as on the occasion of robbery,
there was a killing or by reason of robbery there was
a killing, the killing regarded as part of the
consequence of the felonious act committed by
the robbers. Because the crime committed under
Art 294 is a single indivisible offense, we cannot split
the killing from the robbery.
Art. 298. Execution of deeds by means of violence or intimidation. — Any
person who, with intent to defraud another, by means of violence or
intimidation, shall compel him to sign, execute or deliver any public
instrument or documents, shall be held guilty of robbery and punished by the
penalties respectively prescribed in this Chapter.
Elements
1. Offender has intent to defraud another;
2. Offender compels him to sign, execute, or deliver
any public Instrument or document.
3. The compulsion is by means of violence or
intimidation.
By express provision of Art 298, where an offender
employed fraud and violence to secure a public
document making the offended party execute,
sign and deliver a public document to another, the
provision of Art 298 expressly considers the crime
committed in respect thereof as robbery.
Constructively, it is the transfer of the ownership
under that public document which was obtain thru
force or intimidation, that is regarded as the
essence of the robbery.
Even if a public document refers to real property, if
it came about under the terms of art 298, the article
itself brand the transaction as one of robbery.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
This was subject of a bar problem before.
Article 299. Robbery in an Inhabited House or Public Building
or Edifice Devoted to Worship
Elements under subdivision (a)
1. Offender entered an inhabited house, public building
2. The entrance was effected by any of the following
means:
a. Through, an opening not intended for
entrance or egress (exit);
b. By breaking any wall, roof or floor, or
breaking any door or window;
c. By using false keys, picklocks or similar
tools; or
d. By using any fictitious name or pretending
the exercise of public authority.
3. Once inside the building, offender took personal
property belonging to another with intent to gain.
Elements under subdivision (b)
1. Offender is inside a dwelling house, public building,
or edifice devoted to religious worship, regardless of
the circumstances under which he entered it;
2. Offender takes personal property belonging to
another, with intent to gain, under any of the
following circumstances:
a. By the breaking of doors, wardrobes,
chests, or any other kind of locked or sealed
furniture or receptacle; or
b. By taking such furniture or objects away to
be broken or forced open outside the place
of the robbery.
"Force upon things" has a technical meaning in law. Not any
kind of force upon things will characterize the taking as one
of robbery. The force upon things contemplated requires
some element of trespass into the establishment where the
robbery was committed. In other words, the offender must
have entered the premises where the robbery was
committed. If no entry was effected, even though force may
have been employed actually in the taking of the property
from within the premises, the crime will only be theft.
Trespass: entering on the dwelling not intended for entrance
or egress
Two predicates that will give rise to the crime as robbery:
1. By mere entering alone, a robbery will be committed
if any personal property is taken from within;
2. The entering will not give rise to robbery even if
something is taken inside, It is the breaking of the
receptacle or closet or cabinet where the personal
property is kept that will give rise to robbery, or the
Page | 141
taking of a sealed, locked receptacle to be broken
outside the premises.
If by the mere entering, that would already qualify the taking
of any personal property inside as robbery, it is immaterial
whether the offender stays inside the premises. The breaking
of things inside the premises will only be important to
consider if the entering by itself will not characterize the
crime as robbery with force upon things.
Modes of entering that would give rise to the crime of
robbery with force upon things if something is taken inside
the premises: entering into an opening not intended for
entrance or egress, under Article 299 (a)
Illustration:
The entry was made through a fire escape. The fire
escape was intended for egress. The entry will not
characterize the taking as one of robbery because it
is an opening intended for egress, although it may
not be intended for entrance. If the entering were
done through the window, even if the window was
not broken, that would characterize the taking of
personal property inside as robbery because the
window is not an opening intended for entrance.
Illustration:
On a sari-sari score, a vehicle bumped the wall. The
wall collapsed. There was a small opening there. At
night, a man entered through that opening without
breaking the same. The crime will already be robbery
if he takes property from within because that is not
an opening intended for the purpose.
Even of there is a breaking of wall, roof, floor or window, but
the offender did not enter, it would not give rise to robbery
with force upon things.
Breaking of a window is not necessary because
entering thru the window by itself is trespass. The
window is not intended for entrance or exit.
Breaking of the door under Article 299 (b) - Originally, the
interpretation was that in order that there be a breaking of
the door in contemplation of law, there must be some
damage to the door.
Before, if the door was not damaged but only the lock
attached to the door was broken, the taking from within is
only theft. But the ruling is now abandoned because the door
is considered useless without the lock. Even if it is not the
door that was broken but only the lock, the breaking of the
lock renders the door useless and it is therefore tantamount
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
to the breaking of the door. Hence, the taking inside is
considered robbery with force upon things.
People vs Garcia – breaking any attachment to the
door which is necessary to make the door
functional should be regarded as breaking of the
door itself. So if the door is locked thru the use of a
chain that ties the door to the door jam. One who
cut the chain with a bolt cutter destroys the door
because the function of that door has been
rendered useless thru the breaking of the chain that
makes it functional as a door.
If the entering does not characterize the taking inside as one
of robbery with force upon things, it is the conduct inside that
would give rise to the robbery if there would be a breaking of
sealed, locked or closed receptacles or cabinet in order to get
the personal belongings from within such receptacles cabinet
or place where it is kept.
If in the course of committing the robbery within the
premises some interior, doors are broken, the taking from
inside the room where the door leads to will only give rise to
theft. The breaking of doors contemplated in the law refers to
the main door of the house and not the interior door.
But if it is the door of a cabinet that is broken and the
valuable inside the cabinet was taken, the breaking of the
cabinet door would characterize the taking as robbery.
Although that particular door is not included as part of the
house, the cabinet keeps the contents thereof safe.
The use of picklocks, false keys and similar tools, this will
characterize the entering as bringing about robbery, if the
picklock, false keys or other similar tools where used on the
main door. If the offender thought that the door is locked but
he found the door unlocked, so he entered. Once inside, there
is nothing to steal in the ante-room, but there are interior
rooms which are locked. He used the false or picklocks to
enter the interior rooms.
That will not bring about the crime as robbery with
force upon things anymore. The picklock, false keys
or similar tools refer only to the entering the
premises thru the main door. Using the same in the
interior doors will not be a mode of entering
anymore. It must be entering from the outside.
As to the use of picklocks, false keys or similar tools,
if this was use to enter the premises on the main
door, the use thereof is absorbed in the crime of
robbery with force upon things. But if this was not
used on the main door, the possession alone of
picklocks, false keys and other similar tools, which
are instruments of robbery, if unexplained by the
Page | 142
possessor, it will render the possessor criminally liable
also for the possession of the same under art 304.
Entering means that the whole body is brought
inside.
In a case where the offender only brought the
window up, he put ½ of his body inside to reach the
wrist watch of the owner which is on top of a
wardrobe. He was able to reach it, then after , he
fled.
The SC said that it is only a case of theft
because there is no entering. To enter
means that the whole body must go inside.
The resort to the use of fictitious names or false
pretense of authority, this must have been resorted
to before the offender was able to enter.
Commonly the problem given in the bar is that the
offender is already inside when the owner of the
house was able to check in already inside asking
“who are you?” at the time he used a fictitious
name or that was the time he tried to resort to false
d pretense of some duty to inspect the house, that
will not bring about the crime of robbery anymore
because the use of fictitious name or assumption or
simulation of authority was not a means to enter, it
is used only to cover up his presence inside the
house already. We will only regard this as robbery, if
he was able to enter thru the use thereof.
Where the offender entered a sari-sari store
because the sales lady was not around but
suddenly, the sale lady came out, returned to the
store. So the offender hid in one of the cabinet
inside the store, but because the sales lady is
already stayed in the store, the offender cannot
come out from the cabinet. The offender fell
asleep. When he awaken, the store is already
closed, the store was locked on the outside. His
problem is how to get out. He collected whatever
he wanted and tried to find a way to be able to
get out. On the back wall of the store, there was an
exhaust fan. He enlarged the hole to be able to get
out. Because there was a breaking of a wall, he
was charged with robbery with force upon things.
SC said, it is only theft. Because the breaking
of the wall was resorted to not enter but to
get out.
The law classifies robbery with force upon things as those
committed in:
1. an inhabited place;
2. public buildings;
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
3. a place devoted to religious worship,
The law also considers robbery committed not in an inhabited
house or in a private building.
Note that the manner of committing the robbery with force
upon things is not the same.
When the robbery is committed in a house which is
inhabited, or in a public building or in a place devoted to
religious worship, the use of Fictitious name or pretension to
possess authority in order to gain entrance will characterize
the taking inside as robbery with force upon things.
Question & Answer
Certain men pretended to be from the Price control
Commission and went to a warehouse owned by a private
person. They told the guard to open the warehouse
purportedly to see if the private person is hoarding essential
commodities there. The guard obliged. They went inside and
broke in. They loaded some of the merchandise inside
claiming that it is the produce of hoarding and then drove
away. What crime was committed?
It is only theft because the premises where the
simulation of public authority was committed is not
an inhabited house, not a public building, and not a
place devoted to religious worship. Where the house
is a private building or is uninhabited, even though
there is simulation of public authority in committing
the taking or even if he used a fictitious name, the
crime is only theft.
Note that in the crime of robbery with force upon things,
what should be considered is the means of entrance and
means of taking the personal property from within. If those
means do not come within the definition under the Revised
Penal Code, the taking will only give rise to theft.
Those means must be employed in entering. If the offender
had already entered when these means were employed,
anything taken inside, without breaking of any sealed or
closed receptacle, will not give rise to robbery.
Illustration:
A found B inside his (A's) house. He asked B what the latter
was doping there. B claimed he is an inspector from the local
city government to look after the electrical installations. At
the time B was chanced upon by A, he has already entered.
So anything he took inside without breaking of any sealed or
closed receptacle will not give rise to robbery because the
simulation of public authority was made not in order to enter
but when he has already entered.
Page | 143
Article 301 defines an inhabited house, public building, or
building dedicated to religious worship and their
dependencies, thus:
Inhabited house - Any shelter, ship, or vessel constituting the
dwelling of one or more persons, even though the inhabitants
thereof shall temporarily be absent therefrom when the
robbery is committed.
Public building — Includes every building owned by the
government or belonging to a private person but used or
rented by the government although temporarily unoccupied
by the same.
Dependencies of an inhabited house, public building or
building dedicated to religious worship — All interior courts,
corrals, warehouses, granaries, barns, coach houses, stables,
or other departments, or enclosed interior entrance
connected therewith and which form part of the whole.
Orchards and other lands used for cultivation or production
are not included, even if closed, contiguous to the building
and having direct connection therewith.
The second manner of incurring the crime of
robbery with force upon things is where the
offender manage to enter without resorting to any
of the ways in the first manner of incurring the
crime. Or the offender is already an insider.
When a household helper took something inside the
house, the common impression is that the crime
committed is qualified theft characterized by grave
abuse of confidence. That may be true if there was
no breaking of lock or sealed cabinets or
wardrobes. Otherwise, if there is some breaking of
some wardrobe, cabinet or receptacles, the crime
is robbery with force upon thing. The penalty is
lower than qualified theft. The SC called the
attention that it does not follow that when it is
domestic, the crime is already qualified theft. If it is
breaking of the door or locked or sealed cabinet
from which the valuables were taken, the crime is
robbery with force upon things.
This is also the point that we should be guarded
against because we take this into relation to art
332, where relationship would negate criminal
liability, only civil liability shall arise when the
offender is related to the offended party in the
crimes of theft, swindling or malicious mischief. The
reference is to the crime of theft, not to the crime of
robbery. Although the offender is an insider and he
is the son of the owner of place, if the breaking was
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
committed on locked or sealed cabinet, wardrobe
or receptacles that breaking of such makes the
crime one of robbery with force upon things. It is not
the case of theft so the exception under Art 332 will
not apply.
The third premise of force upon things is where the
offender did not commit the breaking of the door or
the cabinet, wardrobe, furniture or receptacle from
which the personal property was taken, instead,
such locked or sealed receptacle or container was
carried by the offender outside the premises to be
broken elsewhere. The offender may not want to
incur any noise in the premises where the locked or
sealed furniture or receptacle was to be taken, so
he would rather bring it out and forcibly open it
outside. Here, the point that we should be get
cleared, is that, although the offender has not yet
forcibly open the furniture or receptacle containing
the thing of value that he wanted to take, upon his
getting out of the premises where the same was
taken, the robbery with force upon things is already
consummated. It is not necessary that he be
actually able to forcibly open the locked or sealed
receptacle or container before the robbery would
be consummated. The moment the offender
stepped out of the premises where he took such
locked or sealed receptacle, the robbery with force
upon things will be consummated for as long as he
is animated by intent to gain and the property
belong to some other third parties.
If the container, let’s say a small chest or jewelry
box, the offender might not want to incur any noise
that may awaken any members of the household.
So he would rather carry this with him and stepping
outside. Even if he does not yet forcibly open the
same, after having stepped out of the premises
where it was taken thereof, the robbery is already
consummated.
The more recent ruling of the SC recognizes this
crimes of theft or robbery cannot be committed in
the frustrated stage. The ruling to the contrary
before was brought about by the misconception as
to the word “taking”. Equating this word in the
crime of larceny which is the counter part of our
crime theft and robbery. In the crime of larceny,
taking means carrying away, but under our
concept of theft, since the taking was an
interpretation of the “fortacion” (not sure with the spelling)
which means control. Finally, the SC clarified this. It
is enough that the offender had gained control of
the personal property intended to be taken and as
Page | 144
such he can already appropriate the property if he
pleases. The fact that he did not appropriate it is
immaterial. It is enough that he has the opportunity
to do so, the crime is consummated.
Aggravating circumstance of unlawful entry
With this crime of robbery with force upon things,
since the offender must enter the premises from
which the thing of value would be taken, unless he
is an insider or household helper, the aggravating
circumstance of unlawful entry is inherent in this
crime. It is only to be appreciated in robbery with
violence or intimidation against person, because
there, it is not necessary that the offender enters
any premises. But in robber with force upon things,
the entering of the offender who is not an insider to
the family which was offended by the crime is an
essential requisite or contemplation of robbery with
force upon things.
Relative to this, we go by the principle that if,
initially, the offender employed force upon things to
gain entry into the premises where the personal
property would be taken. Once inside, the
members of the household was awaken. So there
was an encounter between the offender and the
offended party. What initially began as a kind
robbery with force upon things, it developed to
robbery with violence or intimidation upon persons.
We a jurisprudential rule that between the 2
robberies, we will regard the crime as one of
robbery with violence against or intimidation of
persons because this is regarded as the more
serious crime between the two. If the robbery with
violence or intimidation of persons (robbery with unnecessary
violence) carries a penalty lighter than that of robbery
with force upon things, the ruling here in that
isolated case of Mapoles vs CA is to complex the 2
robberies, only for the purpose of availing a higher
penalty between the 2. But if the robbery with force
upon things does not carry a higher penalty, do not
complex, we consider the crime of robbery under
art 294.
Article 302. Robbery in An Uninhabited Place or in A Private
Building
Elements
1. Offender entered an uninhabited place or a building
which was not a dwelling house, not a public
building, or not an edifice devoted to religious
worship;
2. Any of the following circumstances was present:
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
a. The entrance was effected through an
opening not intended for entrance or
egress;
b. A wall, roof, floor, or outside door or
window was broken;
c. The entrance was effected through the use
of false keys, picklocks or other similar look
d. A door, wardrobe, chest, or any sealed or
closed furniture or receptacle was broken;
or
e. A closed or sealed receptacle was removed,
even if the same be broken open
elsewhere.
3. Offender took therefrom personal property
belonging to another with intent to gain.
Under Article 303, if the robbery under Article 299 and 302
consists in the taking of cereals, fruits, or firewood, the
penalty imposable is lower.
Article 304. Possession of Picklock or Similar Tools
Elements:
1. Offender has in his possession picklocks or similar
tools;
2. Such picklock or similar tools are especially adopted
to the commission of robbery;
3. Offender does not have lawful cause for such
possession.
Article 305 defines false keys to include the following:
1. Tools mentioned in Article 304:
2. Genuine keys stolen from the owner;
3. Any key other than those intended by the owner for
use in the lock forcibly opened by the offender.
Brigandage - This is a crime committed by more than three
armed persons who form a band of robbers for the purpose
of committing robbery in the highway or kidnapping persons
for the purpose of extortion or to obtain ransom, or for any
other purpose to be attained by means of force and violence.
Article 306. Who Are Brigands
Elements of brigandage
1. There are least four armed persons;
2. They formed a band of robbers;
3. The purpose is any of the following:
a. To commit robbery in the highway;
b. To kidnap persons for the purpose of
extortion or to obtain ransom; or
c. To attain by means of force and violence
any other purpose.
Page | 145
Article 307. Aiding and Abetting A Band of Brigands
Elements:
1. There is a band of brigands;
2. Offender knows the band to be of brigands;
3. Offender does any of the following acts:
a. He in any manner aids, abets or protects
such band of brigands;
b. He gives them information of the
movements of the police or other peace
officers of the government; or
c. He acquires or receives the property taken
by such brigands.
Distinction between brigandage under the Revised Penal
Code and highway robbery/brigandage under Presidential
Decree No. 532:
1. Brigandage as a crime under the Revised Penal Code
refers to the formation of a band of robbers by more
than three armed persons for the purpose of
committing robbery in the highway, kidnapping for
purposes of extortion or ransom, or for any other
purpose to be attained by force and violence. The
mere forming of a band, which requires at least four
armed persons, if for any of the criminal purposes
stated in Article 306, gives rise to brigandage.
2. Highway robbery/brigandage under Presidential
Decree No. 532 is the seizure of any person for
ransom, extortion or for any other unlawful
purposes, or the taking away of the property of
another by means of violence against or intimidation
of persons or force upon things or other unlawful
means committed by any person on any Philippine
highway.
Brigandage under Presidential Decree No. 532 refers to the
actual commission of the robbery on the highway and can be
committed by one person alone. It is this brigandage which
deserves some attention became not any robbery in a
highway is brigandage or highway robbery. A distinction
should be made between highway robbery/brigandage under
the decree and ordinary robbery committed on a highway
under the Revised Penal Code.
In People v. Puno, decided February 17, 1993, the trial court
convicted the accused of highway robbery/brigandage under
Presidential Decree No. 532 and sentenced them to reclusion
perpetua. On appeal, the Supreme Court, set aside the
judgment and found the accused guilty of simple robbery as
punished in Article 294 (5), in relation to Article 295, and
sentenced them accordingly. The Supreme Court pointed out
that the purpose of brigandage "is inter alia, indiscriminate
highway robbery. And that PD 532 punishes as highway
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
robbery or Brigandage only acts of robbery perpetrated
by outlaws indiscriminately against any person or persons on
a Philippine highway as defined therein, not acts committed
against a predetermined or particular victim". A single act of
robbery against a particular person chosen by the offender as
his specific victim, even if committed on a highway. Is not
highway robbery or brigandage.
In US v. Feliciano. 3 Phil 422, it was pointed out that highway
robbery or brigandage is more than ordinary robbery
committed on a highway. The purpose of brigandage is
indiscriminate robbery in highways, if the purpose is only a
particular robbery, the crime is only robbery or robbery in
band, if there are at least four armed participants.
Presidential Decree No. 532 introduced amendments to
Article 306 and 307 by increasing the penalties. It does not
require at least four armed persons forming a band of
robbers. It does not create a presumption that the offender is
a brigand when he an unlicensed firearm is used unlike the
Revised Penal Code. But the essence of brigandage under the
Revised Penal Code is the same as that in the Presidential
Decree, that is, crime of depredation wherein the unlawful
acts are directed not only against specific, intended or
preconceived victims, but against any and all prospective
victims anywhere on the highway and whoever they may
potentially be.
Article 308. Who Are Liable for Theft
Persons liable
1. Those who with intent to gain, but without violence
against or intimidation of persons nor force upon
things, take personal property of another without
the latter's consent;
2. Those who having found lost property, fails to
deliver the same to the local authorities or to its
owner;
3. Those who, after having maliciously damaged the
property of another, remove or make use of the
fruits or objects of the damage caused by them;
4. Those who enter an enclosed estate or a field where
trespass is forbidden or which belongs to another
and without the consent of its owner, hunt or fish
upon the same or gather fruits, cereals or other
forest or farm produces.
Elements
1. There is taking of personal property;
2. The property taken belongs to another;
3. The taking was done with intent to gain;
4. The taking was done without the consent of the
owner;
Page | 146
5. The taking is accomplished without the use of
violence against or intimidation of persons of force
upon things.
Anti-Fencing Law (PD 1612)
Fencing under Presidential Decree No. 1612 is a distinct crime
from theft and robbery. If the participant who profited is
being prosecuted with person who robbed, the person is
prosecuted as an accessory. If he is being prosecuted
separately, the person who partook of the proceeds is liable
for fencing.
In People v. Judge de Guzman, it was held that fencing is not
a continuing offense. Jurisdiction is with the court of the
place where the personal property subject of the robbery or
theft was possessed, bought, kept, or dealt with. The place
where the theft or robbery was committed was
inconsequential.
Since Section 5 of Presidential Decree No. 1612 expressly
provides that mere possession of anything of value which has
been subject of theft or robbery shall be prima facie evidence
of fencing, it follows that a possessor of stolen goods is
presumed to have knowledge that the goods found in his
possession after the fact of theft or robbery has been
established. The presumption does not offend the
presumption of innocence in the Fundamental law. This was
the ruling In Pamintuan v. People, decided on July 11, 1994.
Burden of proof is upon fence to overcome presumption; if
explanation insufficient or unsatisfactory, court will convict.
This is a malum prohibitum so intent is not material. But if
prosecution is under the Revised Penal Code, as an accessory,
the criminal intent is controlling.
When there is notice to person buying, there may be fencing
such as when the price is way below ordinary prices; this may
serve as notice. He may be liable for fencing even if he paid
the price because of the presumption.
Article 310. Qualified Theft — The crime of theft shall be punished by the
penalties next higher by two degrees than those respectively specified in the
next preceding article, if committed by a domestic servant, or with grave
abuse of confidence, or if the property stolen is motor vehicle, mail matter or
large cattle or consists of coconuts taken from the premises of the plantation
or fish taken from a fishpond or fishery, or if property is taken on the
occasion of fire, earthquake, typhoon, volcanic erruption, or any other
calamity, vehicular accident or civil disturbance.
Theft is qualified if
1. Committed by a domestic servant;
2. Committed with grave abuse of confidence;
3. The property stolen is a motor vehicle, mail matter,
or large cattle;
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
4. The property stolen consists of coconuts taken from
the premises of a plantation;
5. The property stolen is fish taken from a fishpond or
fishery; or
6. If property is taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident, or civil disturbance.
The circumstance that qualifies the theft does not
adhere to the offender but to the object that was
stolen. That is why all those who took part in the
theft, if the circumstance that qualifies the theft
attaches to the object stolen or who took part will
be liable for the theft. The penalty for qualified theft
is 2 degrees higher than that of simple theft.
If the circumstance that characterizes the theft is
personal to the offender, only that offender
affecting the circumstance will be incurring the
crime of qualified theft. All others will be incurring
the crime of simple theft. This is pursuant to the
provision of Art 62 of the RPC that mitigating or
aggravating circumstances shall only apply to the
liability of the person to whom the circumstance is
personal. So only who acted with grave abuse of
confidence will incur qualified theft, even though
there is a conspiracy, because the circumstance
that qualifies the theft adhere to the offender not to
the object. But if the circumstance that qualifies the
theft adheres to the object being stolen, then
everybody who took part in the taking of the
property will incur qualified theft.
So if the taking is of coconut spirited out of the
plantation, all those who took part therein will be
committing qualified theft because the
circumstance affect the object that was taken.
Cattle Rustling and Qualified Theft of Large Cattle (The Anti-
Cattle Rustling Law of 1974)
The crime of cattle-rustling is defined and punished under
Presidential Decree No 533, the Anti-Cattle Rustling law 1974,
as the taking by any means method or scheme, of any large
cattle, with or without intent to gain and whether committed
with or without violence against or intimidation of person or
force upon things, so long as the taking is without the
consent of the owner/breed thereof. The crime includes the
killing or taking the meat or hide of large cattle without the
consent of the owner.
Since the intent to gain is not essential, the killing or
destruction of large cattle, even without taking any part
Page | 147
thereof, is not a crime of malicious mischief but cattle-
rustling.
The Presidential Decree, however, does not supersede the
crime of qualified theft of large cattle under Article 310 of the
Revised Penal Code, but merely modified the penalties
provided for theft of large cattle and to that extent, amended
Articles 309 and 310. Note that the overt act that give rise to
the crime of cattle-rustling is the taking or killing of large
cattle. Where the large cattle was not taken, but received by
the offender from the owner/overseer thereof, the crime is
not cattle-rustling; it is qualified theft of large cattle.
Where the large cattle was received by the offender who
thereafter misappropriated it, the crime is qualified theft
under Article 310 if only physical or material possession
thereof was yielded to him. If both material and juridical
possession thereof was yielded to him who misappropriated
the large cattle, the crime would be estafa under Article
315(Ib).
Presidential Decree No. 533 is not a special law in the context
of Article 310 of the revised Penal Code. It merely modified
the penalties provided for theft of large cattle under the
Revised Penal Code and amended Article 309 and 310. This is
explicit from Section 10 of the Presidential Decree.
Consequently, the trial court should not have convicted the
accused of frustrated murder separately from cattle-rustling,
since the former should have been absorbed by cattle-
rustling as killing was a result of or on the occasion of cattle-
rustling. It should only be an aggravating circumstance. But
because the information did not allege the injury, the same
can no longer be appreciated; the crime should, therefore be
only, simple cattle-rustling. (People v. Martinada, February
13, 199
Under this article 310, large cattle is mentioned to
qualify the theft. On this we have PD 533 (Anti-
cattle Rustling law).
Large cattle are those who are considered to be
member of the bovine family. Goats do not qualify
here.
Article 310 vs Anti-carnapping law
The crime of qualified theft involving motor vehicle.
Generally, the taking of motor vehicles is now
Carnapping. Carnapping is a violation of a special
law although the penalties are fixed and reference
is made to some penalties under the RPC.
Under the Anti-carnapping law (RA 6539), motor
vehicle is defined is section 2 thereof as applicable
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
to any vehicle which is driven other than muscular
power. Anything that there is motor to drive the
vehicle is regarded as motor vehicle.
The stealing of a bicycle equipped with a motor to
run such bicycle but the thief does not know how to
stop the motor, so he stopped the bicycle by using
the pedal has committed carnapping.
But the law itself, enumerates vehicle which are
excepted from the definition as a motor vehicle. So
we may still have a case of qualified theft of motor
vehicles in respect of the vehicles expressly
mentioned in the Anti-carnapping law as excluded
from the definition of motor vehicle in section of
such law.
The SC said that the crime is qualified theft of motor
vehicle only in respect of the vehicles which are not
covered by the express provision of the anti-
carnapping law.
Relative to this, it was specified lawn mowers, street
sweepers, road rollers, pison, but included there
amphibian vehicle which are commonly used
during typhoons in flooded areas, so this if stolen
the crime is not carnapping but qualified theft
because as amphibian truck is included among the
excepted vehicles from the coverage of the anti-
carnapping law.
Carnapping is not limited to taking. The anti-
carnapping law considers as part of the crime the
substitution of engine of a particular vehicle
involved without securing the necessary clearance.
Also changing the color of the vehicle is part of
carnapping.
The ruling here while the vehicle which was
carnapped was seen by the witnesses to be driven
by the owner on the morning but in lunch time, the
vehicle was never seen. The motorist driving the
vehicle was then found, on the next day, dead
inside the plantation of sugarcane. The vehicle was
nowhere to be found. The law enforcers started
going around with stalls dealing with surplus parts of
motor vehicle. They came upon the wheels
together with ____ that is still there and this was
identified by one of the members of the family who
owned the vehicle. This was found in a vulcanizing
shop and the same is offered for sale. The owner of
the vulcanizing shop cannot reveal who consign to
him these wheels together with the mod wheels.
This fellow was prosecuted for carnapping.
Page | 148
The SC, making reference to an earlier case
of people vs __, held that when the vehicle
or any part thereof is found in the possession
of another who cannot explain how he got
possession thereof, and it turned out that
the owner or driver thereof had been killed,
the killing is part of the crime of robbery.
And so such accused shall be charged not
only for carnapping but carnapping with
homicide.
In this case, the accused claimed that he
should be prosecuted only for theft of the
wheels but the SC said that possession of
any of the accessories of a vehicle, if
unexplained, will be reasonable to raise the
assumption that the whole vehicle had
been cannibalized. The reasonable
presumption that whoever will be found ion
possession of any part of the vehicle and
who cannot explain how he got possession
thereof will be made to answer for the
whole vehicle. And if he cannot answer for
the whole vehicle, then he will be liable for
carnapping.
If the vehicle disappeared with the owner or
driver thereof being found dead, this being
a single indivisible offense (robbery with
homicide) the crime will be carnapping with
homicide because the homicide is a
component of the crime involving the
taking of the vehicle.
Qualified theft on mail matters
The mail matters referred to as subject of qualified
theft refers only to mail matters which are in transit.
So if a lady put all the love letters from her suitors
into a box, the robber thought that what is
contained in the box is jewelries, so he took the box.
The crime is not qualified theft.
Qualified theft on mail matters contemplates those
mail matters which are in transit. Those dropped in a
mail box or those which are supposed to be
delivered.
Qualified theft on fish taken from the fish pond
Fish taken from a fish pond presupposes that a fish
are still alive. If the fished are dead, then it is only a
case of simple theft. Because the purpose is to
propagate the fishing industry that is why the higher
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
penalty for qualified theft is prescribe. It
presupposes that the fish taken may yet be used as
fingerlings.
Qualified theft on coconut in a plantation
Coconut, whether still on the tree or fallen to the
ground, for as long as it is still within the perimeters
of the plantation would bring about the liability for
