Page 1 (document.docxW by JUDGE EDGARDO C. LEONIDO – MTCC MAASIN CITY) 1 st Sem. SY 2010-2011 LECTURE NOTES IN CRIMINAL LAW REVIEW By: Judge EDGARDO C. LEONIDO MTCC-Maasin City There are basically four (4) kinds of questions asked in the BAR: (1) Is there a crime? (2) Is the accused liable? (3) What is the crime committed? (4) Is the charge correct? My advice: Always form your opening statements in a direct and concise manner, then follow up with your arguments. If the question is answerable by “yes” or “no”, immediately say so, as the case may be, then your arguments. CRIMINAL LAW- is that branch of Municipal law which defines crimes, treats of their nature and provides for their punishment. It is termed as municipal law from the view point of international law. Characteristics of Criminal Law: (1) GENERALITY – which means that our criminal law, particularly the RPC, covers all persons, regardless of sex, age, religion or creed. This means all persons who reside or sojourn in the Philippines. Exceptions: (1) Article 14 of the New Civil Code which provides: “Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations”. By principles of international law, the following are exempt from criminal prosecution: sovereigns or heads of states, ambassadors, ambassadors plenipotentiary and monsters-resident, charges d’affairs and attaches. By treaty stipulations : P.I. – U.S.Military Bases Agreement. (2) Article IV, Section 11, 1987 Philippine Constitution granting immunity to members of congress from libel or slander suits in connection with any speech delivered on the floor of the house during a regular or special session. (3) Voluntary act of government: Republic Act 75, which extends immunity to the domestics or domestics servants of duly accredited ambassadors, if registered in the Department of Foreign Affairs. This is applicable only in cases where the country of the diplomatic representative adversely affected has provided for similar protection to duly accredited representatives of the Republic of the Philippines.
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Page 1 (document.docxW by JUDGE EDGARDO C. LEONIDO – MTCC MAASIN CITY) 1st Sem. SY 2010-2011
LECTURE NOTES IN CRIMINAL LAW REVIEW
By: Judge EDGARDO C. LEONIDOMTCC-Maasin City
There are basically four (4) kinds of questions asked in the BAR:
(1) Is there a crime?
(2) Is the accused liable?
(3) What is the crime committed?
(4) Is the charge correct?
My advice: Always form your opening statements in a direct and concise manner, then follow up with your
arguments. If the question is answerable by “yes” or “no”, immediately say so, as the case may be, then your arguments.
CRIMINAL LAW- is that branch of Municipal law which defines crimes, treats of their nature and provides for their
punishment. It is termed as municipal law from the view point of international law.
Characteristics of Criminal Law:
(1) GENERALITY – which means that our criminal law, particularly the RPC, covers all persons, regardless of
sex, age, religion or creed. This means all persons who reside or sojourn in the Philippines.
Exceptions:
(1) Article 14 of the New Civil Code which provides: “Penal laws and those of public security and safety shall be
obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to
treaty stipulations”.
By principles of international law, the following are exempt from criminal prosecution: sovereigns or heads of
states, ambassadors, ambassadors plenipotentiary and monsters-resident, charges d’affairs and attaches.
By treaty stipulations : P.I. – U.S.Military Bases Agreement.
(2) Article IV, Section 11, 1987 Philippine Constitution granting immunity to members of congress from libel or
slander suits in connection with any speech delivered on the floor of the house during a regular or special session.
(3) Voluntary act of government: Republic Act 75, which extends immunity to the domestics or domestics servants
of duly accredited ambassadors, if registered in the Department of Foreign Affairs. This is applicable only in cases where
the country of the diplomatic representative adversely affected has provided for similar protection to duly accredited
representatives of the Republic of the Philippines.
Jurisdiction of Civil Courts Over Offenses Committed by Person Subject to Military Law.
1. The Civil Courts have concurrent jurisdiction with the military court or general court martial as the jurisdiction of
civil tribunals is unaffected by the military character of the person brought before them for trial. (U.S. vs. Sweet, 1 Phil
18).
2. The jurisdiction of a military court over a soldier is not exclusive of the civil courts even in time of war, if the
soldier is stationed in a place where the civil courts are functioning and where no actual hostilities are in progress.
( Valdez vs. Lucero, 76 Phil. 356).
Persons subject to military law:
a) All officers, members of the nurse corps and soldiers belonging to the regular forces of the Philippine army, all
reserves from the date of their call to active duty and while on such active duty; all trainees undergoing military
instructions; and all other persons lawfully called;
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b) Cadets, flying cadets and probationary third lieutenants; all trainers of the camp and all persons accompanying
or serving with the army of the Philippines in the field of war or when martial law is declared through not otherwise wise
subject to these articles;
c) All persons under sentence adjudged by court martial.
(2) TERRITORIALITY – which means that our penal law is applicable to all crimes committed within the limits of
the Philippine territory, which includes the atmosphere, interior waters and maritime zone.
NOTE: a. If crime is committed within the Philippine Territory – INTRATERRITORIAL APPLICATION.
b. If committed outside our territory – EXTRATERRITORIAL APPLICATION. These acts are subject to the
RPC only when they are committed not within the territory of another sovereign. The general rule is that when the act is
committed in the jurisdiction of another country, the laws of that country shall apply in view of the territoriality of its laws.
Exception: The Revised Penal Code may be applied outside Philippine territory against those:
(a) Should commit an offense while on a Philippine ship or airship.
1.1 Provided the Philippine ship or airship must be duly registered under the Philippine laws.
1.2 The reason for the exception is that when such vessel is beyond the maritime zone it is considered an
extension of Philippine national territory.
1.3 But if the said vessel or aircraft is within the territory of a foreign country when the crime is committed,
the laws of that country will apply as a rule.
1.4 But if the accused in a registered Philippine vessel committed homicide on board said vessel while in the
territorial waters of a foreign country, like Vietnam, was not prosecuted before a Vietnam court, he could
be tried in our court. (People vs. Togoto, CA, 68 Off. Gaz. 8317).
(b) Should forge or counterfeit any coin or currency note or any obligation or security of the Philippine
government;
(c) Should be liable for acts connected with the introduction into the country of the obligations and securities
afore-stated.
Reason (b&c): To preserve and maintain the financial credit and stability of the state. A sweepstake ticket is
an obligation of the Philippine government.
(d) While being public officers or employees, should commit an offense in the exercise of their functions, like the
disbursing official of a Philippine embassy and it must refer to the discharge of his function.
1.1 The General Rule: RPC applies only to public officers and employees if the offense committed pertains
to the exercise of official duties. Example: Malversation, Illegal Exaction, and Bribery.
There are even offenses which are not connected with their function and yet, the general will apply: Ex. Acts
of Lasciviousness (where he attempts his secretary while in office).
If crime is committed outside, determine first if it was connected with the discharge of his public duties. If
connected, RPC will apply. If not, foreign law will apply.
Exception: If it is committed within the Philippine embassy, regardless of the nature, the RPC will govern,
because the embassy grounds are considered to be an extension of Philippine jurisdiction in a foreign country.
Problem (For Assignment): A deposition was supposed to be taken in Singapore and the consul assigned
there did it. The deponent requested the daughter of said consul to prevail over her father to alter the deposition in
consideration of certain sum of money. The daughter agreed and succeeded in convincing her father.
What crime is committed and who shall be liable?
Answer: The crimes committed are falsification and bribery for accepting the consideration. The daughter
shall be guilty for corruption for corrupting her father under Sec. 3A of the Anti-Graft and Corrupt Practices Act.
(e) Should commit any crime against national security and the law of nations as defined in Title I, Book II of the
Code (Article 2)
Reason: To safeguard the existence of the state. Example: ESPIONAGE.
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Example of crimes against law of nations: PIRACY and MUTINY. Piracy is triable anywhere.
Jurisdiction over crimes committed on board foreign vessels while in Philippine waters.
1. If the foreign vessel is a warship – our courts have no jurisdiction. REASON: The vessel is an extension of the
territory of the country to which it belongs and is not subject to the laws of another state. (U.S. vs Fowler,
1Phil.614).
Rules on Merchant Vessels:
FRENCH RULE: The law to be applied is that of the nationality of the vessel. (Law of the Flag State). The foreign
country where the crime is committed shall consider the vessel as an extension of the territory of the country whose flag it
flies. The foreign country will not apply its criminal law, unless the crimes affects the national security or public order of
such foreign country.
ENGLISH RULE/ANGLO-AMERICA RULE: The emphasis is on the territory where the crime is committed. (The
Coastal State).The foreign country where the crime is committed shall apply its own laws for as long as the vessel was in
the territorial waters when the offense was committed, unless the crime pertains only to the internal management of the
vessel in which case the laws of the flag state shall govern.
The Anglo-American rule is followed in our jurisdiction. (U.S. vs. Bull, 15 Phil. 7).
Comments: In (U.S. vs. Look Chow, 18 Phil. 573), and in the commentaries of Antonio Gregorio, it would seem
that the French Rule was applied in this case, thus: “The legal application of the rule is that the crime committed on board
a foreign vessel in transit in Philippine waters must affect a breach of public order to be triable by our courts. Hence, the
rule does not apply to a case involving mere possession of opium on board a foreign vessel in transit in Philippines waters
as such does not involve a breach of public order unless the opium is landed on Philippines soil”. In the case of (U.S. vs.
Wong Cheng, 46 Phil. 729): “ The rule, however, applies to a case regarding smoking of opium on board said vessel as
such already involves a breach of public order because it causes such drug to produce its pernicious effects within our
country”.
Clearly it is the French Rule that is applied in these two cases.
But look at in the case of (U.S. vs. Ah Singh, 36 Phil. 978), it says: “ But of the foreign vessel is not in transit and
a Philippine port is its destination, any crime committed on board said vessel, like possession of opium is triable by our
courts, except if the crimes involves the internal management of the vessel”. ( underlining supplied).
Theories of Criminal Law and their Characteristics:
A. CLASSICAL THEORY/PHILOSOPHY
(1) The penalty is imposed for retribution; to make the wrongdoer pay for the wrong he has done. Make his suffer
what the victim suffered.
(2) The penalty is applied on a mechanical manner. What you do to other will be done unto you. Ex. “an eye for
an eye”.
(3) Emphasis on the crime, not on the criminal. There is a scant regard for human element. It does not consider
the reasons of the offender for doing it.
(4) the man is considered a moral creature who understands what is right and what is wrong such that of he does
something wrong he must be prepared the suffer the consequences of such act.
B. POSITIVIST PHILOSOPHY
(1) The purpose of the penalty is reformation. To correct.
(2) Before the penalty prescribed is applied, the offender is first examined by a panel of social scientists who
determines why the offender committed the crime. (psychologists, psychiatrists, priests, even lawyers).
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(3) Emphasis is on the criminal, not the crime. There is a high regard to the human element. The offender is
regarded as socially seek who needs treatment in an asylum. (just like hospital, the offenders are kept there because they
are psychologically and emotionally sick) . To correct not to punish.
(4) Man is regarded as inherently good but crimes are social phenomenon which constrained man to do wrong,
although not of his own liking. Crimes are regarded as inevitable and brought about by the environment.
C. THE ECLECTIC PHILOSOPHY
(1) It does away with the extreme features of the first 2 philosophy. Only the constructive characteristics are
combined.
(2) More modern countries are unwittingly moving towards this philosophy. They classify commonly committed
crimes using statistics. Penalty is applied depending on the frequency of the commission of a particular offense; light
penalty is applied if theft of food is committed by poor people.
Philosophy adopted in the Philippines
Although originally our criminal law is classical because our RPC was merely adapted from the Spanish Codigo
Penal, which in turn was copied from the French Penal Code, which was the forerunner of the classical philosophy, our
RPC contains provision based on the positivist philosophy, that is, Article 13, par. 7 on the mitigating circumstances of
voluntary surrender and plea of guilty.
Reclusion Perpetua is predominantly classical.
(3) IRRETROSPECTIVITY OR PROSPECTIVITY – That the law does not have any retroactive effect, except if it
favors the offender unless he is a habitual delinquent (Art. 22) or the law otherwise provides.
1. Three rules are to be observed: First, a penal law does not have retroactive effect; second, if favorable to the
accused, a penal law may be given retroactive effect; and third, even of favorable to the accused, a penal law cannot be
given retroactive effect if the accused is a habitual delinquent or the law so expressly provides. (Art. 22, RPC; Tavera vs.
Valdez, I Phil 468).
The effect of express or implied repeal of penal laws on the principles of irretrospectivity:
1. If the repeal is express:
(a) All pending prosecutions under the repealed shall be dismissed regardless of whether the accused is a
habitual criminal or not under a previous conviction or otherwise.
(b) Those already convicted and serving sentence under the repealed law may apply for their discharge
because the penalty imposed shall be remitted, provided that the convict is not a habitual delinquent or provided there is
nothing in the repealing law which provides against its retroactive application.
2. If the repeal is implied:
(a) Pending prosecution shall continue and if the accused would be convicted, the repealing law will be applied
to him if it more lenient than the repealed law. Otherwise it will still be the repealed law that will be applied.
(b) Those already convicted shall continue serving the sentence but the repealing law may be applied to those
convicts who are not habitual delinquent if the repealing law provides for a lighter penalty than the repealed law. Provided
the repealing law does not provide against the retroactivity thereof.
Distinction between acts punished under the RPC and those punished under the special laws:
REVISED PENAL CODE SPECIAL LAWS
Criminal liability is based on the criminal intent
of the offender unless the crime results from
criminal negligence.
Liability arises only bec. The act done is
prohibited by law; and so criminal negligence is
not covered. There is no culpa.
Good faith or lack of criminal intent is a defense
unless the crime is the result of criminal
Good faith or lack of criminal intent is not a
defense. It is enough that the act was
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negligence. voluntarily done.
Degree of participation in the commission of
the offense is considered in imposing the
penalty. Principal, accomplice, accessory.
No classification of offenders – only those who
perpetrated the act incurs the liability.
Degree of accomplishment is considered.
Attempted, frustrated and consummated
crimes.
Punished only when consummated unless the
law specifically punish for an attempt.
Modifying circumstances are considered –
mitigating and aggravating circumstances.
Modifying circumstances are not considered.
Crimes punished under the RPC are generally referred to as MALA IN SE; but it does not follow that all crimes
punished under special laws are all MALA PROHIBITA.
MALA IN SE – literally means the act is inherently evil or bad, i.e., wrongful per se.
MALA PROHIBITA – the wrong arises only because it is prohibited by law, but the act is not inherently evil.
Question: Is the act of omitting the name of a voter from the voter’s list, which is punished by Election Code, (a special
law) mala prohibita or mala in se?
Answer: Mala in se. The Sc held that the act of omitting a name from the voter’s list cannot be considered a wrong simply
because it is punished by a special law. The act being inherently wrong is therefore a mala in se and not malum
prohibitum. Being a mala in se, there must be evidence of malice or criminal intent on the part of the accused. (Pp. vs
Sunico).
Mere carrying of firearm within a polling place is punishable by the RPC irrespective of whether or not the
offender had the intention to violate the law. (Pp. vs. Bayona, 61 Phil. 181). But it is essential that the act must be
committed consciously, freely and voluntarily. (U.S. vs Chico, 14 Phil. 128). Good faith and absence of criminal intent are
not valid defenses. ( Pp. vs. Neri, 140 SCRA 750).
Anti-graft Law partakes of an act malum prohibitum. ( Pp. vs. Court of Appeals, 135 SCRA 372, 1985).
Article 3, RPC (definition of felony)
Felony – any act or omission punishable by law (referring to the Revised Penal Code). The elements are: (a) act
or omission; (b) punishable by the Revised Penal Code; and (c) committed either by culpa or dolo.
Elements of Dolo (Intentional Felonies)
(1) Freedom of action
When a person acts without freedom, he is not a human being but a tool. Thus, irresistible force and
uncontrollable fear is a defense. (Article 12, pars. 5& 6,RPC).
(2) Intelligence
Intelligence is the moral capacity to determine what is right and wrong and to realize the consequences of his act.
Thus, minority, insanity and imbecility are valid defenses.
(3) Intent (dolo)
Intent is presumed from the commission of the act. Mistake of facts is a valid defense
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Elements of Culpa (Culpable Felonies)
(1) Freedom of Action
(2) Intelligence and
(3) Negligence or Imprudence or Lack of Foresight or Lack of skill
Negligence is deficiency of perception; while imprudence deficiency of action.
The foregoing elements must concur depending on the kind of felony committed. Note that in both cases there is
the element of VOLUNTARINESS, be it culpable or intentional. Otherwise there will be no dolus or culpas and therefore
no felony.
Problem:
A and B while hunting passed by the house of C who pointed them where boars roam around. A shot at the
bushes where C pointed but the bullet pivoted and hit C. Is A liable?
Answer:
No he is not liable because it is purely accidental. A was performing a lawful act. He shall incur no liability whether
civil or criminal. Neither the element of intent or negligence is present in the case.
Problem:
Eduardo contracted a second marriage with Tina believing in good faith that his first marriage was invalid. He did
not know that he had to go to court to seek nullification of his first marriage before marrying Tina. Is Eduardo liable?
Ruling:
Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as intentional felony, it is deemed
voluntary. Although the words with malice do not appear in Article 3 of the Revised Penal Code, such phrase is included
in the word “voluntary”.
Malice is a mental state or condition prompting the doing of an overt act without legal excuse and justification
from which another suffers injury. When the act or omission defined by law as a felony is proved to have been done or
committed by the accused, the law presumes it to be intentional. Indeed, it is a legal presumption of law that every man
intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary and such
presumption must prevail unless a reasonable doubt exist from a consideration of the whole evidence. The petitioner is
presumed to have acted with malice or evil intent when he married the private complainant. As a general rule mistake of
fact and good faith is a valid defense on a prosecution for felony by dolo; such defense negates malice and criminal intent.
However, ignorance of the law is not an excuse because everyone is presumed to know the law. (Eduardo Manuel vs.
Pp. G.R. No. 165842, Nov. 29, 2005).
Distinction between dolo and culpa:
1) In intentional crime (dolo) the act itself is punished; in negligence or imprudence (culpa) what is penalized is
the mental attitude and condition behind the acts, the dangerous recklessness, lack of care and foresight. ( Tabuena vs.
Sandiganbayan, 103501-03, Feb. 17, 1997).
2. In intentional felonies, the act or omission of the offender is malicious. In the language of Art. 3 RPC, the act is
performed with deliberate intent (with malice). The offender, in performing the act or in incurring the omission has the
intention to cause the injury to another. In culpable felonies, the act or omission of the offender is not malicious. The injury
caused by the offender to another is unintentional, it being simply the incident of another act preformed without malice.
( Roliie Calimutan vs. People, et al., G.R. No. 152133.
Distinction between motive and intent:
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1) Motive is the reason which impels one to commit an act for a definite result; while intent is the purpose to use a
particular means to effect such result.
Ex. “A” wanted to kill “B” because the latter killed his brother.
Motive – revenge for the death of his brother.
Intent – to kill
2) Intent is an element of the crime; motive is not.
3) Motive may become necessary to be proved only in case there is doubt whether the accused has committed
the crime or not (U.S. vs. McMan, 4 Phil. 161, People vs. Rogales, L-17531, Nov. 30, 1962); intent is necessary to
prove the crime.
But the absence of apparent motive to commit the crime charged would upon the principles of logic create a
presumption of innocence of the accused, since, in terms of logic, an action without a motive would in effect without cause
(Pp. vs. Aguilar, L-32041, Jan. 20, 1982, 111SCRA 222).
Defense in intentional felony: MISTAKE OF FACTS
Mistake of facts- it is an act or omission which is the result of a misapprehension of facts that is voluntary but not
intentional. The actor performed an act which would have been lawful had it been true as he believed it to be.
Ex. “A’ stabbed “B” whom he believed as in intruder but turned out to be his room mate “C”- mistake of facts due
to good faith and exempted him from criminal liability (see U.S. vs. Ah Chong, 15 Phil. 488).
Note: For mistake of facts to be exempting the act must not be attended with negligence; otherwise criminal responsibility
results. See Pp. vs. Fernando, 49 Phil. 75 and compare the same with Ah Chong.
MISTAKE OF IDENTITY – not a defense
Mistake of identity is not a defense because intent is present.
Ex.: If A shot B believing him to be C, there is mistake of identity and not of fact. The act of shooting B is unlawful.
Mistake of identity is merely the consequence of the intentional act of shooting the intended victim. (See Pp. vs Oanis, 74
Phil. 257). Is the crime reckless imprudence? No. Where an unlawful act is willfully done, a mistake in the identity of the
intended victim cannot be considered reckless imprudence. (Pp. vs. Oanis, supra).
Article 4, RPC (How criminal liability is incurred).
This provision stemmed from the principle that “one is liable for all the direct and natural consequences of his
unlawful act, even if the ultimate result had not been intended. ( Pp. vs. Narciso, CA-G.R. No. 13532-CR, Jan. 13, 1964),
and from the latin maxim: “he who is the cause of the cause is the cause of the evil caused”.
Our penal law looks particularly to the material result following the unlawful act and holds the aggressor
responsible for the consequence thereof. (Pp. vs. Buyco, 45 O.G. 2893). Thus, one may be liable for homicide or murder
even if there is no intention to kill as long as it is the result of a felonious act.
For the article to apply two elements are needed: (a) a felony is committed; (b) the wrong done must be the direct,
natural and logical consequence of the felony committed (resulting felonious act) even though different from that intended.
Thus, if the act is lawful, even though an injury results, there is no criminal liability. (Pp. vs. Bindoy, 56 Phil. 151),
except if the act is committed with negligence.
Ex: A fired his gun in self defense at his aggressors but instead hit a bystander. Is A liable? No! because when A
fired his gun was not committing a felony. Therefore he can’t be liable for the resulting act. (there is no negligence).
But if the gun was not aimed at the aggressor but indiscriminately fired the same hitting innocent persons whom
the one firing knew were around, he is liable for the resulting act because in defending himself he acted with negligence.
(Pp. vs Galacgac, 54 O.G. 1027).
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Examples of the second element – the wrong done is the direct, natural and logical consequence of the
felonious act even though different from that intended:
(1) Where the offenders after robbing the victim, tied her hands and feet and stabbed her and stuffed her mouth
with a piece of pandesal to prevent her from screaming and the victim of asphyxiation as the pandesal slid into her
neckline caused by the movements of the victim. It was held that the death of the victim is the direct consequence of
felonious acts committed by the offenders – praeter intentionem. (Pp. vs Opero, 105 SCRA 40 (1981).
(2) A victim who jumped into the river and was drowned because he was threatened or chased by the accused
with a knife. (U.S. vs Valdez, 42 Phil. 497).
(3) A victim who died because he removed the bandage from a wound inflicted by the accused as it produced
extreme pain. (Pp. vs. Quaizon, 62 Phil. 162).
(4) If death results as long as the wound inflicted is mortal even there was an erroneous, unskillful medical or
surgical treatment. ( Pp. vs. Moldes, 61 Phil. 3) because he who inflicts the injury is not relieved of responsibility if the
wound inflicted is dangerous, that is, calculated to destroy or endanger life, even though the immediate cause of death
was erroneous and unskillful medical or surgical treatment. (Pp. vs Abejuela, 92 SCRA 903 [1979]). Even if the victim
refused or there was no medical treatment. (U.S. vs. Marasigan, 27 Phil. 614).
For research: ; Pp. vs. Reloi, 43 SCRA 526, 532; Pp. vs. Rodriguez, 23 Phil. 22; and Pp. vs. red, C.A., 43
O.G. 5072; .
Second element not applicable – if there is an intervening cause.
Ex: (1) A victim who received slight physical injuries in his arm which became serious because he deliberately
immersed his wounded arm in a poll of stagnant water. (U.S. vs. delos Santos, G.R. No. 13309).
(2) If the blow is not the direct cause of death as in the case of a boy who was struck in the mouth by the
accused and who died 2 days thereafter because of fever prevalent in the community, (Pp. vs. Palalon, 49 Phil. 177).
Reason:
The felony is not the direct and proximate cause of the injury, which is defined as “that cause, which in natural and
continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would
not have occurred. ( Villanueva vs. Medina, 102 Phil. 186). If an active force intervened between the felony and the
injury which is a distinct act foreign to the crime, there is no liability for such injury. (Pp. vs. Cardenas, 56 SCRA 631).
In the foregoing examples, does that mean that the offender has no criminal liability? No. In all cases wherein the
injury is not the direct an logical consequence of the felony committed, the offender is not liable for the said injury, but only
for the felony committed. In the above example the offender is liable only for physical injuries.
