THE REVISED PENAL CODE

(Act No. 3815 as Amended)

Criminal Law – It is that branch or division of law which defines crimes, treats of
their nature, and provides for their punishment.

Terms:
(1) Crime –a generic term that embraces any violation of the Revised Penal
Code, special penal laws, and municipal or city ordinances.

(2) Felony – an act or omission violative of the RPC committed either

intentionally or negligently.

(3) Offense – an act or omission violative of a special law.

(4) Misdemeanor – a minor infraction of law.

Sources of Criminal Law

(1) The Revised Penal Code (Act No. 3815) and its amendments;
(2) Special Penal Laws passed by:
(a) Philippine Commission;
(b) Philippine Assembly;
(c) Philippine Legislature;
(d) National Assembly;
(e) Congress of the Philippines; and the
(d) Batas Pambansa; and
(3) Penal Presidential Decrees issued during Martial Law.

Characteristics of Criminal Law

(1) General
(2) Territorial
(3) Prospective

GENERAL
Penal laws and those of public security and safety shall be obligatory upon
all who live and sojourn in the Philippine territory, subject to the principles of
public international law and to treaty stipulations.

Exceptions to the General Application of Criminal Law:

(1) Treaties or Treaty Stipulation

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 (2) Law of Preferential Application
(3) Principles of Public international Law
The following persons are not subject to the operation of our criminal laws:
(a) Sovereigns and other heads of state
(b) Charges d’affaires
(c) Ambassadors
(d) Ministers plenipotentiary; and
(e) Ministers resident

TERRITORIAL
Criminal laws undertake to punish crimes committed within the Philippine
territory.

General Rule: Penal laws of the Philippines have force and effect only
within its territory.

National Territory
The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting of its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas. The waters
around, between, and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines.

Exceptions:
(1) RPC shall not be enforced within or outside the Philippine territories if
so provided under:
(a) Treaties; or
(b) Laws of Preferential Application

(2) RPC, Art. 2

(a) Should commit an offense while on a Philippine ship or airship
(b) Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the Government of the
Philippine Islands;
(c) Should be liable for acts connected with the introduction into these
islands of the obligations and securities mentioned in the presiding number;
(d) While being public officers or employees, should commit an
offense in the exercise of their functions; or
(e)Should commit any of the crimes against national security and the

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law of nations, defined in Title One of Book Two of this Code.

PROSPECTIVE
General Rule: Criminal law cannot penalize an act that was not punishable
at the time of its commission.
Exceptions: Whenever a new statute dealing with crime establishes
conditions more lenient or favorable to the accused, it can be given retroactive
effect.
Exceptions to the Exception:
(1) Where the new law is expressly made inapplicable to pending
actions or existing causes of action.
(2) Where the offender is a habitual criminal.

Elements of Felonies:
(1) There must be an act or omission, i.e. there must be external acts;
Act – any bodily movement tending to produce some effect in the
external world. It must be external as internal acts are beyond the sphere of penal
law.
Omission – there is a law requiring a certain act to be performed and
the person required to do the act fails to perform it.

(2) The act or omission must be punishable by the RPC; and

Rationale: nullum crimen, nulla poena sine lege – there is no crime
where there is no law punishing it.

(3) The act is performed or the omission is incurred by means of dolo or

deceit.

Intentional Felonies – The act is performed or the omission is incurred with

deliberate intent or malice to cause an injury to another.

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Culpable Felonies – The act or omission is not malicious. The injury caused by
the offender to another person is “unintentional”, it being simply the incident of
another act performed without malice.
Negligence – indicates a deficiency of perception; failure to pay proper
attention and to use diligence in foreseeing the injury or damage impending to be
caused; usually involves lack of foresight.

Imprudence – indicates a deficiency of action; failure to take the necessary

precaution to avoid injury to a person or damage to property; usually involves lack
of skill.
Article 4. Criminal liability. - Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.

Three Causes which Produce a Different Result

The person is still criminally liable although the wrongful act done be
different from that which he intended:

(1) Error In Personae – mistake in the identity of the victim. The penalty is
that for in Art. 49 of RPC, that is, the penalty for the lesser crime in its maximum
period.

(2) Aberratio Ictus – mistake in the blow, that is, when the offender
intending to do an injury to on person actually inflicts it on another. The penalty
for grave offense in its maximum priod pursuant to Art. 48 of the RPC.

(3) Praeter Intentionem – injurious result is greater than that intended.

Impossible Crimes

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 Is one where the acts performed would have been a crime against persons or
property but which is not accomplished because of its inherent impossibility or
because of the employment of inadequate or ineffectual means.

Stage of the felony:

Consummated Felony – A felony is consummated when all the elements
necessary for its execution and accomplishment are present.

Frustrated Felony – A felony is frustrated when the offender performs all the acts
of section which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.

Attempted Felony – There is an attempt when the offender commences the

commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident
other than his own spontaneous desistance.

CIRCUMSTACES AFFECTING CRIMINAL LIABILITY

1) Justifying circumstances are those where the act of a person is said to be

in accordance with law, so that such person is deemed not to have transgressed the
law and is free from both criminal and civil liability.

2) Exempting circumstances (non-imputabiliy) are those grounds for

exemption from punishment because there is wanting in the agent/actor of the
crime any of the conditions which make the act voluntary, or negligent such as
intelligence, freedom of action, intent or negligence.

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 3) Mitigating circumstances are those which, if present in the commission
of a crime, do not entirely free the actor from criminal liability but serve only to
reduce the penalty.

4) Aggravating circumstances are those which, if attendant in the

commission of the crime, serve to increase the penalty without, however,
exceeding the maximum penalty provided by law for the offense. (21)

5) Alternative circumstance are those which must be taken into

consideration as aggravating or mitigating according to the nature and effects of
the crime and the other conditions attending its commission

Justifying Cricumstance
SELF-DEFENSE
Requisites:
1. Unlawful aggression (condition sine qua non);
2. Reasonable necessity of the means employed to prevent or repel it the
unlawful aggression (if by a peace officer, reasonable necessity of the
means employed to overcome opponent); and
3. Lack of sufficient provocation on the part of the person defending
himself.

Unlawful aggression - equivalent to assault ir at least threatened assault of an

immediate and imminent kind.

Guidelines on Unlawful Aggression:

(1) The unlawful aggression must come form the person attacked by the
accused.
(2) A public officer exceeding his authority become unlawful aggressor.

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 (3) Nature, character, location and extent of wound of the accused allegedly
inflicted by the injured party may belie claim of self-defense.
(4) Physical fact may determine whether the accused acted in self-defense.
(5) When the aggressor flees, unlawful aggression no longer exists. When
unlawful aggression which has begun no longer exists, because the aggressor runs
away, the one making a defense has no more right to kill or even to wound the
former aggresA McCoysor.
(6) There is no unlawful aggression when there is agreement to fight and the
challenge was accepted by the deceased. There must be an agreement to fight and
such challenge must be accepted.
(7) There is self-defense even if the aggressor used a toy pistol, provided the
accused believed it was a real gun.
(8) When intent to attack is manifest, picking up a weapon is sufficient to be
an unlawful aggression.

Factors to consider the reasonableness of the means used:

(1) Presence of imminent danger.
(2) Impelled by the instinct of self-preservation.
(3) Nature and quality of the weapon used by the accused compared to the
weapon of the aggression.
(4) Emergency to which the person defending himself has been exposed to.
(5) Size and/or physical character of the aggressor compared to the accused
and other circumstances that can be considered showing disparity between
aggressor and accused.

Provocation – is any unjust or improper conduct or act of the offended party,

capable or exciting, inciting or irritating anyone. It is sufficient when it is adequate
to steer one to its commission.

Article 17. Principals. - The following are considered principals:

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 1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act
without which it would not have been accomplished.

Par. 1 Principals by direct participation

(1) That they participated in the criminal resolution; and
(2) That they carried out their plan and personally took part in its
execution by acts which directly tended to the same end.

Par. 2 Principals by inducement

(1) That the inducement be made directly with the intention of
procuring the commission of the crime; and
(2) That such inducement be the determining cause of the commission
of the crime by the material executor.

Par. 3 Principal by indispensable cooperation

(1) Participation in the criminal resolution. That is, there is either
anterior conspiracy or unity of criminal purpose and intention immediately before
the commission of the crime charged; and
(a) Requires participation in the criminal resolution.
(b) There must be conspiracy.
(c) Concurrence is sufficient.
(d) Cooperation is indispensable.

(2) Cooperation in the commission of the offense by performing

another act, without which it would not have been accomplished.
(a) Cooperation must be indispensable.

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 (b) If the cooperation is not indispensable, the offender is only
an accomplice.
(c) If cooperation of one of the accused consists in performing
an act necessary in the execution of the crime committed, he is the principal by
direct participation.

Article 18. Accomplices. –

They are persons who, not acting as principals, cooperate in the execution of
the offense by previous and simultaneous acts, which are not indispensable to the
commission of the crime.

They act as mere instruments who perform acts not essential to the
preparation of the offense.

Requisites:
(1) That there be community of design; that is, knowing the criminal
design of the principal by direct participation, he concurs with latter’s purpose;
mere knowledge of the criminal resolution only and not concurrence or
participation.
(2) That he cooperates in the execution of the offense by previous or
simultaneous acts, with the intention of supplying material or moral aid in the
execution of the crime in an efficacious way; and
(3) That there be a relation between the acts done by the principal and
those attributed to the person charged as an accomplice.

Article 19. Accessories. –

They are those who:
(1) Having knowledge of the commission of the crime, and

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 (2) Without having participated therein, either as principals or accomplices,
take part subsequent to its commission in any of the following acts:
(a) By profiting themselves or assisting the offender to profit by the effects
of the crime.
In profiting by the effects of the crime, the accessory must receive the
property from the principal. He should not take it without the consent of the
principal. If he took it without the consent of the principal, he is not an accessory
but a principal in the crime of theft.

(b) By concealing or destroying the body of the crime, or the effects or

instruments thereof, in order to prevent its discovery.
“Body of the crime” is equivalent to corpus delicti.

Corpus delicti – it is the body or substance of the crime. It refers to the fact
that a crime has been actually committed.

(c) By harboring, concealing, or assisting in the escape of the principals of

the crime, provided the accessory acts with abuse of his public functions or
whenever the author of the crime is guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive, or is known to be habitually guilty
of some other crime.

PRESIDENTIAL DECREE 1612

(ANTI-FENCING LAW OF 1979)

Fencing
It is an act of any person with intent to gain, of buying, selling, receiving,
possessing, keeping, or in any other manner dealing in anything of value which he
knows or should be known to him, to have been derived from the proceeds of the
crime of robbery or theft (P.D. No. 1612, Sec. 2(a)).

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Fence
He is a person who commits the act of fencing. A fence who receives stolen
property as above-provided is not an accessory but a principal in the crime defined
in and punished by the Anti-fencing Law (P.D. No. 1612, Sec. 2(b)).

Mere possession of anything of value which has been the subject of robbery
or theft shall be prima facie evidence of fencing (P.D. No. 1612, Sec. 5).

PENALIZING OBSTRUCTION OF APPREHENSION AND

PROSECUTION OF CRIMINAL OFFENDERS
(PRESIDENTIAL DECREE 1829)

P.D. No. 1829 penalizes the act of any person who knowingly of willfully
obstructs, impedes, frustrates or delays the apprehension of suspects and the
investigation and prosecution of criminal cases.

The acts enumerated under this decree are commonly, referred to as

“OBSTRUCTION OF JUSTICE.” It penalizes, inter alia, the act of harboring of
concealing, or facilitating the escape of any person he who knows or has
reasonable ground to believe or suspect, has committed any offense under existing
penal laws in order to prevent his arrest, prosecution and conviction. Here, he shall
be punished as a principal in the crime of obstruction of justice (P.D. No. 1829,
Sec. 1, par.(c)).

Article 39. Subsidiary penalty. – (as amended by RA No. 10159)

Subsidiary Penalty

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 A subsidiary personal liability to be suffered by the convict who has no
property wit which to meet the fine.

New Basis for Daily Computation of Subsidiary Penalty

He shall be subject to a subsidiary personal liability at the rate of one day for
each amount equivalent to the highest minimum wage rate prevailing in the
Philippines at the time of the rendition of judgment of conviction by the trial court.
Note: This amended the previous rate of one (1) day for each eight (8)
pesos.

Subsidiary penalty shall be proper only if the accused has no property with
which to pay the fine and not as a matter of choice on his part by opting to go to
jail instead of paying.

Article 45. Confiscation and forfeiture of the proceeds or instruments of the crime.
- Every penalty imposed for the commission of a felony shall carry with it the
forfeiture of the proceeds of the crime and the instruments or tools with which it
was committed.

Such proceeds and instruments or tools shall be confiscated and forfeited in

favor of the Government, unless they be property of a third person not liable for
the offense, but those articles which are not subject of lawful commerce shall be
destroyed.

Rules:
(1) Every penalty imposed carries with it forfeiture of the proceeds of the
crime and the instruments or tools used in the commission of the crime;
Note: There can be no forfeiture when there is no criminal case yet filed.
(2) The proceeds and instruments or tools of the crime are confiscated and
forfeited in favor of the Government;

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 (3) Property of a third person not liable for the offense is not subject to
confiscation and forfeiture.
Note: The statement prevails notwithstanding the fact that the third person
who is the owner of the property could have been convicted if indicted with the
accused.
(4) Property not subject of lawful commerce (whether it belongs to the
accused or to third person) shall be destroyed.

The confiscation and forfeiture of the proceeds and instruments of a crime is

an accessory penalty. Thus, where the penalty imposed did not include the
confiscation of the property, the confiscation or forfeiture of the property would be
an additional penalty and would tantamount to an increase of the penalty already
imposed, thereby placing the accused in double jeopardy.

Articles which are forfeited, when the order or forfeiture is already final,
cannot be returned even in case of an acquittal.

The provision of Art. 45 cannot apply when:

(1) The instruments belong to innocent third parties;
(2) Such properties have not been placed under the jurisdiction of the court
because they must be presented in evidence and identified in judgment; or
(3) When it is legally or physically impossible.

This accessory penalty presupposes a judgment of conviction. However,

even if the accused is acquitted on reasonable doubt, but the instruments or
proceeds are contraband, the judgment of acquittal shall order their forfeiture for
appropriate disposition.

Article 100. Civil liability of a person guilty of felony. - Every person criminally
liable for a felony is also civilly liable.

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Exceptions:
(1) Victimless crimes; and
(2) Flight to enemy country.

A crime has a dual character:

(1) As an offense against the State, because of the disturbance of the social
order; and
(2) As an offense against the private person injured by the crime unless it
involves the crime of treason, rebellion, espionage, contempt, and others wherein
no civil liability arises on the part of the offender, either because there are no
damages to be compensated or there is no private person injured by the crime.

CRIMES AGAINST FUNDAMENTAL LAW OF THE STATE

Article 124. Arbitrary detention.

Elements:
(1) That the offender is a public officer or employee;
(2) That he detains a person; and
(3) That the detention is without legal ground.

Detention
It is the actual confinement of a person in an enclosure or in any manner
detaining and depriving him of his liberty.

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 Detention need not involve physical restraint. Psychological restraint is
sufficient. If the acts and actuations of the accused can produce such fear in the
mind of the victim sufficient to paralyzed the later, to the extent that the victim is
compelled to limit his own actions and movements in accordance with the wishes
of the accused, then the victim is for all intents and purposes, detained against his
will.

Legal grounds for the detention of a person:

(1) The commission of a crime;
(2) Violent insanity; or
(3) Any other ailment requiring the compulsory confinement of the patient
in the hospital.

Note: This list is not exclusive so long as the ground is considered legal
(e.g. in contempt of court, under quarantine, or a foreigner to be deported).

The offender is a public officer or employee

The public officers liable for arbitrary detention must be vested with
authority to detain or order the detention of persons accused of a crime; such
public officers are the policemen and other agents of the law, the mayors and
barangay captains.

If the detention is perpetrated by other public officers not vested with

authority or any private individual, the crime committed is illegal detention (Art.
267 or 268)

Arbitrary detention is generally committed through arrest without a

warrant. The crime of unlawful arrest is absorbed in the crime of arbitrary
detention.

Effect when person arrested is acquitted

If the arrested persons are later found to be innocent and acquitted, the
arresting officer are not liable. But if they do not strictly comply with the said
conditions, the arresting officers can be held liable for the crime of arbitrary
detention, for damages under Art. 32 of the Civil Code, and/or for other
administrative sanctions.

Arrest without a warrant; when lawful:

(1) In flagrante delicto – When in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an offense.

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“In his presence”
When the officer sees the offense being committed, although at a distance,
or hears the disturbance created thereby and proceeds at once to the scene thereof,
or when the offense is continuing or has not been consummated at the time the
arrest is made, the offense is said to be committed in his presence.

(2) Hot pursuit – When an offense has in fact just been committed, and he
has probable cause to believe based on personal knowledge of facts and
circumstances that the person to be arrested has committed.

(3) Escapee – When the person to be arrested is a prisoner who has

escaped from a penal establishment, or place where he is serving final judgment or
temporarily confined while his case is pending; or has escaped while being
transferred within the Philippines.

(4) If a person lawfully arrested escapes or is rescued, any person may

immediately pursue or retake him without a warrant at any time and in any place
within the Philippines.

(5) For the purpose of surrendering the accused, the bondsmen may arrest
him or, upon written authority endorsed on a certified copy of the undertaking,
cause him to be arrested by a police officer or any other person of suitable age and
discretion.

(6) An accused released on bail may be re-arrested without the necessity of

a warrant if he attempts to depart from the Philippines without permission of the
court where the case is pending.

Periods of Detention Penalized:

(1) If the detention has not exceeded 3 days;
(2) If the detention has continued more than 3 days but not more than 15
days;
(3) If the detention has exceeded 6 months. A greater penalty is imposed if
the period is longer.

Note: Art. 124 does not fix the minimum period of detention. The arbitrary
detention may last for less than half an hour, or it may last for only one hour.

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 Article 125. Delay in the delivery of detained persons to the proper judicial
authorities. -
Elements:
(1) That the offender is a public officer or employee;
(2) That he has detained a person for some legal ground; and
(3) That he fails to deliver such person to the proper judicial authorities
within:
(a) 12 hours for offenses punishable by light penalties or their
equivalent;
(b) 18 hours for offenses punishable by correctional penalties or
their equivalent; or
(c) 36 hours for offenses punishable by afflictive penalties or their
equivalent.

Note: The article includes Sundays, holidays and election days in the
computation of the periods prescribed within which public officers should deliver
arrested persons to the proper judicial authorities as the law never makes such
exception.

Circumstances considered in determining liability of officer detaining a

person beyond legal period:
(1) The means of communication;
(2) The hour of arrest; and
(3) Other circumstances such as:
(a) The time of surrender;
(b) The material possibility for the fiscal to make the investigation
and file in time the necessary information; and
(c) The government office hours.

Proper Judicial Authorities

It refers to the courts of justice or judges of said courts vested with judicial
power to order the temporary detention or confinement of a person charged with
having committed a public offense.

Reason of Art. 125

It is intended to prevent any abuse resulting from confining a person
without informing him of his offense and without permitting him to go on bail.

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 A private individual who makes a lawful arrest must also comply with
requirements under Art. 125. If he fails to comply, he is liable for the crime of
illegal detention (Art. 267 or 268).

Art. 125 applies only to arrests made without a warrant

If the arrest was made pursuant to a warrant, the prisoner is already
deemed in the custody of the court and the officer has only to deliver him without
unnecessary delay to the nearest police station or jail.

Moreover, the person arrested pursuant to a warrant can be detained

indefinitely, until his case is decided by the court of he posts a bail. The reason is
that there is already a complaint or information filed against him making his
delivery to the court unnecessary.

Before the complaint or information is filed, the person arrested may

request for a preliminary investigation but he must sign a waiver of Art. 125 in the
presence of counsel.

Article 126. Delaying release. –

Punishable Acts:
(1) By delaying the performance of a judicial or executive order for the
release of a prisoner;
(2) By unduly delaying the service of the notice of such order to said
prisoner; and
(3) By unduly delaying the proceedings upon any petition for the liberation
of such person.

Elements:
(1) That the offender is a public officer or employee;
(2) That there is a judicial or executive order for the release of a prisoner
or detention prisoner, or that there is a proceeding upon a petition for the liberation
of such person; and
(3) That the offender without good reason delays:
(a) The service of the notice of such order to the prisoner, or
(b) The performance of such judicial or executive order for the
release of the prisoner, or
(c) The proceedings upon a petition for the release of such person.

Article 128. Violation of domicile. -

Acts punishable:

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 (1) By entering any dwelling against the will of the owner thereof;

Dwelling – It is the place of abode where the offended party resides and
which satisfies the requirements of his domestic life.

Against the will of the owner – To constitute the violation of domicile,

the entrance by the public officer or employee must be against the will of the
owner of the dwelling which presupposes opposition or prohibition by the owner,
whether express or implied, and not merely the absence of consent.

Lack of consent would not suffice as the law requires that the offender’s
entry must be over the owner’s objection.

Note: The fact that the door was closed is an implied prohibition against
anyone from the entering the dwelling.

(2) By searching papers or other effects found therein without the

previous consent of such owner; and

Search – It refers to the examination of a person’s body, property or other

area that the person would reasonably be expected to consider as private,
conducted by a law enforcement officer for the purpose of finding evidence of a
crime. Thus, the mere fact of “looking at” cannot strictly be considered as the
search of papers or other effects.

Silence of the owner of the dwelling before and during the search, without
search warrant, by public officer, may show implied waiver.

Mere lack of consent is sufficient.

(3) By refusing to leave the premises, after having surreptitiously

entered said dwelling and after having been required to leave the same.

Note: What is punished is the refusal to leave, the entry having been made
surreptitiously. It is believed, however, that if the surreptitious entry had been
made through an opening not intended for that purpose, the offender would be
liable under the first mode since it is entry over the implied objection of the
inhabitant.

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 Although the Code speaks of the owner of the premises, it would be
sufficient if the inhabitant is the lawful occupant using the premises as his
dwelling, although he is not the owner thereof.

Elements:
(1) That the offender is a public officer or employee;
(2) That he is not authorized by judicial order to enter the dwelling and/or
to make a search for papers or other effects; and
(3) That the offender shall:
(a) Enter any dwelling against the will of the owner thereof;
(b) Search papers of other effects found therein without the
previous consent of such owner; or
(c) Refuse to leave the premises, after having surreptitiously
entered said dwelling and after having been required to leave the same.

Not authorized by judicial order

A public officer or employee is not authorized by judicial order when he is
not armed with a search warrant duly issued by the court.

If the offender is a private individual (RPC, Art. 280), or if the public

officer is one whose function does not include the duty to effect search and seizure,
the crime committed is trespass to dwelling.

Qualifying Circumstances:
(1) If committed at nighttime; or
(2) If any papers or effects not constituting evidence of a crime are not
returned immediately after a search is made by the offender.

Article 129. Search warrants maliciously obtained and abuse in the service of
those legally obtained.
Acts punishable:
(1) Procuring a search warrant without just cause; or
Elements:
(a) That the offender is a public officer or employee;
(b) That he procures a search warrant; and
(c) That there is no just cause.

(2) Exceeding his authority or by using unnecessary severity in the execution a

search warrant legally procured.

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 Elements:
(a) That the offender is a public officer or employee;
(b) That he has legally procured a search warrant;
(c) That he exceeds his authority or uses unnecessary severity in executing
the same.

Note: If in searching a house, the public officer destroys furniture therein

without any justification at all, he is guilty under Art. 129, as having used
unnecessary severity in executing the search warrant.

The officer, if refused admittance to the place of directed search after

giving notice of his purpose and authority, may break open any outer or inner door
or window of a house or any part of a house or anything therein to execute the
warrant or liberate himself or any person awfully aiding him when unlawfully
detained therein.

Search warrant
It is an order in writing issued in the name of the People of the Philippines,
signed by the judge and directed to a peace officer, commanding him to search for
personal property described therein and bring it before the court.

Requisites:
(1) It must be issued upon probable cause.

Probable Cause – It is defined as such facts and circumstances which

would lead a reasonably discreet and prudent man to believe that an offense has
been committed and that the object sought in connection with the offense are in the
place sought to be searched.

(2) The probable cause must be determined by the judge himself and not
by the applicant or any other person.
(3) In the determination of probable cause, the judge must examine, under
oath or affirmation, the complainant and such witnesses as the latter may produce;
(4) It should be issued in connection with one specific offense; and
(5) The warrant issued must particularly describe the place to be searched
and persons or things to be seized.

A search warrant should particularly describe the place to be searched and

the things to be seized. The evident purpose of this requirement is to limit the
things to be seized to those, and only those, particularly described in the search

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warrant – to leave the officers of law with no discretion regarding what articles
they should seize, to the end that unreasonable searches and seizures may not be
committed – that abuses, may not be committed.

A search warrant shall be valid for 10 days from its date.

Test of lack of just cause

Whether the affidavit filed in support of the application for search warrant
has been drawn in such a manner that perjury could be charged thereon and affiant
can be held liable for damages caused.

If the search warrant is secured through a false affidavit, the crime

punished by this article cannot be complexed but will be a separate crime from
perjury since the penalty herein provided shall be “in addition to” the penalty of
perjury.

Warrantless searches, when valid:

(1) When there is a genuine reason to “Stop-and-Frisk” in the light of the
police officer’s experience and surrounding conditions to warrant a belief that the
person detained has weapons concealed.

(2) Inspection of buildings and other premises for the enforcement of fire,
sanitary and building regulations.

(3) Visual search at checkpoints.

(4) When right has been voluntarily waived.

(5) A person caught in flagrante delicto as an incident to a lawful arrest,

provided search contemporaneous to arrest and within permissible area of search.

A valid arrest must precede the search; the process cannot be reversed.

It may be made only within the permissible area of search, or the place
within the immediate control of the person being arrested.

The phrase “within the area of his immediate control” means the area from
within which he might gain possession of a weapon.

(6) Where the prohibited articles are in plain view.

22
 Elements:
(1) There must be a prior valid intrusion based on the valid warrantless
arrest in which the police are legally present in the pursuit of their official duties;
(2) The evidence was inadvertently discovered by the police who have the
right to be where they are.
(3) The evidence must be immediately apparent (or the illegality is
apparent); and
(4) The plain view justified the mere seizure of evidence without further
search.

Note: Where the object seized was inside a closed package, the object is
not in plain view. However, if the package proclaims its contents, then the contents
are in plain view and may be seized.

(7) Searches of aircraft and vessel for violation of fishery, immigration and
customs laws.
Reason: The vessel can be quickly moved out of the locality or
jurisdiction in which the search must be sought before the warrant could be
secured.

(8) Doctrine of exigent circumstances – under such urgency and exigency

of the moment where a search warrant should be lawfully dispensed with.

Article 130. Searching domicile without witnesses. -

Elements:
(1) That the offender is a public officer or employee;
(2) That he is armed with a search warrant legally procured;
(3) That he searches the domicile, papers or other belongings of any
person; and
(4) That the owner, or any member of his family or two witnesses residing
in the same locality are not present.

Note: The witnesses must be of legal age and the locality refers t the same
barangay.

Search ib the presence of witnesses specified by the law is mandatory to

ensure regularity in the execution of the search warrant.

Persons who may be present during searches:

23
 1. The house owner;
2. In his absence, any member of his family;
3. In the absence of the 2, at least 2 witnesses residing in the same
community. The obvious reason behind is to avoid incriminatory
machination or planting of evidence.

CRIMES AGAINST PUBLIC ORDER

Article 134. Rebellion or insurrection; How committed. -

Elements:
(1) There is:
(a) Public uprising; and
(b) Taking up of arms against the Government.

(2) For the purpose of:

(a) Removing from the allegiance to said Government or its laws;
(i) The territory of the Philippines, or any part thereof; or
(ii) Any body of land, naval or other armed forces; or
(b) Depriving wholly or partially, any of the powers or prerogatives of the:
(i) Chief Executive;
(ii) Congress.

Rebellion
It is more frequently used where the object of the movement is to
completely overthrow and supersede the existing government.

Insurrection
It is more commonly employed in reference to a movement which seeks
merely to effect some change of minor importance, or to prevent the exercise of
governmental authority with respect to particular matters or subjects.

Article 134-A. Coup d'etat; How committed. -

Elements:
(1) That the offender is a person or persons belonging to military or police
or holding any public office or employment;
(2) That it is committed by means of a swift attack, accompanied by
violence, intimidation, threat, strategy, or stealth;
(3) That the attack is directed against duly constituted authorities of the
Republic of the Philippines or any military camp, or installation, or communication

24
networks, public utilities or other facilities needed for the exercise and continued
possession of power; and
(4) That the purpose of the attack is to seize or diminish state power.

The crime of coup d’etat may be committed with or without civilian

participation.

Article 138. Inciting to Rebellion or Insurrection. -

Elements:
(1) That the offender does not take up arms or is not in open hostility
against the Government;
(2) That he incites others to the execution of any of the acts of rebellion;
and
(3) That the inciting is done by means of speeches, proclamations,
writings, emblems, banners or other representations tending to the same end.

Article 139. Sedition; How committed. –

Elements:
(1) That the offenders rise:
(a) Publicly; and
(b) Tumultuously;
Note: The offenders need not be private indiciduals.

(2) That they employ force, intimidation, or other means outside of legal
methods; and
(3) That the offenders employ any of those means to attain any of the
following objects:
(a) To prevent the promulgation or execution of any law or the
holding of any popular election;
(b) To prevent the government or any public officer from freely
exercising its or his functions, or prevent the execution of any Administrative
Order;
(c) To inflict any act of hate or revenge upon the person or
property of any public officer or employee;
(d) To commit, for any political or social end, any act of hate or
revenge against private persons or any social class; or
(e) To despoil, for any political or social end, any person,
municipality or province, or the National Government of all its property or any part
thereof.