qualified theft. Because there is still possibility that
the owner will utilized the coconut for seedling
purposes.
But if the coconut was already out of the
plantation, the presumption is that it is on the way
for marketing not to be utilized for seedling
purposes anymore. It will be only simple theft.
The purpose of making this as a qualified theft is to
propagate the coconut industry.
Qualified theft on occasion of conflagration
The commission of theft on occasion of
conflagration will only bring about the liability for
qualified theft if it was taken from the victims of the
conflagration, fire, floods. But not merely on the
occasion as against those who are not affected by
that calamity
Crime of theft on electricity (RA 7632)
The general principle only matters which can be
transported or quantified in terms of money may be
the subject of theft. Since this crime is penalized on
the basis of the value of the personal property
taken. The SC in that case of Laurel vs Judge
Abrogar, made it clear that where a person , thru
some electronic gadgets, took advantage of a
single line provided by the PLDT and thru that he
has a mechanism that could transmit several long
distance communication abroad and he sells some
calls who want to call in the Philippines at a
cheaper rate. He was caught. He was charged for
theft.
The SC said that although electricity is an
intangible property , this can be a subject of
theft because this can be measured. Theft
can be measure thru an electric meter. But
in this case, the services of ideas, there is no
way for quantifying their value. This crime is
penalized on the basis of the value
appropriated by the supposed offender. If
the subject of the crime is something cannot
Page | 149
be quantified in money, it is not subject of
taking which is the gravamen of theft.
Republic Act 8484 (Access device regulation act of
1998)
The use of phone cards, atm cards, cell cards.
Under section 9 of this law, any unauthorized use of
these belonging to another may be subject of
prosecution or violation of this access device
regulation law.
Where a person stole a credit card from its
legitimate owner, the credit card has value for as
long as the date has not yet expired. The holder of
the credit card is entitled to the service offered
under the credit card or entitled to some monetary
value available under the card. If this can be
stolen, then the crime will be punished according to
the value availed of by the thief who stole the card.
But the crime does not end there. when the
offender stole the credit card, the crime is theft as
far as the owner of the card is concerned. When he
used this card, the unauthorized used is already a
violation of RA 8484. That is another crime. Under
this law, a person who will use any card of another
when he is not the one for which the card may be
availed, criminal liability will be incurred under this
special law.
Aside from that, when the offender availed of the
service or the goods of the server of this card, in
effect, he defrauded the service provider. Let’s say
it is a card appearing that it gives the holder the
benefit of a spa. So the offender availed of this. The
crime is Estafa or swindling is further committed. If
the offender is not entitled to the service of the
goods available under the card and make use
thereof, implying that he is the owner thereof,
swindling is also committed as against the service
provider.
For the use of this card, there are at least 3 crimes
committed.
Under this law, it is not necessary that there is some
falsification, the use thereof alone when the user is
not the one entitled to use such is punishable under
section 9 of this law. It is deemed to be personal.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Article 311. Theft of the Property of the National Library or
National Museum
If the property stolen is any property of the National Library
or of the National Museum
Article 312. Occupation of Real Property or Usurpation of Real
Rights in Property
Acts punished
1. Taking possession of any real property belonging to
another by means of violence against or intimidation
of persons;
2. Usurping any real rights in property belonging to
another by means of violence against or Intimidation
of persons.
Elements
1. Offender takes possession of any real property or
usurps any real rights in property;
2. The real property or real rights belong to another;
3. Violence against or intimidation of persons is used
by the offender in occupying real property or
usurping real rights in property;
4. There is intent to gain.
Use the degree of intimidation to determine the degree of
the penalty to be applied for the usurpation.
Usurpation under Article 312 is committed in the same way
as robbery with violence or intimidation of persons. The main
difference is that in robbery, personal property is involved;
while in usurpation of real rights, it is real property. (People
v. Judge Alfeche, July 23, 1992)
Usurpation of real rights and property should not be
complexed using Article 48 when violence or intimidation is
committed. There is only a single crime, but a two-tiered
penalty is prescribed to be determined on whether the acts
of violence used is akin to that in robbery in Article 294, grave
threats or grave coercion and an incremental penalty of fine
based on the value of the gain obtained by the offender.
Therefore, it is not correct to state that the threat employed
in usurping real property is absorbed in the crime; otherwise,
the additional penalty would be meaningless.
The complainant must be the person upon whom violence
was employed. If a tenant was occupying the property and he
was threatened by the offender, but it was the owner who
was not in possession of the property who was named as the
offended party; the same may be quashed as it does not
charge an offense. The owner would, at most, be entitled to
civil recourse only.
Page | 150
On carnapping and theft of motor vehicle
The taking with intent to gain of a motor vehicle belonging to
another, without the latter's consent, or by means of violence
or intimidation of persons, or by using force upon things is
penalized as carnapping under Republic Act No. 6539 (An Act
Preventing and Penalizing Carnapping), as amended. The
overt act which is being punished under this law as
carnapping is also the taking of a motor vehicle under
circumstances of theft, or robbery. If the motor vehicle was
not taken by the offender but was delivered by the owner or
the possessor to the offender, who thereafter
misappropriated the same, the crime is either qualified theft
under Article 310 of the Revised Penal Code or estafa under
Article 315 (b) of the Revised Penal Code. Qualified theft of a
motor vehicle is the crime if only the material or physical
possession was yielded to the offender; otherwise, if juridical
possession was also yielded, the crime is estafa.
On squatting
According to the Urban Development and Housing Act, the
following are squatters:
• Those who have the capacity or means to pay rent or
for legitimate housing but are squatting anyway:
• Also the persons who were awarded lots but sold or
lease them out;
• Intruders of lands reserved for socialized housing,
pre-empting possession by occupying the same.
Article 315. Swindling (Estafa)
Elements in general:
1. Accused defrauded another by abuse of confidence
or by means of deceit; and
This covers the three different ways of committing
estafa under Article 315; thus, estafa is committed -
a. With unfaithfulness or abuse of confidence;
b. By means of false pretenses or fraudulent
acts; or
c. Through fraudulent means.
(The first form under subdivision I is known as
estafa which abuse of confidence; and the
second and third forms under subdivisions 2 and
3 covers estafa by means of deceit.)
2. Damage or prejudice capable of pecuniary
estimation is caused to the offended party or third
person.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
The crime of estafa is prosecuted on the basis of the
damage or the value involved, that is why this
criminal case must involved a case of __ where the
value is determined. A complaint for swindling
cannot stand if there is no specific value disclosed
as the damage suffered by the offended party.
Elements of Estafa with unfaithfulness nor abuse of
confidence under Article 315(1)
Under paragraph (a)
1. Offender has an onerous obligation to deliver
something of value;
2. He alters its substance, quantity, or quality;
3. Damage or prejudice is caused to another.
Under paragraph (b)
1. Money, goods, or other personal property is receive
by the offender is trust, or on commission, or for
administration, or under any other obligation
involving the duty to make delivery of, or to return
the same;
2. There is misappropriation or conversion of such
money or property by the offender, or denial on his
part of such receipt;
3. Such misappropriation or conversion or denial is to
the prejudice of another; and
4. There is a demand made by the offended party to
the offender.
(The fourth element is not necessary when there is
evidence of misappropriation of the goods by the
defendant. [Tubb v. People, et aL. 101 PhiL 114] )
Under Presidential Decree No. 115, the failure of the
entrustee to turn over the proceeds of the sale of the
goods, documents, or instruments covered by a trust
receipt, to the extent of the amount owing to the
entruster, or as appearing in the trust receipt; or the
failure to return said goods, documents, or instruments if
they were not sold or disposed of in accordance with the
terms of the trust receipt constitute estafa.
Under paragraph (c)
1. The paper with the signature of the offended party is
in blank;
2. Offended party delivered it to the offender;
3. Above the signature of the offended party, a
document is written by the offender without
authority to do so;
4. The document so written creates a liability of, or
causes damage to the offended party or any third
person.
Page | 151
Elements of estafa by means of false pretenses or
fraudulent acts under Article 315(2)
Acts punished under paragraph (a)
1. Using fictitious name;
2. falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or
imaginary transactions; or
3. By means of other similar deceits.
Under paragraph (b)
1. Altering the quality, fineness, or weight of anything
pertaining to his art or business.
Under paragraph (c)
1. 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.
Under paragraph (d)
1. Offender postdated a check, or issued a check in
payment of an obligation;
2. Such postdating or issuing a check was done when
the offender had no funds in the bank, or his funds
deposited therein were not sufficient to cover the
amount of the check.
Note that this only applies if—
1. The obligation is not pre-existing;
2. The check is drawn to enter into an obligation;
(Remember that it is the check that is supposed
to be the sole consideration for the other party
to have entered into the obligation. For
example, Rose wants to purchase a bracelet and
draws a check without insufficient funds. The
jeweler sells her the bracelet solely because of
the consideration in the check.)
3. It does not cover checks where the purpose of
drawing the check is to guarantee a loan as this
is not an obligation contemplated in this
paragraph
The check must be genuine. If the check is falsified and is
cashed with the bank or exchanged for cash, the crime is
estafa thru falsification of a commercial document.
The general rule is that the accused must be able to obtain
something from the offended party by means of the check he
issued and delivered.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Exception: when the check is issued not in payment of an
obligation.
It must not be promissory notes, or guaranties.
Good faith is a defense.
If the checks were issued by the defendant and he received
money for them, then stopped payment and did not return
the money, and he had an intention to stop payment when
he issued the check, there is estafa.
Deceit is presumed if the drawer fails to deposit the amount
necessary to cover the check within three days from receipt
of notice of dishonor or insufficiency of funds in the bank.
It is in respect of this crime that a current issue
involving the application of the indeterminate
sentence law had been discussed in the SC in
respect with incremental penalty (penalty brought
about by the increase in the amount involved in the
swindling). How will this be treated?
It will be treated as a special circumstance
similar to aggravating circumstance that will
be appreciated only in determining the
maximum of the indeterminate sentence. It
will only be considered in the imposition of
the penalty but not in the determination of
the period for parole.
In this crime of swindling there are 2 ways by which
this crime may be incurred:
• Where the offender had acted with abuse
of confidence in causing damage to the
offended party
• Where the offender employed deceit, fraud
or false pretense to cause damage to the
offended party
The damage must be the principal element of the
crime brought about by the intent to abuse the
confidence or the intent to defraud. It is not the
damage in the execution of the transaction.
Otherwise, it will be a civil damage. But here, the
damage must be precisely caused by the abuse of
confidence or the resort of some deceit or false
pretense.
(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
Page | 152
obligation be totally or partially guaranteed by a
bond; or by denying having received such money,
goods, or other property.
As to the first manner of incurring the crime of
swindling, focus our attention to subsection b of the
first subdivision of Art 315. We have there the so-
called estafa thru misappropriation a.k.a. estafa
thru conversion.
The setting of this transaction brings about a
relationship of entrustor and entrustee. The
offended party is the entrustor and the offender is
the entrustee. The offender violated the trust and
that is where damage is caused to the offended
party. The relationship of the entrustor and the
entrustee arose out of an obligation to return or
deliver back what the offender had received in
trust from the offended party.
So although the original arrangement of the
offended party and the offender is one that would
involve trust or confidence, if however in their
agreement, the offended party allowed the
offender in the even that he could not deliver back
or return the thing of value that he received in trust,
he would be paying the value thereof or
substituting the same with an equally valuable
thing. With that agreement allowing the entrustee
to replace the thing of value, the relationship of the
entrustor and entrustee will dispappear, instead, the
relationship will be one of obligee and obligor,
hence civil only. So it must be there is no such
agreement that would allow the entrustee to
replace or to pay the value, it must be absolute
that whatever was received in trust for commission
or administration will be the identical thing that shall
be returned. The relationship involved in the duty to
account for, the duty to return or deliver back what
was received received by the entrustee. If this is not
the essence of the transaction, then there is no
criminal liability for swindling of the first form.
In case where the subject matter was a dump truck
and the contract between the owner of the dump
truck and the one who received the dump truck is
one of a contract of lease. The user will use the
dump truck in his construction business for one year
with the stipulated rentals. The owner agreed, so he
deliver the dump truck to the lessee. It being a
contract lease, there is a duty to return the dump
truck after the contract of lease ended. The lessee
of the dump truck completed his project within 4
months. So he has no more use for the dump truck
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
but his contract is for one year. So he will have to
pay rent for the use of the dump truck for the whole
one year. To cope with the loss in rent that he will
have to pay, he subleased the dump truck,
although under the contract of lease, there is a
clause prohibiting the subleasing. It was in the
sublease where the dump truck disappeared
placing the same beyond the reach of the lessor.
In this crime of estafa thru conversion, it is
necessary to hold the lessee as entrustee
that he be the one who misappropriate it or
converted the thing of value in a way that
deprived the owner thereof of such
property. If it was somebody else, he will not
incur criminal liability because swindling
cannot be committed or incurred thru
culpa. This is always incurred thru dolo. So if
it was culpable that a property was
misappropriated because the original lessee
trusted somebody who cannot be trusted,
and it is merely a case of culpa for having
entrusted the vehicle to someone who is not
worthy of the trust. The SC said that the
remedy of the offended party is only civil as
against the original lessee. The damages he
can collect can also cover the breach of
the stipulation against the sublease of the
vehicle to a 3rd party but not to bring about
criminal liability.
In this crime of swindling, even though the
obligation that bound the complainant to the
offender is a civil contract, the SC observed that in
the provision of subsection b 1st subdivision of Art
315, the provision of the code simply refer to an
obligation involving the duty to return. It does not
qualify what kind of obligation it is. As long as the
privity of relationship between the complainant and
the accused involved a thing of value where the
accused has a duty to return, whether the
agreement is civil or otherwise, the failure of the
entrustee to return was he had received will be a
ground prima facie for a case of swindling. It does
not mean that the offender will be automatically
liable for swindling because this is still a felony, the
criminal intent must be proven.
So it is not necessary that the relationship is brought
by a contract which is not civil in character. Even if
the contract between the parties who, under the
agreement, was constituted as entrustor and
entrustee is a civil, if at the end of the term of the
contract, the entrustee is supposed to deliver back
exactly the same thing that he received for
Page | 153
administration or commission, failure to return will
engender a complaint for swindling. But here, as
prima facie evidence of misappropriation or
conversion, there must a demand for the return of
the thing and the entrustee cannot comply with
that demand. Demand in this kind of swindling is
necessary. It is by that demand and the failure of
the entrustee to comply with the demand to return
that the assumption that he had misappropriated
the thing of value received by him will arise. If there
is no demand then there is no evidence that the
same was misappropriated by the entrustee.
Relative to this, we have this trust receipt
agreement which is covered by PD 115. Under the
decree, the wordings of the liability of the entrustee
is not limited only to this the selling of the goods
covered by the trust receipt and failure to turn over
the proceeds of the sale to the bank which
financed the importation of the goods covered by
the trust receipt. A reading of the PD includes even
the act of appropriating the goods subject of the
trust receipt by the entrustee without paying the
value thereof to the bank who put up the money
for the importation of the goods covered by the
trust receipt. So even if the goods covered thereby
is not sold, but instead used by the entrustee for his
own business, if he would use this before paying the
bank, the value thereof as stated in the trust
receipt, the liability for estafa by the provision of the
decree is incurred.
2. By means of any of the following false pretenses
or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:
Under the second manner of committing the crime
of swindling, that this is by false pretense, deceit or
fraud, the common way of effecting this is thru the
use of worthless check. The use of a worthless
check may engender liability for swindling under Art
315 of the RPC and violation of BP 22 insofar as the
check is a negotiable instrument that would served
also as alternative medium of exchange and
therefore affects the banking system of the country.
The liability is not in the alternative. The liability is
both under the RPC and under BP 22. But under the
RPC, the issuing of a worthless check may bring
about liability for swindling if the check was issued
concomitantly with a receipt of the goods for which
the check was issued. If the goods were released
by the payee of the check even before the check
is in his hands, there is no more criminal liability for
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
swindling. The jurisprudence on this considers that
the seller of the goods for which the check was
issued accommodated the party issuing the check
with credit. We have learned that swindling cannot
arise out of a pre-existing obligation. The obligation
must be right there where the check was issued.
The transaction to bring about liability for estafa
when it is a worthless check that is involved is that
the check must have been issued concomitantly
with the receipt of the goods for which the check
was issued. The transaction is commonly known as
“kaliwaan”. The implication is that the party who
parted with the goods for which the check is issued
would not have release the goods were it not for
the check that prevailed on him to release it
impressing that such check is with sufficient fund.
But if the owner of the goods as payee of the
check release the goods even without the check
on his hands, the check was delivered to him after
he was already release the goods, the obligation
becomes civil only. The release of the goods
brought about the obligation to pay. So the
issuance of a check would be in payment of a pre-
existing obligation. It will only be civil in nature.
3. Through any of the following fraudulent means:
(b) By resorting to some fraudulent practice
to insure success in a gambling game.
Under the 3rd subdivision in which swindling by fraud
or false pretense may arise, we have there, among
others, that act of resorting to cheating in a
gambling game. In this subdivision, we must
observe that the swindling is characterized by fraud
or false pretense. The means referred to must have
been one that would work a fraud against the
public in general, not just abuse of confidence. It is
a fraudulent scheme. Although a gambling game is
prima facie illegal unless authorized by the
government, yet for purposes of filing a case for
swindling for one who will resort to cheating to
insure success in the game, the RPC authorizes the
prosecution of gamblers who resorted to cheating.
The law may condone the gambling but not the
cheating.
Anti-Bouncing Checks Law (Batas Pambansa Blg. 22)
How violated
A.
1. A person makes or draws and issues any check;
2. The check is made or drawn and issued to apply on
account or for value;
Page | 154
Thus, it can apply to pre-existing obligations, too.
3. The person who makes or draws and issued the
check knows at the time of issue that he does not
have sufficient funds in or credit with the drawee
bank for the payment of such check in full upon its
presentment;
4. The check is subsequently dishonored by the drawee
bank for insufficiency of funds or credit, or would
have been dishonored for the same reason had not
the drawer, without any valid reason, ordered the
bank to stop payment.
B.
1. A person has sufficient funds in or credit with the
drawee bank when he makes or draws and issues a
check;
2. He fails to keep sufficient funds or to maintain a
credit to cover the full amount of the check if
presented within 90 days from the date appearing;
3. The check is dishonored by the drawee bank.
Distinction between estafa under Article 315(2) (d) or the
Revised Penal Code and violation of Batas Pambansa Blg 22:
1. Under both Article 315 (2) (d) and Batas Pambansa
Big. 22, there is criminal liability if the check is drawn
for non-pre-existing obligation.
If the check is drawn for a pre-existing obligation,
there is criminal liability only under Batas Pambansa
Blg. 22.
2. Estafa under Article 315 (2) (d) is a crime against
property while Batas Pambansa Big. 22 is a crime
against public interest. The gravamen for the former
is the deceit employed, while in the latter, it is the
issuance of the check. Hence, there is no double
jeopardy.
3. In the estafa under Article 315 (2) (d) deceit and
damage are material, while in Batas Pambansa Blg.
22. they are immaterial.
4. In estafa under Article 315 (2) (d), knowledge by the
drawer of insufficient funds is not required, while in
Batas Pambansa Blg. 22. Knowledge by the drawer of
insufficient funds is required.
When is there prima facie evidence of knowledge of
insufficient funds?
There is a prima facie evidence of knowledge of
insufficient funds when the check was presented
within 90 days from the date appearing on the check
and was dishonored.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
Exceptions
1. When the check was presented after 90
days from date;
2. When the maker or drawer -
a. Pays the holder of the check the
amount due within five banking
days after receiving notice that
such check has not been paid by
the drawee;
b. Makes arrangements for payment
in full by the drawee of such check
within five banking days after
notice of non-payment
The drawee must cause to be written or stamped in plain
language the reason for the dishonor.
If the drawee bank received an order of stop-payment from
the drawer with no reason, it must be stated that the funds
are insufficient to be prosecuted here.
The unpaid or dishonored check with the stamped
information re: refusal to pay is prima facie evidence of
(1) the making or issuance of the check;
(2) the due presentment to the drawee for payment &
the dishonor thereof; and
(3) the fact that the check was properly dishonored for
the reason stamped on the check.
Under BP 22, however, bear in mind that the crime
is regarded as malum prohibitum. The issuance of a
bouncing check is prohibited per se for 2 reasons:
• The proliferation of worthless check greatly
discredit the integrity of a check as an
alternative medium of exchange
• The issuance of worthless check affects the
stability of the banking system in the
Philippines
The SC, for reason which cannot be understood,
considers the violation of BP 22 as a crime against
public order.
The requisites to bring about the criminal liability for
issuing a worthless check (BP 22):
• The check must have been issued for value
or to apply to an account.
BP 22 does not apply to a check that is
given gratuitously. If a person has been
requested to act as a sponsor in a wedding.
He agreed. As a gift to newly-weds, he
issued a check. the newly-weds deposited a
Page | 155
check but the bank dishonored the check.
No action under BP 22 could be had
because the check was not issued to apply
for an account or for value.
• The person who issued the check must be
aware at the time he issued the check that
it does not have sufficient funds with the
bank anymore.
Since this is knowledge on the part of the
person who issued the check. and
therefore, he cannot be simply subject of an
objective evidence. The law presumes that
if upon presentation of the check to the
drawee bank, the same was dishonored for
lack of sufficient funds, a prima facie
assumption arises that the person who
issued the check was aware that the check
does not have sufficient funds in the bank.
• A written demand giving notice of dishonor
of the check must be served to the person
who issued the check. the pronouncement,
in some of the cases decided by the SC on
this requires personal notice of the dishonor
of the check. The current ruling is that the
registry return card which shows some
signature there by the person who received
the mail matter from the post office cannot
be dead. The SC said that simply because
there is a signature on the registry return
card, if nobody will testify that it is the
addressee of the letter who signed that, no
notice at all will be regarded as given.
So the burden is all on the person to whom the
check was issued to run after the one who
issued the check.
We have PD 818 which considers as large scale
estafa that brought about by issuance of bouncing
checks while the check is used to make people
believed that they are getting an assurance for
what they will invest, but it turned to be nothing but
a scam. The governing law is not the RPC but PD
818. It will only be an case of estafa if only one
check or 2 checks was issued but if the check was
issued publicly, like in this case of legacy, where
there are 6 banks that was manipulated and the
investors were all defrauded, the violation of BP 22 is
hard to prosecute because of the kiting scheme
adopted by the master of this scandal.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
The prima facie presumption that a person who
issued the worthless check has knowledge at the
time of the issuance thereof that he does not
sufficient funds in the bank would become a fact
on which prosecution may be made if five banking
days after such notice was served to the person
who issued the check informing him or her that the
check was dishonored by the bank for lack of
sufficient fund. The fact that the person who issued
the check did not make good the value of the
check within 5 banking days after he was given
such notice of dishonor, a criminal case for BP 22
may already be file in court. But still the
presumption that the person who issued the check
has knowledge at the time the check was issued
that he does not have sufficient funds in the bank, is
only a prima facie presumption. During the trial of
the case for the violation of BP 22, the accused can
still proved by evidence that he is not in a position
to know whether the check which he signs and
issued has sufficient funds in the bank or not. This
was the case in Lim Lao vs CA
In that case, the accused is a mere employee of an
investment house who was entrusted as custodial of
the different booklets of the check. because he is
one of the signatories and under BP 22, the one
who would be held liable is the signatory to the
check, not the owner of the check and the notice
of dishonor must be served to the signatory of the
check not to the company whose check was
involved because the criminal action will be filed
against the signatory of the check. if, during the trial
for the supposed violation of BP 22, the evidence
would show that the accused is not really in the
position to know whether the check is still have
sufficient funds with the bank because the accused
was required by a superior to sign checks while it
was still blank purportedly to facilitate the issuance
of the check by the other signatory to the check
who is an executive of the company whose check
is being issued. Since the accused in this case is
being required by the superior just to sign as one of
the signatories thereto and the deliver the empty
checkbook to the other signatory, this accused as a
small employee in the investment house is not in the
position to know who is the payee, there is no date
when the check is issued, no amount. So he is not
really in the position to know whether the check has
still funds in the bank or not because he signed the
check in blank.
It is not true, therefore that the liability under BP 22 is
absolute, that when a check bounced, the person
Page | 156
who issued the check will automatically incur
criminal liability.
Under BP 22 there is that 90-day period reckoned
from the maturity date of the check within which
the check should be presented to the drawee bank
for deposit or payment. The significance of the
provision requiring this deposit within 90 days
appeared to be unclear until a case was brought
on this particular issue. Whether the check may be
subject of a criminal complaint under BP 22 if the
same is deposited with the drawee bank beyond
the 90-day period from the date maturity of the
check. the SC, in interpreting the provision, ruled
that the 90-day period is only to answer for the
prima facie presumption that the payor of the
check was aware at the time he issued the check
that he does not have sufficient funds in the banks.
After the 90-day period, the burden of the
evidence shifts to the payee of the check, to
adduce evidence and proved that the payor of
the check was aware at the time he issued the
check that he does not have sufficient funds in the
bank to cover the amount of the check. so the
effect of the non-observance of the 90-day period
does not affect the actionability of the bouncing
check, it only affects the presumption. The burden
of evidence shifts to the defrauded party.
As far as the applicability of BP22 to such worthless
check is concern, the period is 180 days or 6
months. This is the observed period when a check is
still good as a negotiable instrument. After the 180
day period, the check is regarded as a mere piece
of paper because its character as a negotiable
instrument disappears. If, therefore, a drawee bank
will still receive the check for deposit or for clearing,
it is already the fault of the bank and not of the
depositor because the bank should know that in
commercial usage that negotiable instrument as a
check is good for only 6 months after its maturity
date. The civil obligation may persist for the
recovery of the amount.
Acts punished under paragraph (e)
1
a. Obtaining food, refreshment, or accommodation at a
hotel, inn, restaurant, boarding house, lodging
house, or apartment house;
b. Without paying therefor;
c. With intent to defraud the proprietor or manager.
2
a. Obtaining credit at any of the establishments;
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
b. Using false pretense;
3
a. Abandoning or surreptitiously removing any part of
his baggage in the establishment;
b. After obtaining credit, food, refreshment,
accommodation;
c. Without paying.
Estafa through any of the following fraudulent means under
Article 315(3):
Under paragraph (a)
1. Offender induced the offended party to sign a
document;
2. Deceit was employed to make him sign the
document:
3. Offended party personally signed the document;
4. Prejudice was caused.
Under paragraph (b)
1. Resorting to some fraudulent practice to insure
success in a gambling game;
Under paragraph (c)
1. Offender removed, concealed or destroyed;
2. Any court record, office files, documents or any
other papers;
3. With intent to defraud another.
In Kim v. People. 193 SCRA 344, it was held that if an
employee receives cash advance from his employer to defray
his travel expenses, his failure to return unspent amount is
not estafa through misappropriation or conversion because
ownership of the money was transferred to employee and no
fiduciary relation was created in respect to such advance. The
money is a loan. The employee has no legal obligation to
return the same money, that is, the same bills and coins
received.
In Saddul Jr. v. CA, 192 SCRA 277, it was held that the act of
using or disposing of another's property as if it were one's
own, or of devoting it to a purpose or use different from that
agreed upon, is a misappropriation and conversion to the
prejudice of the owner. Conversion is unauthorized
assumption an exercise of the right of ownership over goods
and chattels belonging to another, resulting in the alteration
of their condition or exclusion of the owner's rights,
In Allied Bank Corporation v. Secretary Ordonez, 192 SCRA
246, it was held that under Section 13 of Presidential Decree
No. 115, the failure of an entrustee to turn over the proceeds
of sale of the goods covered by the Trust Receipt, or to return
Page | 157
said goods if they are not sold is punishable as estafa Article
315(1) (b)
On issuance of a bouncing check
The issuance of check with insufficient funds may be held
liable for estafa and Bacas Pambansa Blg. 22, Batas Pambansa
Blg. 22 expressly provides that prosecution under said law is
without prejudice to any liability for violation of any provision
in the Revised Penal Code. Double Jeopardy may not be
invoked because a violation of Batas Pambansa Blg, 22 is a
malum prohibitum and is being punished as a crime against
the public interest for undermining the banking system of the
country, while under the Revised Penal Code, the crime is
malum in se which requires criminal intent and damage to
the payee and is a crime against property.
In estafa, the check must have been issued as a reciprocal
consideration for parting of goods (kaliwaan). There must be
concomitance. The deceit must be prior to or simultaneous
with damage done, that is, seller relied on check to part with
goods. If it is issued after parting with goods as in credit
accommodation only, there is no estafa, if the check is issued
for a pre-existing obligation, there is no estafa as damage had
already been done. The drawer is liable under Batas
Pambansa Blg. 22.
For criminal liability to attach under Batas Pambansa Blg. 22,
it is enough that the check was issued to "apply on account or
for value" and upon its presentment it was dishonored by the
drawee bank for insufficiency of funds, provided that the
drawer had been notified of the dishonor and inspite of such
notice, fails to pay the holder of the check the full amount
due thereon within five days from notice.
Under Batas Pambansa Blg. 22, a drawer must be given notice
of dishonor and given five banking days from notice within
which to deposit or pay the amount seated in the check to
negate the presumption that drawer knew of the
insufficiency. After this period, it is conclusive that drawer
knew of the insufficiency, thus there is no more defense to
the prosecution under Batas Pambansa Blg. 22.
The mere issuance of any kind of check regardless of the
intent of the parties, whether the check is intended to serve
merely as a guarantee or as a deposit, makes the drawer
liable under Batas Pambansa Blg, 22 if the check bounces. As
a matter of public policy, the issuance of a worthless check is
a public nuisance and must be abated.
In De Villa v. CA, decided April 18. 1991, it was held that
under Batas Pambansa Blg. 22, there is no distinction as to
the kind of check issued. As long as it is delivered within
Philippine territory, the Philippine courts have jurisdiction.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