Where the accused wounded the victim at the back of the hand and three weeks later the victim died due to
tetanus infection of the wound as he returned to work in his farm with bare hands exposing the wound to tetanus germs, it
was held that the remote cause of death was the wound inflicted and the proximate cause was the infected wound for
which the accused had nothing to do and hence was not criminally liable. (Urbana vs. IAC, L-43964, Jan. 7, 1988).
Instances where the wrongful act different from what is intended:
(1) Aberratio Ictus – mistake in the blow. It arises when where the offender delivers the blow but it landed on a
3rd party. This will result in a complex crime.
Ex: A saw his enemy B and thereupon fired at him. It was C who was hit and fatally wounded. What are the
crimes committed?
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Insofar as B is concerned, attempted murder; insofar as C is concerned Serious Physical Injuries. Both were
results of a single act; both were less grave or less grave. With respect to C only physical injuries because there is no
intent to kill.
(2) Error in Personae – there is mistake in identity. This may mitigate the criminal liability if the crime is different
from what intended.
Note: Art. 49- whichever of the two crimes carry a lesser penalty, the lesser penalty shall be imposed but in its
maximum period. But if the crime intended and committed are he same, then error en personae shall not be mitigating
circumstance and shall not affect the liability of the offender.
(3) Praeter Intentionem- where the consequence went beyond that intended.
Art. 13, par. 3, this is a mitigating circumstance as he did not intend to commit so grave a wrong as that
committed. This applies only where the resulting felony cannot be generally anticipated or from the means employed by
the offender in the commission of the crime. It means committing it can generally be expected to produce the felony which
resulted, the offender cannot validly claim the he did not intend t to commit so grave a wrong as that committed.
Example:
(a) If the offender stabbed the victim in the neck with the handle of a pointed comb, it cannot be said that he did
not intend to commit so grave a wrong as that committed. When uses a pointed instrument on a vital part of a body, he
can and should be expected a fatal consequence.
(b) A son in the heat of anger because his mother was not able to prepare food, got hold of his mother’s neck
which resulted her death. The son is liable because death is expected in strangling – no mitigating circumstance.
Impossible crime (Art. 4, RPC, par. 2)
Elements: (a) acts are performed which would be a crime against person or property; (b) there is criminal intent;
(c) it is not accomplished because inherent impossibility or the means employed is inadequate or ineffectual.
Reason for punishing impossible crime: The commission of an impossible crime is indicative of criminal
propensity or criminal tendency on the part of the actor. Such person is a potential criminal. According to positive thinking,
the community must be protected from anti-social activities, whether actual or potential, of the morbid type of man called
“socially dangerous person.” (RPC by Luis B. Reyes, 2008 edition)
Rules:
(1) If the acts performed constitute another distinct felony, an impossible crime is not committed because
objectively a crime is committed.
Ex: Accused administered abortive drugs upon his girlfriend whom he believed it to be pregnant, which turned out
not true, but the woman became ill for more than 30 days, the accused will be liable for serious physical injuries under Art.
264 of the Code and not for impossible crime of abortion.
(2) Inherent impossibility- Ex 1: stabbing a person already dead. Ex 2: A with intent to gain, took a watch from
the pocket of B, which turned out to be his own watch which he had lost days ago. The act performed would
have been theft if the watch had been the property of B. There is legal impossibility in accomplishing the
crime because in theft the personal property taken must belong to another.
Ineffectual means – Ex: giving a drink to another which was mixed wth salt believing it to be poison.
Inadequate means – Ex: if it were poison, the quantity was not sufficient.
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(3) For impossible crime to apply, the offender believed that the person he stabbed was not dead or the mixture
was really poison or the means employed was sufficient, otherwise, there would be no criminal liability for
impossible crime as evil intent would be absent.
(4) If there is adequate or effectual means although the crime is not produced, it cannot be impossible crime but
a frustrated felony. Ex: If sufficient quantity of poison was administered to the victim to kill him but he did not
die, the felony was not produced due to his impossible immunity to the poison, which is an act independent of
the will of the offender.
(5) When the rule speaks of “crimes against persons”, it does not mean that the victim must be a person, the
crime must be within Title 8, Book II of RPC. Ex: A, while driving his car in Luneta, met B when the latter tried
to hitch a ride. Somewhere in Baclaran, A turned the car to a secluded area and started kissing B who
turned out to be also a male. Is there impossible crime? Answer: NO! there is none because had the crime
been consummated, it would have been a crime against chastity, not against persons. The crime here is acts
of lasciviousness if committed with violence against “B” (Art. 336 RPC). If there is none, the crime is unjust
vexation if B was annoyed of the kissing.
(6) The offender is made liable for an impossible crime only as a last resort when he cannot be punished under
any provision of law. The purpose is to teach the offender a lesson for being criminally pervert although
objectively no crime is committed.
Ex: A & B are constantly quarrelling neighbors and it is only a matter of time that one would kill the other. A
though of killing B before the latter could kill him. One evening while B was already asleep, A climbed into the room of B,
entering it trough an open window. Upon seeing B, A stabbed B on the chest not knowing that B had died earlier of
cardiac arrest. Therafter, A fled through the same window.
(a) Is an impossible crime committed? Yes. B was already dead when A stabbed him with the intent of
killing him, not knowing that he was already dead. It would have been murder, which is a crime against
person, were it not for B’s being a corpse at the time of the stabbing.
(b) Is A criminally liable for impossible crime? No, although an impossible crime was committed, A should
be prosecuted for qualified trespass to dwelling, as he entered through a window which is not for that
purpose.
592 scra 426
The principle here is that the wrongdoer shall be punished for impossible crime only when his acts cannot be
punished any other provisions of RPC.
Duty of Courts (Art. 5)
(1) This article has no application to the violation of another piece of legislation like illegal possession of forearms,
as it refers to penalties provided in the Revised Penal Code. (Pp. vs. Salazar, L-7490, (1958). Hence, nor applicable to
crimes mala prohibita provided for in special legislation. (Pp. vs. Quebral, CA-G.R. No. 22120-R, February 28, 1961).
See also the case of Pp. vs. Manlapas, 88 SCRA 104 and Pp. vs. Valera, 90 SCRA 400.
Stages of Execution of a Felony (Art. 6).
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The stages of execution of a felony – attempted, frustrated and consummated – are punishable under Art. 6 of
RPC.
(1) ATTEMPTED – when the offender commences the commission of the felony DIRECTLY BY OVERT ACTS
and does not perform all the acts of execution which should have produced the felony by reason of some cause or causes
or accident other by his own spontaneous desistance.
1.1 “Spontaneous desistance” cannot be used in frustrated crimes because it is no longer possible in the
frustrated stage as the offender has already lost control his acts because he has already performed all the
acts of execution. Hence, there can be no spontaneous desistance.
Case: With intent to kill A fired at B who was not mortally wounded. A aimed again and said: “Now I will kill you”. B
begged so hard so much so that A changed his mind and walked away. Is there a desistance? Will A be liable?
Answer: On the first shooting, A shall be liable for attempted homicide. The act of shooting completed the first
attempt – there is no desistance made. However, on the second aiming of the gun, there is desistance. But this
desistance will not exempt him from his liability under the first act. The desistance refers to the crime he intended to
commit and not to the crime actually committed before the desistance. ( Pp. vs. Palomares, 75 O.G. 5739).
1.2. If on the attempted stage, the offender desisted- there is no attempted felony. Reason: it is a sort of reward
granted by law to one having one foot on the verge of crime, heed the call of his conscience and return to the
path of righteousness. (viada). However, even if the offender desisted from performing the act he intended
to commit if the act so far has already constituted another offense, the offender shall be liable for such other
crime.
Ex: A wanted to kill B by entering the latter’s house through an open window into B’s room who was sleeping, but
he noticed on the latter’s face to be that of a miserable man and so left the room through the same window. Is there an
attempted crime? What is the felony committed?
Answer: There is no attempted crime of murder because of the desistance. He already began the acts of
execution and could have performed all the acts but he desisted. The crime already committed is qualified trespass to
dwelling.
Meaning of OVERT ACTS:
Overt act- is some physical activity or deed, indicating the intention to commit a particular crime, more than a
mere planning or preparation, which if carried to its complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into
a concrete offense. (RPC, Luis B. Reyes, 2008 Ed.).
Rules:
(1) A felony is committed directly by overt acts if the following requisites are present: a) That there be an internal
acts; b) Such external acts have direct connection with the crime intended to be committed.
(2) Preparatory acts do not have direct connection with the crime which the offender intends to commit.
Ex. 1: If A bought poison from a drug store in preparing for the killing of B by means of a poison – preparatory acts
– not an overt act because it has no direct connection with the crime of murder which A intended to commit. The poison
purchased may, after all, be used by A to kill insects. Hence, the act of buying poison did not disclose necessarily an
intention to kill a person with it.
But if A mixed the poison with the food intended for B, and the latter without knowing that it contained a poison
took it, the act of A is more than planning or preparation for the commission of a murder. The buying of poison and mixing
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it with it with the food of B who later put into his mouth part of it, taken together, constituted an overt acts of murder. If for
some reason B threw away the poison from his mouth, A is liable for attempted murder.
Ex. 2: Drawing or trying to draw a pistol is not an overt act of homicide. ( Pp. vs. Tabago, et al., 48 O.G. 3419).
Ex. 3: Raising a bolo as if to strike the offended party is not an overt at of homicide. (U.S. vs. Simeon, 3 Phil.
688).
Definition of subjective phase:
It is that portion of the acts constituting the crime, starting from the point where the offender begins the
commission of the crime to the point where he has still control over his acts, including their natural cause.
If between these two points the offender is stopped by any cause other that his own voluntary desistance, the
subjective has not been passed and it is an attempt. If he is not stopped but continues until her performs the last act, it is
frustrated, if the crime is not produced by cause/s independent of the will of the offender. The acts then of the offender
reached the objective phase of the offense.
CASES HELD TO BE ATTEMPTED. Pp vs Palomares pp. vs valeros jr.
Homicide/Murder/Physical Injuries
(a) U.S. vs. Bien, 20 Phil. 354.
Where the accused threw a Chinaman into the deep water and as the Chinaman did not know how to swim, he
mad efforts to keep himself afloat and seized the gunwale of the boat, but the accused tried to loosen the hold of the
victim with the oar. The accused was prevented from striking the latter by other persons. Intent to kill is apparent,
attempted homicide was committed.
(b) Pp. vs Kalalo, et al., 59 Phil.75.
Where the accused fired four successive shots at the offended party, while the latter was fleeing to escape from
his assailants and saved his own life. Not having hit the offended party, either because of his poor aim or because his
intended victim succeeded in dodging the shots, the accused failed to perform all the acts of execution by reason of cause
other than his own spontaneous desistance. (see also Pp. vs. Aban, C-G.R. No. 10344-R, Nov. 30, 1954).
(c) Pp. vs. Fernando Costales, G.R. No. 141154, Jan. 15, 2002.
Where the injuries, though no doubt serious, were not proved fatal, such that without timely medical intervention,
they would have caused death, the crime committed was attempted murder. Where there is nothing in the evidence to
show that the wound would be fatal if not medically attended, the character of the wound is doubtful; hence the doubt
should be resolved in favor of the accused and the crime committed may be declared as attempted.
(d) Pp. vs Marcos Asuela, et al., G.R. No. 140393-94, Feb. 4, 2002.
Where there is intent to kill and the wounds are not fatal, say the wounds would last for less than nine (9) days
Slight Physical Injuries is committed.
(f) Pp. vs. Sy Pio, G.R. No. L-5848, April 30, 1954).
Even if the victim was hit when the accused fired at him but the victim was able to run away which fact must have
produced the mind of the accused that he had not actually performed all the acts of execution necessary to kill the victim,
the crime is attempted.
(g) Pp. vs. Umaguing, 107 SCRA 166, 1981.
Where the accused, a janitor in a hospital, removed the endotracheal tube which was inserted in the mouth of a
patient suffering from a cerebral hemorrhage, and as a result, the patient bled in the mouth and had convulsions, but the
tube was restored by the resident physician who was notified of what happened, it was held that the overt act committed
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by the accused was malicious and felonious and constituted attempted murder since he was not able to perform all the
acts of execution necessary to consummate the crime because the tube was reinserted into the victim’s mouth.
RAPE
(h) Pp. vs. Nopia, 113 SCRA 599, April 28, 1982.
Rape is attempted if the organ of the accused could hardly enter the sexual organ of a 12 year old girl although
the girl felt it touched her organ.
(i) Pp. vs. Briton, 364 Phil. 731, 748 (1999).
Consumated rape to be established what is essential is that there must be penetration of the female organ no matter how
slight.
( j) Pp. vs. Campuhan, G.R. No. 129433, March 30, 2000. ( Gr 1728734
Thus, a grazing of the surface of the female organ or touching the mone pubis of the pudendum is not sufficient to
constitute rape absent any showing of any slightest penetration of the female organ, i.e., touching of either labia of the
pudendum by the penis, there can be no consummated rape, at most it can only be attempted, if not acts of
lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted “touching of the female organ”
has also progressed into being described as the introduction of the male organ into the labia of the pudendum; or the
bombardment of the drawbridge. But to our mind, the case at bar merely constitutes shelling of the castle of orgasmic
potency, or as earlier stated, a straffing of the citadel of passion. See Pp. vs. Alfredo Bon, G.R. No. 166401, Oct. 30,
2006.
(k) Pp. vs. Alibuyog Bulala, G.R. No. 144976, March 11, 2004.
While the appellant was doing the push and pull movement, his pants was still on and his organ did not penetrate
her vagina but only touched it, he is liable only for Attempted Rape.
For conviction of consummated rape to prosper, complete and full penetration is not necessary because mere
introduction of the male organ into the labia majora of the victim’s genitalia consummates the crime. What is fundamental,
moreover, is that the entry or at least the introduction of the male organ into the labia of the pudendum must be
convincingly proved.
Of critical importance is that there must be sufficient proof that the penis indeed traveled even just the labia or slid
into the victim’s organ, and not merely strike the external surface thereof.
ARSON
(l) U.S vs. Valdez, 39 Phil. 240.
Although all the acts necessary to burn the building have already been performed as setting on fire some rags
soaked in gasoline to burn the building but no portion of the building was burned, the arson is frustrated. But see the
subsequent case. Note: Even if only a portion of the building is burned, arson is consummated. The total burning of the
building is not necessary to consummate the crime. (Pp. vs Hernandez, 54 Phil. 122)
(m) Pp. vs. Garcia, 49 O.G. 558.
But of the overt acts directly connected with the burning of the building have not been performed, as burning all
the office supplies and hospital equipment inside the office building, without burning the building the crime is attempted
arson. The reason is that if no part of the building is burned, n one could truthfully or successfully maintain that the
offender had performed all the acts of execution which would produce the felony of arson as a consequence because the
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element of burning is still missing and the result was no more than an attempt to commit the offense. (this ruling
eliminates frustrated arson).
(n) Pp. vs. Baisa, G.R. No. 20304-R, June 18, 1959.
Where the defendant threw a flaming torch at the roof of the complainant’s house, which did not however burn,
because the torch rolled and fell to the ground, the crime committed is attempted arson.
(o) Pp. vs. Go Kay, CA, 54 O.G. 2225
Even of there is no blaze, attempted arson may committed when the offender poured gasoline under the house of
another and was about to strike the match to set the fire when he was apprehended, attempted arson is committed.
THEFT, ROBBERY & ESTAFA
(p) Pp. vs. De la Cruz, 43 O.G. 3202.
If the offender commenced by overt acts directly connected with the felony intended to be committed but did not
perform all the acts of execution due to an external cause, as when the lock of a jeep was already broken but he was
caught before he succeeded in driving away the jeep, the theft is attempted.
(q) Pp. vs. Dio, 130 SCRA 151.
Where the killing of the victim was merely incidental to and an offshoot of the plan to carry out the robbery, which
however, was not consummated, because of resistance by the deceased, the crime is only attempted robbery with
homicide.
(r) U.S. vs Villanueva, `1 Phil. 370.
If the offender has performed all the acts of deceits as by trying to collect a fee from the offended party but the
fraudulent scheme was not realized because of the inability of the offended party to pay the said fee, estafa is attempted.
(2) FRUSTRATED – the offender performed all the acts of execution to produce the crime but the crime was not
produced due to causes independent of the will of the perpetrator.
2.1 All the acts of execution performed by the offender could have produced the felony as a consequence.
Ex. 1 When A approached B stealthily from behind and made a movement with his right hand to strike B with a
deadly knife, but the blow, instead of reaching the spot intended, landed on the frame of the back of the chair on which B
was sitting at the time and did not cause the slightest physical injury on B. (Pp. vs. Borinaga, 55 Phil. 433).
Comment: Highly criticized ruling. It should have only been attempted murder because without inflicting a deadly
wound upon a vital spot of which B should have died, the crime of murder would not have been produced as a
consequence. What was prevented by the back of the chair was the wounding and not the victim’s death. (Justice
Villareal’s dissenting opinion). The ruling in Borinaga was later on superseded by Pp. vs Kalalo, 59 Phil. 715 which
rules: In crimes against persons, such as murder, which require that the victim should die to consummate the felony, it is
necessary for the frustration of the same that a mortal wound is inflicted.
2.3 Belief of the accused that he had performed all the acts of execution n some cases was considered by the
Supreme Court.
Ex. 1: Deadly weapons were used, blows were directed at the vtial parts of the body, the aggressors stated their
purpose to kill and though they had killed. The subjective phase of the crime was entirely passed, and subjecrively
speaking, the crime was complete. The felony is not produced by reason of causes independent of the will of the
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perpetrators; in this instance, the playing possum by the victim, that is, he escaped from the aggressors by the ruse of
feigning death. ( Pp. vs. Dagman, 47 Phil. 770). See also U.S. vs. Lim San, cited in Dagman and U.S. vs. Eduave, 36
Phil. 210.
2.4 The belief of the accused need not be considered. What should be considered is whether all the acts of
execution performed by the offender “would produce the felony as a consequence”. See Pp. vs Kalalo, supra and Pp.
vs. Guihama, et al., 13 CA. Rep. 557.
2.5 If the crime is not produced because the offender himself prevented its consumation, there is no frustrated
felony, for the fourth element is absent.
Ex. A doctor conceived the killing of his wife, and to carry out his plan, he mixed arsenic with the soup of his
victim. Immediately after the victim took the poisonous food, the offender suddenly felt such a twinge of conscience and
he himself washed out the stomach of the victim and administer to her the adequate antidote. Would this be a frustrated
parricide? Certainly not, for even though the subjective phase of the crime had already been passed, the most important
requisite of a frustrated crime i.e., that the cause which prevented the consummation of the offense be independent of the
will of the perpetrator, was lacking. (Guevara). He committed Physical Injuries.
CASES HELD TO BE FRUSTRATED
Homicide, Murder and Physical Injuries
(a) Pp. vs. Hondrada, 51 Phil. 112.
Where the accused stabbed the offended party in the abdomen, penetrating the liver, and in the chest. It was only
the prompt and skillful medical treatment which the offended party received that saved his life.
(b) Pp. vs Mercado, 51 Phil. 99.
Where the accused wounded the victim in the left abdomen with a sharp-edged weapon, causing a wound in the
peritoneal cavity, serious enough to have produced death.
(c) Pp. vs. David, 60 Phil. 93.
Where the accused in firing his revolver at the offended party hit him in the upper side of the body, piercing it from
side to side and perforating the lungs, The victim was saved due to adequate and timely intervention of medical science.
Theft, Estafa & Robbery
(d) Pp. vs. Dino, C.A. 45 O.G. 3446.
A truck loaded with stolen boxes of rifles was on the way out of the check point in South Harbor surrounded by a
tall fence when an MP guard discovered the boxes on the truck. It was held that the crime committed was frustrated theft,
because the timely discovery of the boxes on the truck before it could pass the check point. Compare this case with Pp.
vs Espiritu, et al., CA-G.R. No. 2107, May 31, 1949: In the Supply Depot at Quezon City, the accused removed from the
pile nine pieces of hospital linen and took them to their truck where they were found by a corporal of the MP guards when
they tried to pass the check point. It was held that the crime committed was consummated theft.
Distinguish the two cases: In Espiritu case, it was consummated theft because the thieves were able to take or
get hold of the hospital linen and that they only thing that was frustrated, which does not constitute the element pf theft, is
the use or benefit that the thieves expected to derive from the commission of the offense. In Dino case, it was frustrated
theft because the fact determinative of consummation in the crime of theft is the ability of the offender to dispose freely of
the articles stolen, even if it were more or less momentarily.
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The Dino ruling was reaffirmed in the subsequent CA ruling:
(e) Pp. vs. Flores, 6 CAR 834.
The theft of bulky goods is frustrated when the intervening act which literally frustrated the theft was the inspection
of the truck by a third person and not any spontaneous desistance on the part of the accused and it was not
consummated since the truck was not able to leave the compound wherefrom the goods were taken, so that the accused
was never placed in a situation where they could dispose the goods at once.
(f) Empelis, et al., vs IAC, L-68138, Spt. 28, 1984.
Where the accused was seen carrying away fifty coconuts while they were still in the premises of the
plantation, the crime is Frustrated Qualified Theft because the accused were not able to perform all the acts of execution
which would have produced the felony as a consequence. They were not able to carry the coconut away from the
plantation due to the timely arrival of the owner. Note; The reason is inaccurate because a felony is frustrated if all the
acts of execution o produce the felony have been performed.
(g) U.S vs. Dominguez, 41 Phil. 409.
Where a defendant, a salesman, pocketed part of the sales amount instead of giving it to the cashier, but who
discovered it on time, the estafa committed is frustrated.
The rule thus, in THEFT: While the offender may not take the personal property away, if he already took hold of it,
and the taking is already complete, theft is already consummated. It is not necessary that the offender be able to carry away
the personal property, It is a matter of whether the offender has GAINED COMPLETE CONTROL such that he could simply
dispose the property at will. There is complete control where he is in a position to subject the property to his own will instead
of the will of the owner or possessor thereof. When the possessor gained control of the personal property with a certain
degree of permanence, even though he may later change his mind and return it, the return is not desistance anymore. In
criminal law, desistance is not available in frustrated stage.
COMPLETE CONTROL means the thing is totally removed from the enclosure, container, or receptacle where the
owner keeps the thing.
(7) CONSUMATED
` 1) A felony is consummated when all the elements necessary for its execution and accomplishment are proved.
Every crime has its own elements which must all be present to constitute culpable violation of a precept law.
1.2 In arson, it is not necessary that the property is totally destroyed by fire It is consummated even if only a
portion of the wall or any part of the house is burned. The consummation of the crime of arson does not
depend upon the extent of the damaged caused. (Pp. vs Hernandez, 54 Phil. 22).
1.3 In theft, the crime is consummated when the thief is able to take or get hold of the thing belonging to another,
even if he is not able to carry it away. Ex: A customs inspector abstracted a leather belt from the baggage of
a Japanese and secreted it in the drawer of his desk in the Customs house, where it was found by other
customs employees. Consummated because all the elements for its commission and accomplishment are
present. (U.S. vs Adiao,, 38 Phil. 754). Distinguish this case with Domiguez case, supra. The difference lies
on the elements of the two crimes. In estafa, the offended party must be actually prejudiced or damaged.
This element is lacking in Domiguez. In theft, the mere removal of the personal property belonging to another
with intent to gain is sufficient.
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1.4 In rape, entry of the labia or lips of the female organ without rupture of the hymen or laceration of the vagina
is generally sufficient to warrant conviction of consummated rape. (Pp. vs Hernandez, 49 Phil 980, 982).
Light Felonies (Art. 7, RPC)
1) General rule: Light felonies are punishable only when they are consummated. Exception: Light felonies
committed against person or property. Reason: Light felonies produce such light, such insignificant moral and
material injuries that public conscience is satisfied with providing a light penalty for their consummation. If
they are not consummated, the wrong done is so light that here is no need of providing a penalty at all.
(Albert).
2. The light felonies under the Revised Penal Code: a) Slight Physical Injuries (Art. 266); b) Theft, (Art. 309, par.
7&8); c) Alteration of boundary marks. (Art. 313);d) Malicious mischief; and e) Intriguing against honor ( Art.
364)
Conspiracy ( Art. 8 RPC)
1) Conspiracy and proposal to commit a felony are not punishable, except as provided for bylaw.