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Nature of the crime
It is a crime or dissent or protest by means outside of legal methods.

Article 138. Inciting to Sedition. -

Punishable Acts
(1) Inciting others to commit sedition by means of speeches,
proclamations, writings, emblems, cartoons, banners, or other representations
tending to the same end;
(2) Uttering seditious words or speeches which tend to disturb the public
peace;
(3) Writing, publishing, or circulating scurrilous libels against the
Government or any of its duly constituted authorities which tend to disturb public
peace; and
(4) Knowingly concealing such evil practices.

Scurrilous
It means low, vulgar, mean, or foul.

Reason why seditious utterances are prohibited:

If the State were compelled, to wait until the apprehended danger became
certain, then its right to protect itself would come into being simultaneously with
the overthrow of the Government, when there would be neither prosecuting officer
nor courts for the enforcement of the law.

Chapter Four
ASSAULT UPON, AND RESISTANCE AND DISOBEDIENCE TO,
PERSONS IN AUTHORITY AND THEIR AGENTS

Article 148. Direct assaults. -

The victim in direct assault is a person in authority (PA) or his agent (APA)
The victim is a person in authority or his agent, and the attack, employment
of force or intimidation is committed on the occasion of the performance of official
duties or by reason of such performance.

Two ways of committing direct assault

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 (1) Without public uprising, by employing force or intimidation for the
attainment of any of the purposes enumerated in defining the crimes of sedition
and rebellion;
Elements:
(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; and
(3) That there is no public uprising.

Note: The first mode is tantamount to rebellion or sedition, without the

element of public uprising.

2. Without public uprising, by attacking, by employing force or seriously

intimidating or by seriously resisting any person in authority (PA) or any of his
agents (APA), while engaged in the performance of official duties, or on the
occasion of such performance.
Elements:
(1)That the offender:
(i) Makes an Attack – includes any offensive or antagonistic
movement or action of any kind (equivalent to aggression);

(ii) Employs force;

Degree of force necessary
(a) If the victim is an APA, the violence, intimidation, or resistance
employed by the offender must be serious.
(b) If the victim is a PA, the degree of force employed against him is
immaterial as the mere laying of hands on him is sufficient.

(iii) Makes serious intimidation (unlawful coercion, duress, putting

someone in fear, exertion of an influence in the mind which must be both
immediate and serious); or

Note: The intimidation must produce its effects immediately, for if the
threats be of some future evil, the act would not be an assault.

(iv) Makes a serious resistance (if not serious, crime committed

may be under Art. 151 or resistance and disobedience)

The resistance must be active, not passive, because resistance here must be
grave.

27
 Note: Intimidation or resistance must be serious whether the offended
party s a PA or APA.

(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 of his agent;
(i) Is engaged in the actual performance of official duties; or
(ii) That he is assaulted by reason of the past performance of his
official duties.

(4) That the offender knows that the one he is assaulting is a person in
authority or his agent in the exercise of his duties; and

(5) That there is no public uprising.

Considered not in the actual performance of official duties:

(1) When the PA or APA exceeds his powers or acts without authority;
(2) Unnecessary use or force or violence; or
(3) Descended to matters which are private in nature.

Two kinds of Direct Assault of the Second Form:

(1) Simple assault; and
(2) Qualified assault.

Direct assault is qualified when:

(1) Committed with a weapon;
(2) Offender is a public officer or employee; or
(3) Offender lays hands upon a person in authority.

Knowledge of the accused that the victim is a PA or APA is essential.

Evidence of motive of the offender is important when the person in

authority of his agent who is attacked or seriously intimidated is not in the actual
performance of his official duty.

Even when PA or APA agrees to fight, an attack made by accused

constitutes direct assault, EXCEPT when the attack is made in lawful defense; the
character of a person in authority or his agent is not laid off at will but attaches to
him until he ceases to be in office.

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 If direct assault is committed and as a result the PA or APA is killed, the
crime shall be the complex crime of direct assault with homicide or murder, as the
case may be.

If the direct assault is committed and the PA or APA suffers serious or less
serious physical injuries, the crime shall be a complex crime or direct assault with
serious or less serious physical injuries.

The crime of slight physical injuries is absorbed in direct assault if

committed against an APA. If committed against a PA, it will be considered as a
separate offense.

The crime of direct assault is not committed when the PA or APA is

suspended or is under suspension when he is attacked.

If the accused was also acting in the performance of his official duties, the
crime may be coercion or physical injuries.

Article 149. Indirect assaults. -

Elements:
(1) That a PA or an APA is the victim of any of the forms of direct assault
defined in Art. 148;
(2) That a person comes to the aid of the PA or APA; and

Note: The offended party in indirect assault may be a private person.

(3) That the offender makes use of force or intimidation upon such person
coming to the aid of the PA or APA.

Under Art. 149, it was formerly required that (a) direct assault is being
committed against a PA or an APA; and (b) a third party comes to the aid of the
victim by virtue of the latter’s order of request.

However, because of the amendment of Art. 152 by R. A. No. 1978, a

private individual coming to the aid of a PA is himself deemed an APA. Thus, the
rules are:
(1) If the victim is a PA who is the subject of a direct assault, and the 3 rd
person coming to his aid (who then becomes an APA) is likewise attacked, the

29
crime committed against the 3rd person will be direct assault, resistance or
disobedience depending on the degree of force or violence used by the offender.

(2) If the victim is an APA, it depends:

(a) If direct assault is being committed against the APA, the attack
rd
against the 3 party will constitute indirect assault;
(b) If only resistance or disobedience is being committed against
the agent, the attack against 3rd person is either physical injuries or coercion as the
case may be.

Article 151. Resistance and disobedience to a person in authority or the agents of

such person. –

Elements of Resistance & Serious Disobedience

(1) That a PA or his APA is engaged in the performance of official duty or
gives a lawful order to the offender;
(2) That the offender resists or seriously disobeys such person in authority or
his agent; and
(3) That the act of the offender is not included in the provisions of Arts. 148-
150

Elements of Simple Disobedience

(1) That an APA is engaged in the performance of official duty or gives a
lawful order to the offender;
(2) That the offender disobeys such APA; and
(3) That such disobedience is not of a serious nature.

The disobedience contemplated consists in the failure or refusal to obey a

direct order from the PA or APA.

In the crime of resistance and disobedience the offender must have

knowledge that the person arresting is a PA or APA.

“Shall resist or seriously disobey”

The word “seriously” is not used to describe resistance, because if the
offender seriously resisted a person in authority or his agent, the crime is direct
assault.

Article 152. Persons in authority and agents of persons in authority; Who shall be
deemed as such. –

30
Public Officer
Any person who takes part in the performance of public functions in the
government. (Art. 203)

Person in Authority
Any person directly vested with jurisdiction whether as an individual or as a
member or some court or governmental corporation, board or commission.

Agent of Person in Authority

Any person who, by direct provision of law of by election or by appointment
by competent authority, is charged with the maintenance of public order and the
protection and security of life and property.

A person in authority is one directly vested with jurisdiction

By “directly vested with jurisdiction” means the power or authority to
govern and execute the laws.

To be an agent of a person in authority, one must be charged with:

(1) The maintenance of public order; and
(2) The protection and security of life and property.

Note: Security guards are not included for they are not public officials.

Any person who comes to the aid of a person in authority may be

considered as an agent of a person in authority.

Teachers, lawyers, and heads of schools recognized by the government are

PA solely for purposes of Art. 148 and 151 and in connection with their duties.
Outside of this, they are not considered PA.

The Punong Barangay, Sangguniang Barangay members, and members of

the Lupong Tagapamayapa in each barangay shall be deemed as person in
authority in their jurisdiction.

PUBLIC DISORDERS

Article 155. Alarms and scandals. –

Punishable acts:

31
 (1) Discharging any firearm, rocket, firecracker, or other explosive within
any town or public place, which produces alarm or danger;

Note the discharge of the firearm should not be directed at a person.

Otherwise, the offense committed would be Discharged of Firearms under Art.
254.

It is the result, not the intent that counts. The act must produce alarm or
danger as a consequence.

The discharge may take place within one’s own garden or yard located in
town, since the law does not distinguish as to where in town.

(2) Instigating or taking an active part in any charivari or other disorderly

meeting offensive to another or prejudicial to public tranquility;

Charivari includes a medley of discordant voices, a mock serenade of

discordant noises made on kettles, tins, horns, etc. designed to annoy or insult.

The reason for punishing instigating or taking active part in charivari and
other disorderly meeting is to prevent more serious disorders.

(3) Disturbing the public peace while wandering about at night or while
engaged in any other nocturnal amusements; and

(4) Causing any disturbance or scandal in public places while intoxicated

or otherwise, provided Art. 153 is not applicable.

Note: If the disturbance is of a serious nature, the case will fall under Art.
153.

Article 156. Delivery of prisoners from jails. -

Elements:
(1) That there is a person confined in a jail or penal establishment; and
(2) That the offender removes such person, or helps the escape of such
person.

Ways of Committing:

32
 (1) By removing a prisoner confined in jail or penal institution - to take
away a person from confinement with or without the active participation of the
person released; or
2. By helping said person to escape - furnish material means to facilitate
escape.

The prisoner may be a detention prisoner or one sentenced by virtue of a

final judgment.

Liability of the prisoner who escapes:

(1) If a detention prisoner, he is not criminally liable.
(2) If a convict by final judgment, he is liable for evasion of service of his
sentence.

If the delivery of the prisoner was committed through bribery:

(1) The briber commits corruption of a public officer (Art. 212) and
delivering prisoners from jail.
(2) The jailer, if a public officer, commits infidelity in the custody of
prisoners (Art. 223) and bribery (Art. 210).
(3) The prisoner commits evasion of service of the sentence (Art. 157) if
he is already convicted by final judgment.

OTHER FALSITIES

Art. 177. Usurpation of Authority or Official Functions –

Two offenses contemplated under Art. 177:
(1) Usurpation of authority; and
(2) Usurpation of official functions.

Ways of Committing:
(1) Usurpation of Authority - by knowingly and falsely misrepresenting
oneself to be an officer, agent or representative of the Government, whether local,
national or foreign; and

Note: It is not necessary that he performs an act pertaining to a public

officer. The mere act of knowingly and falsely representing oneself to be an
officer, etc. is sufficient.

There must be a positive, express, and explicit representation on the part of

the offender.

33
 (2) Usurpation of Official Functions - by performing any act pertaining to
a person in authority or public officer of the government under the pretense of
official position and without authority.

Note: It is essential that the offender should have performed an act

pertaining to a person in authority or public officer.

A usurper is “one who introduces himself into an office that is vacant, or

who without color of title, outs the incumbent and assumes to act as an officer by
expressing some of the functions of the office.

Hence, it may be violated by a public officer who unlawfully assumes a

public position without color of law.

RA 75 provides penalty for usurping authority of diplomatic, consular or

any other official of a foreign government in addition to the penalty imposed by
the RPC.

The acts performed must pertain to:

(a) The Government;
(b) To any person in authority; or
(c) To any public officer.

Art. 178. Using Fictitious Name and Concealing True Name -

Punishable Acts:
(1) Using Fictitious Name

Fictitious Name – It is any other name which a person publicly applied to himself
without authority of law.

Elements:
(1) That the offender uses a name other than his real name;
(2) That he uses that fictitious name publicly; and
(3) That the purpose of the offender is
a. To conceal a crime;
b. To evade the execution of a judgment; or
c. To cause damage to public interest.

34
 Damage must be to public interest. If damage is to private interest, the
crime will be estafa under Art. 315, par. 2(a).

The signing of a fictitious name in an application for passport, is publicly

using such fictitious name.

The use of a fictitious name may be complexed with the crime of

delivering prisoners from jail as necessary means therefor, but may not be
complexed with evasion of service of sentence.

(2) Concealing True Name

Elements:
(a) That the offender conceals:
i. His true name;
ii. All other personal circumstances; and
iii. That the purpose is only to conceal his identity.

Section Two. False Testimony

False testimony
It is committed by any person who, being under oath, and required to
testify as to the truth of a certain matter at a hearing before a competent authority,
shall deny the truth or say something contrary to it.

Note: The false testimony need not influence the decision of the court. It is
sufficient that it was given with the intent to favor the accused.

Art. 180. False testimony against a defendant.

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; and
(4) That the defendant against whom the false testimony is given is either
acquitted or convicted in a final judgment.

Good faith is a defense.

Complainant must wait for the finality of judgment in the case where the
false testimony was given. This is so because the penalty for the violation of Art.

35
180 depends upon the penalty imposed by the court in the case of the defendant
against whom false testimony was given.

Art. 181. False testimony favorable to the defendant.-

False testimony is punished not because of the effect it actually produces

but because of its tendency to favor or to prejudice the defendant.

The false testimony in favor of the defendant need not directly influence
the decision of the acquittal and it need not benefit the defendant.

Art. 183. False testimony in other cases and perjury in solemn affirmations.
Perjury
It is the willful and corrupt assertion of falsehood under oath or affirmation
administered by authority of law on a material matter.

Ways of Committing Perjury:

(1) By falsely testifying under oath; or

Note: Should NOT be in a judicial proceeding.

(2) By making a false affidavit.

Elements:
(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 a 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 the falsity is required
by law.

Essential elements of proof of perjury:

(1) The statement made by the defendants must be proven false; and
(2) It must be proven that the defendant did not believe those statements to
be true.

Note: Knowledge by the accused of the falsity of his statement may be

proved by his admissions or by circumstantial evidence.

36
Oath – Any form of attestation by which a person signifies that he is bound in
conscience to perform an act faithfully and truthfully.

Affidavit – A sworn statement in writing; a declaration in writing, made upon oath

before an authorized magistrate or officer.

Material matter – The main fact which is the subject of the inquiry or any
circumstances which tends to prove that fact or any fact or circumstance which
tends to corroborate or strengthen the testimony relative to the subject of inquiry,
or which legitimately affects the credit of ant witness who testifies.

There is no perjury if sworn statement is not important, essential, or

material to the principal matter under investigation.

Proof that the accused has given contradictory testimony under oath at a
different time will not be sufficient to establish the falsity of the testimony charged
as perjury, for this would leave simply one oath of the defendants as against
another, and it would not appear that the testimony charged was false rather than
the testimony contradictory thereof. The two statements will simply neutralize each
other; there must be some corroboration of the contradictory testimony. Such
corroboration however, may be furnished by evidence aliunde tending to show
perjury independently of the declarations of testimony of the accused.

Competent person authorized to administer oath

A person who has a right to inquire into the questions presented to him
upon matters under his jurisdiction.

Art. 183 governs false testimony given in cases other than those punished
in Arts. 180-182, and in actions for perjury.

Good faith or lack of malice is a defense in perjury.

Note: Testimony must be complete.

Assertion of falsehood must be willful and deliberate

There is no perjury through negligence or imprudence since the word
“knowingly” under Art. 183 suggests that the assertion of falsehood must be
willful and deliberate.

37
 Two contradictory sworn statements are not sufficient to convict of
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 statement.

Subordination of perjury
It is committed by a person who knowingly and willfully procures another
to swear falsely and the witness suborned does testify under the circumstances
rendering him guilty of perjury. It is not expressly penalized in the RPC. If the act
is committed, the person who procured another to swear falsely or testify under
circumstances that would make him liable for perjury, would ne criminally liable
as principal by inducement in the crime of perjury and the person procured or
induced shall be liable as a principal by direct participation.

Art. 184. Offering false testimony in evidence. –

Elements:
(1) That the offender offered in evidence a false witness or testimony;
(2) That the offer was made in a judicial or official proceeding; and
(3) That he knew the witness or testimony was false.

Art. 148 applies when the offender knowingly presented a false witness, and
the latter testified falsely. But it does not apply when the offender induced a
witness to testify falsely. If there is inducement, Art. 180 – 183 in relation to Art. 7
par. 2 will apply.

Testimony must be complete.

If committed in a judicial proceeding, penalty is that for false testimony and

if committed in other official proceeding, the penalty is that for perjury.

CRIMES COMMITTED BY PUBLIC OFFICERS

Article 210. Direct bribery. -

Punishable acts:
(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;

The acceptance of the offer or promise is enough to consummate the

38
crime
Absent such acceptance, only the person making the offer or promise is
liable for Attempted Corruption of a Public Officer.

(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; and

The gift must be accepted by the public officer

It may be received by the public officer himself or through a third person.
Further, the gift may be money, property, services or anything else of value. It
must be capable of pecuniary estimation because the penalty for fine is based on
the value of consideration. It must have a value or be capable of pecuniary
estimation.

If the offer is not accepted by the public officer, only the person offering the
gift or present is criminally liable for attempted corruption of public officer under
Art. 212 in relation to Art. 6 The public officer is not liable.

A mere promise to give a gift and a mere promise to execute an act not
constituting a crime is NOT sufficient.

The act must be unjust.

(3) Agreeing to refrain, or by refraining, from doing something which is his

official duty to, in consideration of gift or promise.

Elements:
(1) That the offender be a public officer;
(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 received by the
public officer:
(a) With a view to committing some crime; or
(b) In consideration of the execution of an act which does not
constitute a crime, but the act must be unjust; or
(c) To refrain from doing something which it is his official duty to do;
and
(4) That the act which the offender agrees to perform or which he executes
be connected with the performance of his official duties.

39
Article 211. Indirect bribery. -
Elements:
(1) That the offender be a public officer;
(2) That he accepts gifts; and
(3) That the said gifts are offered to him by reason of his office.

There is no attempted or frustrated indirect bribery because it is committed

by accepting gifts offered to the public officer by reason of his office. If he does
not accept the gifts, he does not commit the crime. If he accepts the gifts, the crime
is consummated.

Note: P. D. No. 46 (Making it Punishable for Public Officials and Employees to

Receive and for Private Persons to Give, Gifts on any Occasion, including
Christmas) punishes:
(1) Any public official or employee who receives, directly or indirectly; and
(2) Any private person who gives, or offers to give:
Any gift, present or other valuable thing to any occasion, including
Christmas, when such gift, present or other valuable thing is given by reason of the
former’s official position, whether the same is for past favors or the giver hopes or
expects to receive a favor or better treatment in the future from the public official
or employee concerned in the discharge of his official functions.

Note: Included within the prohibition is the throwing of parties or

entertainments in honor of the official or employees or his immediate relatives.

Article 211-A. Qualified bribery. –

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; and

Note: If the crime committed is punishable by a penalty less than reclusion

perpetua, the public officer is liable under Art. 208 and direct bribery.

3. That the offender refrains from arresting or prosecuting the offender in

consideration of any promise, gift or present.

What qualifies the crime?

(a) Position of offender; and

40
 (b) Nature of the crime he fails to prosecute.

Article 212. Corruption of public officials. -

Elements:
(1) That the offender makes to a public officer:
(a) Offers or promises; or
(b) Gives gifts or presents; and

(2) That the offers or promises are made or the gifts or presents given to a
public officer, under circumstances that will make the public officer liable for
direct bribery or indirect bribery.

This article is concerned with the liability of the person who shall made the
offers of promises or given the gifts to the public officer.

The crime is attempted of the offer, promise, gift or present was refused or
upon which no action was taken and consummated if accepted by the officer.

This article punishes the person who made the offer or promise or gave the
gift, even if the gift was demanded by the public officer and the offer was not made
voluntarily prior to the said demand by the public officer.

MALVERSATION OF PUBLIC FUNDS OR PROPERTY

Article 217. Malversation of public funds or property; Presumption of

malversation.
Acts punishable:
1. Appropriating public funds or property;
2. Taking or misappropriating the same;
3. Consenting, or through abandonment or negligence, permitting any other
person to take such public funds or property; and
4. Being otherwise guilty of the misappropriation or malversation of such
funds or property.

Elements to all acts of malversation in Art. 217:

1. That the offender be a public officer;
2. That he had 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; and

41
 4. That he appropriated, took, misappropriated or consented, or through
abandonment or negligence, permitted another person to take them (Id).

Article 220. Illegal use of public funds or property. -

Elements:
(1) That the offender be a public officer;
(2) That such public fund or property has been appropriated by law or
ordinance;
(3) That there is a public fund or property under his administration; and
(4) That he applies the same to a public use other than that for which such
fund or property has been appropriated by law or ordinance.

Also referred to as “technical malversation”.

It is necessary that public funds or properties has been diverted to any public
use other than that provided for the law or ordnance.

Article 221. Failure to make delivery of public funds or property. -

Punishable acts:
(1) By failing to make payment by a public officer who is under obligation
to make such payment from Government funds in his possession; and
Elements:
(a) Public officer has government funds in his possession;
(b) He is under obligation to make payment from such funds; and
(c) He fails to make the payment, maliciously.

(2) By refusing to make delivery by a public officer who has been ordered
bi’ competent authority to deliver any property in his custody or under his
administration.

The refusal must be malicious and must have resulted in damage to public
interest.

INFIDELITY OF PUBLIC OFFICERS

Article 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

42
or prisoner by final judgment;
3. That such prisoner escaped from his custody; and
4. That he was in connivance with the prisoner in the latter’s escape.

Connivance with the prisoner (agreement between the prisoner and the
public officer) in his escape is an indispensable element of the offense).

Article 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; and
(3) That such prisoner escaped through his negligence.

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
guard that is the gravamen of the crime of infidelity under Art. 224.

A policeman who, assigned to guard a prisoner, falls asleep, with the result
that the prisoner escapes, is guilty of negligence in the custody of a prisoner.

Article 235. Maltreatment of prisoners. -

Elements:
(1) That the offender is a public officer or employee;
(2) That he has under his charge a prisoner or detention prisoner; and
(3) That he maltreats such prisoner in either of the following manner:
(a) By overdoing himself in the correction or handling of a prisoner or
detention prisoner under his charge either:
(i) By the imposition of punishments not authorized by the
regulations or
(ii) By inflicting such punishments, those authorized, in a cruel
and humiliating manner; or
(b) By maltreating such prisoner to extort a confession or to obtain
some information from the prisoner.

The public officer or employee must have actual charge of the

prisoner.

To be a detention prisoner, the person arrested must be placed in a jail

even for a short while.

43
 CRIMES AGAINST PERSONS

DESTRUCTION OF LIFE

Article 246. Parricide. -

Elements:
(1) That a person is killed;
(2) That the deceased is killed by the accused; and
(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.

It is a crime of relationship. A crime committed between people who are

related by blood, except husband and wife.

Relationship of the offender with the victim is the essential element of the
crime of parricide
Hence,
(1) If a person wanted to kill a stranger but by mistake killed his own father,
he will be held liable for parricide.

(2) A stranger who cooperates and takes part in the commission of the crime
of parricide is not guilty of parricide but only for homicide or murder, as the case
may be. The key element is parricide is the relationship of the offender with the
victim.

(3) The relationship between the offender and the victim must be alleged.
However, relationship must be considered an aggravating even if not alleged in the
information.

The spouse must be legitimate. In parricide of a spouse, the best proof of the
relationship between the accused and the deceased would be the marriage
certificate.

Article 247. Death or physical injuries inflicted under exceptional circumstances.

-
Elements:
(1) That a legally married person or a parent surprises his spouse or his
daughter, the latter under 18 years of age and living with him in the act of

44
committing sexual intercourse with another person;
(2) That he or she kill any or both of them or inflicts upon any or both of
them any serious physical injury in the act or immediately thereafter; and
(3) That he has not promoted or facilitated the prostitution of his wife or
daughter, or that he or she has not consented to the infidelity of the other spouse.

The penalty of destierro is mere banishment and is intended more for the
protection of the accused than punishment.

The accused must be legally married person if the victim is his or her
spouse.

It is immaterial whether the daughter is legitimate or illegitimate, provided

she is living with the guilty parent.

Surprise
To come upon suddenly and unexpectedly.

Sexual Intercourse
Does not include preparatory acts.

The phrase “in the act of committing sexual intercourse” does not include
merely sleeping on the same bed.

“Immediately thereafter”
The discovery, the escape, the pursuit, and the killing must all form part of
one continuous act.

Justification
The law considers the spouse or parent as acting in a justified burst of
passion.

Persons who are not entitled to the benefits:

(1) Any person who shall promote the prostitution of his wife or daughter.
(2) Any person who shall facilitate the prostitution of his wife or daughter.
(3) Any person who shall consent to the infidelity of the other spouse.

Article 248. Murder. –

(1) That a person was killed;
(2) That the accused killed him;

45
 (3) That the killing was attended by any of the qualifying circumstances
mentioned in Art. 248;
(4) That the killing is not parricide or infanticide.

Qualifying Circumstances
(1) With treachery, taking advantage of superior strength, with the aid of
armed men, or employing means to weaken the defense or of means or persons to
insure or afford impunity.

(2) In consideration of a price, reward, or promise.

(3) By means of inundation, fire, poison, explosion, shipwreck, stranding of

a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by
means of motor vehicles, or with the use of any other means involving great waste
and ruin.

(4) On occasion of any of the calamities enumerated in the preceding

paragraph, or of an earthquake, eruption of a volcano, destructive cyclone,
epidemic or other public calamity.

(5) With evident premeditation.

(6) With cruelty, by deliberately and inhumanly augmenting the suffering of

the victim, or outraging or scoffing at his person or corpse.

Treachery
Test to determine whether or not treachery is present:
(1) Was the attack sudden and unexpected?
(2) Was the deceased given an opportunity to defend himself, to retaliate, to
repel the attack or to escape?
(3) Was the mode of attack consciously adapted by the accused to ensure the
commission of the crime without risk of himself?

Note: Killing of the child of tender years is murder even if the manner of attack is
not shown.

Price, Reward, or Promise

46
 The person who received the price or reward or who accepted a promise or
reward would not have killed the victim were it not for that price, reward or
promise. Such a person is a principal by direct participation.

The one who gave, the price or reward or who made the promise is a
principal by inducement.

Fire
There should be an actual design to kill and that the use of fire should be
purposely adopted as a means to that end.

With evident premeditation

(1) The time when the offender determined (conceived) to kill his victim;
(2) An act of the offender manifestly indicating that he clung to his
determination to kill his victim; and
(3) A sufficient lapse of time between the determination and the execution of
the killing.

Cruelty
There is cruelty when other injuries or wounds are inflicted deliberately by
the offender, which are not necessary for the killing of the victim. The victim must
be alive when the other injuries or wounds are inflicted.

Outraging
It means to commit an extremely vicious or deeply insulting act.

Scoffing
It means to jeer, and implies a showing of irreverence.

Dismemberment of a dead body is one manner of outraging or scoffing at

the corpse of the victim and qualifies the killing to murder.

Article 249. Homicide

Homicide
The unlawful killing of any person, which is not parricide, murder or
infanticide.

Elements:

47
 (1) That a person is killed;
(2) That the accused killed him without any justifying circumstances;
(3) That the accused had the intention to kill, which is presumed; and
(4) That the killing was not attended by any of the qualifying circumstances
of murder, or by that of parricide or infanticide.

Intent to kill
General Rule: Intent to kill is conclusively presumed when death results.

Exception: Evidence of intent to kill is important only in attempted or

frustrated homicide.

In an attempted or frustrated homicide, the offender must have the intent to

kill the victim. If there is no intent to kill on the part of the offender, he is liable for
physical injuries.

Intent to kill is usually shown by the kind of weapon used and the location
and nature of the wound.

Accidental Homicide
It is the death of a person brought about by a lawful act performed with
proper care and skill and without homicidal intent, e. g. death in boxing. There is
no felony committed in this case.

Corpus Delicti
It means that a crime was actually perpetrated and does not refer to the body
of the murdered person.

In all crimes against persons in which the death of the victim is an element
of an offense, there must be satisfactory evidence of (1) the fact of death and (2)
the identity of the victim.

When there is no way of determining how the attack was committed,

treachery cannot be considered and the accused is guilty of homicide only.

There can be no crime of attempted or frustrated homicide through

imprudence. The element of intent to kill in attempted or frustrated homicide is
incompatible with negligence or imprudence.

Article 254. Discharge of firearms. –

48
Elements:
(1) That the offender discharges a firearm against or at another person; and
(2) That the offender has no intention to kill that person.

Note: The purpose of the offender is only to intimidate of frighten the

offended party. If the discharge of the firearm is coupled with intent to kill, the
crime is frustrated/attempted parricide, murder or homicide.

If the discharge of firearm, the offended party is hit and wounded, there is a
complex crime of discharge of firearm with serious or less serious physical
injuries; but if only slight physical injuries were inflicted, there is no complex
crime (but two separate crimes) since such physical injuries constitutes a light
felony.

The crime is discharge of firearm even if the gun was not pointed at the
offended party when it was fired, as long as it was initially aimed by the accused at
or against the offended party.

If the firearm was not aimed against or at another person, the crime
committed is Alarms and Scandals (Art. 155).

Article 255. Infanticide. -

Infanticide:
It is the killing of any child less than three days of age, whether the killer is
the parent or grandparent, any other relative of the child, or a stranger.

Elements:
(1) That a child was killed;
(2) That the deceased child was less than three days (72 hours) of age; and
(3) That the accused killed the said child.

Penalty for parricide shall be imposed where the accused is:

(1) The father or mother of the child, whether legitimate or illegitimate; or
(2) Any other legitimate ascendant of the child.

Mitigating Circumstance:
Only the mother and the maternal grandparents of the child are entitled to
the mitigating circumstance of concealing the mother’s dishonor.

The delinquent mother who claims concealing dishonor must be of good

49
reputation and good morals.

Other person who kills or who cooperates with the mother or maternal
grandparent in killing a child less than 3 days old will suffer the penalty for
murder.

Treachery is inherent in infanticide.

Chapter Two
PHYSICAL INJURIES

The impression that there are only 3 type of physical injuries is not true.
There is another type separate and distinct from serious known as Mutilation under
Art. 262.