Even if the check is only presented to and dishonored in a 3. The owner of any personal property who shall wrongfully take it
from its lawful possessor, to the prejudice of the latter or any
Philippine bank, Batas Pambansa Blg. 22 applies. This is true
third person.
in the case of dollar or foreign currency checks. Where the 4. Any person who, to the prejudice of another, shall execute any
law makes no distinction, none should be made. 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
In People v. Nicafan, it was held that as long as instrument is
performed by him, when in fact he did not actually perform such
a check under the negotiable instrument law, it is covered by services or labor.
Batas Pambansa Blg. 22. A memorandum check is not a 6. Any person who, while being a surety in a bond given in a criminal
promissory note, it is a check which have the word "memo," or civil action, without express authority from the court or before
the cancellation of his bond or before being relieved from the
"mem", "memorandum" written across the face of the check
obligation contracted by him, shall sell, mortgage, or, in any other
which signifies that if the holder upon maturity of the check manner, encumber the real property or properties with which he
presents the same to the drawer, it will be paid absolutely. guaranteed the fulfillment of such obligation.
But there is no prohibition against drawer from depositing
memorandum check in a bank. Whatever, be the agreement Under paragraph I — By conveying, selling, encumbering, or
of the parties in respect of the issuance of a check is mortgaging any real property, pretending to be the owner of
inconsequential to a violation to Batas Pambansa Blg. 22 the same
where the check bounces.
Elements
But overdraft or credit arrangement may be allowed by banks 1. There is an immovable, such as a parcel of
as to their preferred client and Batas Pambansa Blg. 22 does land or a building;
not apply. If check bounces, it is because bank has been 2. Offender who is not the owner represents
remiss in honoring agreement. himself as the owner thereof;
3. Offender executes an act of ownership such
The check must be presented for payment within a 90-day as selling, leasing, encumbering or
period. If presented for payment beyond the 90 day period mortgaging the real property;
and the drawer's funds are insufficient to cover it, there is no 4. The act is made to the prejudice to the
Batas Pambansa Blg. 22 violation. owner or a third person.