2) There are only three (3) conspiracies to commit a crime that are punished in the RPC, to wit: a) Conspiracy to
commit treason (Art. 115); b) conspiracy to commit rebellion (Art. 136); and c) conspiracy to commit sedition ( Art. 141).
3) In P.D 1613, conspiracy to commit arson; and P.D. 1728, conspiracy to maliciously damage any building or
personal property by explosives or incendiary device.
4) Conspiracies punished in special laws: a) Comm. Act. No. 616, (An act to Punish Espionage of other Offenses
Against National Security); b) Conspiracy to commit offenses under the Dangerous Drugs Act.
ESTRADA VS SANDIGAN BAYAN
Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove
each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable
doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts
constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea
must be shown.
Indeed, §2 provides that -
Any person who participated with the said public officer in the commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by
the court.
The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-
Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the
offender is determined by his criminal intent. It is true that §2 refers to "any person who participates with the said public
officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that
it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the
generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean
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PP VS FERNAN AND TORREVILLA
The nuclei of this massive conspiracy, namely: Rolando Mangubat, Jose Sayson, and Edgardo Cruz, all of MPH Region
VII, were found guilty in all 119 counts and were accordingly sentenced by the SB. The other conniver, Delia Preagido,
after being found guilty in some of the cases, became a state witness in the remainder. On the basis of her testimony and
pertinent documents, Informations were filed, convictions were obtained, and criminal penalties were imposed on the rest
of the accused.
On the other hand, petitioners were both Civil Engineers of the MPH assigned to the Cebu First Highway
Engineering District. Petitioner Fernan, Jr. was included among the accused in Criminal Case Nos. 2879, 2880, 2881,
2885, 2914, and 2918 allegedly for having signed six (6) tally sheets or statements of deliveries of materials, used as
bases for the preparation of the corresponding number of general vouchers. Fund releases were made to the suppliers,
contractors, and payees based on these general vouchers.
Petitioners vigorously claim error on the part of the lower court when it made the finding that they were co-conspirators
with the other parties accused despite the dearth of evidence to amply demonstrate complicity.
In Estrada v. Sandiganbayan, we categorized two (2) structures of multiple conspiracies, namely: (1) the so-called
“wheel” or “circle” conspiracy, in which there is a single person or group (the “hub”) dealing individually with
two or more other persons or groups (the “spokes”); and (2) the “chain” conspiracy, usually involving the
distribution of narcotics or other contraband, in which there is successive communication and cooperation in
much the same way as with legitimate business operations between manufacturer and wholesaler, then
wholesaler and retailer, and then retailer and consumer.[51]
We find that the conspiracy in the instant cases resembles the “wheel” conspiracy. The 36 disparate persons who
constituted the massive conspiracy to defraud the government were controlled by a single hub, namely: Rolando
Mangubat (Chief Accountant), Delia Preagido (Accountant III), Jose Sayson (Budget Examiner), and Edgardo Cruz (Clerk
II), who controlled the separate “spokes” of the conspiracy. Petitioners were among the many spokes of the wheel.
5) Conspiracy cannot exist in case of negligence. In conspiracy it involves meeting of the minds to commit a crime
while negligence denotes absence of intent. (Pp. vs. Narvasa, et al., ca 16013-CR 75 OG No. 42200).
6) To establish conspiracy it is not necessary to prove previous agreement to commit a crime if there be proof that
the malefactors have acted in concert and in pursuance of the same objective. Conspiracy may be inferred from the acts
of the accused themselves when such point to a joint purpose and design. Their actions must be judged not by what they
say, for what men do is the best index of their intention. (Pp. Mada-ISantalani, et al., Sept. 28, 1979).
7) It is not enough that the person supposedly engaged or connected with the criminal plan be present when the
crime was perpetrated. There must be logical relation between the commission of the crime and the acts of the supposed
conspirators, evidencing a clear and intimate connection between and among the latter, such that their overt acts appear
to have been done in pursuance of a common criminal design. ( Pp. vs. Aniel, et al., 96 SCRA 199 [1980]); Pp. vs.
Realon, et al., 99 SCRA 422 (1980).
8) Overt acts in furtherance of a conspiracy consist inactively participating in the actual commission of the crime,
in lending moral assistance to his co-conspirators, by being present at the scene of the crime, in exerting moral
ascendancy over the rest of the conspirators as to move them to executing the conspiracy. (Pp. vs Peralta, 25 SCRA
759).
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9) Conspiracy may be inferred from close association among the accused and their concerted efforts to liquidate
the victim, an indication of community of design. (Pp. vs. Medrano, 114 SCRA 335, May 31, 1982).
10) Conspiracy must be proved by positive and convincing evidence. Mere suspicion, relationship, association
and companionship do not prove conspiracy. (Pp. vs. Sosing, 111 SCRA 368, Jan. 30, 1982). Ex. 1: An accused who
was present when the other accused met in is house to plan a bank robbery and who told them that he cannot join
because of a foot injury which would make him only a liability, such did not make him a conspirator as he did not take an
active part in the talk among the malefactors in his house. ( Pp. vs. Doble, 114 SCRA 631, May 31, 1982). Ex. 2: Where
only one of the persons who raped the victim killed her, he alone should be guilty of the crime of rape with homicide as
there is no plan to do away with the victim after raping her. (Pp. vs. Viscara, 115 SCRA743, July 30, 1982). The passive
presence of the accused at the moment the accused suddenly strangled the victim does not make him liable for the act of
their co-accused. (Ibid.)
CASES
a) Pp. vs Cantuba, 183 SCRA 289, 298
Where the accused was knew of the plot to assassinate the victim as he too had been ordered to scout for a man
who could do the job; he also knew exactly the place where the killing was to take place and also the date and
approximate time of the assault. There is conspiracy there is unity of purpose and unity in the execution of the unlawful
act.
b) Pp. vs. Pugay, 167 SCRA 439.
Where one of the accused poured a gasoline to the victim after they made fun of him, and the other accused set
the victim on fire, each of them shall be liable only for the act committed by him as there is no sowing that there was
previous conspiracy or unity of criminal purpose between the accused immediately before the commission of the crime.
ESTRADA VS SANIGANBAYAN FEB 6, 2002
GR145927 REVILLA VS PP.
JUSTIFYING CIRCUMSTANCES (Art. 11)
Gr 188602 pp. vs guiterrez
1. Where the accused invokes self-defense, it is incumbent upon him to prove by clear and convincing
evidence that he indeed acted in defense of himself. He must rely on the strength of his own evidence
and not on the weakness of the prosecution. For even if the prosecutions evidence is weak, it could not
be disbelieved after the accused himself had admitted the killing. (Pp. vs. Sazon, 189 SCRA 700, 704,
Sept. 18, 1990).
2. Requisites of self-defense: a) unlawful aggression; b) reasonable necessity of the means employed to
prevent or repel it; and c) lack of sufficient provocation on the part of the person defending himself.
( Pp. vs Uribe, 182 scra 624, 630-631).
3. The aggression must be unlawful. Ex. 1: The act of a chief of police who used violence by throwing
stones at the accused when the latter was running away from him to elude arrest for a crime committed
in his presence, is not unlawful aggression, it appearing that the purpose of the police officer was to
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capture the accused and place him under arrest. (Valcorza vs. People, 30 SCRA 143, 149, Oct. 31,
1969).
4. Unlawful aggression is equivalent to assault or at least threatened assault of an immediate and
imminent kind. (Pp. vs. Alconga, 78 Phil. 366). There is unlawful aggression when the peril to one’s
limb or right is either actual or imminent. There must be actual force or actual use of weapon. ( Pp. vs
Crisostomo, 108 SCRA 288, 298, Oct. 31, 1981). See Pp. vs. Jose Laurel, 22 Phil. 252.
5. Imminent – that the danger is on the point of happening. It is not required that the attack already
begins, for it may too late. Ex.: While inside the boat with some women and children, including the
family of the accused, the deceased who was also a passenger, upon reaching a place of great depth,
rocked the boat which started it to take water, and the accused fearing that the boat might capsize
asked the accused not to do it, but the deceased paid no attention and continued rocking the boat, so
the accused struck him on his forehead with an oar and the deceased fell into the water. But a little
while the deceased re appeared and held the side of the boat, saying that he was going to capsize the
boat and moved, seeing which the women began to cry, whereupon the accused struck him on the
neck with the same oar that resulted the death of the deceased. Held: Due to the condition of the river
at the point when the deceased started to rock the boat, if it had capsized, the passengers would have
run the risk of losing their lives. The conduct of the deceased gave rise to the belief on the part of the
accused that it would capsize if he had not separated the deceased from the boat to give him no time
to accomplish his purpose. For this purpose, the blow given him by the accused on the forehead with
an oar was the least that he could reasonably have been done. And this consideration militates with
greater weight with respect to the second blow given in his neck with the same oar because the danger
was greater than the boat might upset, especially as the deceased had expressed his intention to
upset it. ( Pp. vs. Cabungcal, 51 Phil. 803)
6. Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger
thereof, and not merely a threatening or intimidating attitude, or imaginary. ( Pp. vs. Pasco Jr., 137
SCRA 137, June 24, 1985), Ex. Aiming a revolver at another with intent to shoot or opening a knife
and making a motion as if to attack. (Pp. vs. Resurreccion, G.R. No. 0048-R, Feb. 4, 1962), or
brandishing a knife with which to stab or pointing a gun to the accused. (Pp. vs Lacheca, L-38175,
Sept. 28, 1984). But a mere threatening attitude of the victim such as pressing his right hand to his hip
where a revolver was holstered, accompanied by an angry countenance or like aiming to throw a pot is
not unlawful aggression. (Pp. vs. Lavinia, 115 SCRA 223).
7. Slap on the face constitutes unlawful aggression. Reason: The face represents a person and his
dignity, slapping it is a serious personal attack. It is physical assault coupled with a willful disregard,
nay, a defiance, of an individual’s personality. It may therefore, be frequently regarded as placing in
real danger a person’s dignity, rights and safety. (Pp. vs. Sabio, G.R. No. L-23734, April 27, 1967).
8. A public officer exceeding his authority may become an unlawful aggressor. Ex. A provincial sheriff
who, in carrying out a writ of execution, exceeded his authority by taking against the will of the
judgment debtor personal property with sentimental value to the latter, although other personal
property sufficient to satisfy the claim of the plaintiff was made available to the sheriff, was an unlawful
aggressor and the debtor had the right to repel the unaleful aggression. (Pp. vs Hernandez).
9. The Rule now is “ stand ground when in right”. The ancient common law rule in homicide denominated
“retreat to the wall, has now given way to the new rule “stand ground when in the right” (Reyes). So,
where the accused is where he has the right to be, the law does not require him to retreat when his
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assailant is rapidly advancing upon him with a deadly weapon. ( U.S. vs. Domen, 37 Phil 57).
Reason: If one flees from an aggressor, he runs the risk of being attacked in the back by the
aggressor. (Reyes).
10. The rule is more liberal if the person attacked is a peace officer in the performance of a duty, who must
stand his ground and who cannot, like a private person, take refuse in flight. (U.S. vs. Mojica, 42 Phil.
784). His duty requires him to overcome his opponent and the force which he may exert may differ
that which ordinarily may be offered in self-defense. (Pp. vs. Papileta, G.R. No. 03948-CR, July 16,
1968).
11. The belief of the accused may be considered in determining the existence of unlawful aggression. Ex.
1: A, in the peaceable pursuit of his affairs, sees B rushing rapidly towards him, with an outstretched
arm and a pistol in his hand, and using violent menaces against his life as he advances. Having
approached him near enough in the same attitude, A, who has a club in his hand strikes B over the
head which caused his death. It turns out that the pistol was loaded with powder only, and the real
design of B was only to terrify A. The killing is justified, otherwise, the man so attacked must, before he
strikes the assailant, stop and ascertain how the pistol is loaded? (Reyes). Ex. 2: Crispin’s gun which
turned out to be a toy pistol is inconsequential, considering its strikingly similar resemblance to a real
one and defendant-appellant’s belief that a real gun was being aimed at him. (Pp. vs. Boral, 11 CA
Rep. 914).
Reasonableness of the means employed (second requisite).
1. Whether or not the means employed is reasonable, will depend upon the nature and quality of the
weapon used by the aggressor, his physical condition, character, size and other circumstances, and
those of the person defending himself, and also the place and occasion of the assault. (Reyes).
2. Perfect equality between the weapon used by one defending himself and that of the aggressor is not
required, because the person defending himself does not have sufficient tranquility of mind to think, to
calculate and to choose which weapon to use. ( Pp. vs. Padua, C.A. 40 O.G. 998).
3. Reasonable necessity of the means employed does not imply material commensurability between the
means of the attack and defense. What the law requires is rational equivalence, in the consideration of
which will enter as principal factors the emergency, the imminent danger to which the person attacked is
exposed, and the instinct, more than reason, that moves or impels the defense, and the
proportionateness thereof does not depend upon the harm done, but rests upon the imminent danger of
such injury. (Pp. vs Encomienda, 46 SCRA 522, 534, Aug. 18, 1972). Ex. 1: An unarmed man was
being mauled with fistic blows by the deceased and his companions for refusing to their offer to drink
wine, picked up a lead pipe within his reach and struck the deceased with it on the forehead resulting the
death of the deceased. The use of the lead pipe under the circumstances is reasonable. That accused did
not select a lesser vital portion of the body of the deceased to hit is reasonably to be expected, for in such
a situation, the accused has to move fast, or in split seconds, otherwise, the aggression on his person
would have continued and his life endangered. ( Pp. vs Ocana, C.A. 67 O.G. 3313).
No necessity of the course of action taken.
1. When the deceased who had attacked Alconga ran away, there was necessity for Alconga to
pursue and kill the deceased. ( Pp. vs. Alconga, 78 Phil. 366).
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2. The theory of self-defense is based on the necessity on the part of the person attacked to prevent or
repel the unlawful aggression, and when the danger or risk on his part disappeared, his stabbing the
aggressor while defending himself should have stopped. ( Pp. Calavagan, C.A. G.R. No. 12952-R.
Aug. 10, 1955).
3. When the accused succeeded in disarming the victim of the piece of wood which the latter was
allegedly carrying, the stabbing of such frequency, frenzy and force can no longer be considered as
1. The means employed by the person must be rationally necessary to prevent or repel an unlawful aggression.
Thus, in the following cases, there was no rational necessity to employ the means used: Ex. 1. A sleeping woman, who
was awakened by her brother-in-law grasping her arm, was not justified in using a knife to kill him as the latter did not
perform any other act which could be construed as an attempt against her honor. ( U.S. vs. Apego, 23 Phil. 391). Ex. 2,
When a person was attacked with fists blows only, there was no reasonable necessity to inflict upon the assailant a mortal
wound with a dagger. (Pp. vs. Montalbo, 56 Phil. 443).
Lack of sufficient provocation on the part of the person defending himself (third requisite in self-defense).
1. To be entitled to the benefit of justifying circumstance of self-defense, the one defending himself must not
have given cause for the aggression by his unjust conduct or by inciting or provoking the assailant.
(Reyes).
2. Even if there is provocation but not sufficient, the third requisite is applicable. Ex. A having discovered
that B built a part of his fence on A’ land, asked why he had done so. This question angered B who
immediately attack A. If A would kill B to defend himself, the third requisite is present because even if it is
true that the question of A angered B, thereby making B attack A, such provocation is not sufficient. ( Pp.
vs. Pascua, 28 Phil. 222). See Pp. vs. Genosa, G.R. No. 135981, Jan. 15, 2004)
EXEMPTING CIRCUMSTANCE
The reason for the exemption in exempting circumstance is absence of volutariness or some of its ingredients,
namely: criminal intent, intelligence, or freedom of action on the part of the offender, or absence of negligence,
imprudence or lack of foresight or lack of skill, in case of Culpable felony.
Imbecility or insanity.
In imbecility, there is complete absence of intelligence. An imbecile is a person whose mental development is like
that of a child between 2 to 7 years of age. It has an IQ of only 7. The deficiency is permanent. Thus, there is no lucid
interval.
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In insanity that is exempting is limited only to mental aberration or disease of the mind and must completely
impair the intelligence of the accused. Emotional or spiritual insanity are not exempting in our jurisdiction, unlike in other
common law countries.
The test of insanity as held in Pp. vs. Rafana, Nov. 21, 1991 to be exempting:
1. The test of cognition, or whether the accused acted with complete deprivation of intelligence in committing the
said crime;
2. The test of volition, or whether the accused acted in total deprivation will.
Age under nine years of age. (Par. 2).
1. Age of absolute irresponsibility raised to fifteen years of age.
Republic Act No. 9344 otherwise known as Juvenile Justice and Welfare Act of 2006 raised the age of absolute
irresponsibility from nine (9) to fifteen (15) years of age.
Under Sec. 6 of the said law, a child fifteen (15) years of age or under at the time of the commission of the crime
shall be exempt from criminal liability. However, the child shall be subject to an intervention program as provided under
Section 20 of the same law.
2. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal
liability and be subjected to an intervention program unless he/she has acted with discernment, in which case, such child
shall be subject to appropriate proceedings in accordance with said act.
3. Discernment, meaning.
It’s the mental capacity to understand the difference between right and wrong; and such capacity may be known
and should be determined by taking into consideration all the facts and circumstances afforded by the records in each
case, the very appearance, the very attitude, the very comportment and behavior of said minor, not only before and during
the commission of the act, but also after and even during the trial. (Guevarra vs. Almodovar, 169 SCRA 476, 481).
Any person who, performing a lawful act with due care, causes an injury by mere accident without fault or
intention of causing it. (Par. 4)
Elements: a) A person is performing a lawful act; b) with due care; c) he causes an injury by mere accident; and
d) without fault or intention of causing it.
Case: While defending himself against the unjustified assault upon his person made by the assailant, appellant
Galacgac fired his revolver at random, wounding two innocent persons. Held: The discharge of firearm in a thickly
populated place in the City of Manila being prohibited and penalized by Art. 155 of RPC, the appellant was not performing
a lawful act, hence, the exempting circumstance in Art. 12, par. 4 is not applicable. (Pp. vs. Galacgac, 54 OG 1027).
Illustration: A person driving his car within the speed limit, while considering the condition of the traffic and the
pedestrians at that time, tripped on a stone with on his car tires. The stone hit a pedestrian on the head and suffered
profused bleeding. Answer: The driver has no criminal and civil liability, while generally in exempting circumstance, the
offender while exempted from criminal responsibility is civilly liable.
How about if he abandoned his victim, is there a liability of the driver? Ans.: The driver would be liable under
Article 275, par. 2 RPC. How about if at the start the driver was driving beyond the speed limit and did not take into
consideration the condition of the traffic and the pedestrian? Anw.: The driver is liable under Art. 365 of RPC, and the
penalty is qualified to a higher degree.
Accident and Negligence distinguished.
In Jarco Marketing Corp. vs. CA, 321 SCRA 375, the Supreme Court held that an accident is a fortuitive
circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly
through human agency, an even which under the circumstances is unusual or unexpected by the person to whom it
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happens. Negligence, on the other hand, is the failure to observe, for the protection of the interest of another person, that
degree of care, precaution and vigilance which the circumstances justly demand without which such other person suffers
injury. (Pp. vs. Fallorina, GR No. 137347, March 4, 2004).
Any person who acts under the compulsion of an irresistible force. (Par. 5).
1. Force considered irresistible.
For a force to be considered irresistible, it must be such that, in spite of the resistance of the person on whom it
operates, it compels his members to act and his minds to obey. Such a force can never consist in anything which springs
from primarily from the man himself; it must be a force which acts upon him from the outside and by a third person. (U.S.
vs. Elicanal, 35 Phil. 209).
In other words the offender must be totally deprived of freedom. If the offender still has freedom of choice,
whether to act or not, even if the force was employed on him, or even if he is suffering from an uncontrollable fear, he is
not exempt from criminal liability. Because he is still possessed with voluntariness. In exempting circumstance, the
offender must act without voluntariness or freedom.
Case: Where the accused was threatened with a gum by his friend, the mastermind, to perform the crime is not
exempting when he himself has a rifle. Meaning there is no total deprivation of freedom. (Pp. vs. Sarip, 88 SCRA 666,
Feb. 28, 1979).
Case: Where the accused in his testimony said that he was intimidated into committing the crime, but it is was
established that he had the opportunity to leave the gang, par. 5 is not available to him. (Pp. vs. Parulan, 88 Phil. 615).
Case: Where the accused allegedly under compulsion of an irresistible force when he committed the crime is
incredible when he had the opportunity to run or resist the possible aggression because he was also armed. (Pp. vs.
Abanes, 73 SCRA 44,47).
2. A Threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity
to the accused for escape or self-defense in equal combat. (Pp. vs. Loreno, 130 SCRA 311, 321-322, July 9, 1984).
Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury. (Par. 6).
1. Requisites:
For an uncontrollable fear to be invoked successfully, the following requisites must concur: (a) existence of an
uncontrollable fear; (b) the fear must be real and imminent; and (c) the fear of an injury is greater than or at least equal to
that committed. (Pp. vs. Petenia, 143 SCRA 361, 369).
Case: Liberato Exaltacion and Buenaventura Tanchinco were compelled to under fear of death to swear
allegiance to the Katipunan whose purpose was to overthrow the government by the force of arms. Held: The accused
cannot be criminally liable for rebellion, because they joined the rebels under the imoulse of an uncontrollable fear of an
equal or greater injury. (U.S. vs. Exaltacion, 3 Phil. 339). The penalty for rebellion is prision mayor or imprisonment from
6 yrs. And 1 day to 12 years and fine against death if they do not join the rebellion.
Example: If A had threatened to burn the house of B should the latter not kill his B’s father, and killed his father for
fear that A might burn his (B’s) house, B is not exempt from criminal liability for the reason that the evil with which he was
threatened was much less than that killing his father.
2. Nature of duress as a valid defense.
Duress as a valid defense should be based on real, imminent, or reasonable fear for one’s life or limb and should
not be speculative, fanciful, or remote fear. (Pp. vs. Borja, 91 SCRA 340, 355, July 12, 1979).
Case: A person who was ordered to kill the victims executed the order because the one who made the order ( a
Japanese officer) made a threat that he would come along with them if he will not comply. Held: The threat is not of such
serious character and imminence as to create in the mind of the defendant an uncontrollable fear that an equal or greater
evil or injury would be inflicted upon him if he did not comply with the alleged order to kill the deceased. (Pp. vs. Moreno,
77 Phil. 549).
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Any person who fails to perform an act required by law, when prevented by some lawful or insuperable cause. (Par. 7)
1. Elements: a) That an act is required by law to be done; b) That a person fails to perform such act; and
c) That his failure perform such act was due to some lawful or insuperable cause.
2. When prevented by some lawful cause, meaning. Ex. A person who confessed before a priest being in
conspiracy wit other persons against the government. The priest has no criminal liability for failing to report of
such conspiracy to the governor or the fiscal of the province where he resides under Art. 116 because under the
law, the priest cannot be compelled to reveal any information which he came to know by reason of the confession
made to him in his professional capacity.
3. When prevented by some insuperable cause, meaning.
Case: The Municipal president who detained the offended party for three days because to take him to the
nearest justice of the peace required a journey of three days by boat as there was no other means of
transportation. There is no violation of Art. 125 of RPC requiring the delivery of a person arrested to the nearest
judicial authority within 36 hours, otherwise the officer will be liable for arbitrary detention. The distance requiring
three (3) days journey is insuperable cause. (U.S. vs. Vicentillo, 19 Phil. 118, 119).
Case: A mother who at the time of childbirth was overcame by sever dizziness and extreme debility, and
left the child in thicket where the child died, is not liable for infanticide because it was physically impossible for her
to take her home the child. The dizziness and extreme debility of the woman constitute insuperable cause. (Pp.
vs. Bandian, 63 Phil. 530-535).
4. Absolutory causes defined. Absolutory causes are those where the act committed is a crime but for reasons
of public policy and sentiment there is no penalty imposed.
Other absolutory causes:
Art. 6 – The spontaneous desistance of the person who commenced the commission of a felony before he could perform all the acts of execution.
Art. 20 – Accessories who are exempt from criminal liability. The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling with the provisions of par. 1 of the next preceding article.
The provision of par. 1 of Art. 19 read as follows:
“By profiting themselves or assisting the offenders to profit by the effects of the crime.”
Art. 124, last paragraph. – 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.