Article 262. Mutilation. -

Mutilation:
The word “mutilation” implies the lopping or the clipping off of some part
of the body.

Punishable Acts:
(1) Intentionally mutilating another by depriving him, either totally or partially, of
some essential organ for reproduction (castration).
Elements:
(a) That there be castration, that is, mutilation of organs necessary for
generation, such as penis or ovarium; and
(b) That the mutilation is caused purposely and deliberately, that is, to
deprive the offended party some essential organ for reproduction.

Note: Intentionally depriving the victim of the reproductive organ does not
necessarily involve the cutting off of the organ or any part thereof. It suffices that it
is rendered useless.

2. 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 (mayhem).

The law looks not only to the result but also to the intention or purpose of
the act. Mutilation is always intentional.

50
 The intention of the offender to deprive the victim of the body part whether
by castration or mayhem is essential and must thus exist in either case.

Physical Injuries Mutilation

No special intention to clip off some There is a special intention to clip off
part of the body so as to deprive the some part of the body so as to deprive
offended party of such part. him of such part.

Article 263. Serious physical injuries. -

Punishable Acts:
1. By wounding;
2. By beating;
3. By assaulting; or
4. By administering injurious substance.

(1) When the injured person shall become insane, imbecile, impotent, or blind as a
consequence of the physical injuries inflicted.

Insanity
It is evidenced by a deranged and perverted condition of the mental faculties
and is manifested in language and conduct. An insane person has no full and clear
understanding of the nature and consequence of his or her acts.

Impotence
It means inability to copulate.

Blindness must be complete; it must be of both eyes. If only one eye is blind,
the injury will be covered by subdivision no. 2.

(2) When the injured person –

(a) Losses the use of speech or the power to hear or to smell, or loses an eye,
a hand, a foot, an arm, or a leg;
(b) Loses the use of any such member; or
(c) Becomes incapacitated for the work in which he was theretofore
habitually engaged, in consequence of the physical injuries inflicted;

Loss of power to hear must be of both ears; if one ear only, such injury falls
under par. 3.

Loss of use of hand or incapacity for usual work must be permanent.

51
(3) When the person injured –
(a) Becomes deformed;

Requisites of deformity:
(i) Physical ugliness;
(ii) Permanent and definite abnormality;
(iii) Conspicuous and visible.

The injury to cause deformity is one that cannot be replaced by nature.

A scar produced by an injury constitutes deformity within the meaning of

par. 3.

(b) Loses any other member of his body;

(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.

In paragraph 2 and 3, the offended party must have a vocation or work at the
time of the injury.

(4) When the injured person becomes ill or incapacitated for labor for more than 30
days (but must not be more than 90 days), as a result of the physical injuries
inflicted.

Note: It speaks of incapacity for any kind of labor.

Work
It includes studies or preparation for a profession.

Lessening of efficiency due to injury is not incapacity.

Hospitalization for more than 30 days may mean either illness or incapacity
for labor for more than 30 days.

If a robbery is committed and the injured person suffers that enumerated

under numbers 3 and 4, the crime/s committed is/are:
(1) Special complex crime of robbery with serious physical injuries – if the

52
injured person is not responsible for the robbery.
(2) Separate crimes of robbery and serious physical injuries – if the injured
person is the robber.

There must be no intent to kill; otherwise, the crime would be attempted or

frustrated homicide, parricide or murder, as the case may be.

Serious physical injuries may be committed by reckless imprudence or by

simple imprudence or negligence under Art. 365 in relation to Art. 263.

Where the category of the offense of serious physical injuries depends on the
period of illness or incapacity for labor, there must be evidence of that length of
that period; otherwise, the offense shall only be slight physical injuries.

Qualifying Circumstances:
(1) Offense committed against persons enumerated in the crime of parricide
(Art. 246); or
(2) With the attendance of circumstance which qualified the crime to murder
(Art. 263)

However, the “qualified penalties” are not applicable to parents who inflict
serious physical injuries upon their children by excessive chastisement.

Article 265. Less serious physical injuries. –

Elements:
(1) The offended party is incapacitated for labor for ten (10) days or more but
not more than thirty (30) days, or needs medical attendance for the same period;
and
(2) The physical injuries must not be those described in the preceding articles.

The law include 2 subdivisions, to wit:

(1) Inability for work; and
(2) The necessity for medical attendance.

Therefore, although the wound required medical attendance for only 2 days,
yet, if the injured party was prevented from attending to his ordinary labor for a
period of 29 days, the physical injuries sustained are denominated as less serious.

53
 There must be proof as to the period of the required medical attendance. In
the absence of proof, the offense committed is only slight physical injuries.

Article 266. Slight physical injuries and maltreatment. -

Punishable Acts:
(1) Physical injuries which incapacitated the offended party from one (1) to
nine (9) days, or required medical attendance during the same period;

(2) Physical injuries which did not prevent the offended party from engaging
in his habitual work or which did not require medical attendance; and

(3) Ill-treatment of another by deed without causing any injury.

Example: Any physical violence which does not produce injury, such as
slapping the face of the offended party, without causing a dishonor.

When there is no evidence of actual injury, it is only slight physical injuries.

In the absence of evidence as to the duration of the offended party’s

incapacity for labor or medical attendance, the crime is only physical injuries.

Supervening event converting the crime into serious physical injuries after
the filing of the information for slight physical injuries can still be the subject of
amendment or of a new charge.

If physical injuries were inflicted, with the intent to insult or humiliate the
injure person, the intent to insult or humiliate shall be considered:
(1) An aggravating circumstance of ignominy in case of serious physical
injuries;
(2) In increasing the penalty and qualifying the crime in case of less serious
physical injuries; or
(3) Separate crime of slander by deed in case of slight physical injuries.

In less serious and slight physical injuries, the duration of incapacity from
labor and of medical treatment are considered. The period of incapacity and the
medical treatment should not be more than 90 days. Otherwise, it is no longer
slight.

In serious physical injuries, incapacity from work is considered. But the

moment the incapacity from labor or work is over 30 days, it is serious; less

54
serious if not over 30 days.

Gravity Injury Days

Incapacity from Permanent
Serious habitual work
Ill/incapacity from Over 90 days
habitual work
Ill/incapacity from 31-90 days
labor
Less Serious Incapacity from
labor/medical 10-30 days
attendance
Slight Incapacity from
labor/medical 1-9 days
attendance

CRIMES AGAINST PERSONAL LIBERTY AND SECURITY

Article 267. Kidnapping and serious illegal detention. -

Essence of Kidnapping – The essence of the crime of kidnapping is the actual
deprivation of the victim’s liberty coupled with the intent of the accused to effect
it.

Elements:
(1) That the offender is:
(a) A private individual who is not any of the parents of the victim nor
a female;

Note: When the victim is a minor and the accused is any of the parents, the
penalty is provided for in Art. 271, par. 2.

(b) A public officer who has no duty under the law to detain a person;

Note: A public officer (such as a policeman) who has a duty under the law to
detain a person but does so without legal ground is liable for arbitrary detention
(Art. 124). Thus, a public officer who has no legal duty to detain a person may be
prosecuted for illegal detention and kidnapping.

55
 (2) That he kidnaps or detains another. or in any other manner deprives the
latter of his liberty:

(3) That the act of detention or kidnapping must be illegal: and

Note: Detention is illegal when not ordered by competent authority or not

permitted by law.

(4) That in the commission of the offense, any of the following

circumstances is present:
(a) That the kidnapping or detention lasts for more than three (3) days;
(b) That it is committed simulating public 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 is a minor, female, or a public
officer.

It is not necessary that the victim be placed in an enclosure

It may consist not only in placing a person in an enclosure but also in
detaining him or depriving him in any manner of his liberty.

Victim may be taken by the accused forcibly or fraudulently

What is controlling is the act of the accused in detaining the victim against his or
her will after the offender is able to take the victim in his custody.

Although the victim initially consented to go to a place with the accused but
was thereafter prevented through force from leaving the place, there is kidnapping
and serious illegal detention.

Effective restraint of a child of tender age

The crime is committed when the offender left the child in the house of
another, where the child had freedom of locomotion but not the freedom to leave at
will because of his tender age.

When death penalty is imposed:

(1) If the purpose is to extort ransom;
(2) When the victim is killed or dies as a consequence of the detention;
(3) When the victim is raped; or
(4) When the victim is subjected to torture or dehumanizing acts.

56
Effect of Republic Act No. 9346 in kidnapping for ransom
The penalty of reclusion perpetua should be imposed in the accused, without
the eligibility for parole.

Kidnap for Ransom

The essential element or act which makes the offense kidnapping is the
deprivation of an offended party’s liberty under any of the four circumstances
enumerated.

But when the kidnapping or detention was committed for the purpose of
extorting ransom, it is NOT necessary. Neither actual demand for nor payment of
ransom is necessary.

Elements of kidnapping for ransom:

(1) Intent on the part of the accused to deprive the victim if his liberty;
(2) Actual deprivation of the victim of his liberty; and
(3) Motive of the accused, which is extorting ransom for the release of the
victim.

Random
It is the money, price, or consideration paid or demanded for redemption of a
captured person or persons, a payment that releases from captivity.

There is kidnapping for ransom when kidnapping is committed to make the

obligor pay a debt
Since the accused demanded and received money as a requisite for releasing
a person from captivity, whatever other motive may be impelled them to do so, the
money is still ransom under the law.

Illegal Detention Arbitrary Detention

As to the classification
Crime against personal liberty. Crime against the fundamental law of
the State.
As to the offender
Private individual. Public officer.
As to the manner of commission
Unlawfully kidnaps, detains or Detains a person without legal ground.
otherwise deprives a person of liberty.

57
Article 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 the
latter of his liberty:
(3) That the act of detention or kidnapping must be illegal; and
(4) That the crime is committed without the attendance of the circumstances
enumerated in Art. 26.

When the victim is female, the detention is under Art. 267; voluntary release
is not mitigating there.

Liability is mitigated when the following circumstances concur:

(1) Offender voluntarily releases the person so kidnapped or detained within
3 days from the commencement of the detention;
(2) Without having attained the purpose intended; and
(3) Before the institution of criminal proceedings against him.

Liability of Accomplice in Slight Illegal Detention

The same penalty of reclusion temporal shall be incurred by anyone who
shall furnish the place for the perpetration of the crime. His participation is raised
to that if real co-principal. If the crime is under Art. 267, he is a mere accomplice
unless there was conspiracy.

Article 269. Unlawful arrest. -

Elements:
(1) That the offender arrests or detains another person;
(2) That the purpose of the offender is to deliver him to the proper
authorities; and
(3) That the arrest or detention is unauthorized by law or there is no
reasonable ground therefor.

The offender is any person, whether a public officer or a private individual

However, the public officer must not be vested with the authority to arrest or
detain a person or must not act in his official capacity. Otherwise, Art. 124 is
applicable and not Art. 269.

CRIMES AGAINST SECURITY.

Article 280. Qualified trespass to dwelling. -

58
Element:
(1) That the offender is a private person;
(2) That he enters the dwelling of another; and
(3) That such entrance is against the latter’s will of the owner or occupant.

Reason: To protect and preserve by law the privacy of one’s dwelling. Criminal
intent inheres in the unwelcome visit of a trespasser.

Qualifying Circumstance:
If committed by means of violence/intimidation.

Dwelling Place
Means any building or structure exclusively devoted for rest and comfort. It
is not necessary that it be the permanent dwelling of the person.

The determining factor of whether a building is a dwelling is the use to

which it is put.

In general, all members of a household must be presumed to have authority

to extend an invitation to enter the house.

To commit trespass, the entrance by the accused should be against the

presumed/implied or express prohibition of the occupant. Lack of permission does
not amount to prohibition.

There is implied prohibition when entrance is made through means not

intended for ingress.

Rule: Whoever enters the dwelling of another at late hour of the night after
the inmates have retired and closed their doors does so against their will.
Prohibition in this case is presumed.

If a person was killed after trespass by the offender, the following

crimes are committed:
(1) If there was no intent to kill when he entered – separate crimes of
homicide or murder and qualified trespass to dwelling.
(2) If there was intent to kill when he entered – the crime of homicide or
murder with dwelling as an aggravating circumstance.

Prohibition must be existence prior to or at the time of entrance.

59
 Prohibition is not necessary when violence or intimidation is employed by
the offender.

Violence or intimidation may be method by which one may pass the

threshold of the dwelling of another of the conduct immediately after the entrance
of the offender.

The circumstances may show that the trespasser has the intention to commit
another crime but if there is no overt act of crime intended to be done, what is
committed is only trespass to dwelling.

Trespass may be committed by the owner of a dwelling (i.e. lessor enters the
house leased to another against the latter’s will).

If the offender is a public officer or employee, the crime committee is

violation of domicile.

Cases to which the provision of this article is NOT applicable:

(1) If the entrance to another’s dwelling is made for the purpose of
preventing some serious harm to himself, the occupants of the dwelling or a third
person;
(2) If the purpose is to render some service to humanity or justice; and
(3) If the place where entrance is made is a café, tavern, inn and other public
house, while the same are open.

Note: A person who believes that a crime has been committed against him
has every right to go after the culprit and arrest him without any warrant even if in
the process he enters the house of another against the latter’s will.

Article 281. Other forms of trespass. -

Elements:
(1) That the offender enters the closed premises or the fenced estate of
another;
(2) That the entrance is made while either of them is uninhabited;
(3) That the prohibition to enter be manifest; and
(4) That the trespasser has not secured the permission of the owner or the
caretaker thereof.

Premises

60
 It signifies the distinct and definite locality. It may mean a room, shop,
building or definite area, but in either case, locality is fixed.

Article 282. Grave threats. -

Punishable Acts:
(1) 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 (with condition);

Elements of Grave Threats Where the Offender Attained His Purpose:

(a) That the offender threatens another person with the infliction upon the
latter’s person, honor or property, or upon that of the latter’s family of any wrong;
(b) That such wrong amounts to a crime;
(c) That there is a demand for money or that any other condition is imposed,
even though not unlawful; and
(d) That the offender attains his purpose.

(2) By making such threat without the offender attaining his purpose (with
condition; elements for this act are the same with first except that the purpose is
not attained); and

(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 (without condition).

Elements of Grave Threats NOT Subject to a Condition:

(a) That the offender threatens another person with the infliction upon the
latter's person, honor or property, or upon that of the latter‘s family, of any wrong;
(b) That such wrong amounts to a crime;
(c) That the threat is not subject to a condition.

Note: The third form of grave threats must be serious in the sense that it is
deliberate and that the offender persists in the idea involved in his threats.

The act threatened to be committed must be a wrong

Where the offender threatened to file a civil action against the offended
party for the latter’s refusal to pay his debt, there is no crime because the filing a
civil action in court to enforce payment of a debt is not a wrong.

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Qualifying Circumstance:
If the threat was made in writing or through a middleman.

Intimidation (promise of future harm or injury whether to the person, honor, or

property of the offended party or of his family) is the essence of the crime.

The crime of threats is consummated the moment the threat comes to the
knowledge of the person threatened.

If there is another crime actually committed or the objective of the offender

is another crime, and the threat is only a means to commit it or a mere incident to
its commission, the threat is absorbed by the other crime.

When the offender demands the money or property on the spot, the crime is
not grave threats but robbery with intimidation.

Article 283. Light threats. -

Elements:
(1) That the offender makes a threat to commit a wrong;
(2) That the wrong does not constitute a crime;
(3) That there is a demand for money or that other condition is imposed even
though not unlawful; and
(4) That the offender has attained his purpose or, that he has not attained his
purpose.

Light threats are committed in the same manner as grave threats except that
the act threatened to be committed should not be a crime.

Note: Blackmailing may be punished under Art. 283.

Article 285. Other light threats. -

Punishable Acts:
(1) Threatening another with a weapon, or drawing such weapon in a
quarrel, unless it be in lawful self-defense;
(2) Orally threatening another, in the heat of anger, with some harm
constituting a crime, without persisting in the idea involved in his threat; and
3. Orally threatening to do another any harm not constituting a felony.

If the threats are directed to a person who is absent and uttered in a

temporary fit of anger, the offense is only other light threats.

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Article 286. Grave coercions. -
Elements:
(1) That a person prevented another from doing something not prohibited by
law, or by compelling 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 has no right
to do so, or in other words, that the restraint is not made under authority of law or
in the exercise of any lawful right.

Punishable Acts:
(1) Preventing another by means of violence, threats or intimidation, from
doing something not prohibited by law (preventive); and

Note: If the thing prevented from execution is prohibited by law, there will
be no coercion.

(2) Compelling another, by means of violence, threats or intimidation, to do

something against his will, whether it be right or wrong (compulsive).

Preventive
The act prevented to be done must not be prohibited by law.

Compulsive
The act compelled to be done by another against his will may or may not be
prohibited by law.

When preventing is not considered Coercion:

Under Art. 132: When a public officer prevents the ceremonies of a religious
group.

Under Art. 143: When a person prevents the

Qualifying circumstances:
(1) If the coercion is committed in violation of the exercise of the right of
suffrage.
(2) If the coercion is committed to compel another to perform any religious

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act.
(3) If the coercion is committed to prevent another from performing any
religious act.

There is no grave coercion where the accused acted in good faith in the
performance of his duty.

Coercion is always consummated even if the offended party did not accede
to the purpose of the coercion.

Article 287. Light coercions. -

Elements:
(1) That the offender must be a creditor;
(2) That he seizes anything belonging to his debtor;
(3) That the seizure of the thing be accomplished by means of violence or a
display of material force producing intimidation: and
(4) That the purpose of the offender is to apply the same to the payment of
the debt.

Unjust Vexation (Art. 287, Par. 2)

It includes any human conduct which although not productive of some
physical or material harm would, however, unjustly annoy or vex an innocent
person.

In determining whether the crime of unjust vexation is committed, the

offender’s act must have caused annoyance, irritation, vexation, torment, distress
or disturbance to the mind of the person to whom it is directed.

It is distinguished from grave and light coercions by the absence of violence.

Light coercion will be unjust vexation when the element of violence or

intimidation is absent.

CRIMES AGAINST PROPERTY

Article 293. Who are guilty of robbery. -

Robbery:
It is the taking of personal property belonging to another, with intent to gain,
by means of violence against, or intimidation of any person, or using force upon
anything.

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Classification of Robbery:
(1) Robbery with violence against, or intimidation of persons (Arts 294, 297
and 298); and
(2) Robbery by use of force upon things (Arts. 299 and 302)

Elements of robbery in general:

1. That there be personal property (bienes muebles) belonging to another;
2. That there is unlawful taking (apoderamiento or asponacion) of that
property;
3. That the taking must be with intent to gain (animus lucrandi); and
4. That there is violence against, or intimidation of, any person or force upon
things.

Personal Property
The property taken must be personal for if real property is occupied or real
right is usurped by means of violence against or intimidation of persons, the crime
is usurpation under Art. 312.

As long as the personal property does not belong to the accused who has a
valid claim thereover, it is immaterial whether said offender stole it from the
owner, a mere possessor, or even a thief of the property.

If it is the owner who forcibly takes the property from its lawful possessor,
the crime is estafa undet Art. 316 (3) since the former cannot commit robbery on
his own property even if he uses violence or intimidation.

Unlawful taking
(a) Unlawful taking means appropriating a thing belonging to another and
placing it under ones control or possession;
(b) Unlawful taking is COMPLETE when in:
(i) Robbery with violence against or intimidation of persons –
offender has already the possession of the thing even if he has no opportunity to
dispose of it.
(ii) Robbery with force upon things – the thing must be brought
outside the building for consummated robbery to be committed.

Where the taking was lawful and the unlawful misappropriation was
subsequent to such taking, the crime is estafa or malversation.

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Intent to gain
Intent to gain is presumed from the unlawful taking of personal property.

The elements of “oersonal property belonging to another” and that of “intent to

gain” must concur.
(1) If the accused, with intent to gain, took from another, personal property
which turned out to be his own property, the property not belonging to another, he
cannot be held liable for robbery; even if in the taking the accused used violence
against or intimidation of person, or force upon anything.

(2) If he took personal property from another, believing that it was his own
property, but in reality it belonged to the offended party, there being no intent to
gain, he cannot be held liable for robbery, even if the accused used violence
against or intimidation of person, or force upon things.

Violence or Intimidation
It must be present before the taking of personal property is complete. But
when the violence results in homicide, rape, intentional mutilation or any of the
serious physical injuries penalized in Par.1 and 2 of Art. 263, the taking of the
personal property is robbery complexed with any of those crimes under Art. 294,
even if the taking was already complete when the violence was used by the
offender.

Whenever violence against or intimidation of any person is used, the taking

of personal property is always robbery. If there is no violence or intimidation, but
only force upon things, the taking is robbery only if the force is used either to the
building or to break doors, wardrobes, chests, or any other kind of locked or sealed
furniture or receptacle inside the building or to force them open outside after taking
the same from the building. In the absence of this element, the crime committed is
theft.

Article 294. Robbery with violence against or intimidation of persons; Penalties. –

Punishable Acts:
(1) When by reason or on occasion of the robbery, the crime of homicide is
committed; (b) or when the robbery is accompanied by rape or intentional
mutilation or arson;

(2) when by reason or on occasion of the robbery, any of the physical

injuries resulting in insanity, imbecility, impotency or blindness is inflicted
(subdivision 1 of Art. 263)

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 (3) When by reason or on occasion of robbery, any of the physical injuries
penalized in subdivision 2 of Art. 263 is inflicted;

When the person injured –

(a) Loses the use of speech or the power to hear or to smell, or loses an eye,
a hand, a foot, an arm, or a leg;
(b) Loses the use of any such member; or
(c) Becomes incapacitated for the work in which he was therefore habitually
engaged, in consequence of the physical injuries inflicted;

(4) If the violence or intimidation employed in the commission of the

robbery is carried to a degree clearly unnecessary for the commission of the crime;
or (b) When in the course of its execution, the offender shall have inflicted upon
any person, the offender shall have inflicted upon nay person not responsible for its
commission physical injuries covered by subdivisions 3 and 4 of Art. 263.

When the person injured –

(a) Becomes deformed;
(b) Loses any other member of his body;
(c) Loses the use thereof;
(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; or
(e) When the injured person becomes ill or incapacitated for labor for more
than 30 days (but must not be more than 90 days), as a result of the physical
injuries inflicted.

(5) If the violence employed by the offender does not cause any of the
serious physical injuries defined in Art. 263, or if the offender employs
intimidation only (simple robbery).

These offenses are known as special complex crimes:

Crimes defined under this article are the following:
(1) Robbery with homicide;
(2) Robbery with rape;
(3) Robbery with intentional mutilation;
(4) Robbery with arson; and
(5) Robbery with serious physical injuries.

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Robbery with Homicide
The term “homicide” is used in its generic sense and includes any kind of
killing, whether parricide or murder or where several persons are killed and the
name of this special complex crime shall remain as robbery with homicide. The
qualifying circumstance (e.g. treachery in murder) will only become an
aggravating circumstance.

The juridical concept of robbery with homicide does not limit the taking of
life to one single victim. All the homicides or murder are merged in the composite,
integrated whole that is robbery with homicide so long as all the killings were
perpetrated by reason or on the occasion of the robbery.

Where the offender’s intention to take personal property of the victim arises
as an afterthought, where his original intent was to kill, he is guilty of two separate
crimes of homicide or murder, as the case may be and theft.

Homicide may precede robbery or may occur after robbery. What is

essential is that the offender must have intent to take personal property before the
killing.

The phrase “by reason” covers homicide committed before or after the
taking of personal property of another, as long as the motive of the offender in
killing is to deprive the victim of his personal property which is sought to be
accomplished by eliminating an obstacle, killing a person after robbery to do away
with a witness or to defend the possession of the stolen property.

There is robbery with homicide even if the person killed was a bystander and
not the person robbed or even if he/she was one of the offenders. The law does not
require the victim of the robbery be also the victim of homicide.

Robbery with homicide exists even if the death of the victim supervened by
mere accident. It is sufficient that a homicide resulted by reason or on the occasion
of the robbery.

When the homicide is committed by reason of on the occasion of the

robbery, all those who took part as principals in the robbery would also be held
liable as principals of the single and indivisible felony of robbery with homicide
although they did not actually take part in the killing, unless it clearly appears that
they endeavored to prevent the same.

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Robbery with Rape
In robbery with rape, the law uses the phrase “when the robbery shall have
been accompanied by rape”. But like in robbery with homicide, the offender must
have the intent to take the personal property belonging to another with intent to
gain, and such intent must precede the rape.

Robbery with rape does not cover robbery with attempted rape since what is
provided by the RPC is a special complex crime of robbery with rape. Robbery
with attempted rape cannot be complexed under Art. 48 since the one crime is not
a necessary means of committing the other nor can both be the result of a single
act.

If rape was the primary objective of the accused, and his taking of the jewels
of the victim was not with intent to gain but just to have some tokens of her
supposed consent to the coition, the accused omitted 2 distinct crimes of rape and
unjust vexation.

All the robbers may be held liable for robbery with rape even if not all of
them committed the crime of rape based on the concept of conspiracy.

Par. 1 of this article also applies even if the victim of the rape committed by
the accused was herself a member of the gang of robbers.

Note: There is no crime of robbery with multiple homicide or robbery with

multiple counts of rape under the RPC. Although there be more than one instance
of homicide/murder or rape, they shall be considered as embraced under one
special complex crime of either robbery with homicide or robbery with rape.

Neither shall the additional rape/s or homicide be considered aggravating.

Unless and until a law is passed providing that the additional rape’s (or homicide/s)
may be considered aggravating, the Court must construe the penal law in favor of
the offender as no person may be brought within its terms if he is not clearly made
so by the statute.

Robbery with Arson

In the case of robbery with arson, it is essential that the robbery precedes the
arson. There must be an intent to commit robbery and no killing, rape or
intentional mutilation should be committed in the course of the robbery, or else,
arson will only be considered an aggravating circumstance of the crime actually
committed.

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Robbery with Serious Physical Injuries
Pars. 2 and 3 of this article also apply even when the serious physical
injuries referred to therein are inflicted upon a co-robber.

Under the 4th act punishable, clause A, the violence need not result in serious
physical injuries. The first clause in Art. 294, Oar. 4 requires only that the violence
be unnecessary for the commission of the crime.

To be considered as robbery with physical injuries, the injuries inflicted

must be serious; otherwise, they shall be absorbed in the robbery. However, if the
less serious or slight physical injuries were committed after the robbery was
consummated, that would constitute a separate offense.

It is required that the physical injuries be inflicted in the course of the

execution of the robbery and that any of them was inflicted upon nay person who is
not responsible for the commission of the robbery.

Simple Robbery
Par. 5 is known as simple robbery because they only involve slight or less
serious physical injuries, which are absorbed in the crime of robbery as an element
thereof.

Violence or intimidation may enter at any time before the owner is finally
deprived of his property. This is so because asportation is a complex fact, a whole
divisible into parts, a series of acts, in the course of which personal violence or
intimidation may be injcted.

Article 298. Execution of deeds by means of violence or intimidation. -

Elements:
(1) That the offender has intent to defraud another;
(2) That the offender compels him to sign, execute, or deliver any public
instrument or document; and
(3) That the compulsion is by means of violence or intimidation.

It applies even if the document signed, executed or delivered is a public,

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private or commercial document.

Article 299. Robbery in an inhabited house or public building or edifice devoted to

worship. –
Elements: (Subdivision A)
(1) The offender entered:
(a) An inhabited house;
(b) A public building; or
(c) An edifice devoted to religious worship;
(2) The entrance was effected by any of the following:
(a) Through an opening not intended for entrance or egress;
(b) By breaking any wall, roof, floor, door, or window;
(c) By using false keys, picklocks or similar tools;
(d) By using any fictitious name or pretending the exercise of public
authority; and
(3) That once inside the building, the offender took personal property belonging to
another with intent to gain.

The accused should enter the building

One essential requisite of robbery with force upon things under Arts. 299
and 302 is that the malefactor should enter the building or dependency where the
object to be taken is found. If the culprit dis not enter the building, there would be
no robbery with force upon things. The crime is only theft.

Where the accused forced open the door without breaking it, and thereafter
personal property was taken from inside the house, the crime committed is theft
not robbery.

False keys
It includes genuine keys stolen from the owner or any keys other than those
intended by the owner for use in the lock forcibly opened by the offender.

Not every physical force exerted by the offender is covered by Art. 299,
hence breaking store windows to steal something but without entry, is only theft.

Elements: (Subdivision B)
(1) The offender is inside a dwelling house, public building or edifice devoted to
religious worship, regardless of the circumstances under which he entered it; and

71
(2) The offender takes personal property belonging to another with intent to gain
under any of the following circumstances:
(a) By the breaking of internal doors, wardrobes, chests, or any other kind of
sealed furniture or receptacle; or
Note: The term door under this subdivision refers only to doors, lids or
opening sheets of furniture or other portable receptacles – not to inside doors of
house or building.
(b) By taking such furniture or objects away to be broken open outside the
place of the robbery.

Article 300. Robbery in an uninhabited place and by a band. –

Under this article, robbery with force upon things is qualified when
committed in an uninhabited place and by a band, as distinguished from qualified
robbery with violence or intimidation of persons which is committed in an
uninhabited place or by a band.

Uninhabited place
An uninhabited place is one where there are no houses at all, a place at a
considered distance from the town, or where the houses are scattered at a great
distance from each other.

Article 301. What is an inhabited house, public building or building dedicated to

religious worship and their dependencies. –

Inhabited house
It means any shelter, ship or vessel constituting the dwelling of one or more
persons, even though the inhabitants thereof shall temporarily be absent therefrom
when the robbery is committed.

Public Building
It includes every building owned by the Government or belonging to a
private person, used or rented by the Government, although temporarily
unoccupied by the same.