Where check was issued prior to August 8, 1984, when
Circular No. 12 of the 'Department of the Justice took effect,
and the drawer relied on the then prevailing Circular No.4 of
the Ministry of Justice to the effect that checks issued as part
of an arrangement/agreement of the parties to guarantee or
secure fulfillment of an obligation are not covered by Batas
Pambansa Blg. 22, no criminal liability should be incurred by
the drawer. Circular should not be given retroactive effect.
(Lazaro v. CA, November 11, 1993. citing People v. Albeno.
October 28. 1993)
The crime of estafa is prosecuted on the basis of the
damage or the value involved, that is why this
criminal case must involved a case of __ where the
value is determined. A complaint for swindling
cannot stand if there is no specific value disclosed
as the damage suffered by the offended party.
Article 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.
Page | 158
Under paragraph 2 — by disposing of real property as free
from encumbrance, although such encumbrance be not
recorded
Elements
1. The thing disposed is a real property
2. Offender knew that the real property was
encumbered, whether the encumbrance is
recorded or not
3. There must be express representation by
offender that the real property is free from
encumbrance;
4. The act of disposing of the real property is
made to the damage of another.
A person who will sell or encumber real property
already encumbered, even if the encumbrance is
not recorded, would be incurring the second kind
of swindling (estafa thru false pretense). SC called
attention to the wordings of this provision of the
RPC. The translation thereof to the English text from
the Spanish version is incorrect. The liability for
swindling will arise only when property which is
already encumbered is again sold or encumbered
without disclosing the encumbrance. The fraud will
only arise if the document of conveyance or
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
encumbrance would make a warranty that the
property thereunder sold or encumbered is free
from any liens or encumbrance and it turned out
that the property is encumbered or under a lien.
Otherwise, if the deed of conveyance was silent on
this (there is no warranty) that the property therein
sold or encumbered is free from any lien or
encumbrance, even if it turned out that the
property is about to be foreclosed, the ruling here is
that the seller or the person encumbering the
property will not incur criminal liability. The
obligation is only civil.
The SC said that there is no law prohibiting the
encumbrance or sale of property which is about to
be foreclosed. On the other hand, we have in law
on this matter, the rule of caveat emptor. Whoever
is buying or accepting property has the obligation
to look behind the title to the property that he is
buying unless there is that warranty on the face of
the on the face of the document itself, that the
subject property is free from lien or encumbrance. It
is the falsity of that warranty if there was one will
generate the liability for swindling.
Relative to this, a case where a buyer of a real
property took advantage of the relatively low price
asked by the owner. In that deed of sale, there was
a warranty that the land therein sold is free from
any lien or encumbrance. The stipulation is that the
buyer of the land will the one to take care of all the
expenses involving the transfer to the buyer’s name.
the buyer went to the register of deeds only to find
out that there is a notice of lis pendens annotated
to the title of the real property. He filed a criminal
case for swindling against the seller because there
is a warranty that the property therein sold is free
from any liens or encumbrance
The SC ruled that a notice of lis pendens is
never a lien or encumbrance on the real
property subject on the annotation thereof.
To be considered as a lien or encumbrance
is one which is absolute. But a notice of lis
pendens is nothing but to forewarn whoever
will deal with the real property involved that
there is an ongoing litigation. If the seller lost
the case, the buyer has the remedy of
rescission.
Under paragraph 3 — by wrongfully taking by the owner of
his personal property from its lawful possessor
Elements:
1. Offender is the owner of personal property;
Page | 159
2. Said personal property is in the lawful
possession of another;
3. Offender wrongfully takes it from its lawful
possessor;
4. Prejudice is thereby caused to the
possessor or third person.
Under paragraph 4 — by executing any fictitious contract to
the prejudice of another
Under paragraph 5 — by accepting any compensation for
services not rendered or for labor not performed
Under paragraph 6 — by selling, mortgaging or encumbering
real property or properties with which the offender
guaranteed the fulfillment of his obligation as surety
Elements
1. Offender is a surety in a bond given in a
criminal or civil action;
2. He guaranteed the fulfillment of such
obligation with his real property or
properties
3. He sells, mortgages, or in any manner
encumbers said real property;
4. Such sale, mortgage or encumbrance is
without express authority from the court,
or made before the cancellation of his
bond, or before being relieved from the
obligation contracted by him.
Article 317. Swindling A Minor
Elements
1. Offender takes advantage of the inexperience or
emotions or feelings of a minor;
2. He induces such minor to assume an obligation or to
give release or to execute a transfer of any property
right;
3. The consideration is some loan of money, credit or
other personal property;
4. The transaction is to the detriment of such minor
Article 318. Other deceits
Acts punished
1. Defrauding or damaging another by any other deceit
not mentioned in the preceding articles;
2. Interpreting dreams, by making forecasts, by telling
fortunes, or by taking advantage or the credulity of
the public in any other similar manner, for profit or
gain.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
The crime of estafa is prosecuted on the basis of the
damage or the value involved that is why this
criminal case must involved a case of __ where the
value is determined. A complaint for swindling
cannot stand if there is no specific value disclosed
as the damage suffered by the offended party. But
in this Article 318, we notice that there is no value
mentioned there. The penalty is specifically
prescribed and the subject of the transaction
specifically or categorically disclosed. This refers to
fortune telling, the interpreting of dreams; the
forecasting of what will be the future or particular
persons. This is a crime if the fortune teller would try
to work an influence on the gullibility of the
offended party to submit to such supposed
forecasting of dreams or fortunes. These people in
quiapo church, they do not exert their influence or
any power of ascendancy to the public. It is up for
the public to sit down there and consult them. They
don’t approach people and invite them to interpret
their dreams or forecast their future. This is the only
case of swindling where there is no value for the
fraud that may have been committed. The RPC
prescribes a definite penalty.
These warranties, there are offering of some goods
on a trial demonstration. Some of these are even
offered in respect of sewing machines or
typewriters. Where an interested buyer may avail of
the use of the item for a specific period of time
without any obligation to pay for it. If he is satisfied,
then that is the time that he will pay for the value, if
not, he can just return the item. 2 instances of this
became subject of jurisprudence.
In a case where the accused availed of the use of
a typewriter, he was allowed to use for a period of
30 days. If he is not satisfied, he can return the
typewriter. If he is satisfied, he can just manifest that
he will be buying the typewriter, so he will have to
pay the typewriter according to the stipulated
schedule of payments.
In another case, the same is true but the stipulation
was the typewriter would be delivered covered by
an agreement that if the one who availed of the
trial service would be satisfied then he can retain
the typewriter and pay the value thereof. If not, he
may return the typewriter.
An enterprising fellow availed of this offer. After
making use of the typewriter for sometime, he then
pawned the typewriter and the same was
foreclosed by the pawnshop. Where the period for
Page | 160
trial demonstration had lapsed, a demand for the
payment or return of the typewriter was made. And
because the typewriter cannot be returned
anymore, the fellow who availed the use thereof for
a trial demo was sued for swindling.
The SC analyzed that since the trial demo is
for a specified period and there is no
mention that the typewriter will be returned
and replace by another, the original
arrangement as far as the typewriter
delivered for trial demo is the typewriter that
would eventually be sold. So the original
agreement is one of trust. But the trouble is
that the agreement will ripen into a sale if it
was not returned after the trial period. It will
be considered sold. The obligation of the
party who availed of the trial demo is an
obligation of a buyer. The ruling is that
originally the transaction is one of trust but
when the typewriter was not returned after
the trial demo period, the transaction
became on of sale. So the obligation is to
pay the value thereof not anymore of trust.
No swindling
Because of the above ruling, another enterprising
fellow availed of a similar arrangement. But the
arrangement with the seller is that if he would be
satisfied with the performance of the machine,
another machine will be delivered to him and the
unit for demonstration will be returned. The party
who availed of the trial demo did not take notice
of, so he followed the style of the person described
in the above case. He availed of the trial demo
and after a few days, he pawned the same.
The SC pointed out that in this case, the unit
that was made available for trial demo is
not the very unit that would be sold, the unit
used for trial demo must be returned under
the agreement. Therefore this accused
holds the unit in trust. He is convicted for
swindling
ARSON (PRESIDENTIAL DECREE NO. 1613)
If the unit that was burned is tenanted, then
destructive arson. But if the unit is empty, then it is
simply arson.
Kinds of arson
1. Arson, under Section I of Presidential Decree No.
1613;
2. Destructive arson, under Article 320 of the Revised
Penal Code. as amended by Republic. Act No. 7659;
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
3. Other cases of arson, under Section 3 of Presidential
Decree No. 1613,
Article 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.
Elements:
1. Offender deliberately caused damage to the
property of another;
2. Such act does not constitute arson or other crimes
involving destruction;-
3. The act of damaging another's property was
committed merely for the sake of damaging it;
4. There is destruction of the property of another but
there is no misappropriation. Otherwise, it would be
theft if he gathers the effects of destruction
The intention must be to appropriate the property
itself.
Where the offender stones the house of his enemy
unless there is concrete evidence that the criminal
intent of the offender is to destroy the house totally
and deprive the offended party thereof, the crime
will be unjust vexation. Unless it is clear that the
intention is to bail out the property from the
ownership of the offended party, the crime cannot
be malicious mischief. The crime will only be unjust
vexation. The value of the damage will only be
answered by the award for damages. Unjust
vexation also provided that the house is tenanted
and the stoning is to irritate the tenants.
If the house was vacant, nobody inside to irritate,
stoning the house would be a matter of destroying
it and if it is considerably destroyed, the crime may
be one of malicious mischief.
Malicious mischief does not include damage to
property brought about by the intentional use of
fire. This is because art 323 of the RPC which
provides that buying property of small value not
exceeding 25 pesos shall be punished as malicious
mischief. This was the provision of Art 323 before. But
that was expressly repealed by section 9 of the PD
1613 (Arson Law). As the matter of fact, the new
arson law does not set a basic ceiling for the value
of the property that was damage. Any burning of
property regardless of value, the crime is arson.
If it turned out that the premises burned is inhabited,
then it is destructive arson. If the house is vacant,
open for rent, simple arson.
Page | 161
Relative to burning of property, even though a
person may be burned to death out of the
commission of the arson, crime is simply arson, not
arson with homicide. This is because, we have an
article now punishing a crime as arson but the
penalty is mandatory death until the law RA 9346
was enacted prohibiting the imposition of the
death penalty. (This has been discussed in crimes against person on
murder, paulit ulit c dean O)
Article 328. Special Case of Malicious Mischief
Acts punished:
1. Causing damage to obstruct the performance of
public functions;
2. Using any poisonous or corrosive substance:
3. Spreading any infection or contagion among cattle;
4. Causing 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 is common by the pubic.
Article 329. Other Mischiefs
All other mischiefs not included in the next preceding article
Article 332. Persons Exempt from Criminal Liability
Crimes involved in the exemption
1. Theft
2. Estafa
3. Malicious mischief
Persons exempted from criminal liability
• Spouse, ascendants and descendants or relatives by
affinity in the same line;
• Widowed spouse with respect to the property which
belonged to the deceased spouse before the same
passed into the possession of another
• Brothers and sisters and brothers-in-law and sisters-
in-law, if living together.
Only the relatives enumerated incur no liability if the crime
relates to theft (not robbery), swindling, and malicious
mischief. Third parties who participate are not exempt. The
relationship between the spouses is not limited to legally
married couples: the provision applies to live-in partners.
As to the instances where no criminal liability but
only civil liability shall be incurred. If the crime is
swindling, the exemption will only operate if there is
no other crime complexed with the swindling. If the
crime of swindling was brought about by
falsification of public or commercial documents,
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
then it will be a complexed crime of estafa thru
falsification of public document or estafa thru
falsification of commercial documents. But if it was
a private document, then we don’t have a
complex crime on this. And as far as the swindling is
concerned Art 332 still governs but if the document
that was falsified was a public or commercial
document, the result will b e a complex crime. This
exemption under Art 332 does not apply.
Bar problem:
The younger brother forcibly open the cabinet
assigned to his elder brother looking for some
money there after his elder brother left for work. He
found a checkbook, he tore a leaf from the
checkbook. He filled out the amount he need and
falsified the signature of his brother. He brought the
check to the gas station where their family loads
gasoline for their vehicle. This younger brother
made the proprietor of the gas station believe that
his elder is in need of cash but because the banks
are still closed, he requested that if possible he
exchange the same with cash. The proprietor of the
gasoline station accommodated the request. He
release cash on the basis of this forged check. Is the
younger brother who forged the check be
criminally liable?
Under art 332, if it where simply swindling, no
criminal liability. The article exempts the
person who is related to the offended party.
Only civil liability will arise. But in this case the
exemption do not apply considering that
what is committed is not simply swindling but
estafa thru falsification of commercial
documents.
We have also a situation where a crime will be
committed on members of the family staying under
one roof between brothers and sisters; brothers-in-
law and sisters-in-law. What is contemplated there is
that the property involved must be enjoyed in
common. If the house on which they are staying,
although under one roof, is made of segments and
each segments is assigned to a brother of sister, the
exemption here may not apply anymore. What is
contemplated here is that there is commingling of
the property owned in common. If the property in
fact was already separated from the other, they
have their own dwelling unit in the house, this
exemption does not operate anymore because
there is a distinction of which belongs to whom and
to another. The idea of being made exempt is
because of the enjoyment in common of the
Page | 162
property. The exemption applies only to those
property enjoyed in common that we cannot
differentiate which belong to one and to other. If
they have their own assigned portion of the unit of
the dwelling, while each one has his own privacy
and ownership of property inside, one who would
intrude to the portion of the others, he cannot
invoke this exemption
TITLE XI CRIMES AGAINST CHASTITY
The crimes of adultery, concubinage, seduction, abduction
and acts of lasciviousness are the so-called private crimes.
They cannot be prosecuted except upon the complaint
initiated by the offended party. The law regards the privacy of
the offended party here as more important than the
disturbance to the order of society. For the law gives the
offended party the preference whether to sue or not to sue.
But the moment the offended party has initiated the criminal
complaint, the public prosecutor will take over and continue
with prosecution of the offender. That is why under Article
344, if the offended party pardons the offender, that pardon
will only be valid if it comes before the prosecution starts.
The moment the prosecution starts, the crime has already
become public and it is beyond the offended party to pardon
the offender.
Marriage extinguishes criminal liability to those
private crimes. But we must be aware that the term
private crimes includes the crime of adultery and
concubinage. In these 2 kinds of crimes, although
they are private crimes, marriage is never
applicable. On the other hand it will compound
perversity of the one who get marriage to the other
in an adulterous or relation that is one of
concubinage.
We only apply Art 344 to the crimes of seduction,
abduction and acts of lasciviousness
We must be discreet that the act of lasciviousness
should not fall under the 2nd classification of rape
that is rape by sexual assault. Because the acts
which are now condemned as rape by sexual
assault used to be act of lasciviousness before. We
must observed when the new rape law took effect.
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.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
If the person guilty of adultery committed this offense while being
abandoned without justification by the offended spouse, the penalty next
lower in degree than that provided in the next preceding paragraph shall be
imposed.
Elements:
1. The woman is married;
2. She has sexual intercourse with a man not her
husband;
3. As regards the man with whom she has sexual
intercourse, he must know her to be married.
Adultery is a crime not only of the married woman but also of
the man who had intercourse with a married woman knowing
her to be married. Even if the man proves later on that he
does not know the woman to be married, at the beginning,
he must still be included in the complaint or information. This
is so because whether he knows the woman to be married or
not is a matter of defense and its up to him to ventilate that
in formal investigations or a formal trial. Both must be
included in the complaint or information unless one of them
is dead, in which case, it should be disclosed in the
information.
For purposes of filing a case in court both must be
named as accused. Because of the inherent nature
of the crime, which it cannot be committed only by
one, it always takes two to commit the crime. The
defense that one of the accused was not aware
that the other is married is only admissible in the trial
court, not for purposes of establishing a prima facie
case for prosecution in the filing of information in
the court.
The acquittal of the woman does not necessarily result in the
acquittal other co-accused.
In order to constitute adultery, there must be a Joint physical
act. Joint criminal intent is not necessary. Although the
criminal intent may exist in the mind of one of the parties to
the physical act, there may be no such intent in the mind of
the other party. One may be guilty of the criminal intent, the
other innocent, and yet the joint physical act necessary to
constitute the adultery may be complete. So, if the man had
no knowledge that the woman was married, he would be
innocent insofar as the crime of adultery is concerned but the
woman would still be guilty; the former would have to be
acquitted and the latter found guilty, although they were
tried together.
A husband committing concubinage may be required to
support his wife committing adultery under the rule in pari
delicto
Page | 163
There is no frustrated adultery because of the nature of the
offense.
For adultery to exist, there must be a marriage although it be
subsequently annulled. There is no adultery, if the marriage is
void from the beginning.
Adultery is an instantaneous crime which is consummated
and completed at the moment of the carnal union. Each
sexual intercourse constitutes a crime of adultery. Adultery is
not a continuing crime unlike concubinage.
Illustration:
Madamme X is a married woman residing in Pasay City. He
met a man, Y, at Roxas Boulevard. She agreed to go with to
Baguio City, supposedly to come back the next day. When
they were in Bulacan, they stayed in a motel, having sexual
intercourse there. After that, they proceeded again and
stopped at Dagupan City, where they went to a motel and
had sexual intercourse.
There are two counts of adultery committed in this instance:
one adultery in Bulacan, and another adultery in Dagupan
City. Even if it involves the same man, each intercourse is a
separate crime of adultery.
Illustration:
A Filipino woman married a German national. The
German husband suspected his wife to be still be
carrying on an amorous relation with her former
boyfriend. When this husband went home to
Germany to visit his mother, he took that
opportunity to apply for divorce. Divorce is allowed
in Germany. He was able to obtain such decree of
divorce. He returned to the Philippines and was
surprised to find his Filipina wife already cohabiting
with the Filipino boyfriend. He filed a criminal
complaint for adultery against the wife. The wife
filed a motion to dismiss on the ground that under
the provision of the revised penal code, only the
offended spouse can initiate the criminal
complaint. And that presupposes that the marital
relation is still remain unsevered. Since it is by the
act of the complainant-husband, that such marital
relation was severed then he has no business
initiating the case, by his own act he had forgone
the capability to file the complaint. The trial court,
however, does not believed that the divorce
decree will be binding in the Philippines. So as far as
the marriage is concerned, it is still existing because
divorce is not recognized in the Philippines. So the
trial court accepted the filing of the information
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