Art. 247, pars. 1 and 2. – 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 injuries, shall suffer a penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be exempted from criminal punishment.
Art. 280, par. 3. – The provision of this article (on trespass to dwelling) 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 services to humanity or justice, nor to anyone who shall enter cafes, taverns, inns and other public houses, while the same are open.
Art. 332. – Persons exempt from criminal liability. – No criminal, but only civil, liability shall result from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by affinity in the same line;
2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.
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Art. 344, par 4. - In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already impose upon him. The provision of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes.
4. Instigation an absolutory cause.
Reason: A sound public policy requires that the courts shall condemn this practice (instigation) by directing the
acquittal of the accused.
Instigation takes place when a peace officer induces a person to commit a crime. Without inducement, the crime
would not have been committed. Hence, it is exempting by reason of public policy. Otherwise, the peace officer would be
a co-principal.
4.1 If the person who instigated is a private person he will be liable as a principal by inducement. (Art. 17, par.
2).
Ex. A policeman induced a person to import opium which he made him believe he would buy and when the opium
imported was delivered he made the arrest. Held: There is an instigation. Without the inducement the opium would not
have been imported. (Pp. vs. Lua Chu, et al., 56 Phil. 52).
5. Entrapment not an absolutory cause.
Entrapment –signifies the ways and means devised by a peace officer to entrap or apprehend a person who has
committed a crime. With or without the entrapment, the crime has been committed already. Hence, entrapment is not
mitigating.
Case: So, if the offender was suspected of selling medicine at a price higher than the fixed by law, and a
policeman pretended to be a buyer, bought some of the medicine and paid the offender with the marked money, since the
offender sold the medicine to the policeman at price higher than the selling price, there is no instigation but entrapment,
as the price was fixed and collected by the offender. (Pp. vs. Tia, 51 O.G. 1863)
Case: The accused wrote to his correspondent in Hongkong to send to him a shipment of opium. The opium had
been in Hongkong for sometime, awaiting for a ship that would go direct to Cebu. The Collector of Customs of Cebu
received information that the accused was intending to land opium in the port. The Collector of custom promised the
accused that he would remove all the difficulties in the way, and for this purpose agreed to receive P 2,000.00. Juan
Samson, a secret serviceman, pretended to smooth the way for the introduction of the prohibited drug. The accused
started landing the opium and had the accused prosecuted. Held: It is true that Juan Samson smoothed the way of the
introduction of the prohibited drug, but after the accused had already planned the importation and ordered for the said
drug. (Pp. vs. Valmorfes, et al. 122 SCRA 922, June 26, 1983).
Distinction between Entrapment and Instigation:
In entrapment, a criminal design is already in the mind of the person entrapped. It did not emanate from the mind
of the law enforcer entrapping him. Entrapment involves only ways and means which are laid down or resorted to facilitate
the apprehension of the culprit.
In instigation, on the other hand, the criminal plan or design exists in the mind of the law enforcer with whom the
person instigated cooperated so it is said that the person instigated is acting only as a mere instrument or toll of the law
enforcer in the performance of his duties.
If the instigator is the law enforcer, the person instigated is not criminally liable, because it is the law enforcer who
planted that criminal mind in him to commit the crime, without which he would not have been a criminal. If the instigator is
not a law enforcer, then both will be criminally liable. It would be contrary to public policy to prosecute a citizen who only
cooperated with the law enforcer because he believes that it is his civil duty to cooperate.
So that, if the person instigated does not know that the person instigating him is a law enforcer or he known him
not to be a law enforcer, it is not a case of instigation. This is a case of inducement, both will be criminally liable.
6. Distinctions between justifying circumstances and exempting circumstances.
In justifying circumstance-
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1. The circumstance affects the act, not the actor;
2. The act complained of is considered to have been done within the bounds of the law; hence, it is legitimate
and lawful in the eyes of the law;
3. Since the act is considered lawful, there is no crime, and because there is no crime there is no criminal;
4. Since there is no crime or criminal, there is no criminal liability as well as civil liability.
IN exempting circumstance-
1. The circumstance affects the actor, not the act;
2. The act complained of is actually wrongful but the actor acted without voluntariness. He is a mere tool or
instrument of the crime;
3. Since the act complained of is actually wrongful, there is a crime. But, because the actor acted without
voluntariness, there is absence of dolo or culpa. There is no criminal;
4. Since there is a crime committed but there is no criminal, there is civil liability for the wrong done. But there is
no criminal liability. However, in pars. 4 & 7 of Article 12, there is no criminal or civil liability (Accident and
insuperable cause)
MITIGATING CIRCUMSTANCES (Art. 13 of RPC)
1. Mitigating circumstance are those which, it present in the commission of the crime, do not entirely free the actor
from criminal liability, but serve only to reduce the penalty.
2. Basis: Mitigating circumstances are based on the diminution of either freedom of action, intelligence, or intent,
or on the lesser perversity of the offender.
3. Classes of mitigating circumstances.
a) Ordinary mitigating circumstances: Those enumerated in subsections 1 to 10 of Article 13.
b) Privileged mitigating circumstances: a) Art. 68. (Penalty to be imposed upon a person under eighteen years
(as amended by R.A 9344); b) Art. 69. (Penalty to be imposed when the crime committed is not wholly excusable; and c)
Art. 64. ( Rules for the application of penalties which contain three periods).
4. Distinctions.
a) Ordinary mitigating circumstances is susceptible of being offset by any aggravating circumstances; while
privileged mitigating circumstances cannot be offset by aggravating circumstance.
b) Ordinary mitigating, if not offset by an aggravating circumstance, produces only the effect of applying the
penalty provided by law for the crime in its minimum period, in case of divisible penalty; whereas, privileged mitigating
produces the effect of imposing upon the offender the penalty by one or two degrees than that provided by law for the
crime.
The privileged mitigating circumstances of incomplete justifying or exempting circumstance (Par. 1, Art.
13, RPC)
1. In self-defense, defense of relative or defense of stranger, it is essential that unlawful aggression be present;
otherwise there can be no such defense, whether complete or complete. (Pp. vs Rosal, G.R. No. L-5355).
Case: The deceased was about to set on fire the house of the accused. They grappled and then the accused
boloed to death the deceased. Held: There was unlawful aggression on the part of the deceased, but there is absence of
reasonable necessity of killing the aggressor as he was already driven out of the house and was prostrate on the ground.
Accused is entitled to privilege mitigating circumstance.
2. Incomplete justifying circumstance of performance of duty.
Case: The deceased was killed was asleep, the crime committed was murder qualified by alevosia. The duty of
the accused was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered.
But through impatience or over anxiety or their desire to take no chance, they have exceeded in the fulfillment of such
duty by killing the person whom they believed as Balagtas. (Pp. vs. Oanis, supra).
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Paragraph 2, Art. 13 RPC impliedly repealed by RA 9344.
1. A child above fifteen (15) years but below eighteen (18) years of age shall be exempt from criminal liability
unless he/she acted with discernment. (Sec. 6, RA 9344). If he acted with discernment, such child in conflict with the law
shall undergo diversion program under Chapter 2 of RA 9344.
2. The offender who is over 70 years of age is only a generic mitigating circumstance as Article 68, providing for
privileged mitigating circumstances does not include the case of offenders over 70 years old.
That the offender had no intention to commit so grave a wrong as that committed. (Par. 3).
1. This circumstance is taken into account only when the facts proven show that there is a notable and evident
disproportion between the means employed to execute the criminal acts and its consequences. (U.S. vs. Reyes, 36 Phil.
904, 907).See also Pp. vs. Amit, 32 SCRA 95.
2. The intention, as an internal act, is judged not only by the proportion of the means employed by him to the evil
produced by his act, but also b the fact that the blow was or was not aimed at a vital part of the body.
Case: It may be deduced from the proven facts that the accused had no intention to kill the victim, his design
being only to maltreat him, such that when he realized the fearful consequence of his felonious act, he allowed the victim
to secure medical treatment at the municipal dispensary. (Pp. vs Ural, No. L-30801, March 27, 1974, 56 SCRA 138,
146).
3. Intention may also be judged by considering the weapon used, the injury inflicted, and his attitude of mind when
the accused attack the deceased. Case: The accused a heavy club in attacking the deceased whom he followed some
distance, without giving him the opportunity to defend himself, is to be believed that he intended to do exactly what he did
and must be held responsible for the result, without the benefit of the mitigating circumstance. (Pp. vs. Flores, 50 Phil.
548, 551).
4. Art. 13, par. 3 is not applicable when the offender employed brute force. Case: Accused who is a man, knew
that the victim was a girl of tender age (6 years old), weak in body, helpless and defenseless, should have known the
natural and inevitable result of his act of strangulation the victim. He cannot claim that he had no intention to kill the victim.
( Pp. vs. Yu, 1 SCRA 199, 204).
5. Art. 13, par. 3 applicable to felonies where the intention of the offender is immaterial.
Case: In unintentional abortion, where the abortion that resulted is not intended by the offender, the mitigating
circumstance that the offender had no intention to commit so grave a wrong as that committed is not applicable. (Pp. vs.
Cristobal, C.A., G.R. No. 8739, Oct. 31, 1942. But, Case: Where the accused pulled the hair of the complainant who was
three months pregnant causing her to fall on her buttocks on the cement floor causing her foetus to fall from her womb,
the mitigating circumstance is applicable, her intention was merely to maltreat. (Pp, vs,. Flameno, C.A. 58 O.G. 4060).
Sufficient provocation or threat on the part of the offended party immediately precede the act. (Par. 4).
1. By provocation is understood any unjust or improper conduct or act of the offended party, capable of exciting,
inciting, or irritating anyone.
2. Provocation in order to be mitigating must be sufficient and immediately preceding the act. (Pp. vs. Pagal. 77
SCRA 570, 575-576).
3. The word “sufficient” means adequate to excite a person to commit the wrong and must accordingly be
proportionate to its gravity. (Pp. vs. Nabora, 73 Phil. 434, 435).
Case: The deceased one of the laborers in the line to receive their wages, left his place and forced his way into
the file. The accused, who was the foreman ordered him out, but he persisted, and the accused gave him a blow on the
right of the head. Held: When the aggression is in retaliation for an insult or injury or threat, the offender cannot claim self-
defense, but can avail of the mitigating circumstance. There is provocation. (U.S. vs. Carrero, 9Phil544,545-546).
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Case: When in his house, the accused saw an unknown person jumped out of the window and his wife begged for
his pardon on her knees, he killed her. Held” The conduct on the part of the wife constitutes sufficient provocation to the
accused. (Pp. vs. Marquez, 53 Phil. 133, 135).
4. Provocation must originate from the offended party. Hence, when the alleged provocation did not come from
the deceased but form the latter’s mother, the same may not be appreciated in favor of the accused. (Pp. vs. Reyes, 69
SCRA 474, 481).
Ex.: A and B were together. A hit C on the head with a piece of stone from his sling-shot and ran away. As he
could not overtake A, C faced B and assaulted the latter. In this case, C is not entitled to this mitigating circumstance,
because B never gave provocation or took part in it.
5.. As to whether or not provocation is sufficient depends upon the act constituting the provocation, the
social standing of the person provoked, the place and time when the provocation is made. (Reyes).
6. Provocation must be immediate to the commission of the crime. Between the provocation by the offended party
and the commission of the crime by the person provoked, there should not be any interval of time. Reason: When there is
an interval of time between the provocation and the commission of the crime, the conduct of the offended party could not
have excited the accused to the commission of the crime, he having had time to regain his reason and to exercise self-
control. (Reyes).
Case: Where the accused shot the victim one day after the former was provoked by the latter. Held: The accused
was not sufficiently provoked at the time the alleged provocation was made. It was a deliberate act of vengeance and not
a natural reaction of a human being to immediately retaliate when provoked. (Pp. vs. Benito, 62 SCRA 351, 357, Feb.
13, 1975).
Case: The accused after being provoked by the deceased when he was accused of having stolen two (2)
jackfruits from the latter’s tree, went home and later returned fully armed and killed the deceased. Held: Provocation
should be considered mitigating in favor of the accused
Comments: The accusation of the victim should be considered as a grave offense under par. 5 instead of
provocation, because an interval of time between the grave offense and time is allowed.
7. Threat immediately preceded the act .
Thus, if A was threatened by B with bodily harm and because of the threat, A immediately attacked and injured B,
there was a mitigating circumstance of threat immediately preceding the act.
8. The threat should not be offensive and positively strong, because, if it is, the threat to inflict injury is an
unlawful aggression which gave rise to self-defense. (U.S. vs. Guysayco, 13 Phil. 292, 295-296)
The act was committed in the immediate vindication of a grave offense to the one committing the felony
(delito), his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by
affinity within the same degree. (Par. 5)
1. Requisites: a) That there be a grave offense done to the one committing the felony, his spouse, ascendants,
descendants, legitimate, natural or adopted brothers r sisters, or relatives by affinity within the same degree; b) That the
felony is committed in vindication of such grave offense. A lapse of time is allowed between the vindication and the doing
of the grave offense.
Case: Stabbing to death the son of the accused which most naturally and logically must have enraged and
obfuscated him that, seized by that feeling of hatred and rancor, he stabbed indiscriminately the people around. (Pp. vs.
Doniego, 9 SCRA 541, 546, 547).
Case: The remarks made by the victim in the presence of the guests during a celebration that the accused lived at
the expense of his wife, under the circumstances were highly offensive to the accused or to any other person in his place.
(Pp. vs. Rosal, 68 Phil. 323).
2. A lapse of time is allowed between the grave offense and the vindication.
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Case: The fact that the accused was slapped by the deceased in the presence of many persons a few hours
before the former killed the latter, was considered mitigating circumstance. It was held that the influence of the slapping by
reason of its gravity and the circumstances under which it was inflicted, lasted until the moment the crime was committed.
(Pp. vs. Parana, 64 Phil. 331, 337).
Case: The killing of the paramour by the offended husband one day after the adultery was considered still
proximate. (Pp. vs. Palaan, G.R. No. 34976). Ex. 3: The lapse of time between the grave offense (Abduction of the
daughter of the accused) and the vindication (Killing of the deceased) was two or three days. It was held that although the
elopement took place on Jan. 4, 1935, and the aggression on the 7 th of said month and year, the offense did not cease
while the daughter’s whereabouts remained unknown and her marriage to the deceased unlegalized – there was no
interruption.
3. Cases when interval of time negates vindication:
Case: Approximately 9 months before the killing, the deceased boxed the accused several times in the face
resulting in the conviction of the deceased, there was no immediate or a proximate vindication of the first incident. (Pp. vs.
Lumayag, 13 SCRA 502, 507-508).
Case: The deceased uttered the following remarks at 11 o’ clock in the morning in the presence of the accused
and his officemates: “Nag iistambay pala dito ang magnanakaw” and at 5:00 o’ clock in the afternoon the accused killed
the victim. Held: no mitigating circumstance. (Pp. vs. Benito, 74 SCRA 271). Ex. 3: The accused heard the deceased say
that the daughter of the former is a flirt and stabbed the victim two months later, no mitigating circumstance because he
had sufficient time to recover his serenity. (Pp. vs. Lopez, G.R. No. 136861, Nov. 15, 2000).
4. The basis to determine the gravity of the offense in vindication depends on the social standing of the person,
the place, and the time when the insult was made. (See Pp. vs. Ruiz, 93 SCRA 739 where the rule was applied).
Case: During a fiesta, an old man 70 years of age asked the deceased for some roast pig. In the presence of
many guests, the deceased insulted the accused, saying: “There is no more. Come here and I will make roast pig of you”.
A little later, while the deceased was squatting down, the old man came up behind him and struck him on the head with an
ax. Held: While it may trifle to an average person, it evidently was a serious matter to an old man, to be made the butt of a
joke in the presence of so many guests. (U.S. vs. Ampar, 37 Phil. 201).
That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.
(Par. 6)
1. Requisites: a) That there be an act, both unlawful and sufficient to produce such condition of mind; and b) That
the act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of
time, during which the perpetrator might recover his normal equanimity. (Pp. vs Gravino, 122 SCRA 123, 134, May 16,
1983)
.
Case: The act of a common-law wife, who left the common home, refused to go home with the accused, was
acting within her rights, and the accused (common law husband) had no legitimate right to compel her to go with him. The
act of the deceased, although provocative, nevertheless was insufficient to produce the passion and obfuscation that the
law contemplates. ( Pp. vs. Quijano, 50 O.G. 5819)
. Case: But where the accused killed his wife on the occasion when she visited her aunt’s husband, this mitigating
circumstance is applicable, having in mind the jealousy of the accused and her refusal to return to his house until after the
arrival of her uncle. (U.S. vs Ortencio, 38 Phil. 341, 344-345).
2. Passion or obfuscation is mitigating only when it arose from a lawful sentiments or legitimate feelings. (Pp. vs.
Echaluce, 66 SCRA 221) and not from vicious, unworthy or immoral passion. (U.S. vs. Hicks, 14 Phil. 217).
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Case: Killing the deceased with whom the offender lived for several years because she left him to live with
another man, is not the passion that is mitigating because it did not originate from a legitimate feeling. (U.S. vs. Hicks,
supra).
Case: If the accused injured the offended party who made indecent propositions to a woman with whom the
accused had illicit relations, the obfuscation of the accused is not mitigating because his relationship with the woman is
illegitimate. (Pp. vs. Olgado, G.R. No. L-4406, March 31, 1952).
3. There could be no mitigating circumstance of passion or obfuscation when more than 24 hours elapsed
between the alleged insult and the commission of the felony. (Pp. vs. Sarikala, 37 Phil. 486, 490), or if several hours
passed between the cause of the passion or obfuscation and the commission of the crime. (Pp. vs. Aguinaldo, 92 Phil,
583, 588), or when at least half an hour intervened between the previous fight and the subsequent killing of the deceased
by the accused. (Pp. vs. Matbagon, 60 Phil. 887, 890).
4. Passion or obfuscation may lawfully arise from causes existing only in the honest belief of the offender.
Case: The belief of the defendant that the deceased had caused his dismissal from his employment is sufficient to
confuse his reason and impel him to commit the crime. (u.S. vs. Ferrer, 1Phil. 56, 62).
Case: The belief entertained in good faith by the defendant that the deceased cast upon their mother a spell of
witchcraft which was the cause of her serious illness, is so powerful a motive as to naturally produce passion or
obfuscation. (U.S. vs Macalintal, 2 Phil. 448, 451; Pp. vs. Zapata, 107 Phil. 103, 109).
That the offender had voluntarily surrender himself to a person in authority or his agents, or that he had
voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution. (Par.
7).
1. Voluntary surrender must be made to a person in authority or his agent. It may be present if made after the
issuance of a warrant of arrest but before the actual arrest is made. (Pp. vs Turalba, L-29118, Feb. 28, 1974; Pp. vs. de
la Cruz, L-45485, Sept. 19, 1978).
2. But if the accused surrendered after the issuance of warrant of arrest as he had found it futile to continue being
a fugitive from justice, such surrender is not mitigating. (Pp. vs. Rodriguez, 119 SCRA 254, Dec. 15, 1982).
3. A surrender is not voluntary when forced by the circumstances. To be voluntary, a surrender must be
spontaneous, i.e., there must be an intent to submit oneself to the authorities, either because he acknowledges
his guilt or because he wishes to save them from the trouble and expense to be necessarily incurred in his
search and capture. (Pp. vs. Reyes, L-30668, July 29, 1979).
4. The surrender is not voluntary if the offender was merely forced by circumstances because he could not live
any longer in hostility as the agents of the law did not give him peace for a moment. (Pp. vs. Sakam, 61 Phil. 27, Pp. vs.
Sabater, et al., 74 O.G. 4560, Feb. 28, 1978).
Voluntary plea of guilty
1. To be mitigating, the plea of guilty must be: a) made in open court; b) spontaneous; c) prior to the presentation
of evidence for the prosecution. An extra-judicial confession is not mitigating. (Pp. vs. Undong, 66 SCRA 386).
2. A plea of guilty made after arraignment and after trial had begun does not entitle the accused to have such
plea considered as a mitigating circumstance. (Pp. vs. Lungbos, 162 SCRA 383,388-389, June 21, 1988; Pp. vs.
Verano, Jr., L-45589, July 28, 1988, 163 SCRA 614, 621).
3. Death penalty changed to life imprisonment because of plea of guilty, even if done during the presentation of
evidence.
31. While the accused entered a plea of guilty only during the trial so that under this circumstances may not,
under the law, be considered mitigating, however, such admission of guilt indicates his submission to the law and a moral
disposition on his part to reform, hence, the death penalty is changed to life imprisonment. (Pp. vs. Coronel, 17 SCRA
509, 513).
4. Plea of guilty to amended information mitigating.
Case: Trial had already begun on the original information for murder and frustrated murder. However, in view of
the willingness of the accused to plead guilty for a lesser offense, the prosecution, with leave of court, amended said
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information to make it for homicide and frustrated homicide, and the accused pleaded guilty thereto. That was an entirely
new information and no evidence was presented in connection with the charges made therein before the accused entered
his plea of guilty. The accused is entitled to the mitigating circumstance of plea of guilty. (Pp. vs. Ortis, 15 SCRA352,
354, Nov. 29, 1965).See Pp. vs. Intal, 101 Phil. 306, 307-308.
5. Plea of guilty to lesser offense not mitigating circumstance because to be voluntary, the plea of guilty must be
to the offense charged. (Pp. vs. Noble, 77 Phil. 93). Or if the voluntary confession is conditional or qualified, it is not
mitigating. (Pp. vs. Gano, G.R. No. 134373, Feb. 28, 2001).
6. A case where qualified plea of guilty considered mitigating.
Case: The defendant pleaded guilty, however, manifesting that evident premeditation alleged in the information
did not attend the commission of the crime. The Court required the presentation of evidence to prove evident
premeditation and the prosecution failed. Held: The plea of guilty is mitigating, because although the confession was
qualified and the introduction of evidence became necessary, the qualification did not deny the defendant’s guilt and, what
is more, was subsequently justified. It was not the defendant’s fault that aggravating circumstances were erroneously
alleged in the information. (Pp. vs. Yturriaga, 68 Phil. 534, 539; Pp. vs. Ong, 62 SCRA 174, 216, Jan. 30, 1975).
The offender is deaf and dumb, blind or otherwise suffering from some physical defect which thus
restricts his means of action, defense, or communication with his fellow beings. (Par. 8)
1. In a criminal case charging robbery in an inhabited house, the accused is deaf and dumb. Whether the accused
is educated or not is immaterial as the law does not distinguish. (Pp. vs. Nazario, 97 Phil. 990).
2. Physical defects referred to in this paragraph is such as being armless, cripple, or a stutterer, whereby his
means of act, defend himself or communication with his fellow being are limited. (Albert).
3. In the crime of treason, the physical infirmities of the accused were not considered mitigating as he had shown
such fire of purpose, zeal and vigor in the execution of his treasonous activities. (Pp. vs. Garillo, L-30281, Aug. 2, 1978).
Such illness of the offender as would diminish the exercise of the will-power of the offender without
however depriving him consciousness of his acts. (par. 9)
1. Disease of the mind, body, the nerves or moral faculty and the accused who committed the crime while
suffering from any of these illnesses is entitled to mitigation of his penalty. (Pp. vs. Francisco, 78 Phil 694).
2. Illness of the offender considered as mitigating:
Case 1: The mistaken belief of the accused that the killing of witch was for public good may be considered a
mitigating circumstance for the reason that those who have obsession that witches are to be eliminated are in the same
condition as one who, attacked with a morbid infirmity but still retaining consciousness of his act, does not have real
control over his will. (Pp. vs. Balneg, et al., 79 Phil. 805).
Case 2: An offender who is mentally sane is entitled to mitigating circumstance because of his misfortunes and
weak character brought about by a mild behaviour disorder as a consequence of an illness she had in early life. (Pp. vs
Amit, 82 Phil 820).
Case 3: One who is suffering from acute neurosis which made him ill-tempered and easily angered is entitled to
this mitigating circumstance, because such illness diminished his exercise of will power. (Pp. vs. Carpenter, C.A. G.R.
No. 4168, April 22, 1940). A feeblemind is entitled to the mitigating circumstance under this paragraph. (Pp. vs
Formigones, 87 Phil. 658).
And finally, any other circumstance of a similar nature or analogous to those abovementioned. (Par. 10).
1. Over 60 years old with failing sight, similar to over 70 years of age mentioned in par. 2. (Pp. vs. Reantillo and
Ruiz, C.A., G.R. No. 301, July 27, 1938).