Article 302. Robbery is an uninhabited place or in a private building. –

Elements:
(1) That the offender entered an uninhabited place or a building which was
not a dwelling house, not a public building, or not an edifice devoted to religious
worship;

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 (2) That any of the following circumstances was present:
(a) The entrance was effected through an opening not intended for
entrance or egress;
(b) A wall, roof, floor, or outside door or window was broken;
(c) The entrance was effected through the use of false keys, picklocks,
or other similar tools;
(d) A door, wardrobe, chest, or any sealed or closed furniture or
receptacle was broken;
(e) A closed furniture or receptable was removed, even if the same be
broken open elsewhere;

(3) That with intent to gain, the offender took therefrom personal property
belonging to another.

Building
Any kind of structure used for storage or safekeeping of personal property.

Article 303. Robbery of cereals, fruits, or firewood in an uninhabited place or

private building. –

Penalty is one (1) degree lower when cereals, fruits, or firewood are taken in
robbery with force upon things.

Cereals
Seedlings which are the immediate product of the soil.

The palay must be kept by the owner as “seedling” or taken for that purpose
by the robbers.

THEFT

Article 308. Who are liable for theft. –

Theft
Committed by any person who, with intent to gain but without violence or
intimidation of persons nor force upon things, shall take the personal property of
another without the latter’s consent.

Elements:
(1) That there be taking of personal property;
(2) That such property belongs to another;

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 (3) That the taking be done with intent to gain;
(4) That the taking done without the consent of the owner; and
(5) That the taking be accomplished without the use of violence against or
intimidation of persons or force upon things.

Robbery and theft are analogous crimes involving taking with intent to gain
of personal property. The crime is robbery if committed with violence against or
intimidation upon persons or with force upon things. Otherwise, it is theft.

Theft Robbery
As to the presence of violence
The offender does not use violence There is violence or intimidation or
or intimidation or does not enter a force upon things.
house or building through any of the
means specified in Art. 299 or Art.
302 in taking personal property of
another with intent to gain.
As to the consent of the owner
It suffices that consent on the part of It is necessary that the taking is
the owner is lacking. against the will of the owner.

It is necessary to prove:
(a) The time of the seizure of the thing;
(b) That it was a lost property belonging to another;
(c) That the accused having had the opportunity to return or deliver the lost
property to its owner or to the local authorities, refrained from doing so.

The term “lost property” embraces loss by stealing.

The finder in law can also be held liable for theft under this paragraph.

Theft is likewise committed by:

(1) Any person who, having found lost property, shall fail to deliver the
same to the local authorities or to its owner;
(2) Any person who, after having maliciously damages the property of
another, shall remove or make use of the fruits or object of the damage caused by
him; and
(3) Any person who shall enter an enclosed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its owner; shall

74
hunt or fish upon the same or shall gather fruits, cereals, or other forest or farm
products.
Elements:
(a) That there is an enclosed estate or a field where trespass is forbidden or
which belongs to another;
(b) That the offender enters the same;
(c) That the offender hunts or fishes upon the same or gather fruits, cereals,
or other forest or farm products in the state or field; and
(d) That the hunting or fishing or gathering of products is without the
consent of the owner.

The fishing referred to in this article is not fishing in the fishpond or fishery;
otherwise it is qualified theft under Art. 310.

Theft is not a continuing offense because in theft, the phrase used is “shall
take personal property of another”, not “shall take away such property.

From the moment the offender gained possession of the thing, even if the
culprit had no opportunity to dispose of the same, the unlawful taking is complete.

The ability of the offender to freely dispose of the property stolen is not a
constitutive element of the crime of theft. It finds no support or extension in Art.
308, whether as a descriptive or operative element of theft or as the mens rea or
actus reus of the felony.

Theft is not limited to an actual finder of lost property who does not return
or deposit it with the local authorities but includes a policemen to whom he
entrusted it and who misappropriated the same, as the latter is also a finder in law.

Theft of gas and electricity

Intangible properties such as electrical energy and gas are proper subjects of
theft. Gas or electricity are capable of appropriation by another other than, the
owner.

Theft of electricity is also punishable under R. A. No. 7832 or the Anti-

Electricity and Electric Transmission Line/Materials Pilferage Act of 1994.

The business of providing telecommunication or telephone service is

personal property which can be the object of theft under Art. 308.

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 Theft of water and other similar offense are penalized under RA 8041 or the
National water Crisis Act of 1995.

There is no crime of frustrated theft

Both Dino and Flores cases fail to consider that once the offenders therein
obtained possession over the stolen items, the effect of the felony has been
produced as there has been deprivation of property.

There is no language in Art. 308 that expressly or impliedly allows than the
the “free disposition of the items stolen” is in any way determinative of whether
the crime of theft has been produced. Under the RPC, there is no crime of
frustrated theft.

There is consummated theft the moment there is asportacion or unlawful

taking or possession of personal property, no matter how momentary it may be.

Joyrides or using the car of another to learn how to drive without the consent
of its owner is taking with intent to gain.

Article 309. Penalties. -

The basis of penalty in theft is:
(1) The value of the thing stolen, and in some cases;
(2) The value and the nature of the property taken; or
(3) The circumstances or causes that impelled the culprit to commit the
crime.

Article 310. Qualified theft. -

There is qualified theft in the following instances:
(1) If theft is committed by a domestic servant;
(2) If committed with grave abuse of confidence;
(3) If the property stolen consists of coconuts taken from the premises of
plantation;
(4) If the property stolen is fish taken from a fishpond or fishery;
(5) If property is taken on the occasion of fire, earthquake, typhoon, volcanic
eruption, or any other calamity, vehicular accident or civil disturbance.
(6) If the property stolen is (a) motor vehicle, (b) mail matter or (c) large
cattle.

Elements:
(1) That there is taking of personal property;

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 (2) That said property belongs to another;
(3) That said taking be done with intent to gain;
(4) That it be done without the owner’s consent;
(5) That it be accomplished without the use of violence or intimidation
against persons, or force upon things; and
(6) That it be done with grave abuse of confidence.

The penalty for qualified theft is two degrees higher than that provided in
Art. 309.

Theft by a domestic servant is always qualified, and it is not necessary to

show that it was committed with grave abuse of confidence.

To constitute “grave abuse of confidence” in the second kind of qualified

theft, there must be allegation in the information and proof of a relation, by reason
of dependence, guardianship or vigilance between the accused and the offended
party, that has created a high degree of confidence between them, which the
accused abused.

USURPATION

Article 312. Occupation of real property or usurpation of real rights in property. –

Elements:
(1) That the offender takes possession of any real property or usurps any real
rights in property;
(2) That the real property or real rights belong to another;
(3) That violence against or intimidation of persons is used by the offender
in occupying real property or usurping real property or usurping real right in
property; and
(4) That there is intent to gain.

Punishable Acts:
(1) Taking possession of any real property belonging to another by means of
violence against or intimidation of persons; and
(2) Usurping any real rights in property belonging to another by means of
violence against or intimidation of persons.

There is only civil liability if there was no violence or intimidation in taking

possession.

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 Art. 312 does not apply when the violence or intimidation took place
subsequent to the entry. Violence or intimidation maust be the means used in
occupying real property or in usurping real rights and not in retaining possession.

The crime committed is:

(1) Coercion, it there is no intent gain
(2) Malicious Mischief, if there is no violence or intimidation used and
intent to gain.

Theft/Robbery Occupation of Real Property or

Usurpation of Real Rights in
Property
In both crimes, there is intent to gain
As to property involved
Personal property is taken. Real property or real right is
involved.
As to act involved
There is taking or asportation. There is occupation or usurpation.

Article 313. Altering boundaries or landmarks. -

Elements:
(1) That there be boundary marks or monuments of towns, provinces, or
estates, or any other marks intended to designate the boundaries of the same; and
(2) The offender alters said boundary marks.

Altering
It is understood in its general and indefinite meaning. Any alteration is
enough to constitute the material element of the crime.

Intent to gain or intent to defraud is not necessary.

SWINDLING AND OTHER DECEITS

Article 315. Swindling (estafa). -

Elements in general:
(1) That the accused defrauded another by abuse of confidence, or by means
of deceit;
(2) That the damage or prejudice capable of pecuniary estimation is caused
to the offended party or third persons.

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 Damage or prejudice may consist of:
(a) Offended party being deprived of his money or property as a result
of the defraudation;
(b) Disturbance in property rights; or
(c) Temporary prejudice.

Note: Profit or gain must be obtained by the accused personally. Mere

negligence is allowing another to benefit from the transaction is not estafa.

Ways of Committing Estafa:

(1) With unfaithfulness or abuse of confidence;
(a) With unfaithfulness;
(b) With abuse of confidence;
(c) By taking undue advantage of the signature in blank;

(2) By means of false pretenses or fraudulent acts:

(a) Using fictitious name or false pretenses and other similar deceit;
(b) By altering the quality, fineness or weight of anything pertaining to his
art or business;
(c) By pretending to have bribed any Government employee;
(d) By postdating a check or issuing a check in payment of an obligation;
(e) By obtaining food or accommodation at a hotel, etc.

(3) Through fraudulent means:

(a) By inducing another to sign any document;
(b) By resorting to some fraudulent practice to insure success in gambling;
(c) By removing, concealing or destroying documents.

Estafa with Unfaithfulness or Abuse of Confidence (Art. 315, (1))

Estafa with Unfaithfulness:

Elements:
(1) That the offender has an onerous obligation to deliver something
of value;
(2) That he alters its substance, quantity or quality; and
(3) That damage or prejudice capable of pecuniary estimation is
caused to the offended party or third persons.

It is estafa even if the obligation be based on an immoral or illegal

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consideration.

When there is no agreement as to the quality of the thing to be delivered, the

delivery of the thing not acceptable to the complainant is not estafa.

Estafa with Abuse of Confidence

Elements:
(1) That money, goods, or other personal property be received by the
offender in trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or, to return, the same;
(2) That there be misappropriation or conversion of such money or
property by the offender, or denial on his part of such receipt;
(3) That such misappropriation or conversion or denial is to the
prejudice of another; and
(4) That there be demand made by the offended party to the offender.

Money, goods or other personal property must be received by the offender

under a certain kind of transaction transferring juridical possession to him.

When the offender acquires both material and juridical possession of the
thing received:
When the thing is received by the offender from the offended party:
(i) in trust; (ii) on commission; and (iii) for administration.

The second element shows 3 ways of committing estafa with abuse of

confidence:
(1) Misappropriation of the thing received;
(2) Coversion of the thing received; or
(3) Denial of the receipt of the thing received.

Definition of Terms
(1) Misappropriation (M) – the act of taking something for one’s benefit.

(2) Conversion (C) – the act of using or disposing of another’s property as if it

was one’s own; thing has been devoted to a purpose or use other than that agreed
upon.

(3) Material Possession (MP) – the actual physical possession of personal

properly, where the possessor cannot claim a better right to such property than that
of its owner.

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(4) Juridical Possession (JP) – the possession of the personal property which
arises from a lawful causation, contract or agreement, express or implied, written
or unwritten or by virtue of a provision of law.

(a) In such a case, the possessor of the property has a better right to it than
the owner and may set up his possession thereof against the latter due to the lawful
transaction between them.

(5) Ownership (O) – there is ownership of the personal property when there is no
obligation to return exactly the same property given or lent to the possessor.

Note:
(1) If the offender has been given material possession of the personal property and
he misappropriates the same, he is liable for the crime of THEFT.
MP + M= Theft

(2) If the offender has been given juridical possession and material possession of
the personal property and he misappropriates the same, he is liable for the crime of
ESTAFA.
JP + MP + M = Estafa

(3) If the person has been given the ownership, juridical possession, and material
possession of the personal property and he misappropriates the same, he is NOT
criminally liable and incurs only a civil liability.
O + JP +MP + M = No crime

The contracts of deposit, commodatum, lease, quasi-contract of solution

indebiti and trust receipt transactions are examples of obligations involving the
duty to return or make delivery.

The thing to be delivered or returned by the offender must be the very object
which he received.

The person prejudiced need not necessarily be the owner of the property.

The consummation of the crime of estafa does not depend on the fact that a
request for a return of the money is first made and refused in order that the author
of the crime should comply with the obligation to return the sum misapplied.

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 Demand is not the element of the felony or a condition precedent to the
filing of a criminal complaint for estafa. Indeed, the accused may be convicted of
the felony under Art. 315, par. 1(b) of the RPC if the prosecution proved
misappropriation or conversion by information. In a prosecution for estafa, demand
is not necessary where there is evidence of misappropriation or conversion.

Failure to account upon the demand for funds or properly held in trust
without offering any satisfactory explanation for the inability to account is
circumstantial evidence of misappropriation.

Demand under this kind of estafa need not be formal or written.

Exceptions:
(1) When the offender’s obligation to comply is subject to a period, and
(2) When the accused cannot be located despite due diligence.

Theft and Estafa with Abuse of Confidence Distinguished

Theft Estafa with Abuse of Confidence
As to acquisition of property
The offender takes the thing without The offender receives the thing from
the owner’s consent. the offended party.
As to possession
The offender only acquires the The offender also acquires the
material or physical possession on juridical possession of the thing and
the thing. the offender misappropriates it.

Note: Estafa is committed if an object was received to be sold, but was pledged
instead.

Theft is committed, if an object was to be pledged, but was sold instead.

Estafa by Taking Undue Advantage of the Signature in Blank

Elements:
(a) That the paper with the signature of the offender party be in blank;
(b) That the offended party should have delivered it to the offender;
(c) That above the signature of the offended party a document is written by
the offender without authority to do so; and
(d) That the document so written creates a liability of, or causes damage to

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the offended party or any third person.

Note: If the paper with the signature in blank was stolen, the crime is
falsification of documents by making it appear that he participated in a transaction
when in fact he did not.

Estafa by Means of Deceit

Elements:
(1) That there must be false pretense, fraudulent act or fraudulent means;
(2) That such false pretense, fraudulent act or fraudulent means must be
made of or executed prior to or simultaneously with the commission of the fraud;
(3) That the offended party must have relied on the false pretense, fraudulent
act, or fraudulent means, that is, he was induced to part with his money or property
because of the false pretense, fraudulent act, or fraudulent means; and
(4) That as a result thereof, the offended party suffered damage.

There is no deceit if the complainant was aware of the fictitious nature of the
pretense.

It is indispensable that the element of deceit, consisting in the false statement

or fraudulent representation of the accused, be made prior to, or at least
simultaneously with, the delivery of the thing by the complainant, if being essential
that such false statement or fraudulent representation constitutes the very cause of
the only motive which induces, the complainant to part with the thing.

Fraudulent
The acts must be characterized by, or founded on, deceit, trick or cheat.

Ways of committing estafa by means of deceit:

(1) Article 315 No. 2 (A):
(a) By using a fictitious name;
(b) By falsely pretending to possess;
i. Power;
ii. Influence;
iii. Qualification;
iv. Property;
v. Credit;
vi. Agency; or
vii. Business or imaginary transactions; and
(c) By means of other similar deceits.

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 There is use of fictitious name when a person uses a name other than his real
name. Thus, when a person found a pawnshop ticket in the name of another and,
using the name of that other person, redeemed the jewelry mentioned therein, he
committed estafa by using fictitious name.

The offender must be able to obtain something from the offended party
because of the false pretense, that is, without which the offended party would not
have parted with it.

(2) Article 315 No. 2 (B)

Committed by altering the quality, fineness or weight of anything pertaining
to his art or business.

(3) Article 315 No. 2 (C)

Committed by pretending to have bribed any Government employee.

The accused, by pretending to have bribed a government employee, can be

held further liable for such calumny in a criminal action for either slander or libel
depending on how he recounted the supposed bribery.

However, the crime committed is corruption of public officers if the money

was indeed given.

(4) Article 315 No. 2 (D)

Elements:
(a) That the offender postdated a check, or issued a check in payment of an
obligation; and
(b) That such postdating or issuing a check was done when the offender had
no funds in the bank, or his funds deposited therein were not sufficient to cover the
amount of the check.

To constitute estafa by postdating or issuing a check in payment of

obligation, deceit should be the efficient cause of defraudation. The act must have
been committed either prior to or simultaneous with the defraudation complained
of. Hence, a check issued in payment of a pre-existing obligation does not
constitute estafa even if there is no fund in the bank to cover the amount of the
check.

If the check was issued by the debtor only for security of the creditor, as in

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the nature of promissory notes but not to be encashed, no estafa will be involved.

Good faith is a defense in a charge of estafa by postdating or issuing a

check.

Estafa by issuing a bad check is a continuing offense.

There is prima facie evidence of deceit when the drawer fails to pay or make
arrangement for payment three (3) days after receiving notice of dishonor.

The payee or person receiving the check must be damaged or prejudiced.

BATAS PAMBANSA BLG. 22

BOUNCING CHECKS LAW

Punishable Acts:
(A) Making or drawing and issuing a check knowing at the time of issue that he
does not have sufficient funds.
Elements:
(1) That a person makes or draws and issues any check to apply on account
of for value;
(2) That the person knows that he does not have sufficient funds or credit
with the drawee bank for the payment of such check upon its presentment at the
time of issue; and
(3) That the check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit, or would been dishonored for the same reason had
not the drawer, without any valid reason, ordered the bank to stop payment.

(B) Failing to keep sufficient funds to cover the full amount of the check.
Elements:
(1) That a person has sufficient funds with the drawee bank when he makes
or draws and issues a check;
(2) That the fails to keep sufficient funds or to maintain credit to cover the
full amount if presented within a period of ninety (90) days from the date of
appearing thereon; and
(3) That the check is dishonored by the drawee bank.

Note: The 90-day period stated above is not an element of the violation of
B.P. Blg. 22 by failing to keep sufficient funds. As such, the maker, drawer or
issuer of the check is not discharged from his duty to maintain a sufficient balance

85
in his account for a reasonable time even beyond the 90-day period. A “reasonable
time”, according to current banking practice, is 6 months or 180 days after which
the check becomes stale.

Thus, where a check is presented beyond the 90-day period, but within 180
days from the date indicated therein, and it was dishonored due to a failure to
maintain a sufficient balance, the maker, drawer or issuer shall still be liable for
violation of BP 22.

The gravamen of BP 22 is the act of issuing a worthless check of a check

that is dishonored upon its presentment for payment. The law has made the mere
act of issuing a bum check a malum prohibitum, an act proscribed by legislature
for being deemed pernicious and inimical to public welfare.

Requisites for Criminal Liability under BP 22:

(1) A person makes, draws, or issues a check as payment for account or for
value;
(2) That the check was dishonored by the bank due to lack of funds,
insufficiency of funds or account already closed;
(3) The payee or holder of such check gives a written notice of dishonor and
demand for payment; and
(4) That the maker, drawer or issuer, after receiving such notice and demand,
refuses or fails to pay the value of the check within 5 banking days.

Estafa Through Fraudulent Means

(1) Estafa by inducing another to sign any document
Elements:
(a) That the offender induced the offended party to sign a document;
(b) That deceit be employed to make him sign the document;
(c) That the offended party personally signed the document; and
(d) That prejudice be caused

Note: If the offended party willingly signed the document and there was
deceit as to the character or contents of the document, the crime committed is
falsification. But where the accused made representation as to mislead the
complainant as to the character of the documents, the crime is estafa.

(2) Estafa by resorting to some fraudulent practice to insure success in

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gambling (Art. 315 No. 3-B)

(3) Estafa by removing, concealing or destroying documents (Art. 315

No. 3-C)
Elements:
(a) That there be court record, office files, documents or any other
papers;
(b) That offender removed, concealed, or destroyed any of them; and
(c) That the offender had intent to defraud another.

If there was no intent to defraud, the crime committed is malicious mischief.

Article 316. Other forms of swindling. -

Persons Liable:
(1) Any person who, pretending to be the owner of any real property, shall convey,
sell, encumber or mortgage the same.
Elements:
(a). That the thing be immovable, such as a parcel of land or a building;
(property must actually exist);
(b) That the offender who is not the owner of said property should represent
that he is the owner thereof;
(c) That the offender should have executed an act of ownership (selling,
leasing, encumbering or mortgaging the real property); and
(d) That the act be made to the prejudice of the owner or a third person.

Note: If the thing does not exist, the crime is estafa by means of false
pretenses under Art. 315(2)(a)

2. Any person who, knowing that real property is encumbered, shall dispose of the
same, although such encumbrance be not recorded.
Elements:
(a) That the thing disposed of be real property;
(b) That the offender knew that the real property was encumbered, whether
the encumbrance is recorded or not (hence, the principle of constructive notice
does not apply);
(c) That there must be express representation by the offender that the real
property is free from encumbrance; and
(d) That the act of disposing of the real property be made to the damage of
another.

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 Note: If the thing is a personally, Art. 319 applies.

Encumbrance
Includes every right or interest in the land which exists in favor of third
persons.

(3) The owner of any personal property who shall wrongfully take it from its lawful
possessor, to the prejudice of the latter or any third person.
Elements:
(a) That the offender is the owner of personal property;
(b) That said personal property is in the lawful possession of another;
(c) That the offender wrongfully takes it from its lawful possessor (if from
unlawful possessor, ART 429 of the Civil Code applies); and
(d) That prejudice is thereby caused to the possessor or third person.

Note: The crime will still be estafa even if the owner takes the personalty
from the lawful possessor under the modes of taking in theft or robbery which
latter crimes cannot be committed by the owner on his property.

(4) Any person who, to the prejudice of another, shall execute any fictitious
contract.

(5) Any person who shall accept any compensation for services not rendered or for
labor not performed.

Note: This act requires fraud as an essential element. If there is no fraud, it only
becomes solution indebiti, with the civil obligation to return the wrong payment.

(6) Any person who shall sell, mortgage or encumber real property with which the
offender guaranteed the fulfillment of his obligation as surety.
Elements:
(a) That the offender is a surety in a bond given in a criminal or civil action;
(b) That he guaranteed the fulfillment of such obligation with his real
property or properties;
(c) That he sells, mortgages, or, in any manner encumbers said real property;
and
(d) That such sale, mortgage or encumbrance is:
i. without express authority from the court,
ii. made before the cancellation of his bond,

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 iii. before being relieved from the obligation contracted by him.

Since the penalty of fine prescribed in Art. 316 is based on the “value of the
damage caused”, mere intent to cause damage is not sufficient. There must be
actual damage caused by the act of the offender.

Article 318. Other deceits. –

Punishable Acts:
(1) Defrauding or damaging another by any other deceits not mentioned in
the preceding articles;
(2) (a) interpreting dreams, (b) making forecasts, telling fortunes, (c) taking
advantage of the credulity of the public in any other manner, for profit or gain.

Chapter Eight
ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS

Article 320. Destructive arson. -

Chapter Nine
MALICIOUS MISCHIEF

Malicious Mischief:
It is the willful damaging of another’s property for the sake of causing
damage due to hate, revenge or other evil motive.

Article 327. Who are liable for malicious mischief. -

Elements:
(1) That the offender deliberately caused damage to the property of another;
(2) That such act does not constitute arson or other crimes involving
destruction; and
(3) That the act of damaging another’s property be committed merely for the
sake of damaging it.

The third element presupposes that the offender acted due to hate, revenge or
other evil motive. This crime cannot be committed thru reckless imprudence or
thru violence in the course of a fight.

If there is no malice in causing the damage, the obligation is only civil.

Damage

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 Malicious mischief means not only loss but also a diminution of what is a
man’s own. Thus, damage to another’s house includes defacing it.

Damage of property must not result from a crime.

Malicious mischief does not necessarily involve moral turpitude.

It is theft when there is intent to gain as when after damaging the property,
the offender removes or makes uses of the fruits or objects of the damage.

Article 329. Other mischiefs. -

Other mischiefs:
They are those which are not included in the enumeration under Art. 328,
which are punished according to the value of damage caused.

EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST

PROPERTY

Article 332. Persons exempt from criminal liability. -

Crimes involved in the exemption:
1. Theft;
2. Swindling; and
3. Malicious mischief.

Persons exempted:
(1) Spouses, ascendants and descendants, or relatives by affinity on the same
line;
(2) The widowed spouse with respect to the property which belonged to the
deceased spouse before the same shall have passed to the possession of another;
(3) Brothers and sisters and brothers in law and sisters in law, if living
together; and
(4) Stepfather, adopted father, natural children, concubine, paramour are
included as ascendants by affinity.

Reason for exemption:

The law recognizes the presumed co-ownership of the property between the
offender and the offended party.

Art. 332 also applies to common-law spouses. Under Arts. 147 and 148 of
the Family Code, common law spouses are co-owners of the property.

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 No criminal liability but only civil liability shall result from the commission
of any of the said crimes.

When the exemption does not apply:

(1) In case of strangers participating in the commission of the crime.
(2) If the crimes of theft, swindling and malicious mischiefs are complexed
with another crime.

CRIMES AGAINST CHASTITY

Article 333. Who are guilty of adultery. - Adultery is committed by any married
woman who shall have sexual intercourse with a man not her husband and by the
man who has carnal knowledge of her knowing her to be married, even if the
marriage be subsequently declared void.

Adultery shall be punished by prision correccional in its medium and

maximum periods.

If the person guilty of adultery committed this offense while being

abandoned without justification by the offended spouse, the penalty next lower in
degree than that provided in the next preceding paragraph shall be imposed.

Guilty of adultery:
1. The married woman who engages in sexual intercourse with a man not her
husband; and
2. The man, who knowing of the marriage of the woman, has sexual intercourse
with her.

ELEMENTS:
1. That woman is married;
2. That she has sexual intercourse with a man not her husband; and
3. That as regards the man with whom she has sexual intercourse, he must know
her to be married.

Article 334. Concubinage. - Any husband who shall keep a mistress in the
conjugal dwelling, or shall have sexual intercourse, under scandalous
circumstances, with a woman who is not his wife, or shall cohabit with her in any

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other place, shall be punished by prision correccional in its minimum and medium
periods.

The concubine shall suffer the penalty of destierro.

3 WAYS OF COMMITTING:
1. By keeping a mistress in the conjugal home; or
2. By having sexual intercourse, under scandalous circumstances, with a woman
who is not his wife; or
3. By cohabiting with her in any other place.

LIABLE FOR CONCUBINAGE:

The married man and the woman who knows him to be married are liable for
the crime of concubinage.

ELEMENTS:
1. That the man must be married;
2. The he committed any of the following acts:
a. Keeping a mistress in conjugal dwelling (the mistress must live therein as
such);
b. Having sexual intercourse under scandalous circumstances with a woman
who is not his wife (proof of actual sexual relations not required as long as it can
be inferred); or
3. As regards to the woman, she must know him to be married.

CONJUGAL DWELLING:
The home of the husband and wife even if the wife happens to be
temporarily absent on any account.

SCANDALOUS CIRCUMSTANCE:
Any reprehensible word or deed that offends public conscience, redounds to
the detriment of the feelings of honest persons and gives occasion to the neighbors’
spiritual damage or ruin.

COHABIT:
To dwell together, in the manner of husband and wife, for some period of
time, as distinguished from occasional, transient, interviews of unlawful
intercourse.
Hence, the offense is not a single act of adultery; it is cohabiting in a state of
adultery which may be a week, a month, a year or longer.

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 ACTS OF LASCIVIOUSNESS

Article 336. Acts of lasciviousness. -

Elements:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That the act of lasciviousness is committed against a person of either sex;
(3) That it is done under any of the following circumstances:
(a) By using force or intimidation;
(b) When the offended party is deprived of reason or otherwise
unconscious; or
(c) By means of fraudulent machination or grave abuse of authority
(d) When the offended party is under 12 years of age or demented.

The crime is unjust vexation in the absence of any of the above-mentioned

circumstances.

Lewd
It is defined as obscene, lustful, indecent, lecherous, signifying that form of
immorality which has relation to moral impurity; or that which is carried on a
wanton manner.

CRIMES AGAINST THE CIVIL STATUS OF PERSONS

Article 347. Simulation of births, substitution of one child for another and
concealment or abandonment of a legitimate child. -
Punishable acts:
(1) Simulation of births.
(2) Substitution of one child for another; and
(3) Concealing or abandoning any legitimate child with intent to cause such
child to lose its civil status.

Object of the crime is the creation of false, or the causing of the loss of, civil
status.

Simulation of births
When the woman pretends to be pregnant when in fact she is not; and on the
day of the supposed delivery, takes the child of another as her own.

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 The operative act in the simulation is the registration of the child in the
registry of births as the pretending parent’s own.

The simulation is a crime which alters the civil status of person.

The woman who simulates birth and the one who furnishes the child are both
liable as principals.

Chapter Two
ILLEGAL MARRIAGES
Article 349. Bigamy. -
Elements:
(1) That the offender has been legally married;
(2) That the marriage has not been legally dissolved or, in case his or her
spouse is absent, the absent spouse could not yet be presumed dead according to
the Civil Code;
(3) That he contracts a second or subsequent marriage; and
(4) That the second or subsequent marriage has all the essential requisites for
validity.

The first marriage must be valid. If it is void or voidable, bigamy may still
be committed if there is no judicial declaration of nullity or annulment of the first
marriage.

Bigamy is a public crime, thus, its prosecution may be initiated by anyone.

A person convicted of bigamy may still be prosecuted for concubinage.

The death of the first spouse during the pendency of the bigamy case does
not extinguish the crime, because when the accused married the second spouse the
first marriage was still subsisting.

Persons liable as an accomplice:

(1) The second spouse who knew of the first marriage; or
(2) The person who vouched for the capital capacity of either of the
contracting parties.

Title Thirteen
CRIMES AGAINST HONOR

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Article 353. Definition of libel. -
Elements:
(1) That it must be malicious;
(2) That the imputation must be directed at a natural person or a juridical
person, or one who is dead;
(3) That the imputation must tend to cause the dishonor, discredit, or
contempt of the person defamed;
(4) That there must be an imputation of a crime, or a vice or defect, real or
imaginary, or any act, omission, condition, status or circumstance; and
(5) That the imputation must be made publicly.