and it issued a corresponding warrant of arrest With respect to concubinage the same principle applies: only
against the Filipina wife. The wife challenge the the offended spouse can bring the prosecution. This is a
actuation of the trial court before the SC on a crime committed by the married man, the husband. Similarly,
question of law. it includes the woman who had a relationship with the
The SC ruled under the provision of the RPC married man.
and in the rules on Criminal procedure, in
the crime of adultery only the offended It has been asked why the penalty for adultery is higher than
spouse can initiate the criminal complaint concubinage when both crimes are infidelities to the marital
but with a basis for prosecution for adultery. vows. The reason given for this is that when the wife commits
To be considered as a spouse who is given adultery, there is a probability that she will bring a stranger
the right to complain about the adultery, into the family. If the husband commits concubinage, this
the spousal relationship must still be existing probability does not arise because the mother of the child will
at the time the criminal complaint was filed always carry the child with her. So even if the husband brings
otherwise, the complainant cannot think with him the child, it is clearly known that the child is a
that he is still a spouse. For this reason, stranger. Not in the case of a married woman who may bring
inasmuch as this is the act of the a child to the family under the guise of a legitimate child. This
complainant that the spousal relationship is is the reason why in the former crime the penalty is higher
severed, he cannot anymore regain the than the latter.
status and only for purposes of initiating the
complaint. That spousal relationship must be Unlike adultery, concubinage is a continuing crime.
existing at the time the criminal complaint
was filed with the prosecutors office, Adultery vs Concubinage
otherwise, the complainant has no more
personality to initiate the criminal complaint. In Adultery, a single act of indiscretion on the part
This is in accord with the international law of the married woman may engender a criminal
rule that marriage and correspondingly a prosecution for adultery, in the crime of
divorce valid in the country where it was concubinage, this is not so. The contemplation on
decreed will be valid as well the provision of the RPC on concubinage is
scandalous in nature on which the relationship by a
Art. 334. Concubinage. — Any husband who shall keep a mistress in the married man with another woman not his wife is
conjugal dwelling, or shall have sexual intercourse, under scandalous carried on. So isolated acts of infidelity on the
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 marital bond is not proper as basis for a crime of
medium periods. concubinage, this is so because the law recognizes
the fact that man is polygamous and so a single
The concubine shall suffer the penalty of destierro.
act of indiscretion is considered as not enough to
severe that marital relation. But our lawmakers in
Acts punished the Senate had approved a bill that would replace
1. Keeping a mistress in the conjugal dwelling;
Art 333 on adultery and as well as Art 334 on
2. Having sexual Intercourse, under scandalous
concubinage. A single act of indiscretion that
circumstances;
would go against the marital vow is regarded as a
3. Cohabiting with her in any other place.
basis for a criminal complaint. The 2 crimes are
regarded under the same category. It is now in the
Elements:
bill as marital infidelity
1. The man is married;
2. He is either — Article 335. Rape
a. Keeping a mistress in the conjugal dwelling;
b. Having sexual intercourse under scandalous This has been repealed by Republic Act No. 8353 or the Anti-
circumstances with a woman who is not his Rape Law of 1997. Sec Article 266-A.
wife; or
c. Cohabiting with a woman who is not his
As to the imposition of the death penalty to those
wife in any other place;
crime that would qualify for the death penalty
3. As regards the woman, she knows that the man is
before, death penalty is prohibited instead the
married.
penalty shall be reclusion perpetua but the
additional qualification there must be part of the
Page | 164
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
sentence. “without the benefit of parole”. RA 9346
provides for this because simple rape is punishable
by reclusion perpetua. Qualified rape is punishable
by death, but because the death penalty have
been prohibited the penalty dropped down to
reclusion perpetua. So unless you will qualify the
reclusion perpetua as without the benefit of parole,
you cannot differentiate whether it is simple rape or
qualified rape. The only way for us to differentiate is
that in simple rape, the penalty is simple reclusion
perpetua, but if it is was qualified rape but the
death penalty cannot be imposed, the penalty will
be reclusion perpetua without the benefit of parole.
This is how RA 9346 provides for the imposition of the
penalty to draw the difference between rape and
qualified rape.
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.
Elements:
1. Offender commits any act of lasciviousness Or
lewdness;
2. It is done under any of the following circumstances:
a. By using force or intimidation
b. When the offended party is deprived of
reason or otherwise unconscious; or
c. When the offended party is another person
of either sex
Note that there are two kinds of acts of lasciviousness under
thee Revised Penal Code: (1) under Article 336. and (2) under
Article 339.
Article 336, Acts of Lasciviousness
Under this article, the offended party may be a man or a
woman. The crime committed, when the act performed with
lewd design was perpetrated under circumstances which
would have brought about the crime of rape if sexual
intercourse was effected, is acts of lasciviousness under this
article. This means that the offended party is either —
1. Under 12 years of age
2. being over 12 years of age, the lascivious acts were
committed on him or her through violence or
intimidation, or while the offender party was
deprived of reason, or otherwise unconscious.
Article 339. Acts of Lasciviousness with the Consent of the
Offended Party:
Under this article, the victim is limited only to a woman. The
circumstances under which the lascivious acts were
Page | 165
committed must be that of qualified seduction or simple
seduction, that is, the offender took advantage of his position
of ascendancy over the offended woman either because he is
a person in authority, a domestic, a househelp, a priest, a
teacher or a guardian, or there was a deceitful promise of
marriage which never would really be fulfilled.
See Article 339.
Always remember that there can be no frustration of acts of
lasciviousness, rape or adultery because no matter how far
the offender may have gone towards the realization of his
purpose, if his participation amounts to performing all the
acts of execution, the felony is necessarily produced as a
consequence thereof.
Intent to rape is not a necessary element of the crime of acts
of lasciviousness. Otherwise, there would be no crime of
attempted rape.
In acts of lasciviousness, we single out the lascivious
act of “Fingering” or “inserting some gadgets into
the genital or anal orifice of the offended female.
This is now regarded as rape by sexual assault. But
other than this, which comes within the means for
incurring the crime of rape by sexual assault, the
crime will only be acts of lasciviousness.
The question about oral sex was incidentally
mentioned in a case on whether it will amount to
rape or amount only to acts of lasciviousness. ___ it
is an instrument, so it is regarded only as an act of
lasciviousness not as a rape by sexual assault.
As at to this acts of lasciviousness, in contrast with
the crime of attempted rape, the jurisprudential
attitude considers the offender liable for acts of
lasciviousness only if the intent to lie with the
offended woman is absent. Where the offender did
not removed the underwear of the victim and did
not also unzipped his pants but simply he is just on
top of the woman performing the sexual
movements. And after he was done, he stood up
and left. The fact that he did not take steps to
effect carnal knowledge with the woman, the SC
said that it cannot be attempted rape, because
the intent to lie is absent. It will only be an act of
lasciviousness. The idea is simply to satisfy his lust,
not really to effect carnal knowledge with the
woman.
This crime acquire significance if the victim is still
below 18 covered by RA 7610. We notice that if the
act is still governed by RA 7610, the penalty is higher
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