2. Outraged feeling of owner of animal taken for ransom analogous to vindication of a grave offense. (Pp. vs.
3. Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of
treason, rebellion or insurrection, sedition, or assault upon a person in authority or his agents.
Requisites:
a) That there is a meeting, a gathering or group of persons, whether in a fixed place or moving.
b) That the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion
or insurrection, sedition or direct assault.
Art. 147. Illegal associations.
What are illegal associations?
1. Associations totally or partially organized for the purpose of committing any of the crime punishable under the
Code.
2. Associations totally or partially organized for some purpose contrary to public morals.
Persons liable?
1. Founders, directors and president of the association.
2. Mere members of the association.
Distinctions between illegal association and illegal assembly.
a) In illegal assembly, it is necessary that there is an actual meeting or assembly of armed persons for the
purpose of committing any of the crimes punished 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; in illegal association,
it is not necessary that there be an actual meeting.
b) In illegal assembly, it is the meeting and attendance at such meeting that are punished; in illegal association, it
is the act of forming or organizing and membership in the association that are punished.
c) In illegal assembly, the persons liable are: (1) organizers or leaders of the meeting, and (2) persons present at
the meeting. In illegal association, the persons liable are: (1) the founders, directors and president, and (2) members.
Chapter Four. Assaults, etc.
Art. 148. Direct assaults.
Two ways of committing the crime of direct assaults:
1. Without public uprising, by employing force or intimidation for the attainment of any of the purposes
enumerated in defining the crime of rebellion and sedition.
2. Without public uprising, by attacking, by employing force, or by seriously intimidating or seriously resisting any
person in authority or any of his agents, while engaged in the performance of official duties, or on the occasion of such
performance.
Elements of the first form of assault:
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1. That the offender employs force or intimidation.
2. That 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.
3. That there is no public uprising.
Examples of first form:
Facts: The chief of police together with other policemen compelled the Municipal president by force to go to the
municipal building and detained him there for hours because their salaries had been in arrears for sometimes. He was
released when the relatives of the president sent him money to pay for the salaries. Held: That these facts constitute the
commission of the crime charged in the complaint. There is force in this case. But there is no public uprising. When the
accused, compelled by force the municipal president to go with them to the municipal building and detained him there,
they inflicted an act of hate or revenge upon a public officer. This is one of the objects of sedition which the accused
aimed to attain. (U.S. vs. Dirain, 4 Phil. 541).
Direct assault to prevent a popular election.
The act of the accused in preventing by force the holding of a popular election in certain precincts, without public
uprising, is direct assault of the first form. (See Clarin vs. Justice of the Peace, GR No. L-7661, April 5, 1955).
Elements of the second form of direct assault.
1. That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a
serious resistance.
2. That the person assaulted is a person in authority or his agent.
3. That at the time of the assault the person in authority or his agent (a) is engaged in the actual performance of
official duties, or that he is assaulted, (b) by reason of the past performance of official duties.
4. That the offender knows that the one he is assaulting is a person in authority or agent in the exercise of his
duties.
5. That there is no public uprising.
Degree of force necessary in direct assault.
If the offended party is only an agent of a person in authority, the force employed must be of serious character as
to indicate determination to defy the law and its representative at all hazards. (Reyes)
If the offended party is a person in authority the force employed need not be serious. (See U.S. vs. Gumban, 39
Phil. 76).
Facts: The accused, while being placed under arrest by three policemen, hit one of them in the breast with his fist.
Held: The words in Art 148 relating to the employment of force appear to have reference to something more dangerous to
civil society than a simple blow with the hands at the moment a party is taken into custody. No direct assault. ( U.S. vs.
Tabiana).
Where a police officer tried to arrest the accused for violation of the chicken dung ordinance, and the accused
punched the police officer on his face, particularly on his lip, and then grappled with a police officer, there was direct
assault. (Rivera vs. People, G.R. No. 138553, June 30, 2005).
Slapping the face of the municipal president while in the performance of his duty is direct assault, although the
force employed is not serious. (U.S. vs. Gumban, supra).
Intimidation or resistance must be serious whether the offended party is an agent only or he is a person
in authority.
The law, with regard to intimidation or resistance as other constitutive element of assault, expressly requires that
they be serious in character. (U.S. vs. Gumban).
Example of serious resistance.
In the course of the quarrel between A and B, the latter called, “Police! Police!, and the policeman who went to the
scene saw B getting up. When the policeman was about to arrest A, the latter said: “Don’t come near, because I will take
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your life.” As the policeman was approaching him, A struck him with a knife but was not hit. (U.S. vs. Samonte, 16 Phil.
516).
Example of serious intimidation.
Pointing a gun at a military police captain who is in the performance of his duty constitutes assault upon an agent
of person in authority, because there is a serious intimidation. (Pp. vs. Diama, CA, 45 OG 838).
It would seem threatening to give a fist blow, made to a policeman who was arresting the accused would not
constitute direct assault by intimidation, because the intimidation is not serious.
Intimidation must produce its effect immediately, for if threats be of some future evil, the act would not be direct
assault. (Albert).
- Knowledge of the accused that the victim is a person in authority or his agent is essential. (Pp. vs. Villasenor,
35 SCRA 460).
- “On occasion of such performance” of official duty signifies “by reason” or “because” of the past performance of
official duty, even if at the time of the assault no official duty was being discharged. (Justo vs. CA, 99 Phil. 453).
-U.S. vs Garcia, 20 Phil. 358, where a judge was attacked by a person who earlier was order by the judge to step
out of the court for uttering contemptuous remarks against the court although the judge was not in the actual performance
of his duty, but he was assaulted by reason of the performance of official duty.
Art. 149. Indirect Assault.
Elements:
1. That a person in authority or his agent is the victim of any of the forms of direct assault defined in Art. 148.
2. That a person comes to the aid of such authority or his agent.
3. That the offender makes use of force or intimidation upon such a person coming to the aid of the authority or
his agent.
- Indirect assault is committed only when a direct assault is also committed. (reyes).
- The offended party in indirect assault may be a private individual.
- If a private individual was assaulted while aiding a policeman in arresting the accused is not indirect assault as
the policeman is not a victim of direct assault.
Art. 150. Disobedience to summons issued by the National Assembly, etc.
Art.151, Resistance and disobedience to a person in authority or the agents of such person.
Elements of resistance and serious disobedience:
1. That a person in authority or his agent is engaged in the performance of official duty or gives lawful order to the
offender.
2. That the offender resists or seriously disobeys such person in authority or his agent.
3. That the act of the offender is included in the provisions of Arts. 148, 149 and 150).
Examples:
- U.S. vs. Tabiana, 37 Phil. 515 –where the accused struck a policeman on the breast with a fist when the latter
was arresting the said accused.
- Pp. vs. Baesa, CA 55 OG 10295, where the accused in the heat of the argument and under the impulse of
obfuscation pulled the hand of a barrio lieutenant, causing him to fall to the ground, is guilty of resistance and serious
disobedience under Art. 151, not direct assault because the employment of force is not deliberate.
-Pp. vs. Veloso, 48 Phil. 182, where the accused bit a policeman on the right forearm and gave him a blow in
another part of the body, which severely injured the policeman, and it required two policemen to subdue him, it was held
that the was guilty of resistance and serious disobedience because the employment of force is not deliberate.
Simple disobedience. (par. 2).
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Pp. vs Bacani, CA 40 OG 981, where the court issued a writ of injunction against the accused not to enter the
land in dispute, but he disobeyed despite being told by the sheriff not to enter the land claiming that he was the owner of
the land, and advance towards the sheriff, but was intercepted by the policeman, is guilty of simple disobedience.
Art. 157. Evasion in the service of sentence.
Elements:
1. That the offender is a convict by final judgment.
2. That he is serving his sentence which consists in deprivation of liberty.
3. That he evades the service of his sentence by escaping during the term of his sentence.
The sentence must be by reason of final judgment.
Thus, if the accused while the sentence of conviction was under appeal, he is not liable under this article because
the judgment has not yet become final even if his appeal was later dismissed. (Curiano vs. CFI, GR L-8104, April 15,
1955).
The term “escape”
Mere loitering in the premises of the court house, without a guard or escort is not “escape” in contemplation of the
law as the circumstances belie escape, or intention of the accused to escape as they certainly would not have loitered in
the premises of the courthouse, just near the city jail, where they could easily be spotted. (Pp. vs. Lauron, et al., CA 60
OG 4983).
Art. 158. Evasion of the service of sentence on the occasion of disorders, conflagrations, earthquakes , or
other calamitites.
Elements:
1. That the offender is a convict by final judgment, who is confined in a penal institution.
2. That there is disorder, resulting from:
a. conflagration,
b. earthquake,
c. explosion,
d. similar catastrophe, or
e. mutiny in which he has not participated.
3. That the offender evades the service of his sentence by leaving the penal institution where he is confined, on
occasion of such disorder or during the mutiny.
4. That the offender fails to give himself up to the authorities within 48 hours following the issuance of a
proclamation by the Chief Executive announcing the passing away of such calamity.
The rules.
- What is punished by this article is not the leaving of the penal institution, but the failure of the convict to give
himself up to the authorities within 48 hours after the proclamation announcing the passing away of the calamity.
- The penalty is that the accused shall suffer an increase of 1/5 of the time still remaining to be served under the
original sentence, not to exceed six (6) months.
- If the accused gives himself up to the authorities within 48 hours, he is entitled to a deduction of 1/5 of his
sentence.
Mutiny, meaning.
Mutiny implies an organized unlawful resistance to a superior officer; a sedition; a revolt. ( Pp. vs. Padilla, CA 46
OG 2151).
Art. 159. Other cases of evasion of service of sentence. (Violation of conditional pardon)
Elements of violation of conditional pardon.
1. That the offender was a convict.
2. That he was granted a conditional pardon by the Chief Executive.
3. That he violated any of the conditions of such pardon.
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Nature of conditional pardon – it is a contract.
A conditional pardon is a contract between the Chief Executive, who grants the pardon, and the convict, who
accepts it. Since it is a contract, the pardoned convict is bound to fulfill its condition and accept all its consequences, not
as he chooses, but according to its term. (Pp. vs. Pontillas, 65 Phil. 659).
Penalties:
a. Prision correccional in its minimum period – if the penalty remitted does not exceed 6 years.
b. The unexpired portion of his original sentence – if the penalty remitted is higher than 6 years.
Illustration:
The accused was sentenced to a penalty of 6 years and 1day of prision mayor. He served 2 years, 5
months and 22 days of the sentence and was granted conditional pardon. The term remitted by the pardon is 3
years, 6 months and 8 days. The penalty is prision correccional in its minimum period. ( Pp. vs. Sanares, 62 Phil.
825).
- Offender must be found guilty of the subsequent offense before he can be prosecuted under Art. 159.
(Torres vs. Gonzales, 152 SCRA 272).
- Violation of conditional pardon is a distinct offense. (Pp. vs. Martin, 68 Phil. 122). Thus, violation of
conditional pardon is committed in the place where the subsequent offense is perpetrated.
- The time during which the convict was out of prison cannot be deducted from the unexecuted portion of
his sentence. (Pp. vs. Tapel, 64 Phil. 112).
Art. 160. Commission of another crime during the service of penalty imposed for another previous
offense. (Quasi-recidivism).
Quasi-recidivism is a special aggravating circumstance where a person, after having been convicted by
final judgment, shall commit a new felony before beginning to serve such sentence, or while serving the same. He
shall be punished by the maximum period of the penalty prescribed by law for the same felony.
Elements:
1. That the offender was already convicted by final judgment of one offense.
2. That he committed a new felony before beginning to serve such sentence or while serving the same.
- The second crime committed must be a felony, not punished by special law because the article speaks of “the
maximum period” of the penalty prescribed by law for the new felony”. Penalty prescribed by special law has no three
periods like the three periods of a divisible penalty prescribed in RPC.
- But the first crime for which the offender is serving need not be a felony. (Pp. vs. Alicia, 95 SCRA 227).
- The new offense need not be of different character from that of the former offense. Hence, even if the new
offense is murder and he is serving sentence for homicide, this article applies. (Pp. vs. Yabut, 58 Ohil. 499).
- Quasi-recidivism cannot be offset by ordinary mitigating circumstances because Art. 160 specifically provides
that the offender “shall be punished by the maximum period of the penalty prescribed by law for the new felony. (See Pp.
vs. Parete, 58 OG 8628).
- A quasi-recidivist may be pardoned at the age of 70 years and has already served out his original sentence, or
when he shall complete it after reaching such age, unless by reason of his conduct or other circumstances, he shall not
be worthy of such clemency.
Title Four
CRIMES AGAINST PUBLIC INTEREST.
(Art. 161-174)
Art. 171. Falsification by pubic officer, employee or notary or ecclesiastical minister.
Elements:
1. That the offender is a public officer, employee, or notary public.
2. That he takes advantage of his official position.
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3. That he falsifies a document by committing any of the following acts:
a. Counterfeiting or imitating any handwriting, signature or rubric.
b. Causing it to appear that persons have participated in any act or proceeding when they did not
in fact do so participate.
c. Attributing to persons who have participated in an act or proceeding statements other than
those in fact made by them.
d. Making untruthful statements in a narration of facts.
e. Altering true dates.
f. Making any alteration or intercalation in a genuine document which changes its meaning.
g. Issuing in authenticated form a document purporting to be a copy of an original document
when no such original exists, or including in such copy a statement contrary to, or different from, that of
the genuine original.
h. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry or
official book
4. In case the offender is an ecclesiastical minister, the act of falsification is committed with respect to any record
or document of such character that its falsification may affect the civil status of persons.
Definition of a document.
A document is any written statement by which a right is established or an obligation extinguished. (Pp vs.
Moreno, CA 38 OG 119.
A document is a writing or instrument by which a fact may be proven and affirmed.
Thus, a draft of a payroll because it has not been signed by the proper authority, can prove and affirmed nothing.
(Pp. vs. Camacho, 44 Phil. 488).
Pamphlets cannot be said to evidence a fact, agreement or disposition. They are rather merchandise as any other
article. (Pp. vs. Agnis, 47 Phil. 945).
- In falsification by (1) making alteration or intercalation, or (2) including in a copy a different statement, there must
be a genuine document that is falsified.
- In another paragraphs of Art. 117, falsification may be committed by simulating or fabricating a document.
Illustration: To cause the arrest of his common-law wife, the accused simulated a warrant of arrest by making it
appear that the same was signed and issued by the authority when in truth and in fact it was not. Held: It is not necessary
that it be a real document, it is enough that it be given the appearance of a genuine document.
Counterfeiting or imitating (feigning) any handwriting, signature or rubric. (Par. No. 1).
-There are two ways of committing falsification under paragraph 1 of Art. 171. They are: (1) counterfeiting, which
is imitating any handwriting, signature or rubric; and (2) feigning, which is simulating a signature, handwriting or rubric out
of one which does not in fact exist.
-In counterfeiting imitation of another’s signature need not be perfect. It is necessary only (1) that there be an
intent to imitate, and (2) that the two signatures or handwritings, the genuine and forged, bear some semblance to each
other. (U.S. vs. Rampas, 26 Phil. 189).
- If there is no attempt whatsoever by the accused to imitate the signature of other persons so that they are
entirely unlike the genuine signatures, the accused may be found guilty under par. 2, Art. 171, in causing it to appear that
those persons have participated in the act when they did not in fact so participate. (U.S. vs. Freimuth, 3 Phil. 318, U.S.
vs. Cinco, et al., 42 Phil. 839).
- In feigning there is no original signature, handwriting or rubric, but a forgery of a signature, handwriting or rubric
that does not exist. (See US vs. De los Angeles, et al., 4 Phil. 597).
- Drawing up a will purporting to be that of a person who is already dead long before the date of the will is
falsification by feigning. (U.S. vs. De los Angeles).
Causing it to appear that persons have participated in an act or a proceeding. (Par. 2).
Requisites:
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1. That the offender caused it to appear in a document that a person or persons participated in an act or a
proceeding; and
2. That such person did not in fact so participate in the act or proceeding.
- That act of the defendant postmaster in forging the signatures of Irene Sanchez and Feliciano Isidro on the
money orders to make it appear that said persons received the amounts corresponding to the money order is falsification
under par. 2 by making it appear that the said persons intervened in the execution thereof by receiving the amount
corresponding to the amount thereof, even if he did not imitate the signatures of the persons. (Pp. vs. Villanueva, 58
Phil. 671).
- The placing by the accused of their thumb marks in the list of voters opposite the name of the electors who have
not actually voted, thereby making it appear that those electors cast their votes when they did not in fact vote, is
falsification under paragraph 2 of Art. 171, and the offenders who are private individuals are liable under Art. 172. (Pp. vs.
Asa, et al., )
Attributing to persons who have participated in any act or proceeding statements other than those in fact
made by them. (Par. 3).
Requisites:
1. That a person or persons participated in an act or proceedings;
2. That such person or persons have made statements in that act or proceeding; and
3. That the offender in making a document, attributed to such person or persons statements other than those in
fact made by such person or persons.
- The accused, for the purpose of appropriating to himself a tract of land, drew a document setting forth the sale in
his favor of the said land and let the owners signed thereon. However, it appears that the owner of the land did not sell, or
that they executed in favor of the accused a Deed of Sale; that what they really did was to confer upon him (accused) a
special power of attorney to represent them in a suit they had with another person. The crime committed is falsification
under par. 3 of Art. 171. (U.S. vs. Capule, 24 Phil. 13).
Making untruthful statements in a narration of facts. (Par. 4).
Requisites:
1. That the offender makes in a document statements in a narration of facts;
2. That he has a legal obligation to disclose the truth of the facts narrated by him;
3. That the facts narrated by the offender are absolutely false; and
4. That the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person.
- The falsehood must involve statements of facts and not of law. Thus when the accused certified that she was
eligible for the position, which turned out to be inexact or erroneous, she practically wrote a conclusion of law and not of
fact, she may not be guilty of falsification. (Pp. vs. Yanza, GR No. L-12089, april 29, 1960).
- There must be a legal obligation on the part of the accused to disclose the truth of the facts narrated. (Pp. vs.
Quasha, 93 Phil. 333).
- The accused, in compliance with the requirements of the Manila Police Dept. filled a Persona Data Sheet. On
the blank space, where a questions is asked whether the applicant had previously been convicted of a criminal offense,
he placed there “none”. Investigation disclosed that he had a previous conviction of the crime of theft. Held: The
prosecution has failed to point to any law or ordinance imposing upon the defendant the obligation to reveal his previous
conviction in filling in the personal data sheet which the members of the Manila Police Dept. are required to file. The
accused was acquitted. (Pp. vs. Poserio, CA 53 OG 6159).
- The narration of facts, to be liable for falsification under this paragraph must be absolutely false. Thus, where the
accused, who was a janitor, marked with vertical lines in payroll opposite the names of some persons under his charge, to
show that said person had performed their work during the days stated in the payroll and then certified that the payroll
was correct, when as a matter of fact one of the men did his work before 8:00 o’ clock in the morning but absented himself
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during the whole day, is not guilty of falsification for the reason that the person really worked but not for the whole day.
(U.S. vs. Bayot, 10 Phi. 518).
- The rule is that if the statements are not altogether false, there being some colorable truth in such statements,
the crime of falsification is not committed. (Pp. vs. Villena, et al., CA 51 OG 5691).
- Legal obligation to disclose the truth in is inherent in residence certificate. (Pp. vs. Po Giok, 96 Phil. 913).
Altering true dates. (Par. 5).
- To violate this paragraph the date must be essential so that the alteration thereof must affect its veracity or the
effects thereof. ( Pp. vs. Rodeca and Cordero, 62 Phil. 567).
- The acts of the chief of police, in conspiracy with the justice of the peace, in altering the dates in the police
blotter, book of records of arrest, bail bond, and the return of the warrant of arrest, in order to make it appear that the
preliminary investigation of the case was disposed within ten days by the judge, is falsification under this paragraph. Date
being essential here. (Pp. vs. Montano and Cabagsang, 57 Phil. 599).
- Altering dates in official receipts, although does not affect the integrity of the document, is falsification if the
purpose is to prevent the discovery of malversation. (Pp. vs. Belgica, CA, 40 OG, Supp. 4, 17).
Making alteration or intercalation in a genuine document which changes its meaning. (Par. 6).
- When accused altered the copy of the Traffic Violation Report issued to him for traffic violation, as his temporary
license, by erasing the originally written “III” and the word “three” after the words “pending cases” and by writing and
superimposing thereon number “I” and the word “one” to hide his previous traffic violations, is falsification under this
paragraph. (Pp. vs. Mansala, 105 Phil. 1253).
- Alteration which speaks the truth is not falsification. Thus, a priest who altered his “cedula’ as to his age from 23
to 25, but it appeared that the accused’ real age is 25 is not falsification. (Arriola vs. Republic, 103 Phil. 730).
- The alteration must affect the integrity or change the effects of the document; for unless that happens, there
could not exist the essential elements of the intention to commit the crime. (Pp. vs. Pacana, 47 Phil. 48).
Issuing in 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 original
document. (Par. 7).
- This kind of falsification can only be committed by pubic officer or notary public who takes advantage of his
official position, since the authentication of a document can be made only by the custodian or the one who prepared and
retained a copy of the original document.
- Example of “purporting to be a copy of an original when no such original exists”: The notary public who made a
supposed copy of a deed of sale which was never executed and of which he had no copy.
- Example of “Including in a copy a statement contrary to, or different from, that of the genuine original.”: A Civil
Registrar who stated in a certified copy of a record of birth that the person mentioned therein was legitimate when there
was no such statement in the original.
Falsification by private individuals and use of falsified document. Art. 172).
Acts punished under this article:
1. Falsification of public, official or commercial document by private individual. (par. 1)
2. Falsification of private document by any person. (par. 2)
3. Use of falsified document. (last par.)
Any one of the modes of falsification in paragraphs 1 to 6 of Art. 171 must be employed by the offender in
committing the crimes defined in par. Nos. 1 and 2 of Art. 172. Par. 7 of Art. 171 cannot be committed by a private
individual. It can only be committed by a public officer or a notary public who takes advantage of his official position.
- The possessor of a certificate of title is presumed to be the author of the falsification that made possible the
transfer of title. (Pp. vs. Domingo, 49 Phil. 28). See also Pp. vs. Manansala, 105 Phil. 1253.
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- In par. 1, Art. 172, as in Art. 171, damage or intent to cause damage is not necessary. The subject of falsification
here are public documents and the basis of the punishment is the violation of the public faith and the destruction of truth
as therein solemnly declared. (See Pp. vs. Pacana, 47 Phil. 56).
- Falsification under par. 2, Art. 172 is committed even if the act did not result in prejudice to a third party, if it has
been done with the intention of causing such prejudice. (U.S. vs. Paraiso, 1 Phil. 127).
- Damage to another need not be material. The law does not make any distinction. Damage to one’s honor is
included. (U.S. vs. Infante, et al., 36 Phil. 146).
- It is not necessary that the offender profited or hope to profit by the falsification, as all that the law is required is
an intent to prejudice another person. (U.S. vs. Infante, et al., 36 Phil. 146).
- When the offender commits on a document any of the acts of falsification enumerated in Art. 171 as a necessary
means to commit another crime, like estafa, theft or malversation, the two crime form a complex crime under art. 148.
However, the document falsified must be public, official or commercial.
Use of falsified document. (last par.of Art. 172).
-The falsified document may be introduced in a judicial proceedings, in which case, damage is not necessary. Or
in another transaction, which requires at least intention to cause damage to another.
Chapter Two
OTHER FALSITIES
Section Two.- False testimony.
False testimony is committed by a person who, being under oath and required to testify to the truth of a certain
matter at a hearing before a competent authority, shall deny the truth or say something contrary to it.
False testimony against a defendant. (Art. 180).
Elements:
1. That there be a criminal proceeding.
2. That the offender testifies falsely under oath against the defendant therein.
3. That the offender who gives false testimony knows that it is false.
4. That the defendant against whom the false testimony is given is either acquitted or convicted by final
judgment.
False testimony favorable to the defendant. (Art. 181).
-False testimony which either favor or against the accused is equally repugnant to the orderly administration of
justice, and deserve to be rigorously repressed. (Pp. vs. Reyes, CA, 48 OG 1837).