Dishonor
It means disgrace, shame or ignominy.

Discredit
It means loss of credit or reputation; disesteem.

Contempt
It means state f being despised.

Test of defamatory imputation:

A charged is sufficient if the words are calculated to induce the hearers to
suppose and understand that the person against whom they were uttered was guilty
of certain offenses, or are sufficient to impeach the honesty, virtue or reputation, or
to hold him up to public ridicule.

In determining whether a statement is defamatory, the words used are

construed in their entirety and taken in their plain, natural and ordinary meaning as
they would naturally be understood by persons reading them, unless it appears that
they were used and understood in another sense.

An expression of opinion by one affected by the act of another and based on

actual fact is not libelous.

Imputation may cover:

(1) Crime allegedly committed by the offender party;
(2) Vice or defect, real or imaginary, of the offended party; or
(3) Any act, omission, condition, status of, or circumstances relating to the
offended party.

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Publication:
It is the communication of the defamatory matter to some third person or
persons. Thus, sending a letter containing defamatory words against another to a
third person is sufficient publication.

Article 355. Libel means by writings or similar means. -

Committed by means of:
1. Writing;
2. Printing;
3. Lithography;
4. Engraving;
5. Radio;
6. Phonograph;
7. Painting;
8. Theatrical exhibition;
9. Cinematographic exhibition; or
10.Any similar means.

Defamation through an amplifier system is slander and not libel.

If the defamatory remarks are made in the heat of passion which culminated
in a threat, the derogatory statements will not constitute an independent crime of
libel but a part of the more serious crime of threats.

Article 356. Threatening to publish and offer to present such publication for a
compensation. -
Punishable acts:
(1) Threatening another to publish a libel concerning him, or his parents,
spouse, child or other members of the family; and
(2) Offering to prevent the publication of such libel for compensation or
money consideration.

Blackmail
It is any unlawful extortion of money by threats of accusation or exposure.

It is essential that the threat to publish, or to offer to prevent the publication

of libel must be for a compensation or monetary consideration in order that it may
be penalized under this article.

Blackmail is possible in the following felonies:

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 1. Light Threats (Art. 283);
2. Threatening to publish and offer to prevent such publication for a
compensation (Art 356).

Article 358. Slander (Oral Defamation)

Kinds:
(1) Simple Slander; or
(2) Grave Slander, when it is of a serious and insulting nature.

Factors that determine the gravity of oral defamation:

(1) Expressions used;
(2) Personal relations of the accused and the offended party:
(3) Circumstances surrounding the case; and
(4) Social standing and the position of the offended party.

The slander need not be heard by the offended party.

Gossiping is considered as oral defamation if a defamatory fact is imputed or

intriguing against honor if there is no imputation.

Self-defense in slander may only be involved if his reply is made in (a) good
faith, (b) without malice, (c) is not necessarily defamatory to his assailant and (d)
is necessary for his explanation of defense.

To justify one’s hitting back, there must be a showing that he has been
libeled.

Article 359. Slander by deed. -

Slander by deed:
A crime committed by performing any act which casts dishonor, discredit or
contempt upon another person.

Elements:
(1) That the offender performs any act not included in any other crime
against honor;
(2) That such act is performed in the presence of other persons; and
(3) That such act cast dishonor, discredit, or contempt upon the offended
party.

If there is no intent to dishonor the offended party, the crime is maltreatment

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by deed under Art. 266.

Slander by deed is of two kinds:

(1) Simple slander by deed; or
(2) Grave slander by deed, that is, which is of a serious nature.

The common denominator present in unjust vexation and slander by deeds is

irritation or annoyance. Without any other concurring factor, it is only unjust
vexation; if the purpose is to shame or humiliate, the offense is slander by deed.

Slapping the face of another is slander by deed if the intention of the accused
is to cause shame and humiliation.

INCRIMINATORY MACHINATIONS

Article 363. Incriminating innocent person. -

Elements:
(1) That the offender performs an act;
(2) That by such act he directly incriminates or imputes to an innocent
person the commission of a crime; and
(3) That such act does not constitute perjury.

Article 364. Intriguing against honor. -

It is committed by any person who shall make any intrigue which has for its
principal purpose blemishing the honor or reputation of another.

This refers to such intrigues against a person’s honor or reputation which are
not otherwise punished under other articles of the RPC. It differs from defamation
in that it consists of tricky or secret plots and may be committed without using
written or spoken words which are defamatory.

Popularly known as GOSSIPING.

Title Fourteen
QUASI-OFFENSES

Sole Chapter
CRIMINAL NEGLIGENCE

Article 365. Imprudence and negligence. -

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Punishable Acts:
(1) Committing through reckless imprudence any act which, had it been
intentional, would constitute a grave or less grave felony or light felony (par. 1);

(2) Committing through simple imprudence or negligence an act which

would otherwise constitute a grave or less serious felony (par. 2);

(3) Causing damage to the property of another through reckless imprudence

or simple imprudence or negligence (par. 3) ; and

(4) By causing through simple imprudence or negligence some wrong

which, if done maliciously, would have constituted a light felony.

Reckless Imprudence:
It consists in voluntarily, but without malice, doing or failing to do an act
from which material damage results by reason of inexcusable lack of precaution on
the part of the person performing or failing to perform such act, taking into
consideration his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and place.

Elements of reckless imprudence:

1. That the offender does or fails to do an act;
2. That the doing of or the failure to do that act is voluntary;
3. That it be without malice;
4. That material damage results; and
5. That there is inexcusable lack of precaution on the part of the person
performing or failing to perform such act taking into consideration:
a. Employment or occupation;
b. Degree of intelligence, physical condition; and
c. Other circumstances regarding persons, time and place.

Test of negligence:
Would a prudent man, in the position of the person to whom negligence is
attributed, foresee harm to the person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes a duty on the actor to refrain
from that course or to take precaution against its mischievous results, and the
failure to do so constitutes negligence.

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 In order for conviction to be decreed for reckless imprudence, the material
damage suffered by the victim, the failure in precaution on the part of the accused,
and the direct link between material damage and failure in precaution must be
established beyond reasonable doubt.

Simple Imprudence:
It consists in the lack of precaution displayed in a case wherein the damage
impending to be caused is not immediate nor the danger clearly manifest.

Elements:
(1) There is lack of precaution on the part of the offender; and
(2) The damage impending to be caused is not immediate nor the
danger clearly manifest.

Art. 64 relative to mitigating and mitigating and aggravating circumstances

is not applicable to crimes committed through negligence.

There must be injury to a person/s or damage to property as a consequence

of reckless or simple imprudence.

The defense of contributory negligence does not apply in criminal cases

through reckless imprudence since one cannot allege negligence of another to
evade the effects of one’s own negligence. It only mitigates criminal liability.

Qualifying Circumstance:
Failing to lend on-the-spot help to the victims of his act of negligence raises
the penalty one degree higher.

Exception: Sec. 55 of RA 4136, the driver can leave his vehicle without
aiding the victims if:
(1) He is in imminent danger of being harmed;
(2) He wants to report to the nearest officer of the law; or
(3) He desires to summon a physical or a nurse for medical assistance to the
injured.

Doctrine of last clear chance:

The contributory negligence of the party injured will not defeat the action if
it be shown that the accused might, by the exercise of reasonable care and
prudence, have avoided the consequences of the negligence of the injured party.

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Emergency rule:
An automobile driver, who by the negligence of another and not by his own
negligence, is suddenly placed in an emergency and compelled to act instantly to
avoid a collision or injury is not guilty of negligence if he makes such a choice
which a person of ordinary prudence placed in such a position might make even
though he did not make the wisest choice.

CRIMES AGAINST FUNDAMENTAL LAW OF THE STATE

Article 124. Arbitrary detention.

Elements:
(1) That the offender is a public officer or employee;

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 (2) That he detains a person; and
(3) That the detention is without legal ground.

Detention
It is the actual confinement of a person in an enclosure or in any manner
detaining and depriving him of his liberty.

Detention need not involve physical restraint. Psychological restraint is

sufficient. If the acts and actuations of the accused can produce such fear in the
mind of the victim sufficient to paralyzed the later, to the extent that the victim is
compelled to limit his own actions and movements in accordance with the wishes
of the accused, then the victim is for all intents and purposes, detained against his
will.

Legal grounds for the detention of a person:

(1) The commission of a crime;
(2) Violent insanity; or
(3) Any other ailment requiring the compulsory confinement of the patient
in the hospital.

Note: This list is not exclusive so long as the ground is considered legal
(e.g. in contempt of court, under quarantine, or a foreigner to be deported).

The offender is a public officer or employee

The public officers liable for arbitrary detention must be vested with
authority to detain or order the detention of persons accused of a crime; such
public officers are the policemen and other agents of the law, the mayors and
barangay captains.

If the detention is perpetrated by other public officers not vested with

authority or any private individual, the crime committed is illegal detention (Art.
267 or 268)

Arbitrary detention is generally committed through arrest without a

warrant. The crime of unlawful arrest is absorbed in the crime of arbitrary
detention.

Effect when person arrested is acquitted

If the arrested persons are later found to be innocent and acquitted, the
arresting officer are not liable. But if they do not strictly comply with the said

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conditions, the arresting officers can be held liable for the crime of arbitrary
detention, for damages under Art. 32 of the Civil Code, and/or for other
administrative sanctions.

Arrest without a warrant; when lawful:

(1) In flagrante delicto – When in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an offense.

“In his presence”

When the officer sees the offense being committed, although at a distance,
or hears the disturbance created thereby and proceeds at once to the scene thereof,
or when the offense is continuing or has not been consummated at the time the
arrest is made, the offense is said to be committed in his presence.

(2) Hot pursuit – When an offense has in fact just been committed, and he
has probable cause to believe based on personal knowledge of facts and
circumstances that the person to be arrested has committed.

(3) Escapee – When the person to be arrested is a prisoner who has

escaped from a penal establishment, or place where he is serving final judgment or
temporarily confined while his case is pending; or has escaped while being
transferred within the Philippines.

(4) If a person lawfully arrested escapes or is rescued, any person may

immediately pursue or retake him without a warrant at any time and in any place
within the Philippines.

(5) For the purpose of surrendering the accused, the bondsmen may arrest
him or, upon written authority endorsed on a certified copy of the undertaking,
cause him to be arrested by a police officer or any other person of suitable age and
discretion.

(6) An accused released on bail may be re-arrested without the necessity of

a warrant if he attempts to depart from the Philippines without permission of the
court where the case is pending.

Periods of Detention Penalized:

(1) If the detention has not exceeded 3 days;
(2) If the detention has continued more than 3 days but not more than 15
days;

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 (3) If the detention has exceeded 6 months. A greater penalty is imposed if
the period is longer.

Note: Art. 124 does not fix the minimum period of detention. The arbitrary
detention may last for less than half an hour, or it may last for only one hour.

Article 125. Delay in the delivery of detained persons to the proper judicial
authorities. -
Elements:
(1) That the offender is a public officer or employee;
(2) That he has detained a person for some legal ground; and
(3) That he fails to deliver such person to the proper judicial authorities
within:
(a) 12 hours for offenses punishable by light penalties or their
equivalent;
(b) 18 hours for offenses punishable by correctional penalties or
their equivalent; or
(c) 36 hours for offenses punishable by afflictive penalties or their
equivalent.

Note: The article includes Sundays, holidays and election days in the
computation of the periods prescribed within which public officers should deliver
arrested persons to the proper judicial authorities as the law never makes such
exception.

Circumstances considered in determining liability of officer detaining a

person beyond legal period:
(1) The means of communication;
(2) The hour of arrest; and
(3) Other circumstances such as:
(a) The time of surrender;
(b) The material possibility for the fiscal to make the investigation
and file in time the necessary information; and
(c) The government office hours.

Proper Judicial Authorities

It refers to the courts of justice or judges of said courts vested with judicial
power to order the temporary detention or confinement of a person charged with
having committed a public offense.

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Reason of Art. 125
It is intended to prevent any abuse resulting from confining a person
without informing him of his offense and without permitting him to go on bail.

A private individual who makes a lawful arrest must also comply with
requirements under Art. 125. If he fails to comply, he is liable for the crime of
illegal detention (Art. 267 or 268).

Art. 125 applies only to arrests made without a warrant

If the arrest was made pursuant to a warrant, the prisoner is already
deemed in the custody of the court and the officer has only to deliver him without
unnecessary delay to the nearest police station or jail.

Moreover, the person arrested pursuant to a warrant can be detained

indefinitely, until his case is decided by the court of he posts a bail. The reason is
that there is already a complaint or information filed against him making his
delivery to the court unnecessary.

Before the complaint or information is filed, the person arrested may

request for a preliminary investigation but he must sign a waiver of Art. 125 in the
presence of counsel.

Article 126. Delaying release. –

Punishable Acts:
(1) By delaying the performance of a judicial or executive order for the
release of a prisoner;
(2) By unduly delaying the service of the notice of such order to said
prisoner; and
(3) By unduly delaying the proceedings upon any petition for the liberation
of such person.

Elements:
(1) That the offender is a public officer or employee;
(2) That there is a judicial or executive order for the release of a prisoner
or detention prisoner, or that there is a proceeding upon a petition for the liberation
of such person; and
(3) That the offender without good reason delays:
(a) The service of the notice of such order to the prisoner, or

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 (b) The performance of such judicial or executive order for the
release of the prisoner, or
(c) The proceedings upon a petition for the release of such person.

Article 128. Violation of domicile. -

Acts punishable:
(1) By entering any dwelling against the will of the owner thereof;

Dwelling – It is the place of abode where the offended party resides and
which satisfies the requirements of his domestic life.

Against the will of the owner – To constitute the violation of domicile,

the entrance by the public officer or employee must be against the will of the
owner of the dwelling which presupposes opposition or prohibition by the owner,
whether express or implied, and not merely the absence of consent.

Lack of consent would not suffice as the law requires that the offender’s
entry must be over the owner’s objection.

Note: The fact that the door was closed is an implied prohibition against
anyone from the entering the dwelling.

(2) By searching papers or other effects found therein without the

previous consent of such owner; and

Search – It refers to the examination of a person’s body, property or other

area that the person would reasonably be expected to consider as private,
conducted by a law enforcement officer for the purpose of finding evidence of a
crime. Thus, the mere fact of “looking at” cannot strictly be considered as the
search of papers or other effects.

Silence of the owner of the dwelling before and during the search, without
search warrant, by public officer, may show implied waiver.

Mere lack of consent is sufficient.

(3) By refusing to leave the premises, after having surreptitiously

entered said dwelling and after having been required to leave the same.

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 Note: What is punished is the refusal to leave, the entry having been made
surreptitiously. It is believed, however, that if the surreptitious entry had been
made through an opening not intended for that purpose, the offender would be
liable under the first mode since it is entry over the implied objection of the
inhabitant.

Although the Code speaks of the owner of the premises, it would be

sufficient if the inhabitant is the lawful occupant using the premises as his
dwelling, although he is not the owner thereof.

Elements:
(1) That the offender is a public officer or employee;
(2) That he is not authorized by judicial order to enter the dwelling and/or
to make a search for papers or other effects; and
(3) That the offender shall:
(a) Enter any dwelling against the will of the owner thereof;
(b) Search papers of other effects found therein without the
previous consent of such owner; or
(c) Refuse to leave the premises, after having surreptitiously
entered said dwelling and after having been required to leave the same.

Not authorized by judicial order

A public officer or employee is not authorized by judicial order when he is
not armed with a search warrant duly issued by the court.

If the offender is a private individual (RPC, Art. 280), or if the public

officer is one whose function does not include the duty to effect search and seizure,
the crime committed is trespass to dwelling.

Qualifying Circumstances:
(1) If committed at nighttime; or
(2) If any papers or effects not constituting evidence of a crime are not
returned immediately after a search is made by the offender.

Article 129. Search warrants maliciously obtained and abuse in the service of
those legally obtained.
Acts punishable:
(1) Procuring a search warrant without just cause; or
Elements:

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 (a) That the offender is a public officer or employee;
(b) That he procures a search warrant; and
(c) That there is no just cause.

(2) Exceeding his authority or by using unnecessary severity in the execution a

search warrant legally procured.
Elements:
(a) That the offender is a public officer or employee;
(b) That he has legally procured a search warrant;
(c) That he exceeds his authority or uses unnecessary severity in executing
the same.

Note: If in searching a house, the public officer destroys furniture therein

without any justification at all, he is guilty under Art. 129, as having used
unnecessary severity in executing the search warrant.

The officer, if refused admittance to the place of directed search after

giving notice of his purpose and authority, may break open any outer or inner door
or window of a house or any part of a house or anything therein to execute the
warrant or liberate himself or any person awfully aiding him when unlawfully
detained therein.

Search warrant
It is an order in writing issued in the name of the People of the Philippines,
signed by the judge and directed to a peace officer, commanding him to search for
personal property described therein and bring it before the court.

Requisites:
(1) It must be issued upon probable cause.

Probable Cause – It is defined as such facts and circumstances which

would lead a reasonably discreet and prudent man to believe that an offense has
been committed and that the object sought in connection with the offense are in the
place sought to be searched.

(2) The probable cause must be determined by the judge himself and not
by the applicant or any other person.
(3) In the determination of probable cause, the judge must examine, under
oath or affirmation, the complainant and such witnesses as the latter may produce;
(4) It should be issued in connection with one specific offense; and

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 (5) The warrant issued must particularly describe the place to be searched
and persons or things to be seized.

A search warrant should particularly describe the place to be searched and

the things to be seized. The evident purpose of this requirement is to limit the
things to be seized to those, and only those, particularly described in the search
warrant – to leave the officers of law with no discretion regarding what articles
they should seize, to the end that unreasonable searches and seizures may not be
committed – that abuses, may not be committed.

A search warrant shall be valid for 10 days from its date.

Test of lack of just cause

Whether the affidavit filed in support of the application for search warrant
has been drawn in such a manner that perjury could be charged thereon and affiant
can be held liable for damages caused.

If the search warrant is secured through a false affidavit, the crime

punished by this article cannot be complexed but will be a separate crime from
perjury since the penalty herein provided shall be “in addition to” the penalty of
perjury.

Warrantless searches, when valid:

(1) When there is a genuine reason to “Stop-and-Frisk” in the light of the
police officer’s experience and surrounding conditions to warrant a belief that the
person detained has weapons concealed.

(2) Inspection of buildings and other premises for the enforcement of fire,
sanitary and building regulations.

(3) Visual search at checkpoints.

(4) When right has been voluntarily waived.

(5) A person caught in flagrante delicto as an incident to a lawful arrest,

provided search contemporaneous to arrest and within permissible area of search.

A valid arrest must precede the search; the process cannot be reversed.

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 It may be made only within the permissible area of search, or the place
within the immediate control of the person being arrested.

The phrase “within the area of his immediate control” means the area from
within which he might gain possession of a weapon.

(6) Where the prohibited articles are in plain view.

Elements:
(1) There must be a prior valid intrusion based on the valid warrantless
arrest in which the police are legally present in the pursuit of their official duties;
(2) The evidence was inadvertently discovered by the police who have the
right to be where they are.
(3) The evidence must be immediately apparent (or the illegality is
apparent); and
(4) The plain view justified the mere seizure of evidence without further
search.

Note: Where the object seized was inside a closed package, the object is
not in plain view. However, if the package proclaims its contents, then the contents
are in plain view and may be seized.

(7) Searches of aircraft and vessel for violation of fishery, immigration and
customs laws.
Reason: The vessel can be quickly moved out of the locality or
jurisdiction in which the search must be sought before the warrant could be
secured.

(8) Doctrine of exigent circumstances – under such urgency and exigency

of the moment where a search warrant should be lawfully dispensed with.

Article 130. Searching domicile without witnesses. -

Elements:
(1) That the offender is a public officer or employee;
(2) That he is armed with a search warrant legally procured;
(3) That he searches the domicile, papers or other belongings of any
person; and
(4) That the owner, or any member of his family or two witnesses residing
in the same locality are not present.

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 Note: The witnesses must be of legal age and the locality refers t the same
barangay.

Search ib the presence of witnesses specified by the law is mandatory to

ensure regularity in the execution of the search warrant.

Persons who may be present during searches:

4. The house owner;
5. In his absence, any member of his family;
6. In the absence of the 2, at least 2 witnesses residing in the same
community. The obvious reason behind is to avoid incriminatory
machination or planting of evidence.

CRIMES AGAINST PUBLIC ORDER

Article 134. Rebellion or insurrection; How committed. -

Elements:
(1) There is:
(a) Public uprising; and
(b) Taking up of arms against the Government.

(2) For the purpose of:

(a) Removing from the allegiance to said Government or its laws;
(i) The territory of the Philippines, or any part thereof; or
(ii) Any body of land, naval or other armed forces; or
(b) Depriving wholly or partially, any of the powers or prerogatives of the:
(i) Chief Executive;
(ii) Congress.

Rebellion
It is more frequently used where the object of the movement is to
completely overthrow and supersede the existing government.

Insurrection
It is more commonly employed in reference to a movement which seeks
merely to effect some change of minor importance, or to prevent the exercise of
governmental authority with respect to particular matters or subjects.

Article 134-A. Coup d'etat; How committed. -

Elements:

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 (1) That the offender is a person or persons belonging to military or police
or holding any public office or employment;
(2) That it is committed by means of a swift attack, accompanied by
violence, intimidation, threat, strategy, or stealth;
(3) That the attack is directed against duly constituted authorities of the
Republic of the Philippines or any military camp, or installation, or communication
networks, public utilities or other facilities needed for the exercise and continued
possession of power; and
(4) That the purpose of the attack is to seize or diminish state power.

The crime of coup d’etat may be committed with or without civilian

participation.

Article 138. Inciting to Rebellion or Insurrection. -

Elements:
(1) That the offender does not take up arms or is not in open hostility
against the Government;
(2) That he incites others to the execution of any of the acts of rebellion;
and
(3) That the inciting is done by means of speeches, proclamations,
writings, emblems, banners or other representations tending to the same end.

Article 139. Sedition; How committed. –

Elements:
(1) That the offenders rise:
(a) Publicly; and
(b) Tumultuously;
Note: The offenders need not be private indiciduals.

(2) That they employ force, intimidation, or other means outside of legal
methods; and
(3) That the offenders employ any of those means to attain any of the
following objects:
(a) To prevent the promulgation or execution of any law or the
holding of any popular election;
(b) To prevent the government or any public officer from freely
exercising its or his functions, or prevent the execution of any Administrative
Order;
(c) To inflict any act of hate or revenge upon the person or
property of any public officer or employee;

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 (d) To commit, for any political or social end, any act of hate or
revenge against private persons or any social class; or
(e) To despoil, for any political or social end, any person,
municipality or province, or the National Government of all its property or any part
thereof.

Nature of the crime

It is a crime or dissent or protest by means outside of legal methods.

Article 138. Inciting to Sedition. -

Punishable Acts
(1) Inciting others to commit sedition by means of speeches,
proclamations, writings, emblems, cartoons, banners, or other representations
tending to the same end;
(2) Uttering seditious words or speeches which tend to disturb the public
peace;
(3) Writing, publishing, or circulating scurrilous libels against the
Government or any of its duly constituted authorities which tend to disturb public
peace; and
(4) Knowingly concealing such evil practices.

Scurrilous
It means low, vulgar, mean, or foul.

Reason why seditious utterances are prohibited:

If the State were compelled, to wait until the apprehended danger became
certain, then its right to protect itself would come into being simultaneously with
the overthrow of the Government, when there would be neither prosecuting officer
nor courts for the enforcement of the law.

Chapter Four
ASSAULT UPON, AND RESISTANCE AND DISOBEDIENCE TO,
PERSONS IN AUTHORITY AND THEIR AGENTS

Article 148. Direct assaults. -

The victim in direct assault is a person in authority (PA) or his agent (APA)

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 The victim is a person in authority or his agent, and the attack, employment
of force or intimidation is committed on the occasion of the performance of official
duties or by reason of such performance.

Two ways of committing direct assault

(1) Without public uprising, by employing force or intimidation for the
attainment of any of the purposes enumerated in defining the crimes of sedition
and rebellion;
Elements:
(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; and
(3) That there is no public uprising.

Note: The first mode is tantamount to rebellion or sedition, without the

element of public uprising.

2. Without public uprising, by attacking, by employing force or seriously

intimidating or by seriously resisting any person in authority (PA) or any of his
agents (APA), while engaged in the performance of official duties, or on the
occasion of such performance.
Elements:
(1)That the offender:
(i) Makes an Attack – includes any offensive or antagonistic
movement or action of any kind (equivalent to aggression);

(ii) Employs force;

Degree of force necessary
(a) If the victim is an APA, the violence, intimidation, or resistance
employed by the offender must be serious.
(b) If the victim is a PA, the degree of force employed against him is
immaterial as the mere laying of hands on him is sufficient.

(iii) Makes serious intimidation (unlawful coercion, duress, putting

someone in fear, exertion of an influence in the mind which must be both
immediate and serious); or

Note: The intimidation must produce its effects immediately, for if the
threats be of some future evil, the act would not be an assault.

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 (iv) Makes a serious resistance (if not serious, crime committed
may be under Art. 151 or resistance and disobedience)

The resistance must be active, not passive, because resistance here must be
grave.

Note: Intimidation or resistance must be serious whether the offended

party s a PA or APA.

(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 of his agent;
(i) Is engaged in the actual performance of official duties; or
(ii) That he is assaulted by reason of the past performance of his
official duties.

(4) That the offender knows that the one he is assaulting is a person in
authority or his agent in the exercise of his duties; and

(5) That there is no public uprising.

Considered not in the actual performance of official duties:

(1) When the PA or APA exceeds his powers or acts without authority;
(2) Unnecessary use or force or violence; or
(3) Descended to matters which are private in nature.

Two kinds of Direct Assault of the Second Form:

(1) Simple assault; and
(2) Qualified assault.

Direct assault is qualified when:

(1) Committed with a weapon;
(2) Offender is a public officer or employee; or
(3) Offender lays hands upon a person in authority.

Knowledge of the accused that the victim is a PA or APA is essential.

Evidence of motive of the offender is important when the person in

authority of his agent who is attacked or seriously intimidated is not in the actual
performance of his official duty.

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 Even when PA or APA agrees to fight, an attack made by accused
constitutes direct assault, EXCEPT when the attack is made in lawful defense; the
character of a person in authority or his agent is not laid off at will but attaches to
him until he ceases to be in office.

If direct assault is committed and as a result the PA or APA is killed, the

crime shall be the complex crime of direct assault with homicide or murder, as the
case may be.

If the direct assault is committed and the PA or APA suffers serious or less
serious physical injuries, the crime shall be a complex crime or direct assault with
serious or less serious physical injuries.

The crime of slight physical injuries is absorbed in direct assault if

committed against an APA. If committed against a PA, it will be considered as a
separate offense.

The crime of direct assault is not committed when the PA or APA is

suspended or is under suspension when he is attacked.

If the accused was also acting in the performance of his official duties, the
crime may be coercion or physical injuries.

Article 149. Indirect assaults. -

Elements:
(1) That a PA or an APA is the victim of any of the forms of direct assault
defined in Art. 148;
(2) That a person comes to the aid of the PA or APA; and

Note: The offended party in indirect assault may be a private person.

(3) That the offender makes use of force or intimidation upon such person
coming to the aid of the PA or APA.

Under Art. 149, it was formerly required that (a) direct assault is being
committed against a PA or an APA; and (b) a third party comes to the aid of the
victim by virtue of the latter’s order of request.

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 However, because of the amendment of Art. 152 by R. A. No. 1978, a
private individual coming to the aid of a PA is himself deemed an APA. Thus, the
rules are:
(1) If the victim is a PA who is the subject of a direct assault, and the 3 rd
person coming to his aid (who then becomes an APA) is likewise attacked, the
crime committed against the 3rd person will be direct assault, resistance or
disobedience depending on the degree of force or violence used by the offender.

(2) If the victim is an APA, it depends:

(a) If direct assault is being committed against the APA, the attack
rd
against the 3 party will constitute indirect assault;
(b) If only resistance or disobedience is being committed against
the agent, the attack against 3rd person is either physical injuries or coercion as the
case may be.

Article 151. Resistance and disobedience to a person in authority or the agents of

such person. –

Elements of Resistance & Serious Disobedience

(1) That a PA or his APA is engaged in the performance of official duty or
gives a lawful order to the offender;
(2) That the offender resists or seriously disobeys such person in authority or
his agent; and
(3) That the act of the offender is not included in the provisions of Arts. 148-
150

Elements of Simple Disobedience

(1) That an APA is engaged in the performance of official duty or gives a
lawful order to the offender;
(2) That the offender disobeys such APA; and
(3) That such disobedience is not of a serious nature.

The disobedience contemplated consists in the failure or refusal to obey a

direct order from the PA or APA.

In the crime of resistance and disobedience the offender must have

knowledge that the person arresting is a PA or APA.

“Shall resist or seriously disobey”

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 The word “seriously” is not used to describe resistance, because if the
offender seriously resisted a person in authority or his agent, the crime is direct
assault.

Article 152. Persons in authority and agents of persons in authority; Who shall be
deemed as such. –

Public Officer
Any person who takes part in the performance of public functions in the
government. (Art. 203)

Person in Authority
Any person directly vested with jurisdiction whether as an individual or as a
member or some court or governmental corporation, board or commission.

Agent of Person in Authority

Any person who, by direct provision of law of by election or by appointment
by competent authority, is charged with the maintenance of public order and the
protection and security of life and property.

A person in authority is one directly vested with jurisdiction

By “directly vested with jurisdiction” means the power or authority to
govern and execute the laws.

To be an agent of a person in authority, one must be charged with:

(1) The maintenance of public order; and
(2) The protection and security of life and property.

Note: Security guards are not included for they are not public officials.

Any person who comes to the aid of a person in authority may be

considered as an agent of a person in authority.