than the same act being penalized under the RPC
where the victim is not a child. It will be a case of
violation of RA 7610 in relation to crime of acts of
lasciviousness under the RPC. The same crime but
the penalty only is higher if this was committed
under RA 7610. Otherwise, in all other cases of acts
of lasciviousness committed on a girl who is not
really a below 12, the penalty is the same. It is only
when the victim id below 12 that the act carries a
higher penalty.
Article 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 punished by 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.
The distinction between qualified seduction and simple
seduction lies in the fact, among others, that the woman is a
virgin in qualified seduction, while in simple seduction, it is
not necessary that the woman be a virgin. It is enough that
she is of good repute.
For purposes of qualified seduction, virginity does not mean
physical virginity. It means that the offended party has not
had any experience before.
Although in qualified seduction, the age of the offended
woman is considered, if the offended party is a descendant or
a sister of the offender — no matter how old she is or
whether she is a prostitute – the crime of qualified seduction
is committed.
Illustration:
If a person goes to a sauna parlor and finds there a
descendant and despite that, had sexual intercourse with her,
regardless other reputation or age, the crime of qualified
seduction is committed.

In the case of a teacher, it is not necessary that the offended

Acts punished:
woman be his student. It is enough that she is enrolled in the
1. Seduction of a virgin over 12 years and under 18
same school
years of age by certain persons, such as a person in
authority, priest, teacher; and
Deceit is not necessary in qualified seduction. Qualified
seduction is committed even though no deceit intervened or
Elements
even when such carnal knowledge was voluntary on the part
a. Offended party is a virgin, which is
of the virgin. This is because in such a case, the law takes for
presumed if she is unmarried and of good
granted the existence of the deceit as an integral element of
reputation;
the crime and punishes it with greater severity than it does
b. She is over 12 and under 18 years of age;
the simple seduction, taking into account the abuse of
c. Offender has sexual intercourse with her;
confidence on the part of the agent. Abuse of confidence
d. There is abuse of confidence or relationship
here implies fraud.
on the part of the offender.