- The false testimony in favor of the defendant need not directly influence the decision of acquittal. Thus, when the
accused falsely testified in another case in favor of an accused by not remembering anymore the face of the latter as
robber and failed to elicit other data, and for which reason the accused in the robbery was acquitted, is guilty of false
testimony, even if the reason for the dismissal of the case was the failure of the fiscal to call other witnesses. (Pp. vs.
Reyes, CA, 48 OG 1837).
- The false testimony need not benefit the defendant, say if the accused, notwithstanding the favorable testimony
of the accused (in false testimony) was convicted, so long as the testimony was intended to favor the accused. (U.S. vs.
Adolfo, 12 Phil. 296).
- The defendant who falsely testified in is own behalf in a criminal case is guilty of false testimony favorable to the
defendant. (U.S. vs. Soliman, 36 Phil. 5).
- Rectification made spontaneously after realizing the mistake is not false testimony, there being no malice or
criminal intention to testify falsely. (Pp. vs.Ambal. 69 Phil. 710).
False testimony in other cases and perjury in solemn affirmation. (Art. 183).
Elements:
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1. That the accused made a statement under oath or executed an affidavit upon a material matter.
2. That the statement or affidavit was made before competent officer, authorized to receive and administer oath;
3. That in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and
4. That the sworn statement or affidavit containing falsity is required by law.
- If the false testimony given by the witness is not important, essential or material to the principal matter under
investigation, it cannot properly be held that perjury is committed. (U.S. vs. Jurado, 31 Phil. 491).
- Good faith or lack of malice is a defense in perjury. (See Pp. vs. abaya, 74 Phil. 59).
- Examples of cases where affidavits are required by law: (1) affidavit attached to the petition for receivership; (2)
affidavit attached to the complaint for ejectment; (3) affidavit for application for marriage license.
- Two contradictory statements are not sufficient to convict perjury. The prosecution must prove which of the two
statements is false, and must show that statement to be false by other evidence than the contradictory statements. (U.S.
vs. Capistrano, 40 Phil. 902).
Subornation of perjury.
Subornation of perjury is committed by a person who knowingly and willfully procures another to swear falsely and
the witness suborned does testify under circumstances rendering him guilty of perjury. (U.S. vs. Ballena, 18 Phil. 382).
Note: This offense is omitted from the penal code. The one inducing another is principal by inducement and the
latter as principal by direct participation.
Chapter Two
MALFEASANCE AND MISFEASANCE INOFFICE
Knowingly rendering unjust judgment. (Art. 204).
Elements:
1. That the offender is a judge;
2. That he renders judgment in a case submitted to him for decision;
3. That the judgment is unjust;
4. That the judge knows that his judgment is unjust.
Judgment- is the final consideration and determination of a court of competent jurisdiction upon the matters
submitted to it, in an action or proceeding.
Unjust judgment- is one which is contrary to law, or is not supported by evidence, or both.
Unjust judgment is rendered knowingly when it is made deliberately and maliciously.
“Knowingly” means consciously, intelligently, willfully, or intentionally. (Black’s Law Dictionary, 5th ed., 784).
- Unjust judgment cannot be presumed-it must be supported with evidence. Thus, the mere fact that the judge
promise to the other party that he would decide the case against the other party does not prove that judgment is unjust.
The judgment may be supported with evidence.
- Before a judge can be held liable under this article, it must be shown beyond reasonable doubt that the judgment
is contrary to law, or is not supported with evidence, and the same was made with conscious and deliberate intent to do
an injustice. (Sta. Maria vs. Ubay, 87 SCRA 179).
- It is not the prosecutor who would pass the unjustness of the judgment but the proper appellate court with
jurisdiction to review the same, either the court of appeals or the supreme court, and it also does not apply to collegiate
court. (In Re: Joaquin T. Borromeo, AM, No. 93-7-6960, February 21, 1995).
-Mere error of judgment cannot serve as a basis for a charge under this article when there is no proof or even
allegation of bad faith, or ill motive, or improper consideration. ( Yaranon vs. Judge Rubio, 66 SCRA 67).
Judgment rendered through negligence. (Art. 205)
Elements:
1. That the offender is a judge;
2. That he renders a judgment in a case submitted to him for decision;
3. That the judgment is manifestly unjust;
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4. That it is due to his inexcusable negligence or ignorance.
-Abuse of discretion or mere error of judgment is not punishable as it odes not necessarily mean ulterior motive,
arbitrary conduct or willful disregard of litigant’s right. (Evangelista vs. Hon. Baes, 61 SCRA 475).
Unjust interlocutory order. (Art. 206).
Elements:
1. That the offender is a judge;
2. That he performs any of the following acts:
a) knowingly renders unjust interlocutory order or decree; or
b) renders a manifestly unjust interlocutory order or decree through inexcusable negligence or
ignorance.
- An interlocutory order is an order which is issued by the court between the commencement and the end of suit
or action and which decides some point or matter, but which, however, is not a final decision of the matter in issue.
(Bouvier’s Law Dictionary).
Malicious delay in the administration of justice. (Art. 2017)
Prosecution of offenses; negligence and tolerance. (Art. 208).
Acts punishable:
1. By maliciously refraining from instituting prosecution against violators of the law.
2. By maliciously tolerating the commission of the offense.
-“negligence” as used in this article should not be understood merely as lack of foresight or skill but means
“neglect of the duties of his office by maliciously failing to move the prosecution and punishment of the delinquent”. (U.S.
vs. Mendoza, 23 Phil. 194).
Elements of dereliction of duty in the prosecution of offenses.
1. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to
prosecute, offenses.
2. That there is dereliction of the duties of his office; that is, knowing the commission of the crime, he does not
cause the prosecution of the criminal (Pp. vs. Rosales, GR No. 42648) or knowing that a crime is about to be committed,
he tolerated its commission.
3. That the offender acts with malice and deliberate intent to favor the violator of the law.
Officers liable:
- A chief of police, who, in breach of official duty, failed to prosecute a jueteng collector, in that he failed to file the
corresponding criminal action against the latter who was caught possessing jeuteng lists, was held liable under Art. 208.
( Pp. vs. Mina, 65 Phil. 621).
- A barrio lieutenant (now brgy. captain) who, in neglect of his duty, fails to move the prosecution of, and
punishment for, a crime of arson, of which he is informed, would, in case the alleged crime was afterwards duly proven,
be guilty of prevaricacion. (U.S. vs. Mendoza, 23 Phil. 194).
- A fiscal who, knowing that the evidence against the accused is more than sufficient to secure his conviction in
court, drops the case, is liable and may punished under Art. 208.
- Malice is an important element of this article. Thus, the municipal president (now mayor) who held cockfights on
the days not authorized by the law, to raise funds for the construction of a ward in the provincial hospital, was not liable
under Art. 208 for the word “maliciously” means that the action complained of must be the result of a deliberate evil intent
and odes not cover a mere voluntary act. The accused was convicted of illegal cockfighting. (Pp. vs. Malabanan, 62 Phil.
786).
- The crime committed by the law-violator must be proved first. If the guilt of the law-violator is not proved, the
person charged with dereliction of duty under this article is not liable. (U.S. vs. Mendoza, supra).
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Betrayal of trust by an attorney or solicitor-revelation of secrets. (Art. 209).
Acts punished as betrayal of trust by attorney.
1. By causing damage to his client, either (1) by any malicious breach of professional duty, (2) by inexcusable
negligence or ignorance. Note: When the attorney acts (1) with malicious abuse of his employment or (2) inexcusable
negligence or ignorance, there must be damage to his clients.
2. By revealing any of the secrets of his client learned by him in his professional capacity. Note: Damage is not
necessary.
3. By undertaking the defense of the opposing party in the same case, without the consent of his client, after
having undertaken the defense of said first client or having received confidential information from said client. Note: If the
client consents to the attorney’s taking the defense of the other party, there is no crime.
Section Two-Bribery
Direct Bribery. (Art. 210).
Acts punished punishable in direct bribery:
1. By agreeing to perform, or by performing, in consideration of any offer, promise, gift or present – an act
constituting a crime, in connection with the performance of his official duties.
2. By accepting a gift in consideration of the execution of an act which does not constitute a crime, in connection
with the performance of his official duty.
3. By agreeing to refrain, or by refraining, from doing something which it is his official duty to do, in consideration
of a gift or promise.
Elements of direct bribery:
1. That the offender be a public officer within the scope of Art. 203.
2. That the offender accepts an offer or a promise or receives a gift or present by himself or through another.
3. That such offer or promise be accepted, or gift or present be received by the public officer –
(1) with a view to committing some crime; or
(2) in consideration of the execution of an act which does not constitute a crime, but the act must be
unjust; or
(3) to refrain from doing something which is his official duty to do.
4. That the act which the offender agrees to perform or which he executes be connected with the performance of
his official duties.
- “public officer” as used in this title means every public servant from the highest to the lowest. For this purpose of
the penal code, it obliterates the standard distinction in the law of public officers between “officer” and “employee”.
-Thus, a laborer in the Bureau of Posts appointed by the acting director as sorter and filer of money orders and
the sorting and filing of money orders are obviously a public function or duty. (Maniego vs. People, 88 Phil. 494).
- A mere emergency helper of the Bureau of Treasury on a daily wage basis, without any appointment as a janitor
or messenger, is a public officer having been entrusted wit the custody of official document. (Pp. vs. Ireneo, CA 53 OG
2827).
-Gift may not only be offered by a private person, but it may be solicited by the public officer himself.
- The gift or promise must be accepted by the public officer; otherwise the one making the offer or gift is liable for
attempted corruption of public officer.
- A mere promise to give gift to, and a promise to commit an unlawful act, by a public officer is sufficient in direct
bribery. Thus, a stenographer who accepted a promise of P100 from an individual and he promised to alter the notes taken
by him during the trial is sufficient to hold him liable in direct bribery. Alteration of TSN is falsification of public document.
- In other words, a promise from the circumstances of the case, may be implied. (U.S. vs. Richard, 6 Phil. 545).
- The act which the public officer agrees to perform must be connected with the performance of his official duties.
( U.S. vs. Valdeheza, 4 Phil. 470).
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Direct bribery under 2nd paragraph of art. 210
- Direct bribery under the first and the second paragraph have the same elements, but the act intended by the
public officer in the second paragraph does not amount to a crime but is unjust.
Examples:
The treasurer who, in consideration of money or present, awards certain stalls in the public to a china man, inspite
of the fact that there are Filipinos who have better rights. The act of the treasurer is not a crime but is unjust.
-In Pp. vs. Gacutan, the act of a judge in rendering an unjust decision, knowing it to be unjust, in favor of a party
who gave him a female carabao falls under this paragraph. Because when he decided the case in favor of the party is not
criminal but is unjust, being in disregard of the evidence.
-In Marifosque vs. People, GR No. 156685, July 27, 2004, the Police officer is guilty of direct bribery under the
second paragraph when he received a bribe money for the recovery of stolen cylinder tanks, which was an act not
constituting a crime, and his act of receiving money was in connection with his duty as a police officer.
Direct bribery under the 3rd paragraph.
Examples:
A sanitary inspector who accepts a gift from the tenant of an unsanitary building and in consideration thereof
refrain from performing his official his duty to report its condition to his superiors. (U.S. vs. Navarro, 3 Phil. 633).
- If by refraining from doing an act the officer is committing a crime, he is punished not under par. 3 but under par.
1.
Thus, if a public officer, for a gift or promise, abstain from instituting an action for the punishment of an offense,
which is punished under Art. 208, he should be punished under par. 1, not under par. 3.
Indirect bribery (Art. 211).
Elements:
1. That the offender is a public officer.
2. That he accepts gifts.
3. That the said gifts are offered to him by reason of his office.
- There must be a clear intention on the part of the public officer to take the gift so offered and considered the
same as his own property from then on, such as putting away the gift for safe keeping or pocketing them.
Thus, mere physical receipt unaccompanied by any other sign, circumstances or act to show such acceptance is
not sufficient to lead the court to conclude the crime of indirect bribery has been committed. To hold otherwise will
encourage unscrupulous individuals to frame up public officers by simply putting within their physical custody some gift,
money or other property. (Formileza vs. Sandiganbayan, 159 SCRA 1).
Art. 211-A Qualified bribery(as amended by RA 7659) .
Elements:
1. That the offender is a public officer entrusted with law enforcement;
2. That the offender refrains from arresting or prosecuting an offender who has committed a crime punishable by
reclusion perpetua and/or death;
3. That the offender refrains from arresting or prosecuting the offender in consideration of any promise, gift or
present.
Penalty:
1. Shall suffer the penalty for the offense which was not prosecuted.
2. If it’s the public officer who asks or demands such gift, the penalty is death.
Corruption of public officials. (Art. 212).
Elements:
1. That the offender makes offers or promises or gives gift or presents to a public officer.
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2. That the offers or promises are made or the gifts or presents given to a public offer, under the circumstances
that will make the public officer liable for direct bribery or indirect bribery.
-Entrapment is usually a means of catching the briber.
Thus, an NBI agent who, posing as interested in expediting the approval of license for firearm, gave P 50.00 to a
public officer who had hinted that he was not averse to receiving some money for expediting the approval of licenses,
merely resorted to ways and means to catch the public officer, it appearing that there was a ground of suspicion or belief
of the existence of official graft in that office. (Pp. vs. Vinzol, CA 47 OG 294).
P.D. No. 46 – Prohibits the giving and acceptance of gifts by a public officer or to a public officer, even during
anniversary, or when there is an occasion like Christmas, New Year, or any gift-giving anniversary.
The decree punishes both the giver and the receiver.
- The giving and receiving of gifts must be by reason of official position, regardless of whether or not the same is
for past or future favors.
- The giving of parties by reason of the promotion of a public official is considered a crime even though it may call
for a celebration. The giving of the party is not limited to the pubic officer only but also to any member of his family.
P.D. 749. Granting immunity from prosecution to a private person or public officer who shall voluntarily give
information and testify in a case involving a violation of the Anti-graft and Corrupt Practices Act.
The giving of immunity to the bribe-giver requires the following:
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 willing 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, the prosecutor may move for the dropping of the bribe-giver from the information and be granted immunity. But first
the five condition must be met:
1) The information must refer to consummated bribery;
2) The information is necessary for the proper conviction of the public officer involved;
3) That the information 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 informant has not been convicted previously for any crime involving moral turpitude.
The immunity attached only if the information given turned out to be true and correct. If the same is false, the
public officer may even file criminal and civil complaint against the informant for perjury.
ANTI-GRAFT AND CORRUPT PRACTICES ACT(R.A. No. 3019 as amended by R.A. No. 3047, P.D. No. 77 and B.P. Blg. 195)
Sec. 3 – Corrupt Practices Act. Of Public Officers.
(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 influence to commit such violation or offense.
- The persons liable are (1) the public officer who persuades, etc., and (2) the public officer who allows himself to
be persuaded, induced or influenced.
- Requesting or receiving any gift, present, or benefit is not required in this provision.
- In the absence of any allegation or proof that the accused so acted for a consideration, payment or remuneration
and that he intended to obtain personal gain, enrichment or advantage, the accused may not be convicted of violation of
par. (a), Sec. 3 of RA 3019. ( PP. vs Bernales, 13 CA. Rep. 972; 67 O.G. 8316).
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(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for
himself of for any other person, in connection with any contract or transaction between the government and any
other party, wherein the public officer in his official capacity has to intervene under the law.
-The person liable under this provision is the public officer, who in his official capacity, has to intervene under the
law in any contract or transaction between the government and any other party and he directly or indirectly request,
receive any gift, present, share percentage, or benefit, for himself of for any other person, in connection with that contract
or transaction.
- A preliminary investigation of a criminal complaint conducted by the fiscal is not a “contract or transaction” so as
to bring it within the ambit of section 3 (b) of RA 3019. (Soriano vs. Sandiganbayan, 131 SCRA 184).
(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit,
for himself or for another, for 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 13 of this Act.
- The person liable under this provision is the public officer who, in any manner or capacity, has secured or
obtained, or will secure or obtained, any Government permit or license for another person and he directly or indirectly
request or receive any gift, present or other pecuniary or material benefit, for himself or for another in consideration for the
help given or to be given.
(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 his termination.
-The person liable under this provision is a public officer who had or has pending official business with a private
enterprise and he accepts or has any member of his family accept employment in that enterprise (1) during the pendency
of the official business with him or (2) 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 excusable negligence. This provision shall apply to officers
and employees of offices or government corporations charged with the grant of license or permits or other
concessions.
-To be liable under this provision, the public officer must act thru manifest partiality, evident bad faith or gross
excusable negligence.
- The act constituting the crime is causing undue injury to any party, including the government, or giving any
private party unwarranted benefits, advantage or preference in the discharge of the official administrative or judicial
functions of the offending public officer.
(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.
(e) Entering, on behalf of the government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.
- The person liable under this provision is any public officer who has the duty under the law to enter, in behalf of
the Government, into any contract or transaction with any person, and he enters into such contract or transaction
manifestly or grossly disadvantageous to the government.
- It is not necessary that the public officer profited or will profit thereby.
(h) Directly or indirectly having financial 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.
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- The officer liable under this provision is any public officer who intervenes of takes part in his official capacity in
any business, contract or transaction, or any public officer who is prohibited by the Constitution or by any law having any
interest and he has financial interest directly or indirectly in that business, contract or transaction.
- Actual intervention is what is required in the transaction in which one has financial or pecuniary interest in that
business in order that the liability may attach. (Opinion No. 306, Series of 1961 and Opinion No. 94, series of 1972 of
the Secretary of Justice).
-The official need not dispose his shares in the corporation as long as he does not anything for the firm in its
contract with the office. For the law aims to prevent the dominant use of influence, authority and power. (Trieste, Sr. vs.
Sandiganbayan, 145 SCRA 508).
(i) Directly or indirectly becoming interested 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, panel or group.
Interest for persona gain shall be presumed against those public officers responsible for the approval of
manifestly unlawful, inequitable, or irregular transactions or acts by the board, panel or group to which they
belong.
-The person liable under this provision is any public officer who is a member of the board, panel or group which
exercises discretion in the approval of any transaction, and he is directly or indirectly becoming interested, for personal
gain, or having any material interest in any transaction or act requiring the approval of such board, panel or group. He is
liable even if he did not participate in the action of the board, group or panel, or even if he votes against it
The public officer responsible for the approval of manifestly unlawful, inequitable or irregular transactions or acts
by the board, panel or group to which they belong are presumed to have acquired interest for personal gain.
(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 qualified or entitled.
- The person liable under this provision is the public officer who has the duty of approving or granting any license,
permit, privilege or benefit, and he knowingly approve or grant any license, permit or benefit in favor of any person not
qualified for or not legally entitled to such license, permit or privilege or advantage, or of a mere representative or dummy
of one who is not qualified or entitled.
- Requesting or receiving any gift, present or benefit is not required in this provision.
(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.
- The person liable under this provision is any public officer who, on account of his official position, or whose
office, acquired valuable information of a confidential character, and he (1) divulged such valuable information to
unauthorized persons, or (2) released such information in advance of its authorized released date.
Sec. 4. Prohibition on private individual
- It shall be unlawful for any person who has family or close relation with any public official who has to intervene in
some business, transaction, application, request of contract of the government with any other person to capitalize or
exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any
present, gift, or material or pecuniary advantage from the person having the business, transaction, application, request or
contract with the government.
Sec. 5. Prohibition on certain relatives – just read.
Sec. 6. Prohibition on Members of congress – just read.
Sec. 7. Statements of Assets and liabilities – just read.
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Sec. 8. Prima facie evidence of and dismissal due to unexplained wealth- just read.
Read up to Sec. 16.
Chapter Four
MALVERZATION OF PUBLIC FUNDS OR PROPERTY
Art. 217. Malversation of public funds or property.
Acts punishable:
1. By appropriating public funds or property.
2. By taking or misappropriating the same.
3. By consenting, or through abandonment or negligence, permitting any other person to take such public funds
or property.
4. By being otherwise guilty of the misappropriation or malversation of such funds or property.
- The penalty for malversation is the same whether committed with malice or through negligence
Elements common to all acts of malversation under Art. 217.
1. That the offender be a public officer.
2. He had the custody or control of funds or property by reason of the duties of his office.
3. That those funds or property were public funds or property for which he was accountable.
4. That he appropriated, took, misappropriated or consented to or, through abandonment or negligence,
permitted another person to take them.
- It is the nature of the duties, not the relatively important name given to the office, which is the controlling factor in
determining whether or not the accused is an accountable public officer. The vital fact is that he is an employee of, or in
some way connected with, the government and that, in the course of his employment, he receives money or property
belonging to the government for which he is bound to account. ( U.S. vs. Vlelasquez, 32 Phil. 157).
- An emergency employee entrusted with the collection and/or custody of public funds may be held liable for
malversation, if misappropriates such funds.
Illustrations:
1. An unlicensed firearm confiscated by a police officer, but instead of turning over the same to the property
custodian for the prosecution of the offender, sold the firearm is guilty of malversation.
2. A government cashier did not bother to put the public fund in the public safe/vault but left it in the drawer of the
table which has no lock and then somebody took the funds is guilty of malversation. Note: Malversation can be committed
by negligence.
3. The Municipal President who spent for himself P 60.00 which he had received as rent for the house owned by
the Municipality is guilty of malversation, said amount having received by him by reason of his office. (U.S. vs. Togonon,
12 Phil. 516).
- If the officer is not accountable to the funds misappropriated the crime committed is theft. If there is abuse of
confidence, it will be qualified theft.
- To be liable for malversation funds or property must be received in official capacity. Thus, a municipal councilor
who had no duty to collect or receive the slaughter fee received it from another person with a promise to secure a receipt
therefore and misappropriated it is guilty of ESTAFA, not malversation. (U.S. vs. Radaza, 17 Phil. 286). See U.S. vs.
Webster, 6Phil. 394 and U.S. vs. Wickersham, 20 Phil. 440.
-Non-accountable officer of private individual may be liable for malversation if they conspired with a public officer
guilty of malversation.
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Thus, a janitor an five policemen who aided the municipal treasurer in the commission of malversation by taking
the safe containing the money from the municipal treasury and carrying it to another place and took the contents thereof
are guilty of malversation although they are not accountable officer. (U.S. vs. Ponte, et al., 20 Phil. 379). See also Pp.
vs Sendaydiego, 81 SCRA 120).
-Lack of criminal intent or good faith is a defense in malversation not committed trough negligence.
Thus, a municipal officer who in good faith paid out of public funds, persons who in accordance with the resolution
of the municipal council, but the payments were made in violation of the law, because of insufficient vouchers or improper
evidence, is only civilly liable there being no criminal intent. (See Pp. vs. Elvina, 2 Phil. 230; U.S. vs. Catolica, 18 Phil.
504).
- Private property may be involved in malversation. It applies to administrator or depository of funds or property
attached, seized, or deposited by public authority even if such property belongs to private individual. (see Pp. vs. De la
Serna, CA, 40 OG Suppp.12 159).
- Failure to account public funds or property upon demand by duly authorized officer is prima facie evidence that
he has put such missing funds to personal uses.
Thus, the failure or inability of the accused who was in custody of public funds or property to refund the shortage
upon demand by the duly authorized office constitute prima facie evidence of malversation, notwithstanding the fact that
such demand was made verbally. (U.S. vs. Kalingo, 46 Phil. 651).
An accountable public officer is liable for malversation even if there is no direct evidence of misappropriation and
the only evidence is that there is a shortage in his account which he has not been able to explain satisfactorily.
- The presumption, however, may be rebutted. (see Magdarang vs. People GR No. 112314, March 28, 2001).
- The return of the funds malversed is only mitigating, not exempting circumstance.
Thus, when the books were examined by the auditor, the assistant cashier was not able to produce the amount,
and later the assistant cashier offered and did actually return the money, it was held that the return of the money was
merely mitigating circumstance. (Pp. vs. Velasquez, 72 Phil. 98).
- But in another case where the officer who made the examination testified that at the very moment when the
shortage was discovered and the treasurer was notified he at once paid the shortage out of the money from his pocket, it
was held that no presumption of misappropriation can be established. (U.S. vs. Feleciano, 15 Phil. 147).
Where, a treasurer covered his shortage out of the money borrowed from his clerk did not relieved him of his
liability as he failed to explain satisfactorily why the amount which should be in his hands was in is clerk’s possession.
(Pp. vs. Divino, CA-GR No. 428, Oct. 13, 1938).
But when the accountable officer is obliged to go out of his office to borrow the sum allege to be the shortage and
later the missing amount was found in some unaccustomed place in his office, is not liable for malversation. ( U.S. vs
Pascual, 26 Phil. 234).