Teachers, lawyers, and heads of schools recognized by the government are

PA solely for purposes of Art. 148 and 151 and in connection with their duties.
Outside of this, they are not considered PA.

The Punong Barangay, Sangguniang Barangay members, and members of

the Lupong Tagapamayapa in each barangay shall be deemed as person in
authority in their jurisdiction.

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 PUBLIC DISORDERS

Article 155. Alarms and scandals. –

Punishable acts:
(1) Discharging any firearm, rocket, firecracker, or other explosive within
any town or public place, which produces alarm or danger;

Note the discharge of the firearm should not be directed at a person.

Otherwise, the offense committed would be Discharged of Firearms under Art.
254.

It is the result, not the intent that counts. The act must produce alarm or
danger as a consequence.

The discharge may take place within one’s own garden or yard located in
town, since the law does not distinguish as to where in town.

(2) Instigating or taking an active part in any charivari or other disorderly

meeting offensive to another or prejudicial to public tranquility;

Charivari includes a medley of discordant voices, a mock serenade of

discordant noises made on kettles, tins, horns, etc. designed to annoy or insult.

The reason for punishing instigating or taking active part in charivari and
other disorderly meeting is to prevent more serious disorders.

(3) Disturbing the public peace while wandering about at night or while
engaged in any other nocturnal amusements; and

(4) Causing any disturbance or scandal in public places while intoxicated

or otherwise, provided Art. 153 is not applicable.

Note: If the disturbance is of a serious nature, the case will fall under Art.
153.

Article 156. Delivery of prisoners from jails. -

Elements:
(1) That there is a person confined in a jail or penal establishment; and

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 (2) That the offender removes such person, or helps the escape of such
person.

Ways of Committing:
(1) By removing a prisoner confined in jail or penal institution - to take
away a person from confinement with or without the active participation of the
person released; or
2. By helping said person to escape - furnish material means to facilitate
escape.

The prisoner may be a detention prisoner or one sentenced by virtue of a

final judgment.

Liability of the prisoner who escapes:

(1) If a detention prisoner, he is not criminally liable.
(2) If a convict by final judgment, he is liable for evasion of service of his
sentence.

If the delivery of the prisoner was committed through bribery:

(1) The briber commits corruption of a public officer (Art. 212) and
delivering prisoners from jail.
(2) The jailer, if a public officer, commits infidelity in the custody of
prisoners (Art. 223) and bribery (Art. 210).
(3) The prisoner commits evasion of service of the sentence (Art. 157) if
he is already convicted by final judgment.

OTHER FALSITIES

Art. 177. Usurpation of Authority or Official Functions –

Two offenses contemplated under Art. 177:
(1) Usurpation of authority; and
(2) Usurpation of official functions.

Ways of Committing:
(1) Usurpation of Authority - by knowingly and falsely misrepresenting
oneself to be an officer, agent or representative of the Government, whether local,
national or foreign; and

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 Note: It is not necessary that he performs an act pertaining to a public
officer. The mere act of knowingly and falsely representing oneself to be an
officer, etc. is sufficient.

There must be a positive, express, and explicit representation on the part of

the offender.

(2) Usurpation of Official Functions - by performing any act pertaining to

a person in authority or public officer of the government under the pretense of
official position and without authority.

Note: It is essential that the offender should have performed an act

pertaining to a person in authority or public officer.

A usurper is “one who introduces himself into an office that is vacant, or

who without color of title, outs the incumbent and assumes to act as an officer by
expressing some of the functions of the office.

Hence, it may be violated by a public officer who unlawfully assumes a

public position without color of law.

RA 75 provides penalty for usurping authority of diplomatic, consular or

any other official of a foreign government in addition to the penalty imposed by
the RPC.

The acts performed must pertain to:

(a) The Government;
(b) To any person in authority; or
(c) To any public officer.

Art. 178. Using Fictitious Name and Concealing True Name -

Punishable Acts:
(1) Using Fictitious Name

Fictitious Name – It is any other name which a person publicly applied to himself
without authority of law.

Elements:
(1) That the offender uses a name other than his real name;
(2) That he uses that fictitious name publicly; and

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 (3) That the purpose of the offender is
a. To conceal a crime;
b. To evade the execution of a judgment; or
c. To cause damage to public interest.

Damage must be to public interest. If damage is to private interest, the

crime will be estafa under Art. 315, par. 2(a).

The signing of a fictitious name in an application for passport, is publicly

using such fictitious name.

The use of a fictitious name may be complexed with the crime of

delivering prisoners from jail as necessary means therefor, but may not be
complexed with evasion of service of sentence.

(2) Concealing True Name

Elements:
(a) That the offender conceals:
i. His true name;
ii. All other personal circumstances; and
iii. That the purpose is only to conceal his identity.

Section Two. False Testimony

False testimony
It is committed by any person who, being under oath, and required to
testify as to the truth of a certain matter at a hearing before a competent authority,
shall deny the truth or say something contrary to it.

Note: The false testimony need not influence the decision of the court. It is
sufficient that it was given with the intent to favor the accused.

Art. 180. False testimony against a defendant.

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; and
(4) That the defendant against whom the false testimony is given is either
acquitted or convicted in a final judgment.

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 Good faith is a defense.

Complainant must wait for the finality of judgment in the case where the
false testimony was given. This is so because the penalty for the violation of Art.
180 depends upon the penalty imposed by the court in the case of the defendant
against whom false testimony was given.

Art. 181. False testimony favorable to the defendant.-

False testimony is punished not because of the effect it actually produces

but because of its tendency to favor or to prejudice the defendant.

The false testimony in favor of the defendant need not directly influence
the decision of the acquittal and it need not benefit the defendant.

Art. 183. False testimony in other cases and perjury in solemn affirmations.
Perjury
It is the willful and corrupt assertion of falsehood under oath or affirmation
administered by authority of law on a material matter.

Ways of Committing Perjury:

(1) By falsely testifying under oath; or

Note: Should NOT be in a judicial proceeding.

(2) By making a false affidavit.

Elements:
(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 a 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 the falsity is required
by law.

Essential elements of proof of perjury:

(1) The statement made by the defendants must be proven false; and

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 (2) It must be proven that the defendant did not believe those statements to
be true.

Note: Knowledge by the accused of the falsity of his statement may be

proved by his admissions or by circumstantial evidence.

Oath – Any form of attestation by which a person signifies that he is bound in

conscience to perform an act faithfully and truthfully.

Affidavit – A sworn statement in writing; a declaration in writing, made upon oath

before an authorized magistrate or officer.

Material matter – The main fact which is the subject of the inquiry or any
circumstances which tends to prove that fact or any fact or circumstance which
tends to corroborate or strengthen the testimony relative to the subject of inquiry,
or which legitimately affects the credit of ant witness who testifies.

There is no perjury if sworn statement is not important, essential, or

material to the principal matter under investigation.

Proof that the accused has given contradictory testimony under oath at a
different time will not be sufficient to establish the falsity of the testimony charged
as perjury, for this would leave simply one oath of the defendants as against
another, and it would not appear that the testimony charged was false rather than
the testimony contradictory thereof. The two statements will simply neutralize each
other; there must be some corroboration of the contradictory testimony. Such
corroboration however, may be furnished by evidence aliunde tending to show
perjury independently of the declarations of testimony of the accused.

Competent person authorized to administer oath

A person who has a right to inquire into the questions presented to him
upon matters under his jurisdiction.

Art. 183 governs false testimony given in cases other than those punished
in Arts. 180-182, and in actions for perjury.

Good faith or lack of malice is a defense in perjury.

Note: Testimony must be complete.

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Assertion of falsehood must be willful and deliberate
There is no perjury through negligence or imprudence since the word
“knowingly” under Art. 183 suggests that the assertion of falsehood must be
willful and deliberate.

Two contradictory sworn statements are not sufficient to convict of

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 statement.

Subordination of perjury
It is committed by a person who knowingly and willfully procures another
to swear falsely and the witness suborned does testify under the circumstances
rendering him guilty of perjury. It is not expressly penalized in the RPC. If the act
is committed, the person who procured another to swear falsely or testify under
circumstances that would make him liable for perjury, would ne criminally liable
as principal by inducement in the crime of perjury and the person procured or
induced shall be liable as a principal by direct participation.

Art. 184. Offering false testimony in evidence. –

Elements:
(1) That the offender offered in evidence a false witness or testimony;
(2) That the offer was made in a judicial or official proceeding; and
(3) That he knew the witness or testimony was false.

Art. 148 applies when the offender knowingly presented a false witness, and
the latter testified falsely. But it does not apply when the offender induced a
witness to testify falsely. If there is inducement, Art. 180 – 183 in relation to Art. 7
par. 2 will apply.

Testimony must be complete.

If committed in a judicial proceeding, penalty is that for false testimony and

if committed in other official proceeding, the penalty is that for perjury.

CRIMES COMMITTED BY PUBLIC OFFICERS

Article 210. Direct bribery. -

Punishable acts:

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 (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;

The acceptance of the offer or promise is enough to consummate the

crime
Absent such acceptance, only the person making the offer or promise is
liable for Attempted Corruption of a Public Officer.

(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; and

The gift must be accepted by the public officer

It may be received by the public officer himself or through a third person.
Further, the gift may be money, property, services or anything else of value. It
must be capable of pecuniary estimation because the penalty for fine is based on
the value of consideration. It must have a value or be capable of pecuniary
estimation.

If the offer is not accepted by the public officer, only the person offering the
gift or present is criminally liable for attempted corruption of public officer under
Art. 212 in relation to Art. 6 The public officer is not liable.

A mere promise to give a gift and a mere promise to execute an act not
constituting a crime is NOT sufficient.

The act must be unjust.

(3) Agreeing to refrain, or by refraining, from doing something which is his

official duty to, in consideration of gift or promise.

Elements:
(1) That the offender be a public officer;
(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 received by the
public officer:
(a) With a view to committing some crime; or
(b) In consideration of the execution of an act which does not
constitute a crime, but the act must be unjust; or

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 (c) To refrain from doing something which it is his official duty to do;
and
(4) That the act which the offender agrees to perform or which he executes
be connected with the performance of his official duties.

Article 211. Indirect bribery. -

Elements:
(1) That the offender be a public officer;
(2) That he accepts gifts; and
(3) That the said gifts are offered to him by reason of his office.

There is no attempted or frustrated indirect bribery because it is committed

by accepting gifts offered to the public officer by reason of his office. If he does
not accept the gifts, he does not commit the crime. If he accepts the gifts, the crime
is consummated.

Note: P. D. No. 46 (Making it Punishable for Public Officials and Employees to

Receive and for Private Persons to Give, Gifts on any Occasion, including
Christmas) punishes:
(1) Any public official or employee who receives, directly or indirectly; and
(2) Any private person who gives, or offers to give:
Any gift, present or other valuable thing to any occasion, including
Christmas, when such gift, present or other valuable thing is given by reason of the
former’s official position, whether the same is for past favors or the giver hopes or
expects to receive a favor or better treatment in the future from the public official
or employee concerned in the discharge of his official functions.

Note: Included within the prohibition is the throwing of parties or

entertainments in honor of the official or employees or his immediate relatives.

Article 211-A. Qualified bribery. –

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; and

Note: If the crime committed is punishable by a penalty less than reclusion

perpetua, the public officer is liable under Art. 208 and direct bribery.

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 3. That the offender refrains from arresting or prosecuting the offender in
consideration of any promise, gift or present.

What qualifies the crime?

(a) Position of offender; and
(b) Nature of the crime he fails to prosecute.

Article 212. Corruption of public officials. -

Elements:
(1) That the offender makes to a public officer:
(a) Offers or promises; or
(b) Gives gifts or presents; and

(2) That the offers or promises are made or the gifts or presents given to a
public officer, under circumstances that will make the public officer liable for
direct bribery or indirect bribery.

This article is concerned with the liability of the person who shall made the
offers of promises or given the gifts to the public officer.

The crime is attempted of the offer, promise, gift or present was refused or
upon which no action was taken and consummated if accepted by the officer.

This article punishes the person who made the offer or promise or gave the
gift, even if the gift was demanded by the public officer and the offer was not made
voluntarily prior to the said demand by the public officer.

MALVERSATION OF PUBLIC FUNDS OR PROPERTY

Article 217. Malversation of public funds or property; Presumption of

malversation.
Acts punishable:
1. Appropriating public funds or property;
2. Taking or misappropriating the same;
3. Consenting, or through abandonment or negligence, permitting any other
person to take such public funds or property; and
4. Being otherwise guilty of the misappropriation or malversation of such
funds or property.

Elements to all acts of malversation in Art. 217:

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 1. That the offender be a public officer;
2. That he had 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; and
4. That he appropriated, took, misappropriated or consented, or through
abandonment or negligence, permitted another person to take them (Id).

Article 220. Illegal use of public funds or property. -

Elements:
(1) That the offender be a public officer;
(2) That such public fund or property has been appropriated by law or
ordinance;
(3) That there is a public fund or property under his administration; and
(4) That he applies the same to a public use other than that for which such
fund or property has been appropriated by law or ordinance.

Also referred to as “technical malversation”.

It is necessary that public funds or properties has been diverted to any public
use other than that provided for the law or ordnance.

Article 221. Failure to make delivery of public funds or property. -

Punishable acts:
(1) By failing to make payment by a public officer who is under obligation
to make such payment from Government funds in his possession; and
Elements:
(a) Public officer has government funds in his possession;
(b) He is under obligation to make payment from such funds; and
(c) He fails to make the payment, maliciously.

(2) By refusing to make delivery by a public officer who has been ordered
bi’ competent authority to deliver any property in his custody or under his
administration.

The refusal must be malicious and must have resulted in damage to public
interest.

INFIDELITY OF PUBLIC OFFICERS

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Article 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
or prisoner by final judgment;
3. That such prisoner escaped from his custody; and
4. That he was in connivance with the prisoner in the latter’s escape.

Connivance with the prisoner (agreement between the prisoner and the
public officer) in his escape is an indispensable element of the offense).

Article 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; and
(3) That such prisoner escaped through his negligence.

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
guard that is the gravamen of the crime of infidelity under Art. 224.

A policeman who, assigned to guard a prisoner, falls asleep, with the result
that the prisoner escapes, is guilty of negligence in the custody of a prisoner.

Article 235. Maltreatment of prisoners. -

Elements:
(1) That the offender is a public officer or employee;
(2) That he has under his charge a prisoner or detention prisoner; and
(3) That he maltreats such prisoner in either of the following manner:
(a) By overdoing himself in the correction or handling of a prisoner or
detention prisoner under his charge either:
(i) By the imposition of punishments not authorized by the
regulations or
(ii) By inflicting such punishments, those authorized, in a cruel
and humiliating manner; or
(b) By maltreating such prisoner to extort a confession or to obtain
some information from the prisoner.

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 The public officer or employee must have actual charge of the
prisoner.

To be a detention prisoner, the person arrested must be placed in a jail

even for a short while.

CRIMES AGAINST PERSONS

DESTRUCTION OF LIFE

Article 246. Parricide. -

Elements:
(1) That a person is killed;
(2) That the deceased is killed by the accused; and
(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.

It is a crime of relationship. A crime committed between people who are

related by blood, except husband and wife.

Relationship of the offender with the victim is the essential element of the
crime of parricide
Hence,
(1) If a person wanted to kill a stranger but by mistake killed his own father,
he will be held liable for parricide.

(2) A stranger who cooperates and takes part in the commission of the crime
of parricide is not guilty of parricide but only for homicide or murder, as the case
may be. The key element is parricide is the relationship of the offender with the
victim.

(3) The relationship between the offender and the victim must be alleged.
However, relationship must be considered an aggravating even if not alleged in the
information.

The spouse must be legitimate. In parricide of a spouse, the best proof of the
relationship between the accused and the deceased would be the marriage
certificate.

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Article 247. Death or physical injuries inflicted under exceptional circumstances.
-
Elements:
(1) That a legally married person or a parent surprises his spouse or his
daughter, the latter under 18 years of age and living with him in the act of
committing sexual intercourse with another person;
(2) That he or she kill any or both of them or inflicts upon any or both of
them any serious physical injury in the act or immediately thereafter; and
(3) That he has not promoted or facilitated the prostitution of his wife or
daughter, or that he or she has not consented to the infidelity of the other spouse.

The penalty of destierro is mere banishment and is intended more for the
protection of the accused than punishment.

The accused must be legally married person if the victim is his or her
spouse.

It is immaterial whether the daughter is legitimate or illegitimate, provided

she is living with the guilty parent.

Surprise
To come upon suddenly and unexpectedly.

Sexual Intercourse
Does not include preparatory acts.

The phrase “in the act of committing sexual intercourse” does not include
merely sleeping on the same bed.

“Immediately thereafter”
The discovery, the escape, the pursuit, and the killing must all form part of
one continuous act.

Justification
The law considers the spouse or parent as acting in a justified burst of
passion.

Persons who are not entitled to the benefits:

(1) Any person who shall promote the prostitution of his wife or daughter.
(2) Any person who shall facilitate the prostitution of his wife or daughter.

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 (3) Any person who shall consent to the infidelity of the other spouse.

Article 248. Murder. –

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

Qualifying Circumstances
(1) With treachery, taking advantage of superior strength, with the aid of
armed men, or employing means to weaken the defense or of means or persons to
insure or afford impunity.

(2) In consideration of a price, reward, or promise.

(3) By means of inundation, fire, poison, explosion, shipwreck, stranding of

a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by
means of motor vehicles, or with the use of any other means involving great waste
and ruin.

(4) On occasion of any of the calamities enumerated in the preceding

paragraph, or of an earthquake, eruption of a volcano, destructive cyclone,
epidemic or other public calamity.

(5) With evident premeditation.

(6) With cruelty, by deliberately and inhumanly augmenting the suffering of

the victim, or outraging or scoffing at his person or corpse.

Treachery
Test to determine whether or not treachery is present:
(1) Was the attack sudden and unexpected?
(2) Was the deceased given an opportunity to defend himself, to retaliate, to
repel the attack or to escape?
(3) Was the mode of attack consciously adapted by the accused to ensure the
commission of the crime without risk of himself?

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Note: Killing of the child of tender years is murder even if the manner of attack is
not shown.

Price, Reward, or Promise

The person who received the price or reward or who accepted a promise or
reward would not have killed the victim were it not for that price, reward or
promise. Such a person is a principal by direct participation.

The one who gave, the price or reward or who made the promise is a
principal by inducement.

Fire
There should be an actual design to kill and that the use of fire should be
purposely adopted as a means to that end.

With evident premeditation

(1) The time when the offender determined (conceived) to kill his victim;
(2) An act of the offender manifestly indicating that he clung to his
determination to kill his victim; and
(3) A sufficient lapse of time between the determination and the execution of
the killing.

Cruelty
There is cruelty when other injuries or wounds are inflicted deliberately by
the offender, which are not necessary for the killing of the victim. The victim must
be alive when the other injuries or wounds are inflicted.

Outraging
It means to commit an extremely vicious or deeply insulting act.

Scoffing
It means to jeer, and implies a showing of irreverence.

Dismemberment of a dead body is one manner of outraging or scoffing at

the corpse of the victim and qualifies the killing to murder.

Article 249. Homicide

Homicide

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 The unlawful killing of any person, which is not parricide, murder or
infanticide.

Elements:
(1) That a person is killed;
(2) That the accused killed him without any justifying circumstances;
(3) That the accused had the intention to kill, which is presumed; and
(4) That the killing was not attended by any of the qualifying circumstances
of murder, or by that of parricide or infanticide.

Intent to kill
General Rule: Intent to kill is conclusively presumed when death results.

Exception: Evidence of intent to kill is important only in attempted or

frustrated homicide.

In an attempted or frustrated homicide, the offender must have the intent to

kill the victim. If there is no intent to kill on the part of the offender, he is liable for
physical injuries.

Intent to kill is usually shown by the kind of weapon used and the location
and nature of the wound.

Accidental Homicide
It is the death of a person brought about by a lawful act performed with
proper care and skill and without homicidal intent, e. g. death in boxing. There is
no felony committed in this case.

Corpus Delicti
It means that a crime was actually perpetrated and does not refer to the body
of the murdered person.

In all crimes against persons in which the death of the victim is an element
of an offense, there must be satisfactory evidence of (1) the fact of death and (2)
the identity of the victim.

When there is no way of determining how the attack was committed,

treachery cannot be considered and the accused is guilty of homicide only.

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 There can be no crime of attempted or frustrated homicide through
imprudence. The element of intent to kill in attempted or frustrated homicide is
incompatible with negligence or imprudence.

Article 254. Discharge of firearms. –

Elements:
(1) That the offender discharges a firearm against or at another person; and
(2) That the offender has no intention to kill that person.

Note: The purpose of the offender is only to intimidate of frighten the

offended party. If the discharge of the firearm is coupled with intent to kill, the
crime is frustrated/attempted parricide, murder or homicide.

If the discharge of firearm, the offended party is hit and wounded, there is a
complex crime of discharge of firearm with serious or less serious physical
injuries; but if only slight physical injuries were inflicted, there is no complex
crime (but two separate crimes) since such physical injuries constitutes a light
felony.

The crime is discharge of firearm even if the gun was not pointed at the
offended party when it was fired, as long as it was initially aimed by the accused at
or against the offended party.

If the firearm was not aimed against or at another person, the crime
committed is Alarms and Scandals (Art. 155).

Article 255. Infanticide. -

Infanticide:
It is the killing of any child less than three days of age, whether the killer is
the parent or grandparent, any other relative of the child, or a stranger.

Elements:
(1) That a child was killed;
(2) That the deceased child was less than three days (72 hours) of age; and
(3) That the accused killed the said child.

Penalty for parricide shall be imposed where the accused is:

(1) The father or mother of the child, whether legitimate or illegitimate; or
(2) Any other legitimate ascendant of the child.

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Mitigating Circumstance:
Only the mother and the maternal grandparents of the child are entitled to
the mitigating circumstance of concealing the mother’s dishonor.

The delinquent mother who claims concealing dishonor must be of good

reputation and good morals.

Other person who kills or who cooperates with the mother or maternal
grandparent in killing a child less than 3 days old will suffer the penalty for
murder.

Treachery is inherent in infanticide.

Chapter Two
PHYSICAL INJURIES

The impression that there are only 3 type of physical injuries is not true.
There is another type separate and distinct from serious known as Mutilation under
Art. 262.

Article 262. Mutilation. -

Mutilation:
The word “mutilation” implies the lopping or the clipping off of some part
of the body.

Punishable Acts:
(1) Intentionally mutilating another by depriving him, either totally or partially, of
some essential organ for reproduction (castration).
Elements:
(a) That there be castration, that is, mutilation of organs necessary for
generation, such as penis or ovarium; and
(b) That the mutilation is caused purposely and deliberately, that is, to
deprive the offended party some essential organ for reproduction.

Note: Intentionally depriving the victim of the reproductive organ does not
necessarily involve the cutting off of the organ or any part thereof. It suffices that it
is rendered useless.

2. 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

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reproduction, to deprive him of that part of his body (mayhem).

The law looks not only to the result but also to the intention or purpose of
the act. Mutilation is always intentional.

The intention of the offender to deprive the victim of the body part whether
by castration or mayhem is essential and must thus exist in either case.

Physical Injuries Mutilation

No special intention to clip off some There is a special intention to clip off
part of the body so as to deprive the some part of the body so as to deprive
offended party of such part. him of such part.

Article 263. Serious physical injuries. -

Punishable Acts:
1. By wounding;
2. By beating;
3. By assaulting; or
4. By administering injurious substance.

(1) When the injured person shall become insane, imbecile, impotent, or blind as a
consequence of the physical injuries inflicted.

Insanity
It is evidenced by a deranged and perverted condition of the mental faculties
and is manifested in language and conduct. An insane person has no full and clear
understanding of the nature and consequence of his or her acts.

Impotence
It means inability to copulate.

Blindness must be complete; it must be of both eyes. If only one eye is blind,
the injury will be covered by subdivision no. 2.

(2) When the injured person –

(a) Losses the use of speech or the power to hear or to smell, or loses an eye,
a hand, a foot, an arm, or a leg;
(b) Loses the use of any such member; or
(c) Becomes incapacitated for the work in which he was theretofore
habitually engaged, in consequence of the physical injuries inflicted;

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 Loss of power to hear must be of both ears; if one ear only, such injury falls
under par. 3.

Loss of use of hand or incapacity for usual work must be permanent.

(3) When the person injured –

(a) Becomes deformed;

Requisites of deformity:
(i) Physical ugliness;
(ii) Permanent and definite abnormality;
(iii) Conspicuous and visible.

The injury to cause deformity is one that cannot be replaced by nature.

A scar produced by an injury constitutes deformity within the meaning of

par. 3.

(b) Loses any other member of his body;

(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.

In paragraph 2 and 3, the offended party must have a vocation or work at the
time of the injury.

(4) When the injured person becomes ill or incapacitated for labor for more than 30
days (but must not be more than 90 days), as a result of the physical injuries
inflicted.

Note: It speaks of incapacity for any kind of labor.

Work
It includes studies or preparation for a profession.

Lessening of efficiency due to injury is not incapacity.

Hospitalization for more than 30 days may mean either illness or incapacity

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for labor for more than 30 days.

If a robbery is committed and the injured person suffers that enumerated

under numbers 3 and 4, the crime/s committed is/are:
(1) Special complex crime of robbery with serious physical injuries – if the
injured person is not responsible for the robbery.
(2) Separate crimes of robbery and serious physical injuries – if the injured
person is the robber.

There must be no intent to kill; otherwise, the crime would be attempted or

frustrated homicide, parricide or murder, as the case may be.

Serious physical injuries may be committed by reckless imprudence or by

simple imprudence or negligence under Art. 365 in relation to Art. 263.

Where the category of the offense of serious physical injuries depends on the
period of illness or incapacity for labor, there must be evidence of that length of
that period; otherwise, the offense shall only be slight physical injuries.

Qualifying Circumstances:
(1) Offense committed against persons enumerated in the crime of parricide
(Art. 246); or
(2) With the attendance of circumstance which qualified the crime to murder
(Art. 263)

However, the “qualified penalties” are not applicable to parents who inflict
serious physical injuries upon their children by excessive chastisement.

Article 265. Less serious physical injuries. –

Elements:
(1) The offended party is incapacitated for labor for ten (10) days or more but
not more than thirty (30) days, or needs medical attendance for the same period;
and
(2) The physical injuries must not be those described in the preceding articles.

The law include 2 subdivisions, to wit:

(1) Inability for work; and
(2) The necessity for medical attendance.

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 Therefore, although the wound required medical attendance for only 2 days,
yet, if the injured party was prevented from attending to his ordinary labor for a
period of 29 days, the physical injuries sustained are denominated as less serious.

There must be proof as to the period of the required medical attendance. In

the absence of proof, the offense committed is only slight physical injuries.

Article 266. Slight physical injuries and maltreatment. -

Punishable Acts:
(1) Physical injuries which incapacitated the offended party from one (1) to
nine (9) days, or required medical attendance during the same period;

(2) Physical injuries which did not prevent the offended party from engaging
in his habitual work or which did not require medical attendance; and

(3) Ill-treatment of another by deed without causing any injury.

Example: Any physical violence which does not produce injury, such as
slapping the face of the offended party, without causing a dishonor.

When there is no evidence of actual injury, it is only slight physical injuries.

In the absence of evidence as to the duration of the offended party’s

incapacity for labor or medical attendance, the crime is only physical injuries.

Supervening event converting the crime into serious physical injuries after
the filing of the information for slight physical injuries can still be the subject of
amendment or of a new charge.

If physical injuries were inflicted, with the intent to insult or humiliate the
injure person, the intent to insult or humiliate shall be considered:
(1) An aggravating circumstance of ignominy in case of serious physical
injuries;
(2) In increasing the penalty and qualifying the crime in case of less serious
physical injuries; or
(3) Separate crime of slander by deed in case of slight physical injuries.

In less serious and slight physical injuries, the duration of incapacity from
labor and of medical treatment are considered. The period of incapacity and the

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medical treatment should not be more than 90 days. Otherwise, it is no longer
slight.

In serious physical injuries, incapacity from work is considered. But the

moment the incapacity from labor or work is over 30 days, it is serious; less
serious if not over 30 days.

Gravity Injury Days

Incapacity from Permanent
Serious habitual work
Ill/incapacity from Over 90 days
habitual work
Ill/incapacity from 31-90 days
labor
Less Serious Incapacity from
labor/medical 10-30 days
attendance
Slight Incapacity from
labor/medical 1-9 days
attendance

CRIMES AGAINST PERSONAL LIBERTY AND SECURITY

Article 267. Kidnapping and serious illegal detention. -

Essence of Kidnapping – The essence of the crime of kidnapping is the actual
deprivation of the victim’s liberty coupled with the intent of the accused to effect
it.

Elements:
(1) That the offender is:
(a) A private individual who is not any of the parents of the victim nor
a female;

Note: When the victim is a minor and the accused is any of the parents, the
penalty is provided for in Art. 271, par. 2.

(b) A public officer who has no duty under the law to detain a person;

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 Note: A public officer (such as a policeman) who has a duty under the law to
detain a person but does so without legal ground is liable for arbitrary detention
(Art. 124). Thus, a public officer who has no legal duty to detain a person may be
prosecuted for illegal detention and kidnapping.

(2) That he kidnaps or detains another. or in any other manner deprives the
latter of his liberty:

(3) That the act of detention or kidnapping must be illegal: and

Note: Detention is illegal when not ordered by competent authority or not

permitted by law.

(4) That in the commission of the offense, any of the following

circumstances is present:
(a) That the kidnapping or detention lasts for more than three (3) days;
(b) That it is committed simulating public 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 is a minor, female, or a public
officer.

It is not necessary that the victim be placed in an enclosure

It may consist not only in placing a person in an enclosure but also in
detaining him or depriving him in any manner of his liberty.