2. Seduction of a sister by her brother, or descendant In the crime of seduction, the abuse of authority
by her ascendant, regardless of her age or which is used to be a basis for qualified seduction;
reputation. grave abuse of authority while the offender is a
priest or is a person occupying a position of
Person liable: ascendancy over the woman who is the offended
1. Those who abused confidence reposed in them— party. In the crime of rape, an amendment was
a. Priest; introduced under the new rape law including in the
b. House servant: first manner of incurring the crime of rape, that act
c. Domestic; which is used to be a basis for qualified seduction
and that is while the offender begin carnal
2. Those who abused their relationship — knowledge of a woman out of taking advantage of
a. Brother who seduced his sister; his authority over the offended woman. Before,
b. Ascendant who seduced his descendant. when a teacher takes advantage of a his student,
is such student is a virgin and below 18, the crime is
This crime also involves sexual intercourse. The offended qualified seduction. Now, it is a case of rape of the
woman must be over 12 but below 18 years. first form. We must have noticed that the addition in
the manner of incurring the first form of rape
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 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
bringing under this crime the manner of committing
qualified seduction before.
Including in the manner of committing the first kind
of rape is that of resorting to fraudulent
machination. Before, this was part of qualified
seduction. And if it was simply deceit, it is a basis for
simple seduction. The essence of fraudulent
machination is deceit, except that if it machination,
it is a contrived ___ manner of defrauding or
deceiving the offended woman.
Even if the offended woman was not a virgin or
below 18, the taking advantage or abuse of
authority by the offender who gained carnal
knowledge of the woman thru that means, will be
a crime of rape. The addition of these 2 grounds in
the first manner of committing rape must be taken
out from the article on qualified seduction. Now,
qualified seduction may be incurred, not anymore,
on the basis of grave abuse of authority but merely
on abuse of confidence while the offender is a
domestic or residing on the same dwelling with the
offended woman and the offender gained the
confidence of the offended woman to trust him as
one of the members of the family, the crime will be
qualified seduction and not rape because as far
rape is committed, it is a grave abuse of authority
not of confidence. What remains to be a basis of
qualified seduction is abuse of confidence.
Article 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.
Elements:
1. Offender party is over 12 and under 18 years of age;
2. She is of good reputation, single or widow;
3. Offender has sexual intercourse with her; It is
committed by means of deceit
This crime is committed if the offended woman is single or a
widow of good reputation, over 12 and under 18 years of age,
the offender has carnal knowledge of her, and the offender
resorted to deceit to be able to consummate the sexual
intercourse with her.
The offended woman must be under 18 but not less than 12
years old: otherwise, the crime is statutory rape.
Unlike in qualified seduction, virginity is not essential in this
crime. What is required is that the woman be unmarried and
of good reputation. Simple seduction is not synonymous with
loss of virginity. If the woman is married, the crime will be
adultery.
Page | 167
The failure to comply with the promise of marriage
constitutes the deceit mentioned in the law.
It should be noted that this crime is under the
jurisdiction of the courts on the first level. The
penalty for this is simply arresto mayor. So in the
scale of penalties, the fact that the crime is within
the jurisdiction of the inferior courts, the crimes
which are punishable by destierro is also within the
jurisdiction of inferior courts.
The deceit is one which has something to do with
the sexual intercourse that the offender gained
from the offended woman. It must be a deceit that
prevailed upon the offended woman to yield to the
carnal knowledge gained by the offender, not any
other deceit. If the offended woman was carried
by her passion, the deceit was made through false
promises after the intercourse was gained, that
cannot be a basis for seduction because the
deceit was not the means by which the offender
gained carnal knowledge by the offended woman.
Even if the offended woman was a widow, the
crime may still arise, what is required is that the
offended woman is of chaste reputation. It is not
necessary that she is a virgin.
Article 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.c
Elements:
1. Offender commits acts of lasciviousness or lewdness;
2. The acts are committed upon a woman who is a
virgin or single or widow of good reputation, under
18 years of age but over 12 years, or a sister or
descendant, regardless other reputation or age;
3. Offender accomplishes the acts by abuse of
authority, confidence, relationship, or deceit
Article 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.
This punishes any person who shall promote or facilitate the
prostitution or corruption of persons under age to satisfy the
lust of another.
It is not required that the offender be the guardian, or
custodian of the minor.
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It is not necessary that the minor be prostituted or corrupted
as the law merely punishes the act of promoting or
facilitating the prostitution or corruption of said minor and
that he acted in order to satisfy the lust of another.
The crime is committed when a minor is corrupted
to satisfy the lust of another not corrupted to satisfy
the lust of the offender. So if the minor was
corrupted to satisfy the lust of the one corrupting
her, the crime will be under RA 7610 not under this
Art 340 of RPC. This was brought to life in a case
where the one who was corrupting the minor is the
one who wanted to satisfy his own lust and the SC
pointed out that the article applies only where the
offender corrupt the minor to satisfy the lust of
another. If it is to satisfy his own lust then it is an
attempt to commit child prostitution under RA 7610
not a crime of corruption of minors.
Article 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
Acts punished
1. Engaging in the business of prostitution;
2. Profiting by prostitution;
3. Enlisting the service of women for the purpose of
prostitution.
Article 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.
Elements:
1. The person abducted is any woman, regardless or
her age, civil status, or reputation;
2. The abduction is against her will;
3. The abduction is with lewd designs
A woman is carried against her will or brought from one place
to another against her will with lewd design.
If the element of lewd design is present, the carrying of the
woman would qualify as abduction; otherwise, it would
amount to kidnapping. If the woman was only brought to a
certain place in order to break her will and make her agree to
marry the offender, the crime is only grave coercion because
the criminal intent of the offender is to force his will upon the
woman and not really to restrain the woman of her liberty.
Page | 168
If the offended woman is under 12 years old, even if she
consented to the abduction, the crime is forcible abduction
and not consented abduction.
Where the offended woman is below the age of consent,
even though she had gone with the offender through some
deceitful promises revealed upon her to go with him and they
live together as husband and wife without the benefit of
marriage, the ruling is that forcible abduction is committed by
the mere carrying of the woman as long as that intent is
already shown. In other words, where the man cannot
possibly give the woman the benefit of an honorable life, all
that man promised are just machinations of a lewd design
and, therefore, the carrying of the woman is characterized
with lewd design and would bring about the crime of
abduction and not kidnapping. This is also true if the woman
is deprived of reason and if the woman is mentally retardate.
Forcible abduction is committed and not consented
abduction.
Lewd designs may be demonstrated by the lascivious acts
performed by the offender on her. Since this crime does not
involve sexual intercourse, if the victim is subjected to this,
then a crime of rape is further committed and complex crime
of forcible abduction with rape is committed.
The taking away of the woman may be accomplished by
means of deceit at the beginning and then by means of
violence and intimidation later.
The ___ of the complaining witness is not a determining
factor in forcible abduction
In order to demonstrate the presence of the lewd design,
illicit criminal relations with the person abducted need not be
shown. The intent to seduce a girl is sufficient
If there is a separation in fact, the taking by the husband of
his wife against her will constitutes grave coercion
Distinction between forcible abduction and illegal detention
• When a woman is kidnapped with lewd or unchaste
designs, the crime committed is forcible abduction.
• When the kidnapping is without lewd designs, the
crime committed is illegal detention.
• But where the offended party was forcibly taken to
the house of the defendant to coerce her to marry
him, it was held that only grave coercion was
committed and not illegal detention.
Article 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.
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Elements:
1. Offended party is a virgin;
2. She is over 12 and under 18 years of age;
3. Offender takes her away with her consent, after
solicitation or cajolery;
4. The taking away is with lewd designs.
Where several persons participated in the forcible abduction
and these persons also raped the offended woman, the
original ruling in the case of People, v. Jose is that there
would be one count of forcible abduction with rape and then
each of them will answer for his own rape and the rape of the
others minus the first rape which was complexed with the
forcible abduction. This ruling is no longer the prevailing rule.
The view adopted in cases of similar nature is to the effect
that where more than one person has effected the forcible
abduction with rape, all the rapes are just the consummation
of the lewd design which characterizes the forcible abduction
and therefore, there should only be one forcible abduction
with rape.
In the crimes involving rape, abduction, seduction, and acts of
lasciviousness, the marriage by the offender with the
offended woman generally extinguishes criminal liability, not
only of the principal but also of the accomplice and accessory.
However, the mere fact of marriage is not enough because it
is already decided that if the offender marries the offended
woman without any intention to perform the duties of a
husband as shown by the fact that after the marriage, he
already left her, the marriage would appear as having been
contracted only to avoid the punishment. Even with that
marriage, the offended woman could still prosecute the
offender and that marriage will not have the effect of
extinguishing the criminal liability.
Pardon by the offended woman of the offender is not a
manner of extinguishing criminal liability but only a bar to the
prosecution of the offender. Therefore, that pardon must
come before the prosecution is commenced. While the
prosecution is already commenced or initiated, pardon by the
offended woman will no longer be effective because pardon
may preclude prosecution but not prevent the same.
All these private crimes - except rape — cannot be
prosecuted de officio. If any slander or written defamation is
made out of any of these crimes, the complaint of the
offended parry is till necessary before such case for libel or
oral defamation may proceed. It will not prosper because the
court cannot acquire jurisdiction over these crimes unless
there is a complaint from the offended party. The paramount
decision of whether he or she wanted the crime committed
on him or her to be made public is his or hers alone, because
the indignity or dishonor brought about by these crimes
affects more the offended party than social order. The
Page | 169
offended party may prefer to suffer the outrage in silence
rather than to vindicate his honor in public
In the crimes of rape, abduction and seduction, if the
offended woman had given birth to the child, among the
liabilities of the offender is to support the child. This
obligation to support the child may be true even if there are
several offenders. As to whether all of them will acknowledge
the child, that is a different question because the obligation
to support here is not founded on civil law but is the result of
a criminal act or a form of punishment
It has been held that where the woman was the victim of the
said crime could not possibly conceive anymore, the trial
court should not provide in its sentence that the accused, in
case a child is born, should support the child. This should only
be proper when there is a probability that the offended
woman could give birth to an offspring.
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.
Under this article the marriage will not only benefit
the offender who married the offended woman,
the co-principals except those co-principals by
direct participation, accomplices and accessories
will also benefit out the marriage.
This is not true in the crime of rape, the new rape
law provides only for the extinction of the criminal
liability of the one who married the offended
woman. So any co-principal, accomplice or
accessories cannot invoked the consequence of
that marriage that would extinguished the criminal
liability or remit the penalty already imposed if the
offender has already been sentenced when the
decision to marry was made.
As to the other private crimes, pardon or
forgiveness is not a mode of extinguishing criminal
liability rather it only bars criminal prosecution
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
because the offended party is deemed to have
decided not to submit the act done to her before
public scrutiny and the law will respect that. Keep it
in private. Once, however, the offended woman
had filed the complaint require to her with the
prosecutors office, the crime ceases to be private,
the crime is made public, so the public prosecutor
can take over and prosecute the crime thru the
filing of an information in the court which will
exercise jurisdiction over the crime. But even then,
procedurally, in prosecuting the so-called private
crimes, the complaint from the offended woman
must be annexed to the information because that
complaint which initiates the prosecution must also
be brought under the prosecution of the court
which will try the case. Otherwise, during the trial,
that complaint may not be allowed to be marked
as evidence, if after all, it was not elevated to the
court where the private crime is being prosecuted.
Art. 345. Civil liability of persons guilty of crimes against chastity. — Person
guilty of rape, seduction or abduction, shall also be sentenced:
7. To indemnify the offended woman.
8. To acknowledge the offspring, unless the law should prevent him
from so doing.
9. 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.
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 XII CRIMES AGAINST THE CIVIL STATUS OF PERSONS
Article 347. Simulation of Births. Substitution of One Child for Another, and
Concealment of 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 not exceeding 1,000 pesos.
The same penalties shall be imposed upon any person who shall conceal or
abandon any 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
his profession 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.
Page | 170
Acts punished
1. Simulation of births;
2. Substitution of one child for another
3. Concealing or abandoning any legitimate child with
intent to cause such child to lose his civil status
Illustration:
People who have no child and who buy and adopt the child
without going through legal adoption.
If the child is being kidnapped and they knew that the
kidnappers are not the real parents of their child, then
simulation of birth is committed. If the parents are parties to
the simulation by making it appear in the birth certificate that
the parents who bought the child are the real parents, the
crime is not falsification on the part of the parents and the
real parents but simulation of birth.
Questions & Answers
A woman who has given birth to a child abandons the child in
a certain place to free herself of the obligation and duly of
rearing and caring for the child. What crime is committed by
the woman?
The crime committed is abandoning a minor under
Article 276.
Suppose that the purpose of the woman is abandoning the
child is to preserve the inheritance of her child by a former
marriage, what then is the crime committed?
The crime would fall under the second paragraph of
Article 347. The purpose of the woman is to cause
the child to lose its civil status so that it may not be
able to share in the inheritance.
Suppose a child, one day after his birth, was taken to and left
in the midst of a lonely forest, and he was found by a hunter
who took him home. What crime was committed by the
person who left it in the forest?
It is attempted infanticide, as the act of the offender
is an attempt against the life of the child. See US v.
Capillo. cc aL. 30 Phil. 349.
The crime of simulation of birth refers to the act by
which the birth certificate of a child is made to
reflect the name of a man and a woman as the
father and mother respectively of the child born
under that certificate of live birth. But the truth is
that such man and woman is not the biological
parent of the child born. So it is a case of
falsification of the ancestry of a child covered by
the certificate of live birth. The certificate is made
to show that the child covered by such certificate
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
of live birth is born out of Mr. and Ms so and so but
in fact the child is not, the child is born of some
other parents.
If this will be committed in some other documents
like school records or the baptismal certificate that
will be accomplished when the child will be
baptized, the crime is no longer simulation of birth,
the crime is falsification already. This crime of
simulation of birth is true only to the birth certificates
and specifically to the name of the man and
woman who is the biological parents of the child
born. Any other falsification in the certificate of birth
is not a simulation of birth. If it is simply the ancestry
to with the child was born.
In this case of Jalosjos, they try to discredit the birth
certificate of the offended girl who is below 12
years old. They capitalized on the simulation to
nullify also the date of birth of the child because
that is the thing that would be incriminatory that will
show that the child is 12 years of age. If the child is
below 12 years old, conclusively, the law considers
it as a crime of rape. That is why, no defense. They
wanted to nullify the entire birth certificate claiming
that there is a simulation of birth, but what is
relevant to statutory rape is only the age. Whoever
is the father or mother of the child, it does not
affect the nature of the crime as statutory rape. If
the simulation is true to the father or mother of the
child because of the name appears there does not
refer to the biological parents, that is nothing to do
with the treatment of the child was born. So trial
court found this defense irrelevant. Hence
conviction.
Under RA 7610, what is simulation of birth is
considered as a crime of child trafficking because if
a child is made to appear as born from a man and
a woman who are not the biological parent of the
child, then in effect, by that certificate of birth,
where there is a simulation committed, the child is
being conveyed to the man and woman
appearing there as the biological parent of the
child born. That is why it is regarded under RA 7610
as attempt to commit child trafficking. Because the
child is in effect being conveyed to the couple who
is made to appear to be the parent of the child but
in fact they are not.
Article 349. 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.
Page | 171
This crime is committed when, a person represents himself to
be another and assumes the filiation or the parental or
conjugal rights of such another person.
Thus, where a person impersonates another and assumes the
latter's right as the son of wealthy parents, the former
commits a violation of this article.
The term "civil status" includes one's public station, or the
rights, duties, capacities and incapacities which determine a
person to a given class. It seems that the term "civil status"
includes one's profession.
Article 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.
Elements:
1. Offender has been legally married;
2. The marriage has not been legally dissolved or, in
case his or her spouse is absent, the absent spouse
could not yet be presumed dead according to the
Civil Code;
3. He contracts a, second or subsequent marriage;
4. The second or subsequent marriage has all the
essential requisites for validity.
The crime of bigamy does not fall within the category of
private crimes that can be prosecuted only at the instance of
the offended party. The offense is committed not only against
the first and second wife but also against the state.
Good faith is a defense in bigamy.
Failure to exercise due diligence to ascertain the
whereabouts of the first wife is bigamy through reckless
imprudence.
The second marriage must have all the essential requisites for
validity were it not for the existence of the first marriage.
A judicial declaration of the nullity of a marriage, that is, that
the marriage was void ab initio, is now required. Art 40 of the
Family Code. The validity must be determined as of the time
the decree has become final and executor. The presumption
is in favor of the marriage celebrated previously
One convicted of bigamy may also prosecuted for
concubinage as both are distinct offenses. The first is an
offense against civil status, which may be prosecuted at the
instance of the state; the second is an offense against
chastity, and may be prosecuted only at the instance of the
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
offended party. The test is not whether the defendant has
already been tried for the same act, but whether he has been
put in jeopardy for the same offense.
One who, although not yet married before, knowingly
consents to be married to one who is already married is guilty
of bigamy knowing that the latter's marriage is still valid and
subsisting.
Distinction between bigamy and illegal marriage:
• Bigamy is a form of illegal marriage. The offender
must have a valid and subsisting marriage. Despite
the face that the marriage is still subsisting, he
contracts a subsequent marriage,
• Illegal marriage includes also such other marriages
which are performed without complying with the
requirements of law, or such premature marriages,
or such marriage which was solemnized by one who
is not authorized to solemnize the same.
• For bigamy to be committed, the second, marriage
must have all the attributes of a valid marriage.
The second marriage must have all the essential
requisites for validity were it not for the existence of
the first marriage. If this would not be the
consequence because the subsequent marriage is
null and void, the crime is illegal marriage. If the
subsequent marriage is effected with one who is
without capacity to marry like below 18, by that
marriage, the crime is not bigamy, the crime is
illegal marriage because that marriage, even
without the first marriage would not have been
valid because of the fact that the parties are not
qualified.
Article 350. Illegal Marriage
Art. 350. Marriage contracted against provisions of laws. — The penalty of
prision correccional 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.
Elements:
1. Offender contracted marriage;
2. He knew at the time that —
a. The requirements of the law were not
complied with; or
b. The marriage was in disregard of a legal
impediment
Page | 172
Marriages contracted against the provisions of laws
1. The marriage does not constitute bigamy.
2. The marriage is contracted knowing that the
requirements of the law have not been complied
with or in disregard of legal impediments.
3. One where the consent of the other was obtained by
means of violence, intimidation or fraud.
4. If the second marriage is void because the accused
knowingly contracted it without complying with legal
requirements as the marriage license, although he
was previously married.
5. Marriage solemnized by a minister or priest who
does not have the required authority to solemnize
marriages.
Article 351. Premature Marriage — 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.
Persons liable
1. A widow who is married within 301 days from the
date of the death of her husband, or before having
delivered if she is pregnant at the time of his death;
2. A woman who her marriage having been annulled or
dissolved, married before her delivery or before the
expiration of the period of 301 days after the date of
the legal separation.
The Supreme Court has already taken into account the reason
why such marriage within 301 days after the dissolution of
the early marriage, is made criminal, that is, because of the
probability that there might be a confusion regarding the
paternity of the child who would be born. If this reason does
not exist because the former husband is impotent, or was
shown to be sterile such that the woman has had no child
with him, that belief of the woman that after all there could
be no confusion even if she would marry within 301 days may
be taken as evidence of good faith and that would negate
criminal intent.
Because of the so called “DNA test” it was decided
that the crime of premature marriage to be
decriminalized. The senate has a passed a bill that
would decriminalize premature marriage.
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.
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TITLE XIII. CRIMES AGAINST HONOR
The honor referred to here, is the reputation that the
offended party enjoys among his fellowmen. That is
why to incur the felony under this title, publicity of
the felonious imputation is an essential requisites
because it is only then that a reputation of a person
would be besmirched. But do not give the word
“honor” here, an interpretation other than that of
the reputation of one who is offended under this
title.
Article 353. Definition of Libel - A libel is a public and malicious imputation of
a crime or of a vice or defect, real or imaginary, or nay act, omission,
condition, status, or circumstances tending to cause the dishonor, discredit,
or contempt of a natural or juridical person, or to blacken the memory of one
who is dead.
Elements:
1. There must be an imputation of a crime, or of a vice
or defect, real or imaginary, or any act, omission,
condition, status, or circumstance;
2. The imputation must be made publicly;
3. It must be malicious;
4. The imputation must be directed at a natural or
juridical person, or one who is dead;
5. The imputation must tend to cause the dishonor,
discredit or contempt of the person defamed.
Distinction between malice in fact (malice which is required
to be proven) and malice in law (presumed malice):
• Malice in law is the malice which the law presumes
from every statement whose tenor is defamatory. It
does not need proof. The mere fact that the
utterance or statement is defamatory negates a legal
presumption of malice.
• In the crime of libel, which includes oral defamation,
there is no need for the prosecution to present
evidence of malice. It is enough that the alleged
defamatory or libelous statement be presented to
the court verbatim. It is the court which will prove
whether it is defamatory or not. If the tenor of the
utterance or statement is defamatory, the legal
presumption of malice arises even without proof.
• Malice in fact becomes necessary only if the malice
in law has been rebutted. Otherwise, there is no
need to adduce evidence of malice in fact. So, while
malice in law does not require evidence, malice in
fact requires evidence
• Malice in law can be negated by evidence that, in
fact, the alleged, libelous or defamatory utterance
was made with good motives and justifiable ends or
by the fact that the utterance was privileged in
character.
Page | 173
If what was uttered is privilege in nature, the
presumption of malice does not exist. So if at all the
offended party may furnish an action against the
person who made the imputation, the party who
claimed to be offended must adduce evidence to
prove that the imputation was made with malice.
This is malice in fact
In law, however, the privileged character of a defamatory
statement or speech may be absolute or qualified.
When the privileged character of a speech is said to be
absolute, the statement will not be actionable in law whether
criminal or civil because that means the law does not allow
prosecution on an action based thereon.
Malice in fact is applicable, if the privilege
character of what was uttered or imputed is
qualified. If it is qualified, then the law allows the
supposed offended party to establish that in fact
the offender made the imputation or the utterance
with malice.
Illustration:
As regards the statements made by Congressmen while they
are deliberating or discussing in Congress, when the
privileged character is qualified, proof of malice in fact will be
admitted to take the place of malice in law. When the
defamatory statement or utterance is qualifiedly privileged,
the malice in law is negated. The utterance or statement
would not be actionable because malice in law does not exist.
Therefore, for the complainant to prosecute the accused for
libel, oral defamation or slander, he has to prove that the
accused was actuated with malice (malice in fact) in making
the statement.
When a libel is addressed to several persons, unless they are
identified in the same libel, even if there are several persons
offended by the libelous utterance or statement, there will
only be one count of libel.
If the offended parties in the libel were distinctly identified,
even though the libel was committed at one and the same
time, there will be as many libels as there are persons
dishonored.
Illustration:
If a person uttered that "All the Marcoses are thieves," there
will only be one libel because these particular Marcoses
regarded as thieves are not specifically identified.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
If the offender said. "All the Marcoses - the father, mother
and daughter are thieves." There will be three counts of libel
because each person libeled is distinctly dishonored.
If you do not know the particular persons libeled, you cannot
consider one libel as giving rise to several counts of libel. In
order, that one defamatory utterance or imputation may be
considered as having dishonored more than one person,
those persons dishonored must be identified. Otherwise,
there will only be one count of libel.
Note that in libel the person defamed need not be expressly
identified. It is enough that he could possibly be identified
because "innuendos may also be basis for prosecution for
libel. As a matter of fact, even a compliment which is
undeserved, has been held to be libelous.
The crime is libel is the defamation is in writing or printed
media.
The crime is slander or oral defamation if it is not printed.
Even if what was imputed is true, the crime of libel is
committed unless one acted with good motives or justifiable
end. Proof of truth of a defamatory imputation is not even
admissible in evidence, unless what was imputed pertains to
an act which constitutes a crime and when the person to
whom the imputation was made is a public officer and the
imputation pertains to the performance of official duty. Other
than these, the imputation is not admissible.
When proof of truth is admissible
1. When the imputation is in respect of a crime
purportedly committed by the party against
whom the imputation was made. Since
commission of crimes is clothed with public
interest, the public has the right to know
whether the crime imputed was actually
committed or not.
2. Where the party against whom the
imputation was made is a public officer and
the imputation concerns the proper
performance of his public functions. The
matter is clothed with public interest. The
law allows the person made the imputation
to prove that there is substance in what he
have imputed.
In these 2 cases where the law allows the offender
to prove the truth of his imputations, should he be
able to establish the truth of his imputation, he shall
be entitled to an acquittal. But in law, we have
learned that although a matter may not be
admissible in evidence, if not objected to, it will
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enter the records. And if the matter is not one being
excluded on the ground of public policy then it will
stand on record.
So if the case does not involved commission of a
crime or the case does not involved a public officer
where the imputation is in respect of the
performance of his public function, the proof of
truth of what was imputed is not admissible, but it
must be timely objected to. If not objected the
objection is considered waived or otherwise
abandoned, so that evidence will enter into the
records. And evidence on record will have to be
considered by the court in rendering the judgment
unless the evidence is considered incompetent or
the evidence is excluded by law or rules governing
the same.
In such a case, where the truth of what was
imputed was established but not in those 2 cases,
the fact that the accused was able to establish the
truth of what he imputed, by itself will not redound
to his acquittal. The law requires further that the
accused must prove the he had good motives and
justifiable ends in making the imputation
Requisites of defense In defamation
1. If it appears that the matter charged as libelous is
true;
2. It was published with good motives;
3. It was for justifiable ends.
If a crime is a private crime, it cannot be prosecuted de
officio. A complaint from the offended party is necessary.
If the defamatory imputation is oral, it is technically
known as slander.
If the act that would caused a person dishonor or
discredit and does not made thru any imputation
but rather thru an act done upon the offended, it is
referred to as slander by deed.
As to the nature of the imputation, from the
definition of the crime of libel, the imputation may
either be real or imaginary. It may have no basis at
all because this is being made simply to ruin the
reputation or honor of the party against whom the
imputation was made. Even one who is already
dead may be the offended party. The SC made a
pronouncement that the effect of this slanderous
imputation is more when one is already dead
because he cannot speak and defend himself
anymore against the imputation made on him. That
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is why the imputation, which is to blacken the As to the so-called “reporting” of news, the
memory of one who is already dead, is also privilege character of the this reported matter
actionable. depend on whether the reporter added some
comments that may slant the matter being
Art. 354. Requirement for publicity. — Every defamatory imputation is reported. Generally, reporters are making
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:
sensations out of the reporting. In the course of
which, they add some comments there that would
1. A private communication made by any person to another in the distort already what was reported and placed the
performance of any legal, moral or social duty; and person being quoted as the source of the matter
2. A fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative or other official proceedings
being reported as being uttered this. Although the
which are not of confidential nature, or of any statement, report reporter may be claiming that it is done so in the
or speech delivered in said proceedings, or of any other act exercise of freedom of speech and of the press, if
performed by public officers in the exercise of their functions. he made some comments which is not a neutral
reporting of what he is covering, the same is
Article 355. Libel by Means of Writings or Similar Means — A libel committed
by means of writing, printing, lithography, engraving, radio, phonograph,
considered as clothed with malice. And the
painting, theatrical exhibition, cinematographic exhibition, or any similar reporter will answer for that. The SC came out with
means, shall be punished by prision correccional in its minimum and medium a ruling that were the accused is a legitimate
periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the member of a news reporters or columnist whose
civil action which may be brought by the offended party.
calling is to bring to the public what is daily
happening in society, these reporters which are
A libel may be committed by means of-
legitimate, not those some reporters of some
1. Writing;
tabloids, should be given the benefit of the doubt
2. Printing;
that they acted with good motives and justifiable
3. Lithography;
end. And if even though occasionally there may be
4. Engraving;
some falsity in what they are writing (like in the case
5. Radio;
of former pres Aquino, during coup, she is under the
6. Photograph;
bed) the same will not render the reporter or the
7. Painting;
columnist for libel or for any crime against honor
8. Theatrical exhibition:
because he is given the benefit of legitimate
9. Cinematographic exhibition; or
exercise of his freedom of speech and of the press.
10. Any similar means.
So while under title XIII, the accused must be the
Generally, when the imputation is made orally, the
one to prove that in making the imputation, he
crime is slander but the nature of the crime of
acted with good motives and justifiable ends, the
slander is one that is limited only between the one
SC laid down a contrary rule that if the accused is a
making the utterance or imputation and the other
legitimate newspaper reporter or columnist, the
one to whom it was conveyed or received the
burden of evidence is shifted to the complainant
imputation.
and not to the accused. Ordinarily, it is upon the
accused to prove that he made the imputation
An interview with a radio or a TV program,
with good motives and justifiable ends, but in this
considering the wide reach of the imputation, wide
particular situation because the accused was a
coverage of the media, the law considers it as libel
legitimate newspaper columnist or reporter, the
and not as a slander.
presumption that he is exercising his profession in a
legitimate way, was given the benefit of the doubt
Although the imputation was made in a talk show
that he was acting with good motives and
where questions and answers are given in the
justifiable end. The occasional falsity of what he has
course of the spontaneous conversation, if it is
written or conveyed will not affect the good faith
slander, then the penalty will be lesser. But if it is
that characterizes the reporting that he had made.
specifically included in the Art 355, it is regarded as
libel because of the wide circulation of the Article 356. Threatening to Publish and Offer to Prevent Such Publication for
broadcast if made by radio or by TV coverage. So it A Compensation — The penalty of arresto mayor or a fine from 200 to 2,000
is not slander but libel that is committed. This is an pesos, or both, shall be imposed upon any person who threatens another to
exception. 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.
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Acts punished: (2) Grave slander, when it is of a serious and insulting