-Demand is not necessary in malversation. It is not an element of the crime. It merely raises the presumption that
missing funds have been put to personal use. (Morong Water District vs. Office of the Ombudsman, GR No. 116754,
March 7, 2000).
Art. 218-222 – just read.
Chapter Five
INFIDELITY OF PUBLIC OFFICERS
Art. 223. Conniving with or consenting to evasion.
Elements:
1. That the offender is a public officer.
2. That he had in his custody or charge, a prisoner, either detention prisoner of prisoner by final judgment.
3. That such prisoner escaped from his custody.
4. That he was in connivance with the prisoner in the latter’s escape. (U.S. vs Badino, 29 Phil.459).
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- A policeman who allowed a prisoner to go out and buy a cigarette at a nearby store, thereby making possible the
escape of the prisoner, is not in connivance with the latter, the policeman not knowing that he would escape.
- A detention prisoner is a person in legal custody, arrested for, and charged with, some crime or public offenses.
Thus, a driver of a truck, driving without a license, met an accident and was taken to the hospital and, while being
guarded by a policeman escaped, the policeman is not liable because the driver who was not actually arrested, was not a
detention prisoner. An information for driving without license was filed against the driver two days after his escape. (Pp.
vs. Liong, CA 47 OG 1321).
- Release of a detention prisoner who could not be delivered to the judicial authority within the prescribed period
is not infidelity in the custody of prisoner. (Pp. vs. Lancanan, 95 Phil. 375).
- Laxity or leniency is not infidelity where the prisoner was allowed to eat in a restaurant near the municipal
building or at his house during the town fiesta and was duly guarded all the time. (Pp. vs. Evangelista, CA 38 OG 158).
- A guard who allowed a prisoner to sleep and eat at his house there being no provision for food of prisoner is
infidelity. (See Pp. vs. Revilla, CA 37 OG 1896).
- A municipal mayor who utilized a prisoner to do house chores at his house and served as a cook is infidelity.
(See Pp. vs. Evanglista, supra.)
Art. 224. Evasion through negligence.
Elements:
1. That the offender is a public officer.
2. That he is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final
judgment.
3. That such prisoner escaped through negligence.
Illustration of absence of 2nd element:
-If the custody of the prisoner was not yet transferred to the succeeding guard B who was still sleeping
when his time take over came and during that time a prisoner escaped while guard A continued manning the post
want for B to wake up, guard B cannot by liable for negligence as the custody of the prisoner has not yet been
transferred to him when the evasion took place. (Pp. vs. Silvosa, CA GR No. 12736-R,April 30, 1955).
Illustration of absence of the 3rd element:
- A policeman was guard on duty. He unlocked the door of the jail to let a detention prisoner go out to
clean the premises of the police headquarters. The prisoner went to a nearby faucet to wash the rags. Upon his third trip
to the faucet, he walked behind the police headquarters, climber over the wall and escaped. Held: The policeman is not
liable as he was not negligent. Not every little mistake or destraction of a guard leading to prisoner’s escape is negligent
under Art. 224. (Pp. vs. Flosa, CA, 47 OG 2452).
- Not every negligence or distraction of a guard is penalized; it is only that positive carelessness that is short of
deliberate non-performance of his duties as a guard that is the gravamen of the crime of infidelity under Art. 224. (Pp. vs.
Reyes, et al., CA 59 OG 6664).See. Pp. vs Nava, CA 36 OG 316.
Examples of Infidelity trough negligence:
1. A policeman who, assigned to guard a prisoner, falls asleep, which resulted in the escape of a prisoner is guilty
of negligence. (Pp. vs. Guiab, GR No. 39631, May 6, 1934).
2. The guard who permitted a prisoner , who escaped, to gather gabi considering that the place was grassy and
talahibs was growing therein is guilty of negligence. (Pp. vs. Lagata, 83 Phil. 159).
-The recapture of the prisoner does not afford complete exculpation. (Pp. vs. Qiesel, CA 52 OG 6975).
Art. 225. Escape of prisoner under the custody of a person not a public officer. – just read.
Art. 226. Removal, concealment or destruction of documents.
Elements:
1. That the offender is a public officer.
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2. That he abstracts, destroys or conceals documents or papers.
3. That the said documents or papers should have been entrusted to such public officer by reason of his office.
4. That damage, whether serious or not, to a third party or to the public interest should have been caused.
- The document must be complete and one by which a right could be established or an obligation could be
extinguished.
Thus, the municipal mayor who, in the fit of anger, mutilated the payroll of the town, is not guilty of infidelity as the
payroll was not yet complete not having been signed yet by the mayor. (Pp. vs. Camacho, 44 Phil. 484).
- This provision applies to private document entrusted to a public officer.
Thus, a postmaster to whom a letter containing paper money was delivered to be forwarded by registered mail,
opened said letter and abstracted money orders, or the money bills enclosed therein in guilty under this provision. (U.S.
vs. Gorospe, 31 Phil. 285; U.S. vs. Filoteo, 14 Phil. 73).
- The simple act of retaining the mail without forwarding the letters to their destination, even if he did not open and
take the money they contained is guilty under this provision. (U.S. vs. Marino, 10 Phil. 652; U.S. vs. Pena, 12 Phil. 362).
Art. 226-245- just read them.
Title Eight
CRIMES AGAINST PERSONS
Art. 246. Parricide.
Elements:
1. That a person is killed.
2. That the deceased is killed by the accused.
3. That the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other
ascendant or other descendant, or the legitimate spouse of the accused.
- With respect to grand parents or grandchildren, to be liable for parricide, they must be legitimate. (other
descendants or ascendants). But with respect to father, mother or child of the accused, proof pf legitimacy is not required.
(Pp. vs. Embalido, 58 Phil. 154).
- Relationship must be alleged in the information. If the accused is charged only with murder instead of parricide,
he cannot be convicted for parricide, but relationship will be an aggravating circumstance of relationship. (Pp. vs.
Jumawan, 116 SCRA 739).
- If a person wanted to kill a stranger but by mistake killed his own father, the crime committed is parricide, but Art.
49 is the penalty.
Art. 247. Death or physical injuries inflicted under exceptional circumstances.
Requisites:
1. That a legally married person or a parent surprises his spouse or his daughter, the latter under 18 years of age
and living with him, in the act of committing sexual intercourse with another person.
2. that he or she kills any or both, of them or inflicts upon any or both of them any physical injury in the act or
immediately thereafter;
3. That he has nor 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.
- It is not required in this article that the parent-accused must be legitimate. It is merely required that the daughter
must be 18 years of age, and living with her parents.
- This does not apply to married daughter, although does not state “unmarried daughter”. This applies only to
single daughter, she is under parental authority. If she is married, only her husband can claim the benefit.
- The accused must have surprised his spouse or daughter (under 18 yrs of age and living with him ) in the act of
sexual intercourse with another person.
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Thus, where a husband who, upon arriving home one night and seeing a man jump out of the window, killed his
wife who was begging forgiveness is guilty of parricide. (Pp. vs. Marquez, 53 Phil. 260).
- Merely sleeping on the same bed is not “in the act of sexual intercourse. (Pp. vs. Bituanan, 56 Phil. 23).
-Also not included in the phrase where he surprised his wife after the act, as when he saw already rising up and
the man buttoning hid drawer. (Pp. vs. Gonzales, 69 Phil. 66).
- But is enough that the circumstances show reasonable that the carnal act is being committed or has just been
committed. (Pp. vs. Gonzales, supra).
In the above case, the paramour and the accused wife entered the room alone, undressed themselves, performs
mutual acts of the character of lasciviousness all in the prelude to the carnal act when they were surprised by the
offended husband and killed them. Majority of the justices held that there must be an act of sexual intercourse. In his
dissenting opinion, Justice Laurel said: “Must the offended husband look on in the meantime and wait until the very
physical act of coition take place. This interpretation is far from being rational and certainly does violence to the reason
and purpose of the law.
Meaning of the phrase “immediately thereafter”
Case: While looking for his wife who did not return home, and o his way home, he surprised his wife and his
paramour in the act of sexual intercourse, but they hurriedly stood up and the man started to run. The husband pursued
the man but did not catch him and he then returned home where he found his wife in the act of climbing the stairs and
killed her. Held: Although the wife was not killed in the very where she was caught, the assault upon the wife must be
understood to be a continuation of the act of the wronged husband’s pursuit of her paramour. Art. 247 applies. ((U.S. vs.
Alano, 32 Phil. 383-384).
-The discovery, the escape, the pursuit and the killing must all form part of one continuous act. ( 79 Phil. 194).
- Though a quite length of time, had passed between the accused surprised his wife the act of sexual intercourse
and the time when the paramour was actually shot, the shooting must be understood to be the continuation of the pursuit
of the victim by the accused. (Pp. vs. Abarca, 153 SCRA 735).
- The killing must the be the by-product of the accused rage after surprising his wife and paramour in the act of
sexual intercourse and mut not be influenced by external factors. (Pp. vs. abarca, supra).
- Where physical injuries where committed as a result of the cross-fire, the accused will not be liable because the
accused was not committing felony when he discharged his firearm. (Pp. vs. abarca, supra.) Unless he is guilty of
negligence.
-Destierro is not really intended to punish the killer of the spouse but merely to protect him form reprisal specially
coming from the relatives of the deceased spouse. ( Pp. vs. Lauron, 57 OG 7367).
Art. 248. Murder.
- killing a person by means of fire is murder, only when there is actual design to kill on the part of the offender.
(U.S. vs. Burns, 41 Phil. 418).This ruling is applicable to all other circumstances enumerated in paragraph No. 3 of Art.
248.
- If the defendant had assaulted the victim in a treacherous manner, he is guilty of murder in view of the qualifying
circumstance of treachery, even if he did not intend to kill the victim. (Pp. vs. Cagoco, 58 Phil. 530). This ruling may be
applicable to all the circumstances in pars. Nos. 1,2,4,5 and 6 of Art. 248. The ruling is based on Art. 4, par. 1 of the RPC.
- Murder will exist with only one of the circumstances described in Art. 248 (U.S. vs Labai, 17 Phil. 240).
- When more than one of said circumstances are present, the others must be considered as generic aggravating.
Thus, when the killing of the victim, the commission of the crime is attended by evident premeditation, treachery, and
price, reward or promise, only one of them shall qualify the killing to murder and the other shall be considered as generic
aggravating circumstances. (See pp. vs. Dueno, 90 SCRA 23).
- Killing of a child is murder even if the manner of attack was not shown. Treachery or alevosia exists when an
adult person attacks a child of tender years and causes his death. (Pp. vs. Valerio, 112 SCRA 231).
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Art. 249. Homicide.
-When death resulted, even if there is no intent to kill, the crime is homicide. (U.S. vs Gloria, 3 Phil. 333).
Because intent to kill is conclusively presumed when death resulted.
- It is only in attempted or frustrated homicide that intent to kill is important. In attempted or frustrated homicide
there must be intent to kill; otherwise he is liable for physical injuries only.
- Usually intent to kill is shown by the kind of weapon used by the offender and the parts of the body of the victim
at which the weapon was aimed, as shown by the wounds inflicted. But in the of Pp vs. Penesa, 81 Phil. 398 is the
exception where the accused went to his wife, who was living separately from him, to entreat to live with him again, but a
cousin of his wife provoked him that caused him to assault him (wife’s cousin) and the son of his wife by first marriage,
with a bolo, inflicting physical injuries, caused indiscriminately and not deliberately, the purpose of the accused ingoing to
the house, and not the kind of weapon he carried nor the parts of the body of the victims that were wounded, is indicative
and determinative of his intention.
- The wounds that caused the death were inflicted by two different persons, even they were not in conspiracy,
each one of them is guilty of homicide. The burden of proof is on the accused to show that the wound inflicted by him did
not cause the death of the victim. (Pp. vs. Abiog, 37 Phil. 137).
Case: A shot B with a revolver in the latter’s abdomen, inflicting mortal wound. B fell to the ground, stunned for an
instant, but soon got up and went to his house, procured a knife, and knowing that he would die anyway, cut his throat,
and he died in five minutes. Held: The contention of the defense the B killed himself is untenable. When the death of B
occurred, the wound inflicted by A did contribute to the event. B was actually dying when he cut his throat, B continued t
languish from both wounds until his death. ( Pp. vs. Lewis, 124 Cal., 551, cited in US vs. Abiog).
Art. 255. Infanticide.
Elements:
1. That a child was killed.
2. That the deceased child was less than three days (72 hours) of age.
3. That the accused killed said child.
- A stranger who cooperates in the perpetration of infanticide committed by the mother or grandparent on the
mother side, is liable for infanticide, but he must suffer the penalty prescribed for murder. (U.S. vs Aquino,34 Phil. 813).
- In Infanticide, the prosecution must prove that the mother gave birth to a living creature. (U.S. vs. Aquino,
supra.), which means that the child must be borne alive and full developed, that is it must sustain an independent life.
(U.S. vs. Vedra, 12 Phil. 96). A foetus about six months old cannot subsist by itself, outside the maternal womb. (Pp. vs.
Detablan, CA 40 Og Supp. 5, 30).
Art. 256. Intentional abortion.
Abortion is defined as the willful killing of the foetus in the uterus, or the violent expulsion of the foetus from the
maternal womb which results in the death of the foetus.
- Foetus must die to consummate abortion. Thus, if the foetus survives in spite of the attempt to kill it or the use of
violence, abortion is not consummated. If abortion is intended and the foetus did not die, it is frustrated intentional abortion
when all the acts of execution have been performed by the offender.
- If abortion is not intended and the foetus does not die, in spite of the violence intentionally exerted, the crime
may only be physical injuries.
- As long as the foetus dies as a result of the violence used or drugs adminisitered, the crime of abortion exists,
even if the foetus is full term. (Viada).
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Ways of committing intentional abortion:
1. By using any violence upon the person of the pregnant woman.
2. By acting, but without using violence, without the consent of the woman. ( By administering beverages or
drugs upon such pregnant woman without her consent.
3. By acting (by administering drugs or beverages), with the consent of the pregnant woman.
Elements:
1. That there is a pregnant woman;
2. That violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such
pregnant woman;
3. That as a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the
foetus dies, either in the womb or after having been expelled therefrom;
4. That the abortion is intended.
Abortion distinguished from infanticide.
- Even if the foetus already acquired human form and about six months old when it was expelled from the womb
but did not have its own life independent of its mother, or even if alive but could not subsist by itself outside the
maternal womb, the crime committed is abortion. But if it could sustain an independent life, after its separation
from the maternal womb, and it is killed, the crime committed is infanticide.
Art. 257. Unintentional abortion.
Elements:
1. That there is a pregnant woman,
2. That violence is used upon such pregnant woman without intending an abortion.
3. That the violence is intentionally exerted.
4. That as a result of the violence the foetus dies, either in the womb or after having been expelled therefrom.
- Unintentional abortion is committed only by means of violence, thus, where a man points a gun at a pregnant
woman, at the same time telling her that eh will kill her, and because of the fright she absorbs, she suffers an
abortion, the offender is guilty only of threats. (Dec. Supreme Court of Spain of Nov. 30, 1887).
- The violence must be intentionally exerted. Thus, a man who struck a woman three months pregnant on her hip
with a bottle, causing hemorrhage and miscarriage was held guilty of unintentional abortion. (U.S. vs. Jeffrey, 15 Phil/
391).
- The accused is still liable even if he did not know that the woman was pregnant. (U.S. vs Jeffrey, supra). Also
incase of Pp. vs. Carnaso, CA, 61 OG 3623.
- There can be complex crime of homicide with unintentional abortion. Thus, when a man struck the woman with
his fist, causing her to fall to the ground, and when she got up, he gave another blow which caused her to fall again,
causing the woman’s hemorrhage culminating the premature delivery of her twin babies, the other not having been born
because the woman die, is guilty of complex crime of homicide with unintentional abortion. (Pp. vs. Genoves, 33 OG
2201). See Pp. vs. Salufrania, 159 SCRA 401).
- A husband who, with violence kills his pregnant wife, thus occasioning the death of the foetus, is guilty of
parricide with unintentional abortion. (Pp. vs. Villanueva, 242 SCRA 47).
Art. 258. Abortion practiced by the woman herself or by her parents.
Art. 259. Abortion practiced by a physician or midwife and dispensing of abortives.
Chapter Two
PHYSICAL INJURIES
Art. 262. Mutilation.
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“Mutilation” means the lopping or the clipping off of some part of the body.
Two kinds of mutilation:
1. By intentionally mutilating another by depriving him, either totally or partially, of some essential organ for
reproduction.
2. By intentionally making other mutilation, that is, by lopping or clipping off any part of the body of the offended
party, other than the essential organ for reproduction, to deprive him of that part of his body.
Elements of mutilation of the first kind:
1. That there be a castration, that is, mutilation of organs necessary for generation, such as penis or ovarium.
2. That the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential
organ for reproduction.
- The firs kind of mutilation is castration which must be made purposely. Thus, if by reason of the injury or attack,
the person is deprived of organs of generation, the act, although voluntary, not being intentional to that end, would not
come under the provision of this article. (U.S. vs. ESparcia, 36 Phil. 840).
- If a mutilation is not caused purposely and deliberately so as to deprive the offended party of a particular part of
his body, the crime could be physical injuries.
Art. 263. Serious physical injuries.
What are serious physical injuries?
1. When the injured person as a consequence of the injury inflicted becomes insane, imbecile, impotent or blind
(two eyes).
2. When the injured person (a) losses the use of speech or the power to hear or to smell, or losses an eye, a
hand, a foot, an arm, or a leg, or (b) loses the use of any such member, or (c) becomes incapacitated for the work in
which he was theretofore habitually engaged, inconsequence of the physical injuries inflicted.
3. When the person injured (a) becomes deformed, or (b) loses other member of his body, or (c) loses the use
thereof, or (d) becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more
than 90 days, in consequence of the physical injuries inflicted.
4. When the injured person becomes ill or incapacitated for labor for more than 30 days (but not be more than 90
days) as a result of the physical injuries inflicted.
-In serious physical injuries there must be no intention to kill, otherwise, it will either be frustrated or attempted
homicide, as the case may be.
- The penalty for Article 262, paragraph I shall be reclusion perpetua if the victim is under 12 years of age. (Sec.
10, RA 7610).
- It must be loss of power to hear of both ear to apply par. 2, otherwise if only one ear, par. 3 shall apply.
- In order to sustain conviction under par. 2 of Art. 262, the prosecution must prove that the offended party cannot
make use of his hands permanently; otherwise, accused is guilty under par. 3 thereof. (Pp. vs. Reli, CA, 53 OG 5695).
- Par. 2 refers to principal members of the body. The arm is principal member of the body. (U.S. vs. Camacho, 8
Phil. 142). If the left arm becomes permanently maimed, the crime is serious physical injuries. (Pp. vs. Sto. Tomas, 138
SCRA 206).
- Par. 3 covers any member which is not principal member of the body. Meaning, any member of the body which
is not principal is covered by par. 3. (Pp. vs. Balubar, 23 Phil. 375).
- Loss of “power to hear” must involve two ears; otherwise he has not lost poser to hear, but “lost the use of any
part of his body”. (Pp. vs. Hernandez, 9 Phil. 49).
-Medical attendance is not required in serious physical injuries, only illness or incapacity for labor. (Pp. vs. Obia,
CA, 45 OG 2568).
- Loss of one tooth which impaired appearance is deformity covered by par. 3, Art. 263. And front tooth is a
member of the body other than the principal member of the body. (Pp. vs. Balubar, 60 Phil. 707).
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For other physical injuries, just read them.
Republic Act. 9262
Anti-Violence Act Against Women and Their Children Act of 2004
March 8, 2004.
“Violence against women and their children” refers to any act or a series of acts committed by any person against
a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against his child whether legitimate or illegitimate, within nor without
the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic
abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes,
but is not limited to, the following acts: a) Physical violence; b) Sexual violence; c) Psychological violence; and economic
abuse. (Read further the law).
Chapter Three
RAPE
Art. 266-A. RAPE
Elements of Rape under Par. 1
1) That the offender is a man;
2) That the offender has carnal knowledge of a woman.
3) That such act 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.
Elements of rape under par. 2
1) That the offender commits an act of sexual assault;
2) That 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) That the act of sexual assault is accomplished under any of the following circumstances:
(a) By using force or intimidation;
(b) When the woman is deprived of reason or otherwise unconscious; or
(c) By means of fraudulent machination or grave abuse of authority; or
(d) When the woman is under 12 years of age.
- Labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of
the female organ. Thus, the grazing of the surface of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e.,
touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be
attempted rape if not acts of lasciviousness. (Pp. vs. Campuhan, G.R. No. 129433, March 30, 2000).
- Finger is within the expanded definition of rape under RA No. 8353 (par. 2 of Art. 266-B). Obana vs. Hon.
Soriano, CA-GR SP No. 60353, Aug. 29, 2001 and Pp. vs. Soriano, GR No. 142779-95, Aug. 29, 2002, 388 SCRA
140.
Rules on force and intimidation:
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- A verbal refusal alone will not do. There must be physical struggle, taxing her power to the utmost. Thus, the
mere initial resistance of the offended party in a rape case is not manifest and tenacious resistance that the law requires.
(Pp. vs. Lago, CA, 45 OG 1356).
- When the girl defended herself against the accused as long as she could, but he overpowered her and held her
till her strength gave out, and then accomplished his purpose, there is evidence of sufficient force. (Pp. vs. Momo. 56
Phil. 86). The force need not be irresistible. It need not be present and so long as it brings the desired result, all
consideration of whether it was more or less resistible is beside the point. (supra).
- The force or violence necessary in rape is naturally a relative term, depending on the age, size and the strength
of the parties and their relation to each other. (Pp. vs. Savellano, 57 SCRA 320).
- Where resistance would be futile, offering none at all does not amount to consent to sexual assault. It is not
necessary that the victim could have resisted to death or sustained physical injuries in the hands of the rapist. It is enough
if sexual intercourse takes place against her will or if she yielded because of the genuine apprehension of harm to her if
she did not do so. (Pp. vs. Las Penas, Jr. GR No. 133444, Feb. 20,2002). Indeed, the law does not impose upon a rape
victim the burden of proving resistance. (Pp. vs. Sending, GR No. 141773-76, Jan. 20, 2003).
- Intimidation must be viewed in the light of the victim’s perception and judgment at the time of rape and not by
any hard and fast rule. It is enough that it produces fear – fear that if the victim does not yield to the bestial demands of
the accused, something would happen to her at the moment or thereafter, as she when she is threatened with death if she
reports the incident. ( Pp. vs. Tabugoca, 285 SCRA 312, 332 [199]).
- Moral ascendance or influence is held to substitute for the element of physical force or intimidation. This rule
was applied by the Supreme Court in the following cases:
a) fathers against daughters (Pp. vs. Bazona, GR No. 133343-44, March 2, 2000; Pp. vs. Maglente, 306 SCRA
546, [1991]; Pp. vs. Panique, 316 SCRA 757 [1999]);
b) step fathers against stepdaughters (Pp. vs. Vitor, 245 SCRA 392, [1995]; Pp. vs. Robles, 170 SCRA 557
[1989])
c) Godfathers against Goddaughters ( Pp. vs Casil, 241 SCRA 285 [1995] ).
d) uncles against their nieces (Pp. vs. Betonio, 279 SCRA 532 [1997]); and
e) the first cousin of the victim’s mother. (Pp. vs. Perez, 307 SCRA 276 [1999], Pp. vs. Dichoson, GR No.
11896-89, Feb. 19, 2001).
Chapter One
CRIMES AGAINST LIBERTY
Art. 267. Kidnapping and serious illegal detention.
Elements:
1. The offender is a private individual.
2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty.
3. That in the commission of the offense, any of the following circumstances is present:
a) That the kidnapping or detention lasts for more than 3 days;
b) That it is committed simulating authority;
c) That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are
made; or
d) That the person kidnapped or detained is a minor, female, or a public officer.
- The offender under this article must be a private individual. If the offender is a public officer, the crime committed
is arbitrary detention.
- But if the public officer has no duty under the law to detain a person, such as a policemen, and he detains
another, he is liable under this article.
- Intention to deprive the victim of his liberty is essential in the crime of kidnapping.
Case: The accused approached, took hold of, and dragged M, striking the latter with the butt of his rifle. The
companions of M were told to continue on their way. Hardly had they walked one kilometer when they heard a gun report.