Victim may be taken by the accused forcibly or fraudulently

What is controlling is the act of the accused in detaining the victim against his or
her will after the offender is able to take the victim in his custody.

Although the victim initially consented to go to a place with the accused but
was thereafter prevented through force from leaving the place, there is kidnapping
and serious illegal detention.

Effective restraint of a child of tender age

The crime is committed when the offender left the child in the house of
another, where the child had freedom of locomotion but not the freedom to leave at
will because of his tender age.

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When death penalty is imposed:
(1) If the purpose is to extort ransom;
(2) When the victim is killed or dies as a consequence of the detention;
(3) When the victim is raped; or
(4) When the victim is subjected to torture or dehumanizing acts.

Effect of Republic Act No. 9346 in kidnapping for ransom

The penalty of reclusion perpetua should be imposed in the accused, without
the eligibility for parole.

Kidnap for Ransom

The essential element or act which makes the offense kidnapping is the
deprivation of an offended party’s liberty under any of the four circumstances
enumerated.

But when the kidnapping or detention was committed for the purpose of
extorting ransom, it is NOT necessary. Neither actual demand for nor payment of
ransom is necessary.

Elements of kidnapping for ransom:

(1) Intent on the part of the accused to deprive the victim if his liberty;
(2) Actual deprivation of the victim of his liberty; and
(3) Motive of the accused, which is extorting ransom for the release of the
victim.

Random
It is the money, price, or consideration paid or demanded for redemption of a
captured person or persons, a payment that releases from captivity.

There is kidnapping for ransom when kidnapping is committed to make the

obligor pay a debt
Since the accused demanded and received money as a requisite for releasing
a person from captivity, whatever other motive may be impelled them to do so, the
money is still ransom under the law.

Illegal Detention Arbitrary Detention

As to the classification
Crime against personal liberty. Crime against the fundamental law of
the State.
As to the offender

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Private individual. Public officer.
As to the manner of commission
Unlawfully kidnaps, detains or Detains a person without legal ground.
otherwise deprives a person of liberty.

Article 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 the
latter of his liberty:
(3) That the act of detention or kidnapping must be illegal; and
(4) That the crime is committed without the attendance of the circumstances
enumerated in Art. 26.

When the victim is female, the detention is under Art. 267; voluntary release
is not mitigating there.

Liability is mitigated when the following circumstances concur:

(1) Offender voluntarily releases the person so kidnapped or detained within
3 days from the commencement of the detention;
(2) Without having attained the purpose intended; and
(3) Before the institution of criminal proceedings against him.

Liability of Accomplice in Slight Illegal Detention

The same penalty of reclusion temporal shall be incurred by anyone who
shall furnish the place for the perpetration of the crime. His participation is raised
to that if real co-principal. If the crime is under Art. 267, he is a mere accomplice
unless there was conspiracy.

Article 269. Unlawful arrest. -

Elements:
(1) That the offender arrests or detains another person;
(2) That the purpose of the offender is to deliver him to the proper
authorities; and
(3) That the arrest or detention is unauthorized by law or there is no
reasonable ground therefor.

The offender is any person, whether a public officer or a private individual

However, the public officer must not be vested with the authority to arrest or
detain a person or must not act in his official capacity. Otherwise, Art. 124 is

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applicable and not Art. 269.

CRIMES AGAINST SECURITY.

Article 280. Qualified trespass to dwelling. -

Element:
(1) That the offender is a private person;
(2) That he enters the dwelling of another; and
(3) That such entrance is against the latter’s will of the owner or occupant.

Reason: To protect and preserve by law the privacy of one’s dwelling. Criminal
intent inheres in the unwelcome visit of a trespasser.

Qualifying Circumstance:
If committed by means of violence/intimidation.

Dwelling Place
Means any building or structure exclusively devoted for rest and comfort. It
is not necessary that it be the permanent dwelling of the person.

The determining factor of whether a building is a dwelling is the use to

which it is put.

In general, all members of a household must be presumed to have authority

to extend an invitation to enter the house.

To commit trespass, the entrance by the accused should be against the

presumed/implied or express prohibition of the occupant. Lack of permission does
not amount to prohibition.

There is implied prohibition when entrance is made through means not

intended for ingress.

Rule: Whoever enters the dwelling of another at late hour of the night after
the inmates have retired and closed their doors does so against their will.
Prohibition in this case is presumed.

If a person was killed after trespass by the offender, the following

crimes are committed:
(1) If there was no intent to kill when he entered – separate crimes of

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homicide or murder and qualified trespass to dwelling.
(2) If there was intent to kill when he entered – the crime of homicide or
murder with dwelling as an aggravating circumstance.

Prohibition must be existence prior to or at the time of entrance.

Prohibition is not necessary when violence or intimidation is employed by

the offender.

Violence or intimidation may be method by which one may pass the

threshold of the dwelling of another of the conduct immediately after the entrance
of the offender.

The circumstances may show that the trespasser has the intention to commit
another crime but if there is no overt act of crime intended to be done, what is
committed is only trespass to dwelling.

Trespass may be committed by the owner of a dwelling (i.e. lessor enters the
house leased to another against the latter’s will).

If the offender is a public officer or employee, the crime committee is

violation of domicile.

Cases to which the provision of this article is NOT applicable:

(1) If the entrance to another’s dwelling is made for the purpose of
preventing some serious harm to himself, the occupants of the dwelling or a third
person;
(2) If the purpose is to render some service to humanity or justice; and
(3) If the place where entrance is made is a café, tavern, inn and other public
house, while the same are open.

Note: A person who believes that a crime has been committed against him
has every right to go after the culprit and arrest him without any warrant even if in
the process he enters the house of another against the latter’s will.

Article 281. Other forms of trespass. -

Elements:
(1) That the offender enters the closed premises or the fenced estate of
another;
(2) That the entrance is made while either of them is uninhabited;

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 (3) That the prohibition to enter be manifest; and
(4) That the trespasser has not secured the permission of the owner or the
caretaker thereof.

Premises
It signifies the distinct and definite locality. It may mean a room, shop,
building or definite area, but in either case, locality is fixed.

Article 282. Grave threats. -

Punishable Acts:
(1) 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 (with condition);

Elements of Grave Threats Where the Offender Attained His Purpose:

(a) That the offender threatens another person with the infliction upon the
latter’s person, honor or property, or upon that of the latter’s family of any wrong;
(b) That such wrong amounts to a crime;
(c) That there is a demand for money or that any other condition is imposed,
even though not unlawful; and
(d) That the offender attains his purpose.

(2) By making such threat without the offender attaining his purpose (with
condition; elements for this act are the same with first except that the purpose is
not attained); and

(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 (without condition).

Elements of Grave Threats NOT Subject to a Condition:

(a) That the offender threatens another person with the infliction upon the
latter's person, honor or property, or upon that of the latter‘s family, of any wrong;
(b) That such wrong amounts to a crime;
(c) That the threat is not subject to a condition.

Note: The third form of grave threats must be serious in the sense that it is
deliberate and that the offender persists in the idea involved in his threats.

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The act threatened to be committed must be a wrong
Where the offender threatened to file a civil action against the offended
party for the latter’s refusal to pay his debt, there is no crime because the filing a
civil action in court to enforce payment of a debt is not a wrong.

Qualifying Circumstance:
If the threat was made in writing or through a middleman.

Intimidation (promise of future harm or injury whether to the person, honor, or

property of the offended party or of his family) is the essence of the crime.

The crime of threats is consummated the moment the threat comes to the
knowledge of the person threatened.

If there is another crime actually committed or the objective of the offender

is another crime, and the threat is only a means to commit it or a mere incident to
its commission, the threat is absorbed by the other crime.

When the offender demands the money or property on the spot, the crime is
not grave threats but robbery with intimidation.

Article 283. Light threats. -

Elements:
(1) That the offender makes a threat to commit a wrong;
(2) That the wrong does not constitute a crime;
(3) That there is a demand for money or that other condition is imposed even
though not unlawful; and
(4) That the offender has attained his purpose or, that he has not attained his
purpose.

Light threats are committed in the same manner as grave threats except that
the act threatened to be committed should not be a crime.

Note: Blackmailing may be punished under Art. 283.

Article 285. Other light threats. -

Punishable Acts:
(1) Threatening another with a weapon, or drawing such weapon in a
quarrel, unless it be in lawful self-defense;
(2) Orally threatening another, in the heat of anger, with some harm

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constituting a crime, without persisting in the idea involved in his threat; and
3. Orally threatening to do another any harm not constituting a felony.

If the threats are directed to a person who is absent and uttered in a

temporary fit of anger, the offense is only other light threats.

Article 286. Grave coercions. -

Elements:
(1) That a person prevented another from doing something not prohibited by
law, or by compelling 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 has no right
to do so, or in other words, that the restraint is not made under authority of law or
in the exercise of any lawful right.

Punishable Acts:
(1) Preventing another by means of violence, threats or intimidation, from
doing something not prohibited by law (preventive); and

Note: If the thing prevented from execution is prohibited by law, there will
be no coercion.

(2) Compelling another, by means of violence, threats or intimidation, to do

something against his will, whether it be right or wrong (compulsive).

Preventive
The act prevented to be done must not be prohibited by law.

Compulsive
The act compelled to be done by another against his will may or may not be
prohibited by law.

When preventing is not considered Coercion:

Under Art. 132: When a public officer prevents the ceremonies of a religious
group.

Under Art. 143: When a person prevents the

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Qualifying circumstances:
(1) If the coercion is committed in violation of the exercise of the right of
suffrage.
(2) If the coercion is committed to compel another to perform any religious
act.
(3) If the coercion is committed to prevent another from performing any
religious act.

There is no grave coercion where the accused acted in good faith in the
performance of his duty.

Coercion is always consummated even if the offended party did not accede
to the purpose of the coercion.

Article 287. Light coercions. -

Elements:
(1) That the offender must be a creditor;
(2) That he seizes anything belonging to his debtor;
(3) That the seizure of the thing be accomplished by means of violence or a
display of material force producing intimidation: and
(4) That the purpose of the offender is to apply the same to the payment of
the debt.

Unjust Vexation (Art. 287, Par. 2)

It includes any human conduct which although not productive of some
physical or material harm would, however, unjustly annoy or vex an innocent
person.

In determining whether the crime of unjust vexation is committed, the

offender’s act must have caused annoyance, irritation, vexation, torment, distress
or disturbance to the mind of the person to whom it is directed.

It is distinguished from grave and light coercions by the absence of violence.

Light coercion will be unjust vexation when the element of violence or

intimidation is absent.

CRIMES AGAINST PROPERTY

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Article 293. Who are guilty of robbery. -
Robbery:
It is the taking of personal property belonging to another, with intent to gain,
by means of violence against, or intimidation of any person, or using force upon
anything.

Classification of Robbery:
(1) Robbery with violence against, or intimidation of persons (Arts 294, 297
and 298); and
(2) Robbery by use of force upon things (Arts. 299 and 302)

Elements of robbery in general:

1. That there be personal property (bienes muebles) belonging to another;
2. That there is unlawful taking (apoderamiento or asponacion) of that
property;
3. That the taking must be with intent to gain (animus lucrandi); and
4. That there is violence against, or intimidation of, any person or force upon
things.

Personal Property
The property taken must be personal for if real property is occupied or real
right is usurped by means of violence against or intimidation of persons, the crime
is usurpation under Art. 312.

As long as the personal property does not belong to the accused who has a
valid claim thereover, it is immaterial whether said offender stole it from the
owner, a mere possessor, or even a thief of the property.

If it is the owner who forcibly takes the property from its lawful possessor,
the crime is estafa undet Art. 316 (3) since the former cannot commit robbery on
his own property even if he uses violence or intimidation.

Unlawful taking
(a) Unlawful taking means appropriating a thing belonging to another and
placing it under ones control or possession;
(b) Unlawful taking is COMPLETE when in:
(i) Robbery with violence against or intimidation of persons –
offender has already the possession of the thing even if he has no opportunity to
dispose of it.
(ii) Robbery with force upon things – the thing must be brought

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outside the building for consummated robbery to be committed.

Where the taking was lawful and the unlawful misappropriation was
subsequent to such taking, the crime is estafa or malversation.

Intent to gain
Intent to gain is presumed from the unlawful taking of personal property.

The elements of “oersonal property belonging to another” and that of “intent to

gain” must concur.
(1) If the accused, with intent to gain, took from another, personal property
which turned out to be his own property, the property not belonging to another, he
cannot be held liable for robbery; even if in the taking the accused used violence
against or intimidation of person, or force upon anything.

(2) If he took personal property from another, believing that it was his own
property, but in reality it belonged to the offended party, there being no intent to
gain, he cannot be held liable for robbery, even if the accused used violence
against or intimidation of person, or force upon things.

Violence or Intimidation
It must be present before the taking of personal property is complete. But
when the violence results in homicide, rape, intentional mutilation or any of the
serious physical injuries penalized in Par.1 and 2 of Art. 263, the taking of the
personal property is robbery complexed with any of those crimes under Art. 294,
even if the taking was already complete when the violence was used by the
offender.

Whenever violence against or intimidation of any person is used, the taking

of personal property is always robbery. If there is no violence or intimidation, but
only force upon things, the taking is robbery only if the force is used either to the
building or to break doors, wardrobes, chests, or any other kind of locked or sealed
furniture or receptacle inside the building or to force them open outside after taking
the same from the building. In the absence of this element, the crime committed is
theft.

Article 294. Robbery with violence against or intimidation of persons; Penalties. –

Punishable Acts:

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 (1) When by reason or on occasion of the robbery, the crime of homicide is
committed; (b) or when the robbery is accompanied by rape or intentional
mutilation or arson;

(2) when by reason or on occasion of the robbery, any of the physical

injuries resulting in insanity, imbecility, impotency or blindness is inflicted
(subdivision 1 of Art. 263)

(3) When by reason or on occasion of robbery, any of the physical injuries

penalized in subdivision 2 of Art. 263 is inflicted;

When the person injured –

(a) Loses the use of speech or the power to hear or to smell, or loses an eye,
a hand, a foot, an arm, or a leg;
(b) Loses the use of any such member; or
(c) Becomes incapacitated for the work in which he was therefore habitually
engaged, in consequence of the physical injuries inflicted;

(4) If the violence or intimidation employed in the commission of the

robbery is carried to a degree clearly unnecessary for the commission of the crime;
or (b) When in the course of its execution, the offender shall have inflicted upon
any person, the offender shall have inflicted upon nay person not responsible for its
commission physical injuries covered by subdivisions 3 and 4 of Art. 263.

When the person injured –

(a) Becomes deformed;
(b) Loses any other member of his body;
(c) Loses the use thereof;
(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; or
(e) When the injured person becomes ill or incapacitated for labor for more
than 30 days (but must not be more than 90 days), as a result of the physical
injuries inflicted.

(5) If the violence employed by the offender does not cause any of the
serious physical injuries defined in Art. 263, or if the offender employs
intimidation only (simple robbery).

These offenses are known as special complex crimes:

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 Crimes defined under this article are the following:
(1) Robbery with homicide;
(2) Robbery with rape;
(3) Robbery with intentional mutilation;
(4) Robbery with arson; and
(5) Robbery with serious physical injuries.

Robbery with Homicide

The term “homicide” is used in its generic sense and includes any kind of
killing, whether parricide or murder or where several persons are killed and the
name of this special complex crime shall remain as robbery with homicide. The
qualifying circumstance (e.g. treachery in murder) will only become an
aggravating circumstance.

The juridical concept of robbery with homicide does not limit the taking of
life to one single victim. All the homicides or murder are merged in the composite,
integrated whole that is robbery with homicide so long as all the killings were
perpetrated by reason or on the occasion of the robbery.

Where the offender’s intention to take personal property of the victim arises
as an afterthought, where his original intent was to kill, he is guilty of two separate
crimes of homicide or murder, as the case may be and theft.

Homicide may precede robbery or may occur after robbery. What is

essential is that the offender must have intent to take personal property before the
killing.

The phrase “by reason” covers homicide committed before or after the
taking of personal property of another, as long as the motive of the offender in
killing is to deprive the victim of his personal property which is sought to be
accomplished by eliminating an obstacle, killing a person after robbery to do away
with a witness or to defend the possession of the stolen property.

There is robbery with homicide even if the person killed was a bystander and
not the person robbed or even if he/she was one of the offenders. The law does not
require the victim of the robbery be also the victim of homicide.

Robbery with homicide exists even if the death of the victim supervened by
mere accident. It is sufficient that a homicide resulted by reason or on the occasion
of the robbery.

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 When the homicide is committed by reason of on the occasion of the
robbery, all those who took part as principals in the robbery would also be held
liable as principals of the single and indivisible felony of robbery with homicide
although they did not actually take part in the killing, unless it clearly appears that
they endeavored to prevent the same.

Robbery with Rape

In robbery with rape, the law uses the phrase “when the robbery shall have
been accompanied by rape”. But like in robbery with homicide, the offender must
have the intent to take the personal property belonging to another with intent to
gain, and such intent must precede the rape.

Robbery with rape does not cover robbery with attempted rape since what is
provided by the RPC is a special complex crime of robbery with rape. Robbery
with attempted rape cannot be complexed under Art. 48 since the one crime is not
a necessary means of committing the other nor can both be the result of a single
act.

If rape was the primary objective of the accused, and his taking of the jewels
of the victim was not with intent to gain but just to have some tokens of her
supposed consent to the coition, the accused omitted 2 distinct crimes of rape and
unjust vexation.

All the robbers may be held liable for robbery with rape even if not all of
them committed the crime of rape based on the concept of conspiracy.

Par. 1 of this article also applies even if the victim of the rape committed by
the accused was herself a member of the gang of robbers.

Note: There is no crime of robbery with multiple homicide or robbery with

multiple counts of rape under the RPC. Although there be more than one instance
of homicide/murder or rape, they shall be considered as embraced under one
special complex crime of either robbery with homicide or robbery with rape.

Neither shall the additional rape/s or homicide be considered aggravating.

Unless and until a law is passed providing that the additional rape’s (or homicide/s)
may be considered aggravating, the Court must construe the penal law in favor of
the offender as no person may be brought within its terms if he is not clearly made
so by the statute.

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Robbery with Arson
In the case of robbery with arson, it is essential that the robbery precedes the
arson. There must be an intent to commit robbery and no killing, rape or
intentional mutilation should be committed in the course of the robbery, or else,
arson will only be considered an aggravating circumstance of the crime actually
committed.

Robbery with Serious Physical Injuries

Pars. 2 and 3 of this article also apply even when the serious physical
injuries referred to therein are inflicted upon a co-robber.

Under the 4th act punishable, clause A, the violence need not result in serious
physical injuries. The first clause in Art. 294, Oar. 4 requires only that the violence
be unnecessary for the commission of the crime.

To be considered as robbery with physical injuries, the injuries inflicted

must be serious; otherwise, they shall be absorbed in the robbery. However, if the
less serious or slight physical injuries were committed after the robbery was
consummated, that would constitute a separate offense.

It is required that the physical injuries be inflicted in the course of the

execution of the robbery and that any of them was inflicted upon nay person who is
not responsible for the commission of the robbery.

Simple Robbery
Par. 5 is known as simple robbery because they only involve slight or less
serious physical injuries, which are absorbed in the crime of robbery as an element
thereof.

Violence or intimidation may enter at any time before the owner is finally
deprived of his property. This is so because asportation is a complex fact, a whole
divisible into parts, a series of acts, in the course of which personal violence or
intimidation may be injcted.

Article 298. Execution of deeds by means of violence or intimidation. -

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Elements:
(1) That the offender has intent to defraud another;
(2) That the offender compels him to sign, execute, or deliver any public
instrument or document; and
(3) That the compulsion is by means of violence or intimidation.

It applies even if the document signed, executed or delivered is a public,

private or commercial document.

Article 299. Robbery in an inhabited house or public building or edifice devoted to

worship. –
Elements: (Subdivision A)
(1) The offender entered:
(a) An inhabited house;
(b) A public building; or
(c) An edifice devoted to religious worship;
(2) The entrance was effected by any of the following:
(a) Through an opening not intended for entrance or egress;
(b) By breaking any wall, roof, floor, door, or window;
(c) By using false keys, picklocks or similar tools;
(d) By using any fictitious name or pretending the exercise of public
authority; and
(3) That once inside the building, the offender took personal property belonging to
another with intent to gain.

The accused should enter the building

One essential requisite of robbery with force upon things under Arts. 299
and 302 is that the malefactor should enter the building or dependency where the
object to be taken is found. If the culprit dis not enter the building, there would be
no robbery with force upon things. The crime is only theft.

Where the accused forced open the door without breaking it, and thereafter
personal property was taken from inside the house, the crime committed is theft
not robbery.

False keys
It includes genuine keys stolen from the owner or any keys other than those
intended by the owner for use in the lock forcibly opened by the offender.

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 Not every physical force exerted by the offender is covered by Art. 299,
hence breaking store windows to steal something but without entry, is only theft.

Elements: (Subdivision B)
(1) The offender is inside a dwelling house, public building or edifice devoted to
religious worship, regardless of the circumstances under which he entered it; and

(2) The offender takes personal property belonging to another with intent to gain
under any of the following circumstances:
(a) By the breaking of internal doors, wardrobes, chests, or any other kind of
sealed furniture or receptacle; or
Note: The term door under this subdivision refers only to doors, lids or
opening sheets of furniture or other portable receptacles – not to inside doors of
house or building.
(b) By taking such furniture or objects away to be broken open outside the
place of the robbery.

Article 300. Robbery in an uninhabited place and by a band. –

Under this article, robbery with force upon things is qualified when
committed in an uninhabited place and by a band, as distinguished from qualified
robbery with violence or intimidation of persons which is committed in an
uninhabited place or by a band.

Uninhabited place
An uninhabited place is one where there are no houses at all, a place at a
considered distance from the town, or where the houses are scattered at a great
distance from each other.

Article 301. What is an inhabited house, public building or building dedicated to

religious worship and their dependencies. –

Inhabited house
It means any shelter, ship or vessel constituting the dwelling of one or more
persons, even though the inhabitants thereof shall temporarily be absent therefrom
when the robbery is committed.

Public Building

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 It includes every building owned by the Government or belonging to a
private person, used or rented by the Government, although temporarily
unoccupied by the same.

Article 302. Robbery is an uninhabited place or in a private building. –

Elements:
(1) That the offender entered an uninhabited place or a building which was
not a dwelling house, not a public building, or not an edifice devoted to religious
worship;
(2) That any of the following circumstances was present:
(a) The entrance was effected through an opening not intended for
entrance or egress;
(b) A wall, roof, floor, or outside door or window was broken;
(c) The entrance was effected through the use of false keys, picklocks,
or other similar tools;
(d) A door, wardrobe, chest, or any sealed or closed furniture or
receptacle was broken;
(e) A closed furniture or receptable was removed, even if the same be
broken open elsewhere;

(3) That with intent to gain, the offender took therefrom personal property
belonging to another.

Building
Any kind of structure used for storage or safekeeping of personal property.

Article 303. Robbery of cereals, fruits, or firewood in an uninhabited place or

private building. –

Penalty is one (1) degree lower when cereals, fruits, or firewood are taken in
robbery with force upon things.

Cereals
Seedlings which are the immediate product of the soil.

The palay must be kept by the owner as “seedling” or taken for that purpose
by the robbers.

THEFT

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Article 308. Who are liable for theft. –
Theft
Committed by any person who, with intent to gain but without violence or
intimidation of persons nor force upon things, shall take the personal property of
another without the latter’s consent.

Elements:
(1) That there be taking of personal property;
(2) That such property belongs to another;
(3) That the taking be done with intent to gain;
(4) That the taking done without the consent of the owner; and
(5) That the taking be accomplished without the use of violence against or
intimidation of persons or force upon things.

Robbery and theft are analogous crimes involving taking with intent to gain
of personal property. The crime is robbery if committed with violence against or
intimidation upon persons or with force upon things. Otherwise, it is theft.

Theft Robbery
As to the presence of violence
The offender does not use violence There is violence or intimidation or
or intimidation or does not enter a force upon things.
house or building through any of the
means specified in Art. 299 or Art.
302 in taking personal property of
another with intent to gain.
As to the consent of the owner
It suffices that consent on the part of It is necessary that the taking is
the owner is lacking. against the will of the owner.

It is necessary to prove:
(a) The time of the seizure of the thing;
(b) That it was a lost property belonging to another;
(c) That the accused having had the opportunity to return or deliver the lost
property to its owner or to the local authorities, refrained from doing so.

The term “lost property” embraces loss by stealing.

The finder in law can also be held liable for theft under this paragraph.

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Theft is likewise committed by:
(1) Any person who, having found lost property, shall fail to deliver the
same to the local authorities or to its owner;
(2) Any person who, after having maliciously damages the property of
another, shall remove or make use of the fruits or object of the damage caused by
him; and
(3) Any person who shall enter an enclosed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its owner; shall
hunt or fish upon the same or shall gather fruits, cereals, or other forest or farm
products.
Elements:
(a) That there is an enclosed estate or a field where trespass is forbidden or
which belongs to another;
(b) That the offender enters the same;
(c) That the offender hunts or fishes upon the same or gather fruits, cereals,
or other forest or farm products in the state or field; and
(d) That the hunting or fishing or gathering of products is without the
consent of the owner.

The fishing referred to in this article is not fishing in the fishpond or fishery;
otherwise it is qualified theft under Art. 310.

Theft is not a continuing offense because in theft, the phrase used is “shall
take personal property of another”, not “shall take away such property.

From the moment the offender gained possession of the thing, even if the
culprit had no opportunity to dispose of the same, the unlawful taking is complete.

The ability of the offender to freely dispose of the property stolen is not a
constitutive element of the crime of theft. It finds no support or extension in Art.
308, whether as a descriptive or operative element of theft or as the mens rea or
actus reus of the felony.

Theft is not limited to an actual finder of lost property who does not return
or deposit it with the local authorities but includes a policemen to whom he
entrusted it and who misappropriated the same, as the latter is also a finder in law.

Theft of gas and electricity

Intangible properties such as electrical energy and gas are proper subjects of
theft. Gas or electricity are capable of appropriation by another other than, the

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owner.

Theft of electricity is also punishable under R. A. No. 7832 or the Anti-

Electricity and Electric Transmission Line/Materials Pilferage Act of 1994.

The business of providing telecommunication or telephone service is

personal property which can be the object of theft under Art. 308.

Theft of water and other similar offense are penalized under RA 8041 or the
National water Crisis Act of 1995.

There is no crime of frustrated theft

Both Dino and Flores cases fail to consider that once the offenders therein
obtained possession over the stolen items, the effect of the felony has been
produced as there has been deprivation of property.

There is no language in Art. 308 that expressly or impliedly allows than the
the “free disposition of the items stolen” is in any way determinative of whether
the crime of theft has been produced. Under the RPC, there is no crime of
frustrated theft.

There is consummated theft the moment there is asportacion or unlawful

taking or possession of personal property, no matter how momentary it may be.

Joyrides or using the car of another to learn how to drive without the consent
of its owner is taking with intent to gain.

Article 309. Penalties. -

The basis of penalty in theft is:
(1) The value of the thing stolen, and in some cases;
(2) The value and the nature of the property taken; or
(3) The circumstances or causes that impelled the culprit to commit the
crime.

Article 310. Qualified theft. -

There is qualified theft in the following instances:
(1) If theft is committed by a domestic servant;
(2) If committed with grave abuse of confidence;
(3) If the property stolen consists of coconuts taken from the premises of
plantation;

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 (4) If the property stolen is fish taken from a fishpond or fishery;
(5) If property is taken on the occasion of fire, earthquake, typhoon, volcanic
eruption, or any other calamity, vehicular accident or civil disturbance.
(6) If the property stolen is (a) motor vehicle, (b) mail matter or (c) large
cattle.

Elements:
(1) That there is taking of personal property;
(2) That said property belongs to another;
(3) That said taking be done with intent to gain;
(4) That it be done without the owner’s consent;
(5) That it be accomplished without the use of violence or intimidation
against persons, or force upon things; and
(6) That it be done with grave abuse of confidence.

The penalty for qualified theft is two degrees higher than that provided in
Art. 309.

Theft by a domestic servant is always qualified, and it is not necessary to

show that it was committed with grave abuse of confidence.

To constitute “grave abuse of confidence” in the second kind of qualified

theft, there must be allegation in the information and proof of a relation, by reason
of dependence, guardianship or vigilance between the accused and the offended
party, that has created a high degree of confidence between them, which the
accused abused.

USURPATION

Article 312. Occupation of real property or usurpation of real rights in property. –

Elements:
(1) That the offender takes possession of any real property or usurps any real
rights in property;
(2) That the real property or real rights belong to another;
(3) That violence against or intimidation of persons is used by the offender
in occupying real property or usurping real property or usurping real right in
property; and
(4) That there is intent to gain.

Punishable Acts:

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 (1) Taking possession of any real property belonging to another by means of
violence against or intimidation of persons; and
(2) Usurping any real rights in property belonging to another by means of
violence against or intimidation of persons.

There is only civil liability if there was no violence or intimidation in taking

possession.

Art. 312 does not apply when the violence or intimidation took place
subsequent to the entry. Violence or intimidation maust be the means used in
occupying real property or in usurping real rights and not in retaining possession.

The crime committed is:

(1) Coercion, it there is no intent gain
(2) Malicious Mischief, if there is no violence or intimidation used and
intent to gain.

Theft/Robbery Occupation of Real Property or

Usurpation of Real Rights in
Property
In both crimes, there is intent to gain
As to property involved
Personal property is taken. Real property or real right is
involved.
As to act involved
There is taking or asportation. There is occupation or usurpation.

Article 313. Altering boundaries or landmarks. -

Elements:
(1) That there be boundary marks or monuments of towns, provinces, or
estates, or any other marks intended to designate the boundaries of the same; and
(2) The offender alters said boundary marks.