1. Threatening another to publish a libel concerning nature.
him, or his parents, spouse, child, or other members
of his family; Generally, when the imputation is made orally, the
2. Offering to prevent the publication of such libel for crime is slander but the nature of the crime of
compensation or money consideration. slander is one that is limited only between the one
making the utterance or imputation and the other
Blackmail — In its metaphorical sense, blackmail may be one to whom it was conveyed or received the
defined as any unlawful extortion of money by threats of imputation.
accusation or exposure. Two words are expressive of the
crime - hush money. (US v. Eguia. et al. 38 Phil 857) Article 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
Blackmail is possible in: act not included and punished in this title, which shall cast dishonor, discredit
(1) light threats under Article 283: and or contempt upon another person. If said act is not of a serious nature, the
(2) threatening to publish, or offering to prevent the penalty shall be arresto menor or a fine not exceeding 200 pesos.
publication of a libel for compensation, under Article
356. Elements:
(1) Offender performs any act not included in any other
(this is in relation to news reporters and columnist in art 355) crime against honor
The general attitude that falsity in some aspects of what was (2) Such act is performed in the presence of other
reported should not be taken to affect eh good faith of the person or persons;
reporter unless the reporter is known to be one who is really (3) Such act casts dishonor, discredit or contempt upon
a inclined to destroy private live of the parties they are the offended party.
talking about. This is a way of blackmailing. That is why one of
the ways of incurring the crime known as blackmail. Slander by deed refers to performance of an act, not use of
Threatening to publish a libelous material or offering to words.
prevent such publication for a compensation is the crime of
blackmailing Two kinds of slander by deed
(1) Simple slander by deed; and
Article 357. Prohibited Publication of Acts Referred to in the Course of Official (2) Grave slander by deed, that is, which is of a serious
Proceedings — The penalty of arresto mayor or a fine of from 20 to 2,000 nature.
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 Whether a certain slanderous act constitutes slander by deed
said person, even though said publication be made in connection with or of a serious nature or not, depends on the social standing of
under the pretext that it is necessary in the narration of any judicial or the offended party, the circumstances under which the act
administrative proceedings wherein such facts have been mentioned.
was committed, the occasion, etc.
Elements:
This crime should be considered in contrast with the
(1) Offender is a reporter, editor or manager of a
crime of slight physical injuries under Art 266. It is
newspaper, daily or magazine;
where the offended party did not suffer any wound
(2) He publishes facts connected with the private life of
but only incurred some pain by the act inflicted on
another;
him by the offender. This is what is referred to
(3) Such facts are offensive to the honor, virtue and
commonly as “maltreatment or ill-treatment”. A
reputation of said person.
crime of slight physical injuries where the offended
party did not incur any wound. The act that is
The provisions of Article 357 constitute the so-called "Gag
committed to the offended party is to embarrass
Law."
him or to discredit or dishonor him, then it would be
Article 358. Slander — Oral defamation shall be punished by arresto mayor in a case of slander by deed, not a case of slight
its maximum period to prision correccional in its minimum period if it is of a physical injuries. However, although the act may
serious and insulting nature; otherwise the penalty shall be arresto menor or have been intended to discredit, embarrass or
a fine not exceeding 200 pesos. dishonor the offended party, always bear in mind
that the felony (slander by deed) requires 2
Slander is oral defamation. There are two kinds of oral essential elements:
defamation: • Malice
(1) Simple slander; and
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• publicity crime must be tried and heard in the place where it

was committed so that it will served as an example
if any of these fails, the crime under this title cannot to those who are in that locality. It may not be a
successfully be committed. Although the intention subject of stipulation.
of the offender was to dishonor, discredit or
embarrass the offended party, like slapping him, if In this crime of libel, particularly written or printed
this can be done not in the presence of any 3rd defamatory imputation, the place where the crime
party, the crime is not slander by deed. It will is committed is not jurisdictional. In Art 360, it allows
amount to a crime of slight physical injuries only the bringing of the criminal action in either of 2
because the injury to the reputation of the places:
offended party will be negative if there is no 3rd • In the court of the place where the written
party around or printed defamatory imputation was first
printed or published
as far as malice is concerned, which is an essential • At the place where the offended party
requisite for the felonies under this title resides at the time of the imputation was first
printed and published
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.
We can have a situation where the defamatory
imputation made in writing or in print was made
The author or editor of a book or pamphlet, or the editor or business public in Cebu. It was published in one of tabloids
manager of a daily newspaper, magazine or serial publication, shall be there but at that time the offended party resides in
responsible for the defamations contained therein to the same extent as if he
were the author thereof.
QC. Considering that this is a crime against the
reputation of the offended party, the law allows
The criminal and civil action for damages in cases of written defamations as that the criminal prosecution be made at the place
provided for in this chapter, shall be filed simultaneously or separately with where the offended party resides because he has
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
standing there in the community, that is being
resides at the time of the commission of the offense: Provided, however, destroyed or besmirched by the offender. In this
That where one of the offended parties is a public officer whose office is in regard the SC made a pronouncement that in libel
the City of Manila at the time of the commission of the offense, the action cases, the place where the action to be filed is not
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
jurisdictional. In other words, it cannot be a
case such public officer does not hold office in the City of Manila, the action predicate of a motion to quash on the ground that
shall be filed in the Court of First Instance of the province or city where he the court of the place has no jurisdiction to try the
held office at the time of the commission of the offense or where the case.
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 Moreover, art 360 expressly made reference to the
commission of the offense or where the libelous matter is printed and first court of first instance where the criminal complaint
published: Provided, further, That the civil action shall be filed in the same for written or printed defamation should be filed.
court where the criminal action is filed and vice versa: Provided,
furthermore, That the court where the criminal action or civil action for Although the jurisdiction of the courts of first level
damages is first filed, shall acquire jurisdiction to the exclusion of other lower than RTC had been expanded, they do not
courts: And, provided, finally, That this amendment shall not apply to cases have competence to act of libel cases. The
of written defamations, the civil and/or criminal actions which have been provision of Art 360 specifically vest jurisdiction over
filed in court at the time of the effectivity of this law.
these crimes to RTC
Preliminary investigation of criminal action for written defamations as
provided for in the chapter shall be conducted by the provincial or city fiscal In the last paragraph of art 360, even the
of the province or city, or by the municipal court of the city or capital of the preliminary investigation of the criminal complaint
province where such action may be instituted in accordance with the
provisions of this article. for written or printed defamation cannot just be
conducted by any municipal prosecutor. In the
No criminal action for defamation which consists in the imputation of a crime province, the imputation may be made in a
which cannot be prosecuted de oficio shall be brought except at the instance
municipality. If that municipality has its own
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). prosecutors office, generally, the crimes committed
there is filed in the prosecutors office. But in this
In criminal cases, the place where the crime is particular case, art 360 of the ROC prescribes the
committed is jurisdictional upon the court which will particular the public officer who would be
try the case. This is a matter of public policy that the competent to conduct the preliminary investigation
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 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES
of written or printed defamation. The provincial or
city prosecutor at the capital of the province where
it was committed. So a municipal prosecutor, even
though there is one and the imputation was made
in a municipality, if the criminal complaint was filed
with that prosecutor’s office, that prosecutor’s
office is legally incompetent to act on the
preliminary investigation of the criminal complaint
because of the express provision of Art 360 of the
code.
The reservation to file a separate action is subject to
a limitation that it cannot be done in a court other
than that where the criminal action has filed. Not
necessarily in the same court
If what was imputed was a crime which cannot be
prosecuted de officio (it requires a formal
complaint, subscribed and sworn to by the
offended party) prosecuting this without that
complaint is not allowed. The filing of an information
in court without any complaint substantiating the
same it opened to a motion to quash. So in this
cases where what was imputed is a private crime,
the filing of an information without this complaint
from the offended party will not have any standing
in court to start prosecution. It is opened to a
motion to quash or a dismissal in the prosecutors
office. It is not enough that there is a complaint by
the offended party but the complaint must be filed
with the court also. It must be made part of the
information. During the trial the complaint should
be marked as exhibit, if the same is not attached
with the information and filed in court, during the
trial the prosecutor cannot marked it as exhibit.
In a case where the offended party is married
woman, the imputation made was that she always
leaves her house in the afternoon and return only
on the next day because in the evening she sleeps
with different men. The question is whether this is a
private crime that would require a complaint from
the offended party, the prosecution maintained
that it does not involved a private crime because
what was imputed was prostitution. Prostitution is
not a private crime. But the accused maintained
that what was imputed is adultery because the
complainant is married woman. This simple issue
reached the SC on a question of law. The SC ruled
that it cannot be an imputation of prostitution
because prostitution requires habitually engaging in
a sexual conduct for money or profit. But there is no
mentioned of such in the imputation. The
imputation is more of adultery and therefore
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without the complaint by the offended party, the
filing of the information cannot stand by itself.
Another example: the imputation reads as follows
“mang-aagaw ng asawa ng may asawa…. Patay
gutom” the question again was raised whether the
imputation is in respect in the crime of seduction or
it is simply an imputation of a vice or defect. If it is
one of seduction, then it will be one of the private
crimes under the RPC that would require a
complaint from the offended party. The contention
of the prosecutor is that since there is no mention of
actual sexual intercourse which is the essence of
seduction, what was imputed is only a defect or
vice on the part of the offended woman. The SC
said that it is not a crime of seduction that is being
imputed because there is no mention about sexual
intercourse. It is nothing but an imputation that the
offended party was a seductress. So it is more an
imputation of a vice of a defect to which the
offended party is inclined.
Since this crime is commonly incurred in the
exercise of the freedom of speech and of the press,
the policy of the SC that if the violation is
punishable by a fine or imprisonment, preference
should be given only to the imposition of a fine
unless the circumstance surrounding the
commission on this crime shows that the imputation
was made with gross malice on the part of the
accused. The benefit of the exercise of freedom of
speech and of the press is given. But the exercise
must be legitimate. If there is evidence that the
exercise is not legitimate but simply to molest and
harass people imputing on them matter which are
not anymore considered as civilized imputation,
then imprisonment should be imposed as a penalty.
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.
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Article 363. Incriminating Innocent Persons — Any person who, by any act orally, let’s say the suspect was caught right
not constituting perjury, shall directly incriminate or impute to an innocent
person the commission of a crime, shall be punished by arresto menor.
handed, arrested in flagrante and was brought in a
police prescient and he was made to speak who
Elements was his co-host, because he has a grudge of a
(1) Offender performs an act; certain person, he name such person as one of the
(2) By such an act, he incriminates or imputes to an part of the syndicate, even though that person has
innocent person the commission of a crime, nothing to do with what activity this person arrested
(3) Such act does not constitute perjury. may have. He just wanted to incriminate him. What
is the crime committed?
There are only 2 situations referred to here: It is not the crime of incriminating innocent
• Planting of evidence of an innocent person persons, because the SC construed this to
to incriminate him refer to the physical act of planting
• Intriguing against honor evidence. The SC justifies such interpretation
because in the Art 363, the reference is to
As far as planting evidence on a person innocent of an “act” not constituting perjury. So any
a crime but the planting of evidence was made to other way of incrimination not by planting
incriminate him, take note that if what was planted evidence is not covered by this article.
as incriminatory evidence was dangerous drugs,
under the comprehensive dangerous drugs act of In such a case, if the incriminatory manner
2002, whether the one who planted the was made orally, then it is a kind of slander.
incriminatory evidence was a law enforcer, public If the same is made in writing and in a
officer or civilian, the matter will be governed by narration of fact, anything that is false will
the dangerous drugs law. Before the application of bring about falsification. And if it was under
the dangerous drugs act to one to have planted oath, then perjury. But not the crime of
the incriminatory evidence consisting of dangerous incriminating innocent persons
drugs is true only when the offender is a law
enforcer or a public officer and therefore leaves to Bar problem: in a game of cards, among those who
the provision of the RPC a civilian who will plant are playing, a player who receives a card which is
incriminatory evidence to hold the innocent person unfavorable to him, during the distribution of the
liable. This is particularly true as to dangerous drugs cards, placed the cards in the pocket of a jacket of
because in the matter of dangerous drugs, one of another player. What crime or crimes is committed
the aspect that must given attention to is the by this player who placed extra card unfavorable
distinction between entrapment and instigation, this to him?
may involve planting of evidence upon the person In the crime of swindling, under the 3rd
who is to be incriminated. Under the present subdivision thereof of art 315, among the
dangerous drugs act law of 2002, whether law acts considered as a form of swindling is
enforcer, public officer or civilian who would that of resorting to cheating to ensure
commit an act of planting incriminatory evidence success in a gambling game. If that is the
consisting of drugs incriminating innocent person is criminal intent of the offender, then the
punishable under the same law. The penalty liability of for swindling because he would
prescribed there is only one, death penalty. make it appear that the other fellow on
whose jacket he placed the unfavorable
But the point is that even a civilian now acting on card is cheating. But if that was done to
planting evidence upon the innocent person is no incriminate the person on whose jacket the
longer governed by this article 363 but governed card was planted, then it would be an act
by the dangerous drugs law if the incriminatory of incriminating innocent person. There are 2
evidence consist of dangerous drugs. variant felonies to choose from. Swindling, if
the act was done in ensuring the winning in
The epigram of Article 363 refers to incriminating the gambling game or Incriminating
innocent persons, but the SC referred to this innocent person, if the act was done to
violation as planting of evidence. In other words if incriminate other player and make it
the incrimination was made thru some other way, appear that such person is cheating.
not the act of planting incriminatory evidence, this
article does not governed. So if the same is made
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Article 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.
This crime is committed by any person who shall make any
intrigue which has for its principal purpose to blemish the
honor or reputation of another person.
Intriguing against honor is referred to as gossiping. The
offender, without ascertaining the truth of a defamatory
utterance, repeats the same and pass it on to another, to the
damage of the offended party. Who started the defamatory
news is unknown.
Distinction between intriguing against honor and slander:
• When the source of the defamatory utterance is
unknown and the offender simply repeats or passes
the same, the crime is intriguing against honor.
• If the offender made the utterance, where the
source of the defamatory nature of the utterance is
known, and offender makes a republication thereof,
even though he repeats the libelous statement as
coming from another, as long as the source is
identified, the crime committed by that offender is
slander.
Distinction between intriguing against honor and
incriminating an innocent person:
• In intriguing against honor, the offender resorts to
an intrigue for the purpose of blemishing the honor
or reputation of another person.
• In incriminating an innocent person, the offender
performs an act by which he directly incriminates or
imputes to an innocent person the commission of a
crime.
TITLE XVI. CRIMINAL NEGLIGENCE
Article 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.
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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.
Quasi-offenses punished
(1) Committing through reckless imprudence any act
which, had it been intentional, would constitute a
grave or less grave felony or light felony;
(2) Committing through simple imprudence or
negligence an act which would otherwise constitute
a grave or a less serious felony;
(3) Causing damage to the property of another through
reckless imprudence or simple imprudence or
negligence;
(4) Causing through simple imprudence or negligence
some wrong which, if done maliciously, would have
constituted a light felony.
Distinction between reckless imprudence and negligence
The two are distinguished only as to whether the
danger that would be impending is easily perceivable
or not. If the danger that may result from the
criminal negligence is clearly perceivable, the
imprudence is reckless. If it could hardly be
perceived, the criminal negligence would only be
simple.
There is no more issue on whether culpa is a crime in itself or
only a mode of incurring criminal liability. It is practically
settled that criminal negligence is only a modality in incurring
criminal liability. This is so because under Article 3, a felony
may result from dolo or culpa.
 CRIMINAL LAW II - 2010 Notes + 2011 Bar review Updates By Marx + UST 2007 TAPSI NOTES

Since this is the mode of incurring criminal liability, if there is

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

Do not separate the accusation from the slight physical

injuries from the other material result of the negligence,

If the criminal negligence resulted, for example, in homicide,

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

If you split the criminal negligence, that is where double

jeopardy would arise.

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