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M was found dead the following day with gun shot wound. Held: There was no evidence sufficient to prove to kidnap. The
interval of time was so short tic include the presence of intention to detain. Her short detention was part of the perpetration
of the crime of murder. (Pp. vs. Remalante, 92 Phil. 48; Pp. vs. Sacayanan, GR Nos. L-15024-25, Dec. 31, 1960).
- Lack of motive to resort to kidnapping, no liability under this article.
Case: Where the agents of the constabulary took the supposed victim from his house to make him answer for the
murder of those persons who had disappeared, there was lack of motive to resort to kidnapping. Such agents are not
liable for kidnapping. (Pp. vs. Soriano, et al., 51 OG 4513).
-It is essential in the crime of illegal detention that there be actual confinement or restriction of the person of the
offended party. (U.S. vs. Cabanag, 8 Phil. 64). Thus, if the alleged victim had freedom to leave the premises where she
was allegedly confined, the crime of illegal detention cannot rise because she was not deprived of her liberty. (See U.S.
vs. Quevenco, 2 Phil. 412, U.S. vs. Herrera, et al., 3 Phil. 515).
Case: Where the offended party, although ordered not to go out of the agency or peeped out of the window. But
there is no evidence that the door of the agency was closed to prevent her from going out had she wanted to. There is no
evidenced that the accused conspired to instill fear in her mind to compel or force her to remain in the agency. Held:
There is no illegal detention, because the element of detention or locking up is lacking. (Pp. vs. Ching Suy Siong, et al.,
GR No. L-6174, Feb. 28, 1955).
-Leaving a child in a house of another, where he had freedom of locomotion but not the freedom to leave at will,
deprive him of liberty. Because of the tender age and the fact that he did not know the way back home, he was then and
there in a way deprived of his liberty. (Pp. vs. Acosta, et al., 60 OG 6999).
- But the fact that the owners of a sugarcane plantation locked up in the lobby of their house a boy who had stolen
some sugar canes from the plantation from 9:00 a.m. to 5:00 p.m, without giving him anything to eat does not constitute
the crime of illegal detention. (Pp. vs. Tamorro, GR No. 25373, June 11, 1925). She was found guilty of light coercion.
-When the kidnapping is for the purpose of extorting ransom, it is not necessary that any of the circumstances
enumerated in the first paragraph enumerated in the first paragraph of Art. 267 be present.
-Restraint by robbers to delay or prevent assistance being rendered by the authorities is not illegal detention.
(U.S. vs. Sol, 9 Phil. 265).
-Where the victim is taken from one place to another solely for the purpose of killing him, the crime committed is
murder. (Pp. vs. Camo, et al., 91 Phil. 240).
- If the primary and ultimate purpose of the accused is to kill the victim, the incidental deprivation of the victim’ s
liberty does not constitute the felony of kidnapping but is merely a preparatory act to the killing, and hence, is merged into,
or absorbed by, the killing of the victim. The crime committed would either be homicide or murder. (Pp. vs. Delim, GR No.
142773, January 28, 2003).
- The maximum penalty is imposed which is death-
1) The purpose of kidnapping or detention is to extort ransom;
2) When the victim is killed or dies as a consequence of the detention;
3) When the victim is raped;
4) When the victim is subjected to torture or dehumanizing acts.
(Note: RA 9346 prohibits the imposition of the death penalty).
Art. 268. Slight illegal detention.
Elements:
1) That the offender is a private individual.
2) That 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) That the crime is committed without the attendance of any of the circumstances enumerated in Art. 267.
- If the offender (a) voluntarily releases the person so kidnapped or detained within three days from the
commencement of the detention, (b) without having attained the purpose intended, and (c) before the institution of
criminal proceedings against him, his liability is mitigated. In effect, it is a privileged mitigating circumstance because the
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penalty is lower by one degree. But to impose the lesser penalty, it must be shown by the offender that he was in a
position to prolong the detention for more than three days and yet he released the person within that time.
Art. 280. Qualified trespass to dwelling.
Elements:
1. That the offender is a private person.
2. That he enters the dwelling of another
3. That such entrance is against the latter’s will.
-The offense is qualified if committed by means of violence or intimidation.
-Dwelling place, as used in this article, means any building or structure exclusively devoted for rest and comfort,
as distinguished from places devoted to business, offices, etc.
- A store of cheap goods, which was also the dwelling place of the owner thereof, was considered a dwelling .
(Pp. vs. Lamahang, 61 Phil. 703).
- Where the accused is living in the same house with the victim whose room the accused entered is part, the room
is dwelling under this article. (U.S. vs. Silvano, 31 Phil. 510).
-“Against the will” should be distinguished from “lack of consent from the dweller”. A mere absence of dweller’s
consent is not enough to constitute the crime of trespass to dwelling. To commit trespass, the entrance of the accused
should be against the presumed or express prohibition of the occupant, and lack of permission should not be confused
with prohibition. (Pp. De Peralta, 42 Phil. 69)
- Lack of permission does not amount to prohibition.(supra).
- But it is well settled that whoever enters the dwelling of another at the late hour of the night after the inmates
have retired and close their doors does so against their will. Under this circumstances an express prohibition is not
necessary, as it is presumed. (U.S. vs. Mesina, 21 Phil. 615; U.S. vs. Panes, 25 Phil, 292).
Passing through the window, even if the same is open, there is implied prohibition when entrance is made through
means not intended for ingress. (Pp. vs. Marcial, CA 50 O.G. 3122).
Cases of trespass by means of violence (qualifying)
1. Pushing the door violently and maltreating the occupants after entering. (Pp. vs. Paray, 17 Phil. 378).
2. Cutting of a ribbon or string with which the door latch of a closed room was fastened. The cutting of the
fastenings of the door was an act of violence. (U.S. vs. Lindio, 10 Phil. 192).
3. Wounding by means of a bolo, the owner of the house immediately after entrance. (U.S. vs Arceo, et al., 3
Phil. 381).
By means of intimidation:
1. Firing a revolver in the air by persons attempting to force their way into a house. (U.S. vs. Ostrea, 10 Phil. 93).
2. The flourishing of a bolo against the inmates of the house upon gaining entrance. (U.S. vs. Lindio, 10 Phil.
192).
- Trespass to dwelling may be committed by the owner of the dwelling against the actual occupant of the house.
(Pp. vs. Almeda, et al., 75 Phil. 476).
Case: The accused entered the dwelling of a captain by forcing his way through the window. When found inside
by the occupants who tried to arrest him, the accused resisted arrest and stabbed the son of the captain, inflicting a mortal
wound. In his effort to escape, he also assaulted the captain, his wife and daughter. Held: the crime committed by the
accused are trespass to dwelling, through violence, frustrated homicide and less serious physical injuries. (Pp. vs.
Medina, 59 Phil. 134).
Note: If the purpose of the accused was to kill the person injured, it would be frustrated homicide only, the
dwelling would be an aggravating circumstance.
Art. 282. Grave Threats.
Acts punished as grave threats:
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1. By threatening another with the infliction upon his person, honor or property or that of his family of any wrong
amounting to a crime and demanding money or imposing any other condition, even though not unlawful, and the offender
attained his purpose.
2. By making such threat without the offender attaining his purpose.
3. By 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.
-The crime of grave threats is consummated as soon as threats come to the knowledge of the person threatened.
(Pp. vs. Villanueva, et al., 48 OG 1376).
- Threats made in connection with the commission of other crimes, are absorbed by the latter. Thus, where the
defendants struck the offended party, saying at the same time that he would kill them if they would not return to him the
jewelry which they had lost, it was held that the threat is part of the assault. The defendant was convicted of maltreatment.
(U.S. vs. Sevilla, 1 Phil. 143).
Case: Accused after kissing, embracing and touching the private parts of the woman who was resisting,
threatened that if she would not accede, her husband would be killed by his companion who was guarding him. The crime
committed is acts of lasciviousness. (Pp. vs. Timbol, CA, 47 OG 1868).
Art. 286. Grave Coercion
Two ways of committing grave coercions.
1. By preventing another, by means of violence, threats or intimidation, from doing something not prohibited by
law.
2. By compelling another, by means of violence, threats or intimidation, to do something against his will, whether it
be right or wrong.
Elements:
1. That a person prevented another from doing something not prohibited by law, or that he compelled him to do
something against his will, be it right or wrong;
2. That the prevention or compulsion be effected by violence, threats or intimidation; and
3. That the person that restrained the will and liberty of another had not the authority of the law or the right to do
so, in other words that the restraint shall not be made under the authority of law or in the exercise of any lawful right.
(Timoner vs. People, 125 SCRA 830).
- In grave coercion, the act of preventing by force must be made at the time the offended party was doing or about
to do the act to be prevented. If the act was already done when violence is exerted the crime is unjust vexation, as when
the offender who was told earlier by the accused not to go to work, but the former proceeded to work on the next day, and
in the afternoon of that day the accused exerted violence on him, the crime committed is only unjust vexation. (Pp. vs.
Madrid, CA OG 711).
-There are acts of prevention or compelling which violate another crime:
A public officer who shall prevent by means of violence or threats the ceremonies or manifestation of any religion
is guilty of interruption of religious worship. (Art. 132)
Any person who, by force, prevents the meeting of a legislative body is liable under Art. 143.
Any person who shall use force or intimidation to prevent any member of Congress from attending the meetings
thereof, expressing his opinions, or casting his votes is liable under Art. 145.
A public officer, who not being authorized bylaw, compels a person to change his residence is liable for expulsion
under Art. 127, not for coercion.
Kidnapping the debtor to compel him to pay his debt is not only coercion, but kidnapping for ransom, because in
effect, there is a demand for payment that release from captivity. (Art. 267).
- Compelling another to do something includes the offender’s act of doing it himself while subjecting another to his
will, as when the accused who tried to cross a private bridge which was closed, and was prevented by the caretaker, and
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the accused open the bridge, grabbed and pushed the care taker who fell to the ground, and one of the accused pulled a
revolver ready to shoot, the crime committed is grave coercion. (Pp. vs. Juan, et al., CA 36 OG 3277).
- Compelling another by means of violence, who is in actual possession of a thing, even if he has no right to such
possession, and even by the owner himself, is grave coercion. (U.S. vs. Mena, 11 Phil. 543).
- The taxi driver who threatened to bump his car to kill himself and his female passenger if she would not go with
him to the night club is guilty of grave coercion, even if he did not succeed as the female passenger jumped out of the
taxi. The intimidation that he would bumped the car is equivalent to violence because it was intended to control the will of
the offended party. (Pp. vs. Rimando, CA, 56 OG, 1687).
Unjust vexation – other light coercion (Art. 287, par. 2)
Unjust vexation includes any human conduct which, although not productive of some physical or material harm
would, however, unjustly annoy or vex an innocent person. The paramount consideration whether the offender’s act
caused annoyance, irritation, vexation, torment, distress or disturbance to the mind of the person to whom it is directed.
(Pp. vs. Gozum, CA, 54 OG 7409).
- A man who kissed a girl and held her tightly to his breast is guilty of unjust vexation. (Pp. vs. Climaco, CA 46
OG 3186).
- But if the conduct of the accused is lascivious, then he will be guilty of acts of lasciviousness. (Pp. vs.
Anunuevo, CA 36 OG 2018).
Chapter One
ROBBERY IN GENERAL
Art. 293. Who are guilty of robbery.
Robbery is the taking of property belonging to another, with intent to gain, by means of violence against, or
intimidation of any person, or using force upon thing.
Classification of robbery.
1. Robbery with violence against, or intimidation of person (Art. 294, 297 and 298)
2. Robbery by the use of force upon things. (Art. 299 and 302).
Elements of robbery in general:
1. That there be (a) a personal property; (2) belonging to another;
2. That there is (3) unlawful taking of that property;
3. That the taking must be (4) with intent to gain; and
4. That there is violence or against or intimidation of any person, or force upon thing.
- prohibitive articles may be the subject matter of robbery, such as opium. (U.S. vs. Sana Lim, 28 Phil. 404).
Case: While the information alleged that the property taken belonged to Roman Estriba, the proof showed that the
person robbed was Juan Seran. For lack of conformity between the allegation and proof respecting the ownership of the
property, it was held that it is hard to convict the accused of robbery. The accused are convicted of four separate
homicides. (U.S. vs Lahoylahoy, 38 Phil. 330).
- It would seem then, that if the crime charged is robbery with homicide, in view of the capital punishment attached
to it, the name of the owner of the thing is a matter of essential description of the crime. Thus, if the intimidation or
violence resulted only in physical injuries, or for robbery by the use of force upon things, the name of the real owner is not
essential so long as the property does not belong to the accused.
- Robbery with force upon things, is consummated if the thing is taken out of the building. Thus, when the accused
who had already broken the floor of the bodega, had entered it and removed one sack of sugar from the pile, but was
caught in the act of taking out the sack of sugar through the opening of the floor, it was frustrated robbery only. (Pp. vs.
Del Rosario, CA, 46 OG 4332).
Intent to gain- is presumed from the unlawful taking of personal property. (See Pp. vs. Sia Teb Ban, 54 Phil.
52).
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- The taking of personal property belonging to another should not be under claim of ownership. One who takes
property openly and avowedly under claim of title proffered in good faith is not guilty of robbery even though the claim of
ownership is untenable. (U.S. vs. Manluco, et al., 28 Phil. 360).
- The violence or intimidation need not be present from the very beginning. It is enough that the same is present
before the taking is complete. Thus, when the accused was about to take the money of the offended party, one of them
struck the latter in the mouth when they were discovered. Held: the crime committed is robbery with violence. (Pp. vs
Campa, CA 37 OG 1482; US vs. Nueca, 7 Phil. 511).
- The taking of the property need not be immediately after the intimidation. Thus, when the accused intimidated
the offended party that he will be deported out of the country for trying to send a letter outside the country, which the
offended party thought was wrong; but if he will gave an amount of P2,000, the case will be dropped, which prompted the
offended party to secure money from someone and gave it to the accused, robbery by means of intimidation was
committed. (Pp. vs Chiong, CA 69 OG 8671).
Note: If the property taken is a motor vehicle, RA 6539 is committed, known as carnapping.
Art. 294. Robbery with violence against or intimidation of persons- penalties.
-The crime defined in this article is a special complex crime.
- Where the original design comprehends robbery, and homicide is perpetrated by reason or on occasion of the
consummation of the former, the crime committed is robbery with homicide. (Pp. vs. Salazar, 277 SCRA 67 [1997]).
- If the original design is not to commit robbery, but the robbery was committed as an afterthought and a minor
incident in the homicide, the criminal acts should be viewed as two distinct offenses. (Pp. vs. Toleng, 91 SCRA 382).
- Where injuries were committed apart from robbery and homicide, the crime is only robbery with homicide,
physical injuries being absorbed by the former. (Pp. vs. Veloso, 112 SCRA 173).
- Homicide may precede the robbery or may occur after the robeery, the crime is robbery with homicide, so long
as the intention to take personal property preceded the killing. (U.S. vs. Ibanez, 19 Phil. 463).
- There is Robbery with homicide if the latter was committed to defend possession of the stolen goods. Thus,
where the accused were coming out of the store and were carrying away the stolen goods, the deceased stopped and
attacked them, then, two or three of the offenders returned the attack and killed the deceased. (Pp. vs. Salamuden, 52
Phil. 670).
- Robbery with homicide is committed even if the person killed is a robber himself. The law does not require that
the person killed is the owner of the property.
- There is robbery with homicide even if the person killed is an innocent bystander and not the person robbed.
(Pp. vs. Disimban, 88 Phil. 120).
- the law does not require that the victim of the robbery be also the victim of homicide. Pp. vs. Barut, 89 SCRA
16).
-there is robbery with homicide even if the killing of a person is by mere accident. (Pp. vs. Mangulabnan, et
al.,99 Phil. 992)
-Robbery with homicide is committed even if the killing is not the place of the robbery if there is intention to rob the
victim and his shooting was to eliminate the obstacle to consummate the criminal design. (Pp. vs. Libre, 93 Phil. 5).
- There is no crime of robbery with murder. Thus, the qualifying circumstance of murder, such as treachery cannot
qualify the killing to murder, but merely a generic aggravating circumstance in robbery with homicide. (Pp. vs. Abang, GR
No. L-14623, Dec. 29, 1960).
Robbery with rape.
- Even if the rape was committed in another place, it is still robbery with rape. Thus, after the robbery, the accused
compelled the women to go with them and while on their way to where their bancas were hidden, and by force and
intimidation raped them. Robbery with rape was committed. (U.S. vs. Tiongco, et al., 37 Phil. 951).
-If the primary intention of the accused was to take personal property, even if the rape took place before the taking
of the property, the crime committed is robbery with rape. (Pp. vs. Canastre, 82 Phil. 482).
- There is no such crime as robbery with attempted rape. (See. Pp. vs. Cariaga, 54 OG 4307).
Robbery with serious physical injuries under Art. 263, par. 2 ( Art. 294, par. 3)
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Case: the accused assaulted the victim and robbed him of P 17.00. The victim lost the hearing of one ear, as a
result of the blows he received from the accused. Held: the accused is guilty of robbery under Art. 294, par. 3, the physical
injuries inflicted being covered by Art. 263, par. 2. (Pp. vs. Luncay, 49 Phil. 4640.
Robbery with unnecessary violence and intimidation (Art. 294, par. 4)
Case: Tying a victim after wounding him and leaving him tied to the trunk of a tree on the craggy ground after
taking his money constitutes unnecessary violence and intimidation referred to in par. 4, of Art. 294. (Pp. vs. Manzanilla,
et al., 43 Phil. 167).
Robbery with the use of violence against or intimiation of any person under par. 5 of Art. 294.
-The robbery under this paragraph is known as simple robbery, because the use of violence against any person
does not result in homicide, rape, intentional mutilation, or any of the serious physical injuries defined under Art. 263,
which may five rise to special complex crime.
- If the injury inflicted upon the offended party on the occasion of robbery can be qualified only as less serious
physical injuries (U.S. vs. Barroga, 21 Phil.161), or slight physical injuries, (Pp, vs. Mandia, 60 Phil. 372), the crime is that
defined and penalized in par. 5 of Art. 294.
- Snatching money from the hands of the victim and pushing her to prevent her from recovering the seized
property covered by par. 5. (U.S. vs. Santos, 8 Phil. 286).
- Grabbing pawn ticket from the hands of another an intimidating him. (U.S. vs. Blanco, 10 Phil. 298)
Art. 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use
of firearms on a street, road or alley.
-This article applies if any of the offenses defined in subsection 3,4 and 5 of Art. 294 is committed –
1) in an uninhabited place, or
2) by a band, or
3) by attacking a moving train, street car, motor vehicle or airship, or
4) be 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 under Art. 294.
-Meaning, this article does not apply to robbery with homicide, or robbery with rape, or robbery with serious
physical injuries under par. 1 of Art. 294. Thus, if robbery with homicide was committed by attacking a motor vehicle or
moving train, or on a street, etc., the penalty under subdivision 1 of Art. 294 shall not apply (moving train, etc, not being
qualifying circumstance). But if there is no mitigating circumstance to offset the same, the maximum penalty shall be
applied as they will be treated as generic aggravating circumstances under Art. 14. (See Pp. vs. Salip Manla, 30 SCRA
389; Pp. vs. Damaso, 86 SCRA 370).
Art. 296. Definition of a band and penalty incurred by the members thereof.
Art. 297. Attempted and frustrated robbery committed under certain circumstances.
-The term “homicide” in this article is used in its generic sense (Pp. vs. Manuel, 44 Phil. 333).Hence, it include,
multiple homicides, murder, parricide, or even infanticide. The penalty is reclusion temporal in its maximum period to
reclusion perpetua.
Art. 299. Robbery in an inhabited place or public building or edifice devoted to worship.
-“Inhabited house” is any shelter, ship or vessel constituting dwelling of one or more persons even though the
inhabitants thereof are temporarily absent therefrom when the robbery was committed. (Art. 301).
- “Public building” is 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. (Art. 301). Thus, it the building has already been
delivered by the contractor to the government, the same is public building as the state has already title over it. (Pp. vs.
Cosntantino, 46 Phil. 745).
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Art. 301. What is an inhabited house, public building, or building dedicated to religious worship and their
dependencies.
Art. 302. Robbery in an uninhabited place or in a private building.
Art. 308. Theft.
- What distinguishes theft from robbery is that in theft, the offender does not use violence or intimidation or does
not enter any house or building through any of the means specified in Art. 299 or Art. 302 in taking the personal property
of another with intent to gain.
-“intent to gain” is presumed in any unlawful taking of personal property belonging to another.
- But if a person takes personal property from another believing it to be his own, the presumption of intent to gain
is rebutted and, therefore, he is not guilty of theft. (U.S. vs. Viera, 1 Phil. 584).
- One who takes personal property openly and avowedly under claim of title made in good faith is not guilty of
theft even though the claim of ownership ia later found to be untenable. (Pp. vs. Lozada, CA-Gr No. 3147-R,, Dec. 21,
1949).
-Joy ride or using a car of another to learn how to drive is “sufficient gain”. Satisfaction, enjoyment and pleasure
are real gain. (Pp. vs. Fernandez, CA, 38 OG 985).
-Theft is committed even if the accused did not take the property for his own use but gave it to another person.
(Pp. vs. Santos, CA, 38 OG 985).
Art. 310. Qualified theft.
- Theft by a domestic helper is always qualified. It is not necessary to show that he committed the crime with
abuse of confidence. (Pp. vs. Evangelista, 70 Phil. 122).
- Use of safe combination learned by confidential clerk is a grave abuse of confidence. Hence, qualified theft. (Pp.
vs. Valdellon, 46 Phil. 245).
Art. 3115 SWINDLING (estafa).
-Estafa is classified into three different forms according to the means by the fraud is committed-
1) with unfaithfulness or abuse of confidence;
2) by means of false pretense or fraudulent acts; or
3) through fraudulent means.
- Deceit is not an essential requisite of estafa with abuse of confidence. (U.S. vs. Pascual, 10 Phil. 621).
- Money misappropriated must have been received by the defendant transferring juridical possession to him. If he
takes it from another it will be theft.
-juridical possession means a possession which gives the transferee a right over the thing which the transferee
may set up against the owner.
Ex: Renting the truck of another for a consideration for the use of the borrower within a certain period as agreed,
the possession id juridical. (Pp. vs. Noveno, et al. 46 OG 1637).
-There is estafa if the offender misappropriates the thing received by him in trust, on commission or for
administration. (Pp. Carulasdulasan, et al., 95 Phil. 8).
LIBEL
Art. 353. Definition of libel.
- Imputation of a criminal intention is not libelous because intent to commit a crime is not libelous. This is more so,
when it is a mere assertion or expression of opinion as to what will be the future conduct of another. (Pp. vs. Baja, CA 40
OG, Supp. 5, 2006).
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- An expression of opinion by one affected by the act of another and based on actual fact is not libelous. Thus, an
expression of opinion that a person is unfair or partial in the distribution of her property, where it appears that the
defendant has been deprived of her share is not libelous. (Pp. vs. Baja, supra).
-“Malice in law”- is presumed from a defamatory imputation. Proof of malice is no longer required because it is
presumed to exist from the defamatory imputation. But this principle does not apply where the communication is privileged
under Art. 354. Hence, malice as a fact must be proved. (U.S. vs. Bustos, 37 Phil. 731).
-“malice in fact” may be shown by proof of ill-will, hatred or purpose to injure.
- Defamatory statements on two or more persons contained in one writing and published by a single act
constitutes but one offense so as to warrant single indictment therefore. (Pp. vs. Aquino, 35 OG 8844).
-Publication is the communication of the defamatory matter to some third person or persons. (Pp. vs. Atencion,
CA-Gr Nos. 11351-R to 11353-R, Dec. 14, 1954).
-Delivery of the article to the typesetter is sufficient publication. (U.S. vs. Crame, 10 Phil. 135).
-Sending a letter not shown to have been sealed to the offended party charging the latter with having illicit
relationship with her husband is publication. (Pp. vs. Silvela, 103 Phil. 773).
Art. 354 requirement for publicity.
-Malice is not presumed in the following (privileged):
1. A private communication made by any person to another in the performance of any legal, moral or social duty
(Art. 354, No. 1).
2. A fair and true report made in good faith, without any comments or remarks, of any judicial, legislative, or other
official proceedings which are not confidential in nature, or of any statement, report, or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise of their functions. (Art. 354, No. 2).
-But unnecessary publicity destroys good faith. (Pp. vs. Cruz, 40 OG Supp. 11, 15).