Altering
It is understood in its general and indefinite meaning. Any alteration is
enough to constitute the material element of the crime.

Intent to gain or intent to defraud is not necessary.

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 SWINDLING AND OTHER DECEITS

Article 315. Swindling (estafa). -

Elements in general:
(1) That the accused defrauded another by abuse of confidence, or by means
of deceit;
(2) That the damage or prejudice capable of pecuniary estimation is caused
to the offended party or third persons.

Damage or prejudice may consist of:

(a) Offended party being deprived of his money or property as a result
of the defraudation;
(b) Disturbance in property rights; or
(c) Temporary prejudice.

Note: Profit or gain must be obtained by the accused personally. Mere

negligence is allowing another to benefit from the transaction is not estafa.

Ways of Committing Estafa:

(1) With unfaithfulness or abuse of confidence;
(a) With unfaithfulness;
(b) With abuse of confidence;
(c) By taking undue advantage of the signature in blank;

(2) By means of false pretenses or fraudulent acts:

(a) Using fictitious name or false pretenses and other similar deceit;
(b) By altering the quality, fineness or weight of anything pertaining to his
art or business;
(c) By pretending to have bribed any Government employee;
(d) By postdating a check or issuing a check in payment of an obligation;
(e) By obtaining food or accommodation at a hotel, etc.

(3) Through fraudulent means:

(a) By inducing another to sign any document;
(b) By resorting to some fraudulent practice to insure success in gambling;
(c) By removing, concealing or destroying documents.

Estafa with Unfaithfulness or Abuse of Confidence (Art. 315, (1))

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Estafa with Unfaithfulness:
Elements:
(1) That the offender has an onerous obligation to deliver something
of value;
(2) That he alters its substance, quantity or quality; and
(3) That damage or prejudice capable of pecuniary estimation is
caused to the offended party or third persons.

It is estafa even if the obligation be based on an immoral or illegal

consideration.

When there is no agreement as to the quality of the thing to be delivered, the

delivery of the thing not acceptable to the complainant is not estafa.

Estafa with Abuse of Confidence

Elements:
(1) That money, goods, or other personal property be received by the
offender in trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or, to return, the same;
(2) That there be misappropriation or conversion of such money or
property by the offender, or denial on his part of such receipt;
(3) That such misappropriation or conversion or denial is to the
prejudice of another; and
(4) That there be demand made by the offended party to the offender.

Money, goods or other personal property must be received by the offender

under a certain kind of transaction transferring juridical possession to him.

When the offender acquires both material and juridical possession of the
thing received:
When the thing is received by the offender from the offended party:
(i) in trust; (ii) on commission; and (iii) for administration.

The second element shows 3 ways of committing estafa with abuse of

confidence:
(1) Misappropriation of the thing received;
(2) Coversion of the thing received; or
(3) Denial of the receipt of the thing received.

Definition of Terms

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(1) Misappropriation (M) – the act of taking something for one’s benefit.

(2) Conversion (C) – the act of using or disposing of another’s property as if it

was one’s own; thing has been devoted to a purpose or use other than that agreed
upon.

(3) Material Possession (MP) – the actual physical possession of personal

properly, where the possessor cannot claim a better right to such property than that
of its owner.

(4) Juridical Possession (JP) – the possession of the personal property which
arises from a lawful causation, contract or agreement, express or implied, written
or unwritten or by virtue of a provision of law.

(a) In such a case, the possessor of the property has a better right to it than
the owner and may set up his possession thereof against the latter due to the lawful
transaction between them.

(5) Ownership (O) – there is ownership of the personal property when there is no
obligation to return exactly the same property given or lent to the possessor.

Note:
(1) If the offender has been given material possession of the personal property and
he misappropriates the same, he is liable for the crime of THEFT.
MP + M= Theft

(2) If the offender has been given juridical possession and material possession of
the personal property and he misappropriates the same, he is liable for the crime of
ESTAFA.
JP + MP + M = Estafa

(3) If the person has been given the ownership, juridical possession, and material
possession of the personal property and he misappropriates the same, he is NOT
criminally liable and incurs only a civil liability.
O + JP +MP + M = No crime

The contracts of deposit, commodatum, lease, quasi-contract of solution

indebiti and trust receipt transactions are examples of obligations involving the
duty to return or make delivery.

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 The thing to be delivered or returned by the offender must be the very object
which he received.

The person prejudiced need not necessarily be the owner of the property.

The consummation of the crime of estafa does not depend on the fact that a
request for a return of the money is first made and refused in order that the author
of the crime should comply with the obligation to return the sum misapplied.

Demand is not the element of the felony or a condition precedent to the

filing of a criminal complaint for estafa. Indeed, the accused may be convicted of
the felony under Art. 315, par. 1(b) of the RPC if the prosecution proved
misappropriation or conversion by information. In a prosecution for estafa, demand
is not necessary where there is evidence of misappropriation or conversion.

Failure to account upon the demand for funds or properly held in trust
without offering any satisfactory explanation for the inability to account is
circumstantial evidence of misappropriation.

Demand under this kind of estafa need not be formal or written.

Exceptions:
(1) When the offender’s obligation to comply is subject to a period, and
(2) When the accused cannot be located despite due diligence.

Theft and Estafa with Abuse of Confidence Distinguished

Theft Estafa with Abuse of Confidence
As to acquisition of property
The offender takes the thing without The offender receives the thing from
the owner’s consent. the offended party.
As to possession
The offender only acquires the The offender also acquires the
material or physical possession on juridical possession of the thing and
the thing. the offender misappropriates it.

Note: Estafa is committed if an object was received to be sold, but was pledged
instead.

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 Theft is committed, if an object was to be pledged, but was sold instead.

Estafa by Taking Undue Advantage of the Signature in Blank

Elements:
(a) That the paper with the signature of the offender party be in blank;
(b) That the offended party should have delivered it to the offender;
(c) That above the signature of the offended party a document is written by
the offender without authority to do so; and
(d) That the document so written creates a liability of, or causes damage to
the offended party or any third person.

Note: If the paper with the signature in blank was stolen, the crime is
falsification of documents by making it appear that he participated in a transaction
when in fact he did not.

Estafa by Means of Deceit

Elements:
(1) That there must be false pretense, fraudulent act or fraudulent means;
(2) That such false pretense, fraudulent act or fraudulent means must be
made of or executed prior to or simultaneously with the commission of the fraud;
(3) That the offended party must have relied on the false pretense, fraudulent
act, or fraudulent means, that is, he was induced to part with his money or property
because of the false pretense, fraudulent act, or fraudulent means; and
(4) That as a result thereof, the offended party suffered damage.

There is no deceit if the complainant was aware of the fictitious nature of the
pretense.

It is indispensable that the element of deceit, consisting in the false statement

or fraudulent representation of the accused, be made prior to, or at least
simultaneously with, the delivery of the thing by the complainant, if being essential
that such false statement or fraudulent representation constitutes the very cause of
the only motive which induces, the complainant to part with the thing.

Fraudulent
The acts must be characterized by, or founded on, deceit, trick or cheat.

Ways of committing estafa by means of deceit:

(1) Article 315 No. 2 (A):
(a) By using a fictitious name;

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 (b) By falsely pretending to possess;
i. Power;
ii. Influence;
iii. Qualification;
iv. Property;
v. Credit;
vi. Agency; or
vii. Business or imaginary transactions; and
(c) By means of other similar deceits.

There is use of fictitious name when a person uses a name other than his real
name. Thus, when a person found a pawnshop ticket in the name of another and,
using the name of that other person, redeemed the jewelry mentioned therein, he
committed estafa by using fictitious name.

The offender must be able to obtain something from the offended party
because of the false pretense, that is, without which the offended party would not
have parted with it.

(2) Article 315 No. 2 (B)

Committed by altering the quality, fineness or weight of anything pertaining
to his art or business.

(3) Article 315 No. 2 (C)

Committed by pretending to have bribed any Government employee.

The accused, by pretending to have bribed a government employee, can be

held further liable for such calumny in a criminal action for either slander or libel
depending on how he recounted the supposed bribery.

However, the crime committed is corruption of public officers if the money

was indeed given.

(4) Article 315 No. 2 (D)

Elements:
(a) That the offender postdated a check, or issued a check in payment of an
obligation; and
(b) That such postdating or issuing a check was done when the offender had
no funds in the bank, or his funds deposited therein were not sufficient to cover the
amount of the check.

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 To constitute estafa by postdating or issuing a check in payment of
obligation, deceit should be the efficient cause of defraudation. The act must have
been committed either prior to or simultaneous with the defraudation complained
of. Hence, a check issued in payment of a pre-existing obligation does not
constitute estafa even if there is no fund in the bank to cover the amount of the
check.

If the check was issued by the debtor only for security of the creditor, as in
the nature of promissory notes but not to be encashed, no estafa will be involved.

Good faith is a defense in a charge of estafa by postdating or issuing a

check.

Estafa by issuing a bad check is a continuing offense.

There is prima facie evidence of deceit when the drawer fails to pay or make
arrangement for payment three (3) days after receiving notice of dishonor.

The payee or person receiving the check must be damaged or prejudiced.

BATAS PAMBANSA BLG. 22

BOUNCING CHECKS LAW

Punishable Acts:
(A) Making or drawing and issuing a check knowing at the time of issue that he
does not have sufficient funds.
Elements:
(1) That a person makes or draws and issues any check to apply on account
of for value;
(2) That the person knows that he does not have sufficient funds or credit
with the drawee bank for the payment of such check upon its presentment at the
time of issue; and
(3) That the check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit, or would been dishonored for the same reason had
not the drawer, without any valid reason, ordered the bank to stop payment.

(B) Failing to keep sufficient funds to cover the full amount of the check.
Elements:
(1) That a person has sufficient funds with the drawee bank when he makes

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or draws and issues a check;
(2) That the fails to keep sufficient funds or to maintain credit to cover the
full amount if presented within a period of ninety (90) days from the date of
appearing thereon; and
(3) That the check is dishonored by the drawee bank.

Note: The 90-day period stated above is not an element of the violation of
B.P. Blg. 22 by failing to keep sufficient funds. As such, the maker, drawer or
issuer of the check is not discharged from his duty to maintain a sufficient balance
in his account for a reasonable time even beyond the 90-day period. A “reasonable
time”, according to current banking practice, is 6 months or 180 days after which
the check becomes stale.

Thus, where a check is presented beyond the 90-day period, but within 180
days from the date indicated therein, and it was dishonored due to a failure to
maintain a sufficient balance, the maker, drawer or issuer shall still be liable for
violation of BP 22.

The gravamen of BP 22 is the act of issuing a worthless check of a check

that is dishonored upon its presentment for payment. The law has made the mere
act of issuing a bum check a malum prohibitum, an act proscribed by legislature
for being deemed pernicious and inimical to public welfare.

Requisites for Criminal Liability under BP 22:

(1) A person makes, draws, or issues a check as payment for account or for
value;
(2) That the check was dishonored by the bank due to lack of funds,
insufficiency of funds or account already closed;
(3) The payee or holder of such check gives a written notice of dishonor and
demand for payment; and
(4) That the maker, drawer or issuer, after receiving such notice and demand,
refuses or fails to pay the value of the check within 5 banking days.

Estafa Through Fraudulent Means

(1) Estafa by inducing another to sign any document
Elements:
(a) That the offender induced the offended party to sign a document;
(b) That deceit be employed to make him sign the document;

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 (c) That the offended party personally signed the document; and
(d) That prejudice be caused

Note: If the offended party willingly signed the document and there was
deceit as to the character or contents of the document, the crime committed is
falsification. But where the accused made representation as to mislead the
complainant as to the character of the documents, the crime is estafa.

(2) Estafa by resorting to some fraudulent practice to insure success in

gambling (Art. 315 No. 3-B)

(3) Estafa by removing, concealing or destroying documents (Art. 315

No. 3-C)
Elements:
(a) That there be court record, office files, documents or any other
papers;
(b) That offender removed, concealed, or destroyed any of them; and
(c) That the offender had intent to defraud another.

If there was no intent to defraud, the crime committed is malicious mischief.

Article 316. Other forms of swindling. -

Persons Liable:
(1) Any person who, pretending to be the owner of any real property, shall convey,
sell, encumber or mortgage the same.
Elements:
(a). That the thing be immovable, such as a parcel of land or a building;
(property must actually exist);
(b) That the offender who is not the owner of said property should represent
that he is the owner thereof;
(c) That the offender should have executed an act of ownership (selling,
leasing, encumbering or mortgaging the real property); and
(d) That the act be made to the prejudice of the owner or a third person.

Note: If the thing does not exist, the crime is estafa by means of false
pretenses under Art. 315(2)(a)

2. Any person who, knowing that real property is encumbered, shall dispose of the
same, although such encumbrance be not recorded.

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Elements:
(a) That the thing disposed of be real property;
(b) That the offender knew that the real property was encumbered, whether
the encumbrance is recorded or not (hence, the principle of constructive notice
does not apply);
(c) That there must be express representation by the offender that the real
property is free from encumbrance; and
(d) That the act of disposing of the real property be made to the damage of
another.

Note: If the thing is a personally, Art. 319 applies.

Encumbrance
Includes every right or interest in the land which exists in favor of third
persons.

(3) The owner of any personal property who shall wrongfully take it from its lawful
possessor, to the prejudice of the latter or any third person.
Elements:
(a) That the offender is the owner of personal property;
(b) That said personal property is in the lawful possession of another;
(c) That the offender wrongfully takes it from its lawful possessor (if from
unlawful possessor, ART 429 of the Civil Code applies); and
(d) That prejudice is thereby caused to the possessor or third person.

Note: The crime will still be estafa even if the owner takes the personalty
from the lawful possessor under the modes of taking in theft or robbery which
latter crimes cannot be committed by the owner on his property.

(4) Any person who, to the prejudice of another, shall execute any fictitious
contract.

(5) Any person who shall accept any compensation for services not rendered or for
labor not performed.

Note: This act requires fraud as an essential element. If there is no fraud, it only
becomes solution indebiti, with the civil obligation to return the wrong payment.

(6) Any person who shall sell, mortgage or encumber real property with which the
offender guaranteed the fulfillment of his obligation as surety.

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Elements:
(a) That the offender is a surety in a bond given in a criminal or civil action;
(b) That he guaranteed the fulfillment of such obligation with his real
property or properties;
(c) That he sells, mortgages, or, in any manner encumbers said real property;
and
(d) That such sale, mortgage or encumbrance is:
i. without express authority from the court,
ii. made before the cancellation of his bond,
iii. before being relieved from the obligation contracted by him.

Since the penalty of fine prescribed in Art. 316 is based on the “value of the
damage caused”, mere intent to cause damage is not sufficient. There must be
actual damage caused by the act of the offender.

Article 318. Other deceits. –

Punishable Acts:
(1) Defrauding or damaging another by any other deceits not mentioned in
the preceding articles;
(2) (a) interpreting dreams, (b) making forecasts, telling fortunes, (c) taking
advantage of the credulity of the public in any other manner, for profit or gain.

Chapter Eight
ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS

Article 320. Destructive arson. -

Chapter Nine
MALICIOUS MISCHIEF

Malicious Mischief:
It is the willful damaging of another’s property for the sake of causing
damage due to hate, revenge or other evil motive.

Article 327. Who are liable for malicious mischief. -

Elements:
(1) That the offender deliberately caused damage to the property of another;
(2) That such act does not constitute arson or other crimes involving
destruction; and
(3) That the act of damaging another’s property be committed merely for the

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sake of damaging it.

The third element presupposes that the offender acted due to hate, revenge or
other evil motive. This crime cannot be committed thru reckless imprudence or
thru violence in the course of a fight.

If there is no malice in causing the damage, the obligation is only civil.

Damage
Malicious mischief means not only loss but also a diminution of what is a
man’s own. Thus, damage to another’s house includes defacing it.

Damage of property must not result from a crime.

Malicious mischief does not necessarily involve moral turpitude.

It is theft when there is intent to gain as when after damaging the property,
the offender removes or makes uses of the fruits or objects of the damage.

Article 329. Other mischiefs. -

Other mischiefs:
They are those which are not included in the enumeration under Art. 328,
which are punished according to the value of damage caused.

EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST

PROPERTY

Article 332. Persons exempt from criminal liability. -

Crimes involved in the exemption:
1. Theft;
2. Swindling; and
3. Malicious mischief.

Persons exempted:
(1) Spouses, ascendants and descendants, or relatives by affinity on the same
line;
(2) The widowed spouse with respect to the property which belonged to the
deceased spouse before the same shall have passed to the possession of another;
(3) Brothers and sisters and brothers in law and sisters in law, if living
together; and

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 (4) Stepfather, adopted father, natural children, concubine, paramour are
included as ascendants by affinity.

Reason for exemption:

The law recognizes the presumed co-ownership of the property between the
offender and the offended party.

Art. 332 also applies to common-law spouses. Under Arts. 147 and 148 of
the Family Code, common law spouses are co-owners of the property.

No criminal liability but only civil liability shall result from the commission
of any of the said crimes.

When the exemption does not apply:

(1) In case of strangers participating in the commission of the crime.
(2) If the crimes of theft, swindling and malicious mischiefs are complexed
with another crime.

CRIMES AGAINST CHASTITY

Article 333. Who are guilty of adultery. - Adultery is committed by any married
woman who shall have sexual intercourse with a man not her husband and by the
man who has carnal knowledge of her knowing her to be married, even if the
marriage be subsequently declared void.

Adultery shall be punished by prision correccional in its medium and

maximum periods.

If the person guilty of adultery committed this offense while being

abandoned without justification by the offended spouse, the penalty next lower in
degree than that provided in the next preceding paragraph shall be imposed.

Guilty of adultery:
1. The married woman who engages in sexual intercourse with a man not her
husband; and
2. The man, who knowing of the marriage of the woman, has sexual intercourse
with her.

ELEMENTS:
1. That woman is married;

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2. That she has sexual intercourse with a man not her husband; and
3. That as regards the man with whom she has sexual intercourse, he must know
her to be married.

Article 334. Concubinage. - Any husband who shall keep a mistress in the
conjugal dwelling, or shall have sexual intercourse, under scandalous
circumstances, with a woman who is not his wife, or shall cohabit with her in any
other place, shall be punished by prision correccional in its minimum and medium
periods.

The concubine shall suffer the penalty of destierro.

3 WAYS OF COMMITTING:
1. By keeping a mistress in the conjugal home; or
2. By having sexual intercourse, under scandalous circumstances, with a woman
who is not his wife; or
3. By cohabiting with her in any other place.

LIABLE FOR CONCUBINAGE:

The married man and the woman who knows him to be married are liable for
the crime of concubinage.

ELEMENTS:
1. That the man must be married;
2. The he committed any of the following acts:
a. Keeping a mistress in conjugal dwelling (the mistress must live therein as
such);
b. Having sexual intercourse under scandalous circumstances with a woman
who is not his wife (proof of actual sexual relations not required as long as it can
be inferred); or
3. As regards to the woman, she must know him to be married.

CONJUGAL DWELLING:
The home of the husband and wife even if the wife happens to be
temporarily absent on any account.

SCANDALOUS CIRCUMSTANCE:

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 Any reprehensible word or deed that offends public conscience, redounds to
the detriment of the feelings of honest persons and gives occasion to the neighbors’
spiritual damage or ruin.

COHABIT:
To dwell together, in the manner of husband and wife, for some period of
time, as distinguished from occasional, transient, interviews of unlawful
intercourse.
Hence, the offense is not a single act of adultery; it is cohabiting in a state of
adultery which may be a week, a month, a year or longer.

ACTS OF LASCIVIOUSNESS

Article 336. Acts of lasciviousness. -

Elements:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That the act of lasciviousness is committed against a person of either sex;
(3) That it is done under any of the following circumstances:
(a) By using force or intimidation;
(b) When the offended party is deprived of reason or otherwise
unconscious; or
(c) By means of fraudulent machination or grave abuse of authority
(d) When the offended party is under 12 years of age or demented.

The crime is unjust vexation in the absence of any of the above-mentioned

circumstances.

Lewd
It is defined as obscene, lustful, indecent, lecherous, signifying that form of
immorality which has relation to moral impurity; or that which is carried on a
wanton manner.

CRIMES AGAINST THE CIVIL STATUS OF PERSONS

Article 347. Simulation of births, substitution of one child for another and
concealment or abandonment of a legitimate child. -
Punishable acts:
(1) Simulation of births.
(2) Substitution of one child for another; and

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 (3) Concealing or abandoning any legitimate child with intent to cause such
child to lose its civil status.

Object of the crime is the creation of false, or the causing of the loss of, civil
status.

Simulation of births
When the woman pretends to be pregnant when in fact she is not; and on the
day of the supposed delivery, takes the child of another as her own.

The operative act in the simulation is the registration of the child in the
registry of births as the pretending parent’s own.

The simulation is a crime which alters the civil status of person.

The woman who simulates birth and the one who furnishes the child are both
liable as principals.

Chapter Two
ILLEGAL MARRIAGES
Article 349. Bigamy. -
Elements:
(1) That the offender has been legally married;
(2) That the marriage has not been legally dissolved or, in case his or her
spouse is absent, the absent spouse could not yet be presumed dead according to
the Civil Code;
(3) That he contracts a second or subsequent marriage; and
(4) That the second or subsequent marriage has all the essential requisites for
validity.

The first marriage must be valid. If it is void or voidable, bigamy may still
be committed if there is no judicial declaration of nullity or annulment of the first
marriage.

Bigamy is a public crime, thus, its prosecution may be initiated by anyone.

A person convicted of bigamy may still be prosecuted for concubinage.

The death of the first spouse during the pendency of the bigamy case does
not extinguish the crime, because when the accused married the second spouse the

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first marriage was still subsisting.

Persons liable as an accomplice:

(1) The second spouse who knew of the first marriage; or
(2) The person who vouched for the capital capacity of either of the
contracting parties.

Title Thirteen
CRIMES AGAINST HONOR

Article 353. Definition of libel. -

Elements:
(1) That it must be malicious;
(2) That the imputation must be directed at a natural person or a juridical
person, or one who is dead;
(3) That the imputation must tend to cause the dishonor, discredit, or
contempt of the person defamed;
(4) That there must be an imputation of a crime, or a vice or defect, real or
imaginary, or any act, omission, condition, status or circumstance; and
(5) That the imputation must be made publicly.

Dishonor
It means disgrace, shame or ignominy.

Discredit
It means loss of credit or reputation; disesteem.

Contempt
It means state f being despised.

Test of defamatory imputation:

A charged is sufficient if the words are calculated to induce the hearers to
suppose and understand that the person against whom they were uttered was guilty
of certain offenses, or are sufficient to impeach the honesty, virtue or reputation, or
to hold him up to public ridicule.

In determining whether a statement is defamatory, the words used are

construed in their entirety and taken in their plain, natural and ordinary meaning as
they would naturally be understood by persons reading them, unless it appears that
they were used and understood in another sense.

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 An expression of opinion by one affected by the act of another and based on
actual fact is not libelous.

Imputation may cover:

(1) Crime allegedly committed by the offender party;
(2) Vice or defect, real or imaginary, of the offended party; or
(3) Any act, omission, condition, status of, or circumstances relating to the
offended party.

Publication:
It is the communication of the defamatory matter to some third person or
persons. Thus, sending a letter containing defamatory words against another to a
third person is sufficient publication.

Article 355. Libel means by writings or similar means. -

Committed by means of:
1. Writing;
2. Printing;
3. Lithography;
4. Engraving;
5. Radio;
6. Phonograph;
7. Painting;
8. Theatrical exhibition;
9. Cinematographic exhibition; or
10.Any similar means.

Defamation through an amplifier system is slander and not libel.

If the defamatory remarks are made in the heat of passion which culminated
in a threat, the derogatory statements will not constitute an independent crime of
libel but a part of the more serious crime of threats.

Article 356. Threatening to publish and offer to present such publication for a
compensation. -
Punishable acts:
(1) Threatening another to publish a libel concerning him, or his parents,
spouse, child or other members of the family; and
(2) Offering to prevent the publication of such libel for compensation or

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money consideration.

Blackmail
It is any unlawful extortion of money by threats of accusation or exposure.

It is essential that the threat to publish, or to offer to prevent the publication

of libel must be for a compensation or monetary consideration in order that it may
be penalized under this article.

Blackmail is possible in the following felonies:

1. Light Threats (Art. 283);
2. Threatening to publish and offer to prevent such publication for a
compensation (Art 356).

Article 358. Slander (Oral Defamation)

Kinds:
(1) Simple Slander; or
(2) Grave Slander, when it is of a serious and insulting nature.

Factors that determine the gravity of oral defamation:

(1) Expressions used;
(2) Personal relations of the accused and the offended party:
(3) Circumstances surrounding the case; and
(4) Social standing and the position of the offended party.

The slander need not be heard by the offended party.

Gossiping is considered as oral defamation if a defamatory fact is imputed or

intriguing against honor if there is no imputation.

Self-defense in slander may only be involved if his reply is made in (a) good
faith, (b) without malice, (c) is not necessarily defamatory to his assailant and (d)
is necessary for his explanation of defense.

To justify one’s hitting back, there must be a showing that he has been
libeled.

Article 359. Slander by deed. -

Slander by deed:
A crime committed by performing any act which casts dishonor, discredit or

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contempt upon another person.

Elements:
(1) That the offender performs any act not included in any other crime
against honor;
(2) That such act is performed in the presence of other persons; and
(3) That such act cast dishonor, discredit, or contempt upon the offended
party.

If there is no intent to dishonor the offended party, the crime is maltreatment

by deed under Art. 266.

Slander by deed is of two kinds:

(1) Simple slander by deed; or
(2) Grave slander by deed, that is, which is of a serious nature.

The common denominator present in unjust vexation and slander by deeds is

irritation or annoyance. Without any other concurring factor, it is only unjust
vexation; if the purpose is to shame or humiliate, the offense is slander by deed.

Slapping the face of another is slander by deed if the intention of the accused
is to cause shame and humiliation.

INCRIMINATORY MACHINATIONS

Article 363. Incriminating innocent person. -

Elements:
(1) That the offender performs an act;
(2) That by such act he directly incriminates or imputes to an innocent
person the commission of a crime; and
(3) That such act does not constitute perjury.

Article 364. Intriguing against honor. -

It is committed by any person who shall make any intrigue which has for its
principal purpose blemishing the honor or reputation of another.

This refers to such intrigues against a person’s honor or reputation which are
not otherwise punished under other articles of the RPC. It differs from defamation
in that it consists of tricky or secret plots and may be committed without using
written or spoken words which are defamatory.

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Popularly known as GOSSIPING.

Title Fourteen
QUASI-OFFENSES

Sole Chapter
CRIMINAL NEGLIGENCE

Article 365. Imprudence and negligence. -

Punishable Acts:
(1) Committing through reckless imprudence any act which, had it been
intentional, would constitute a grave or less grave felony or light felony (par. 1);

(2) Committing through simple imprudence or negligence an act which

would otherwise constitute a grave or less serious felony (par. 2);

(3) Causing damage to the property of another through reckless imprudence

or simple imprudence or negligence (par. 3) ; and

(4) By causing through simple imprudence or negligence some wrong

which, if done maliciously, would have constituted a light felony.

Reckless Imprudence:
It consists in voluntarily, but without malice, doing or failing to do an act
from which material damage results by reason of inexcusable lack of precaution on
the part of the person performing or failing to perform such act, taking into
consideration his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and place.

Elements of reckless imprudence:

1. That the offender does or fails to do an act;
2. That the doing of or the failure to do that act is voluntary;
3. That it be without malice;
4. That material damage results; and
5. That there is inexcusable lack of precaution on the part of the person
performing or failing to perform such act taking into consideration:
a. Employment or occupation;

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 b. Degree of intelligence, physical condition; and
c. Other circumstances regarding persons, time and place.

Test of negligence:
Would a prudent man, in the position of the person to whom negligence is
attributed, foresee harm to the person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes a duty on the actor to refrain
from that course or to take precaution against its mischievous results, and the
failure to do so constitutes negligence.

In order for conviction to be decreed for reckless imprudence, the material

damage suffered by the victim, the failure in precaution on the part of the accused,
and the direct link between material damage and failure in precaution must be
established beyond reasonable doubt.

Simple Imprudence:
It consists in the lack of precaution displayed in a case wherein the damage
impending to be caused is not immediate nor the danger clearly manifest.

Elements:
(1) There is lack of precaution on the part of the offender; and
(2) The damage impending to be caused is not immediate nor the
danger clearly manifest.

Art. 64 relative to mitigating and mitigating and aggravating circumstances

is not applicable to crimes committed through negligence.

There must be injury to a person/s or damage to property as a consequence

of reckless or simple imprudence.

The defense of contributory negligence does not apply in criminal cases

through reckless imprudence since one cannot allege negligence of another to
evade the effects of one’s own negligence. It only mitigates criminal liability.

Qualifying Circumstance:
Failing to lend on-the-spot help to the victims of his act of negligence raises
the penalty one degree higher.

Exception: Sec. 55 of RA 4136, the driver can leave his vehicle without
aiding the victims if:

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 (1) He is in imminent danger of being harmed;
(2) He wants to report to the nearest officer of the law; or
(3) He desires to summon a physical or a nurse for medical assistance to the
injured.

Doctrine of last clear chance:

The contributory negligence of the party injured will not defeat the action if
it be shown that the accused might, by the exercise of reasonable care and
prudence, have avoided the consequences of the negligence of the injured party.

Emergency rule:
An automobile driver, who by the negligence of another and not by his own
negligence, is suddenly placed in an emergency and compelled to act instantly to
avoid a collision or injury is not guilty of negligence if he makes such a choice
which a person of ordinary prudence placed in such a position might make even
though he did not make the wisest choice.

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